J. S04036/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

BARRY R. BUCHTER, : No. 1131 MDA 2017

:

 Appellant :

Appeal from the PCRA Order, June 21, 2017,

in the Court of Common Pleas of Lancaster County

Criminal Division at No. CP-36-CR-0002916-2011

BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 27, 2018

Barry R. Buchter appeals pro se from the order filed in the Court of 

Common Pleas of Lancaster County that dismissed his petition filed pursuant 

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. 

Because we agree with the PCRA court that appellant’s facially untimely 

petition failed to establish a statutory exception to the one-year jurisdictional 

time limit for filing a petition under the PCRA, we affirm.

The PCRA court set forth the following factual and procedural history in 

its opinion filed September 7, 2017:

On January 10, 2012, after a jury trial, 

[appellant] was convicted of one count of 

rape,[Footnote 1] four counts of involuntary deviate 

sexual intercourse with a person less than 16 years 

of age,[Footnote 2] two counts of aggravated 

indecent assault of a person less than 16 years of 

age,[Footnote 3] one count of incest,[Footnote 4] 
J. S04036/18

- 2 -

one count of unlawful contact with a minor, 

[Footnote 5] one count of corruption of a 

minor[Footnote 6] and two counts of indecent 

assault of a person less than 16 years of 

age.[Footnote 7] On April 17, 2012, he was 

sentenced to an aggregate term of 24 to 48 years[’] 

incarceration followed by five years[’] consecutive 

probation.

[Footnote 1] 18 Pa.C.S.[A.] § 3121(a)(2).

[Footnote 2] 18 Pa.C.S.[A.] § 3123(a)(7).

[Footnote 3] 18 Pa.C.S.[A.] § 3125(a)(8).

[Footnote 4] 18 Pa.C.S.[A.] § 4302.

[Footnote 5] 18 Pa.C.S.[A.] § 6813(a)(1).

[Footnote 6] 18 Pa.C.S.[A.] § 6301(a)(1).

[Footnote 7] 18 Pa.C.S.[A.] [§] 3126(a)(8).

The judgment of sentence was affirmed on 

April 5, 2013. Commonwealth v. Buchter, 75 

A.3d 546 (Pa.Super. 2013) (table). [Appellant] did 

not seek further review in the Pennsylvania Supreme 

Court.

On April 15, 2013, [appellant] filed a pro se

motion for post conviction collateral relief and 

counsel was appointed. Counsel filed an amended 

motion on July 29, 2014. After a hearing on 

[appellant’s] motion on October 28, 2014, the 

[c]ourt entered an order denying the motion on 

August 31, 2015. [Appellant] filed his notice of 

appeal on September 16, 2015, and the Superior 

Court affirmed this [c]ourt’s decision on May 17, 

2016. Commonwealth v. Buchter, 151 A.3d 1150 

(Pa.Super. 2016) (table). The Supreme Court 

denied [appellant’s] petition for allowance of appeal 

on September 13, 2016. Commonwealth v. 

Buchter, 157 A.[3]d 483 (Pa. 2016) (table).
J. S04036/18

- 3 -

[Appellant] filed a second pro se motion for 

post conviction collateral relief on October 3, 2016, 

and counsel was again appointed for him. On 

December 30, 2016, counsel sent a no merit 

letter[Footnote 8] to [appellant], with a copy to the 

[c]ourt, expressing his opinion that [appellant’s]

motion was untimely and that the court lacked 

jurisdiction to hear it. On January 9, 2017, and 

again on March 16, 2017, [appellant] filed pro se

motions to re-appoint reliable counsel to amend the 

motion for post[-]conviction collateral relief, but he 

presented no new evidence which would affect 

counsel’s conclusion. Counsel filed a brief response 

on April 5, 2017, reiterating the original no merit 

letter and noting that [appellant] had failed to 

present evidence to establish the [c]ourt’s 

jurisdiction.

[Footnote 8] Commonwealth v. Finley, 

[] 550 A.2d 213 ([Pa.Super.] 1988).

After conducting its own review, the [c]ourt

filed a Rule 907 notice on April 21, 2017, advising 

[appellant] of its intent to dismiss the motion and 

explaining the reasons for that decision. [Appellant] 

filed a pro se response which was docketed on 

May 26, 2017,[Footnote 9] in which he reasserted 

his claim that he was serving an illegal sentence and 

was entitled to relief under the United States 

Supreme Court’s decision in Alleyne v. United 

States, 570 U.S. [99] (2013). The [c]ourt entered 

an order dismissing [appellant’s] motion for lack of 

jurisdiction and granting counsel leave to withdraw 

on June 21, 2017.

[Footnote 9] Although this response was 

docketed after passage of the 20 days 

the [c]ourt had granted [appellant] to 

respond, it was treated as timely 

because it was post[-]marked May 9, 

2017.

[Appellant] filed his pro se notice of appeal of 

that decision on July 20, 2017, and his concise 
J. S04036/18

- 4 -

statement of errors complained of on appeal on 

August 3, 2017. In his concise statement of errors 

complained of on appeal, [appellant] raises five 

allegations of ineffective assistance of counsel 

against his original trial counsel, a claim that police 

violated his constitutional right not to be questioned 

outside the presence of his attorney and a claim that 

the [c]ourt had imposed an illegal sentence.

Trial court opinion, 9/7/17 at 1-3.

Appellant raises the following issues for this court’s review:

I. Was counsel ineffective for failure to properly 

(pre_trial [sic]) challenge a breach in the 

chain-of-custody regarding physical/DNA 

evidence used at trial[?]

II. Counsel was ineffective for failure to challenge 

impeachment evidence regarding testimony of 

arresting officer[.]

III. Counsel was ineffective for failure to challenge 

and/or assert exculpatory evidence offered by 

Doctor Julie Stover and RN Kimberly Sbarra 

regarding rape kit showing no evidence of 

sexual intercourse[.]

IV. It was ineffective assistance of counsel for 

failure to challenge and/or suppress 

inculpatory statement made by [appellant] 

after invoking Fifth Amendment rights without 

benefit of Miranda[

1] warnings, and/or 

statement being coerced[.]

V. Counsel was ineffective for failure to introduce 

exculpatory evidence of daughter’s statement 

averring actual innocense [sic] of [appellant.]

VI. Counsel was ineffective for failure to examine 

material witness/alibi to [appellant’s] 

innocense [sic][.]

 

1Miranda v. Arizona, 384 U.S. 436 (1966).
J. S04036/18

- 5 -

VII. Did the trial court impose an illegal sentence 

on [appellant] in violation of the double 

jeopardy clause, when the court abused 

it’s [sic] discretion by seperately [sic] 

sentencing [appellant] to a consecutive five (5) 

years[’] probation[?]

Appellant’s brief at 2, 6 (capitalization omitted).

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 

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 
J. S04036/18

- 6 -

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). Before addressing appellant’s issues on the merits, 

we must first determine if we have jurisdiction to do so.

As noted above, a PCRA petitioner has one year from the date his or 

her judgment of sentence becomes final in which to file a PCRA petition. 

This court has held the following regarding when a judgment becomes final:

The plain language of the PCRA provides that a 

judgment of sentence becomes final at the 

conclusion of direct review or when the time seeking 

direct review expires. See 42 Pa.C.S.A. 

§ 9545(b)(3). In fixing the date upon which a 

judgment of sentence becomes final, the PCRA does 

not refer to the conclusion of collateral review or the 

time for appealing a collateral review determination. 

Thus, the plain language of the PCRA statute shows 

that a judgment of sentence becomes final 

immediately upon expiration of the time for seeking 

direct review, even if other collateral proceedings are 

still ongoing. As this result is not absurd or 

unreasonable, we may not look for further 

manifestations of legislative intent. See 

Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa. 

2013) (internal quotation marks omitted) (We may 

“look beyond the plain language of the statute only 

when words are unclear or ambiguous, or the plain 

meaning would lead to a result that is absurd, 

impossible of execution, or unreasonable.”).

Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014).

In the instant case, the trial court sentenced appellant on April 17, 

2012. He filed a direct appeal to this court. This court affirmed the 
J. S04036/18

- 7 -

judgment of sentence on April 5, 2013. Commonwealth v. Buchter, 75 

A.3d 546 (Pa.Super. 2013). Appellant did not petition for allowance of 

appeal with the Pennsylvania Supreme Court. Accordingly, appellant’s 

judgment of sentence became final on May 6, 2013.

2

 Appellant filed the 

instant petition on October 3, 2016, more than three years after his 

judgment became final and more than two years after a PCRA petition could 

be considered timely. See 42 Pa.C.S.A. § 9545(b)(1).

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.

 

2 Normally, the deadline would be May 5, 2013. However, May 5, 2013 was 

a Sunday. The deadline to file an allocator petition is extended to the next 

business day. 1 Pa.C.S.A. § 1908.
J. S04036/18

- 8 -

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).

Here, appellant fails to demonstrate any of the exceptions to the PCRA 

time-bar. In the first six issues appellant brings to this court for its review, 

appellant asserts that his trial counsel was ineffective for various reasons. 

These issues address the substantive question of whether he is entitled to 

relief under the PCRA but do not address whether he meets an exception to 

the time bar.

In his remaining issue appellant contends that the trial court imposed 

an illegal sentence because he was sentenced to a mandatory minimum 

sentence in violation of Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016) 

which applied Alleyne v. United States, 570 U.S. 99 (2013), on a direct 

appeal. He also states that the imposition of a five-year probationary 

sentence was illegal because it made his sentence eight months over the 

maximum sentence that could have been issued, that the consecutive 

five-year probationary term was illegal because a mandatory sentence had 

already been imposed, and that he was sentenced twice for the same 

offense with a term of confinement and a term of probation.

To the extent appellant is arguing that his sentence is illegal, this claim 

does not allow him to skirt the timeliness requirement. “[E]ven claims that 

a sentence was illegal, an issue deemed incapable of being waived, are not 
J. S04036/18

- 9 -

beyond the jurisdictional time restrictions.” Commonwealth v. Grafton, 

928 A.2d 1112, 1114 (Pa.Super. 2007), citing Fahy, 737 A.2d 214 (Pa. 

1999); Commonwealth v. Beck, 848 A.2d 987 (Pa.Super. 2004). 

Therefore, appellant’s illegal sentencing claim does not operate as an 

independent exception to the PCRA’s jurisdictional time-bar. Furthermore, 

with respect to Alleyne, the Pennsylvania Supreme Court determined in 

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016), that 

Alleyne does not apply retroactively to cases pending on collateral review. 

Therefore, we find that appellant failed to establish that he met an exception 

to the timeliness requirements of the PCRA.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/27/2018