J. S62037/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ANTHONY JACKSON, : No. 2930 EDA 2017

:

 Appellant :

Appeal from the PCRA Order, August 11, 2017,

in the Court of Common Pleas of Philadelphia County

Criminal Division at Nos. CP-51-CR-0014203-2007,

CP-51-CR-0014205-2007, CP-51-CR-0014206-2007

BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 02, 2018

Anthony Jackson appeals, pro se, from the August 11, 2017 order 

denying appellant’s third petition filed pursuant to the Post Conviction Relief 

Act (“PCRA”)1 entered by the Court of Common Pleas of Philadelphia County.

Appellant was convicted of one count each of attempted murder, carrying a 

firearm without a license, possessing an instrument of crime, recklessly 

endangering another person, and two counts each of aggravated assault and 

criminal conspiracy.2 After careful review, we affirm.

 

1 42 Pa.C.S.A. §§ 9541-9546.

2 18 Pa.C.S.A. §§ 901(a), 6106(a), 907(a), 2705, 2702(a), and 903(a), 

respectively.
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The relevant procedural history of this case is as follows: On 

August 15, 2008, a jury convicted appellant of the above-referenced crimes. 

The trial court sentenced appellant to an aggregate term of 15-30 years’ 

imprisonment. Following sentencing, appellant filed a post-sentence motion 

which the trial court denied on November 20, 2008.

On June 2, 2009, appellant filed a petition pursuant to the PCRA. The 

PCRA court granted appellant’s petition on December 18, 2009, and 

reinstated appellant’s direct appellate rights. Appellant filed a timely notice 

of appeal from the judgment of sentence, which this court affirmed on 

January 19, 2011. Commonwealth v. Jackson, 23 A.3d 1084 (Pa.Super. 

2011) (unpublished memorandum). Our supreme court denied appellant’s 

petition for allowance of appeal on August 30, 2011. Commonwealth v. 

Jackson, 27 A.3d 223 (Pa. 2011). Appellant did not file a writ of certiorari

with the Supreme Court of the United States.

On August 9, 2012, appellant filed his first petition pursuant to the 

PCRA.3 The PCRA court dismissed appellant’s petition on December 16, 

2013. This court affirmed the PCRA court’s order on April 24, 2015. 

Commonwealth v. Jackson, 121 A.3d 1140 (Pa.Super. 2015) 

 

3

In cases where a defendant’s first PCRA petition results in the 

reinstatement of direct appellate rights, a subsequently filed PCRA petition is 

treated as a “first petition.” Commonwealth v. Vega, 754 A.2d 714, 

716 n.3 (Pa.Super. 2000), citing Commonwealth v. Priovolos, 746 A.2d 

621, 624 (Pa.Super. 2000), appeal denied, 758 A.2d 1198 (Pa. 2000); 

Commonwealth v. Lewis, 718 A.2d 1262, 1263-1264 (Pa.Super. 1998), 

appeal denied, 737 A.2d 1224 (Pa. 1999).
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(unpublished memorandum). Appellant filed a second PCRA petition on 

June 17, 2015, which the PCRA dismissed on August 11, 2016. This court 

affirmed the PCRA court’s order on September 7, 2016. Commonwealth v. 

Jackson, 158 A.3d 168 (Pa.Super. 2016) (unpublished memorandum).

Appellant filed a post-sentence motion to modify his sentence on 

August 4, 2017, on the grounds that the PCRA court entered an illegal 

judgment of sentence. The PCRA court treated appellant’s motion as a PCRA 

petition and denied the petition on August 11, 2017. On September 1, 

2017, appellant filed a notice of appeal to this court. The PCRA court 

ordered appellant to file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b) on September 11, 2017, and appellant 

timely complied on September 13, 2017. On November 17, 2017, the PCRA

court filed an opinion pursuant to Pa.R.A.P. 1925(a).

Because appellant labeled his appeal as an appeal from a denial of a 

post-sentence motion, this court issued an order on November 17, 2017,

directing appellant to show cause why his appeal should not be quashed as 

untimely. Appellant complied with this court’s order, filing a response on 

December 4, 2017. On December 11, 2017, this court issued a per curiam

order deferring the issue of the timeliness of appellant’s appeal to this panel.

Appellant raises the following issue for our review:

Whether the sentencing court has committed an 

error of law in finding that [appellant’s] pro se 

motion for reconsideration and modification of 

sentence was untimely, and therefore, could not be 
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considered[?] The court maintains the inherent 

power to correct or modify a clear and patent error 

in it’s [sic] sentence. The failure to merge 

[appellant’s] sentence is a clear and patent error.

Appellant’s brief at 4.

Appellant framed the petition currently before us as a denial of a

post-sentence motion and a direct appeal therefrom, where such an appeal 

would be patently untimely. However, the PCRA court correctly treated this 

motion as appellant’s third petition pursuant to the PCRA. Indeed, the PCRA 

provides that “persons serving illegal sentences may obtain collateral relief.” 

42 Pa.C.S.A. § 9542. A petition filed under the PCRA is the “sole means of 

obtaining collateral relief[.]” Id., see also Commonwealth v. Jackson, 

30 A.3d 516, 518 (Pa.Super. 2011). Here, because appellant is raising 

issues pertaining to the legality of his sentence, his post-sentence motion 

must be treated as a petition pursuant to the PCRA.

Subsequent PCRA petitions beyond a petitioner’s first petition are 

subject to the following standard:

A second or subsequent petition for post-conviction 

relief will not be entertained unless a strong 

prima facie showing is offered to demonstrate that 

a miscarriage of justice may have occurred. 

Commonwealth v. Allen, 732 A.2d 582, 586 (Pa. 

1999). A prima facie showing of entitlement to 

relief is made only by demonstrating either that the 

proceedings which resulted in conviction were so 

unfair that a miscarriage of justice occurred which no 

civilized society could tolerate, or the defendant’s 

innocence of the crimes for which he was charged. 

Id. at 586. Our standard of review for an order 

denying post-conviction relief is limited to whether
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the trial court’s determination is supported by 

evidence of record and whether it is free of legal 

error. Commonwealth v. Jermyn, 709 A.2d 849, 

856 (Pa. 1998).

A PCRA petition, including a second or subsequent 

petition, must be filed within one year of the date 

that judgment of sentence becomes final. 42 

Pa.C.S.[A.] § 9545(b)(1). A judgment becomes final 

for purposes of the PCRA “at the conclusion of direct 

review, including discretionary review in the 

Supreme Court of the United States and the 

Supreme Court of Pennsylvania, or the expiration of 

time for seeking the review.” 42 Pa.C.S.[A.]

§ 9543(b)(3). PCRA time limits are jurisdictional in 

nature, implicating a court’s very power to 

adjudicate a controversy. Commonwealth v. Fahy, 

737 A.2d 214 (Pa. 1999). Accordingly, the “period 

for filing a PCRA petition can be extended only if the 

PCRA permits it to be extended, i.e., by operation of 

one of the statutorily enumerated exceptions to the 

PCRA time bar. Id. at 222.

Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied, 

135 S.Ct. 707 (2014). We must first determine whether the PCRA court 

correctly dismissed appellant’s PCRA petition as untimely.

In the case at bar, our supreme court denied appellant’s petition for 

allowance of appeal on August 30, 2011. Appellant did not file a writ of 

certiorari to the Supreme Court of the United States. Accordingly, 

appellant’s judgment of sentence became final on November 28, 2011. 

Appellant filed the PCRA petition styled as a post-sentence motion at issue 

on August 4, 2017—more than five years after his judgment of sentence 

became final and more than four years after a PCRA petition could be 

considered timely. See 42 Pa.C.S.A. § 9545(b)(1).
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As noted above, the PCRA does enumerate exceptions to the one-year 

requirement. A petitioner may file a petition under the PCRA after one year 

has passed from the final judgment of sentence for any of the following 

reasons:

(i) the failure to raise the claim previously was the 

result of interference by government officials 

with the presentation of the claim in violation 

of the Constitution or laws of this 

Commonwealth or the Constitution or laws of 

the United States;

(ii) the facts upon which the claim is predicated 

were unknown to the petitioner and could not 

have been ascertained by the exercise of due 

diligence; or

(iii) the right asserted is a constitutional right that 

was recognized by the Supreme Court of the 

United States or the Supreme Court of 

Pennsylvania after the time period provided in 

this section and has been held by that court to 

apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Section 9545 also mandates that any 

petition filed under these exceptions must be filed within 60 days of the date 

the claim could have been presented. Id. at § 9545(b)(2).

In the appeal before us, appellant fails to plead any of the exceptions 

to the PCRA time-bar. Rather, throughout his brief, appellant appears to 

argue that the trial court erred when it did not merge his convictions for 

sentencing purposes; however, appellant does not address any of the 

enumerated exceptions to the PCRA time-bar to the extent he claims his 

sentence is illegal, is still subject to the time bar. (Appellant’s brief at 7-13.) 
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Therefore, we find that we do not have jurisdiction to consider the merits of 

the issue raised by appellant on appeal.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/2/18