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NON - PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : ERNEST McKNIGHT , : : Appellant : No. 3442 EDA 2016 Appeal from the PCRA Order October 19, 2016 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP

- 51

- CR

- 0209971

- 1993 BEFORE: OLSON, OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J. : FILED NOVEMBER 16, 2017 Ernest McKnight (“ McK night”), pro se , appeals fro m the Order dismissing his second Petition filed pursuant to the Post Convictio n Relief Act (“PCRA”)

. See 42 Pa.C.S.A. §§ 9541

- 9546. 1 We affirm. In its Opinion, the PCRA court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 1/19/17, at 1

- 2. On appeal, McKnight initially raised the following issues for our review:

1 Although McKnight styled his Petition as a Writ of Habeas Corpus , the PCRA court proper l y treated it as a Petition filed pursuant to the PCRA. See 42 Pa.C.S.A. § 9542 ( providing that “ [t] he action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis .”); see also Commonwealth v. Hall , 771 A.2d 1232, 1235 (Pa. 2001) ( holding that

“ [n] o other statutory or common law remedy ‘for the same purpose’ is intended to be available; instead, such remedies are explicitly ‘encompassed’ within the PCRA.”).J

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1. Was all prior c ounsel[] ineffective for failing to raise the issue of [McKnight’s] illegal sentence he originally received from the [trial court?] 2. Is it correct that illegal/incorre ct senten[c]es are never waived[?] 3. In the interest of f undamental f airn ess, c ruel and u nusual p unishment, d ue p rocess, e qual p rotection and p rocedural d ue p rocess[,] does a person (such as [McKnight]) who violate [s] their c ounty probation/parole are resentenced to a term of state incarceration, in violation of 42 Pa.C.S.A. [§] 5505[?] Brief for Appellant at 2 (some capitalization omitted)

. McKnight subsequently filed an Amended Brief, in which he restates his issues as fol lows : 1. Is it not correct the sentencing court erred as a matter of law, when; at the initial time of sentencing, the court did not “suspend” [McKnight’s] term of imprisonment before the court imposed his sentence of probation, thus resulting in [McKnight] r eceiving an “illegally imposed ” [O] rder of probation? 2. Is it not correct the court sentenced [McKnight] to an “illegal” sentence of probation, thus rendering the sentence that he received for a violation of probation also illegal, as well? Amended Brief for Appellant at 2 (capitalization omitted , emphasis in original )

.

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level

. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court ’ s ruling if it is supported by evidence of record and is free of legal error

. This Court may affirm a PCRA court ’ s decision on any grounds if the record supports it

. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record

. However, we afford no such deference to its legal conclusions

. Further, where the petitioner raises questions of law, our standard of re view is de novo and our scope of review is plenary.J

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Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted). Under the PCRA, any PCRA petition “ including a second or subsequent petition , shall be filed within one year of the date t he judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment of sentence becomes final “at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylv ania, or at the expiration of time for seeking the review.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature, and a court may not address the merits of the issues raised if the PCRA petition was not timely filed. Commonw ealth v. Albrecht , 994 A.2d 1091, 1093 (Pa. 2010). Here, McKnight’s judgment of sentence became final on June 7, 2010, when the period of time to file an appeal with our Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Rojas , 874 A.2d 638, 643 (Pa. Super. 2005). McKnight had until June 7, 2011, to file the instant PCRA Petition, but did not do so until March 24, 2015. Thus, McKnight’s Petition is facially untimely under the PCRA. Pennsylvania courts may consider an untimely PCRA petition if the appellant can explicitly plead and prove one of three exceptions set forth under 42 Pa.C.S.A. § 9545(b)(1). Any PCRA petition invoking one of theseJ

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exceptions “shall be filed within 60 days of the date the claim could have been
presen ted.” Id. § 9545(b)(2); see also Albrecht , 994 A.2d at 1094. Here, McKnight has failed to plead or prove the applicability of any of the exceptions to the PCRA timeliness requirements. See 42 Pa.C.S.A. § 9545(b)(1); see also Albrecht , 994 A.2d at 1094. 2 Accordingly, McKnight has failed to overcome the untimeliness of his Petition. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 11 / 16

/2017

2 Rather than addressing any of the PCRA timeliness exceptions , McKnight incorrectly argues that his illegal sentencing claim is (1) cognizable under the PCRA; and (2) cannot be waived. Brief for Appellant at 9. While illegal sentencing claims are cognizab le under the PCRA, see 42 Pa.C.S.A. § 9543(a)(2)(vii), a PCRA court is without jurisdiction to address such claims unless the petition was timely filed or the petitioner is able to satisfy one of the timeliness exceptions. See Comm onwealth v. Jackson , 30 A.3d 516, 523 (Pa. Super. 2011) (holding that “ when the one

- year filing deadline of section 9545 has expired, and no statutory exception has been pled or proven, a PCRA court cannot invoke inherent jurisdiction to correct orders, ju dgments and decrees, even if the error is patent and obvious. ”).7890480111

1 42 Pa. Cons

. Stat. 

### §§ 9541-95 

### 6

. 

# I This appeal comes bef e the Superior Court fo ! lowing the dismissal of a Post Conviction 

## I Relief Act ("PCRA") 1 petitio filed on March 24 , 20 

### J S, On October 19, 2016 , the lower court

. ·. I dismissed the PCRA petition fo the reasons set forth bel l w. 

### i I. PROCEDURAL HIST RY

. 

# I On January 11 , 1993 , E est McKnight (hereina er referred to as "Petitioner") and an armed



# . I

. . companion robbed two boys f their money. On May ! 14, 1993 , Petitioner appeared before the 

## I Honorable Arthur S. Kafrisse and entered negotiate guilty pleas to two counts of robbery,



## . I conspiracy, and possessing an instrument of crime. ~ titioner was sentenced on one count of I robbery to eleven and one-ha f to twenty-three mont ~ , incarceration followed by three years' 

## I probation. No further penalty was imposed as to the r emaining convictions. Petitioner did not pursue a direct appeal

. On Mar h 22 , 1994 , while on p \ ole for the robbery offense, Petitioner was arrested on drug-related charge but fled this jurisdiction ~ hortly thereafter. On July 11 , 2007 , afte r bsconding for approxim I tely thirteen years, Petitioner was arrested in Pennsylvania for robbery. n November 9, 2007, 

## ri ! llowing a violation of probation hearing , 

### ! Petitioner was sentenced to fi e to s e venteen years ' · l prisonment. Petitioner filed a " Petition to 

# I C P-51 -C R- 02 09971-1 993 ~om m
. v . Mckn ig ht , Ernes t 

# I 11111ill1iffll~iij111111 I LEON W. TUCKER, J. ERNEST MCKNIGHT 

## vs. ) j j

, _

CP-51-CR-0209971-1993 3442 EDA 2016 OPINION Appe a : ~ : /:-' or.t Trial Office of Jl.i ..; i .:.- i .:J. i ,;lecords MMON PLEAS OF P ADELPlllA COUNTY I ICIAL DISTRICT O PENNSYLVANIA CRIMINAL TRIAL i IVISION

COMMONWEALTH OF PE ~ ~ ) ! ) j ) ) , 

## FILED

COURTOFC FIRST l ) j i, Circulated 10/26/2017 11:54 AM2

2 Commonwealth v . McKnight, 981 A.2d 928 (Pa. Super. 2009) (unpublished memorandum). 3 Commonwealth v. McKnight, 

## f A.3d 628 (Pa. 2010). 4 Commonwealth 

### v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth 

### v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en bane)

. 5 Commonwealth v. McKnight, 75 A.3d 547 (Pa. Super. 2013) (unpublished memorandum). 6 The Honorable Leon W. T ~ cker issued the order and opinion in this matter in his capacity as Supervising Judge of the Criminal Section of the Court of Common Pleas of Philadelphia - Trial Division as of March 7, 2016, ~s the trial judge is no longer sitting. Vacate and Reconsider Senten ~ " and on November 21, 2007, the court vacated the sentence. On February 5, 2008, a second v f olation of probation hearing was held. The court imposed a new

sentence of eight to eighteen ylars' imprisonment. On February 25, 2008, the court again vacated its sentence. On March 19, ~ 008, a third violation of probation hearing was held. The court
resentenced Petitioner to eigh i to eighteen years' imprisonment. Following a direct appeal, the Superior Court affirmed the j h dgment of sentence on July 28 , 2009. 2 On March 9, 2010, the Pennsylvania Supreme Court dried allocatur. 3 On September 16, 20 1°' Petitioner filed his 

### first pro se PCRA petition. Counsel was appointed and subsequently fil j d a Turner

/ Finley no merit letter. 4 On April 19, 2012 , the PCRA court issued an order denying the petition and permitted counsel to withdraw. The Superior Court
affirmed the dismissal on Ap 1 1 il 8, 2013. 5 Petitioner did not seek allocatur in the Pennsylvania Supreme Court. On March 24, 2015, Petitioner filed the instant "habeas corpus" collateral petition, his second. Petitioner submitted t umerous supplemental petitions seeking both habeas corpus and PCRA relief. Pursuant to Pennsylvania Rule of Criminal Procedure 907, Petitioner was served
notice of the PCRA court's inJntion to dismiss his petition on July 12, 2016. Petitioner submitted a response to the Rule 907 notiJ on July 25, 2016. On October 19, 2016, the PCRA court dismissed



# I

. his petition as untimely. 6 On J ctober 28, 2016, the instant notice of appeal was timely filed to the Superior Court

.Pennsylvania, or at the expirati n of time for seeking the review." 

### Id. § 9545(b)(3). 3 discretionary review in the upreme Court of the United States and the Supreme Court of Cons. Stat. § 9545(b)(l)

. A ju gment is deemed final "at the conclusion of direct review, including petition, shall be filed within ne year of the date the underlying judgment becomes final. 42 Pa. Robinson, 12 A.3d 477 (Pa. uper. 2011). A PCRA petition, including a second or subsequent B. Petitioner's current p tition was manifestly untimely under the PCRA. Petitioner's PCRA petiJon challenging the legality of his sentence was facially untimely

. As a prefatory matter , the timelin J ss of a PCRA petition is a jurisdictional r e quisite. Commonwealth v. pursuant to the PCRA' s dictate

. that fell outside the purview f the PCRA. Thus, this court was constrained to review his claim sentences may obtain collater relief."). Moreover, Petitioner did not raise any alternative claims Cons. Stat. § 9542 ("This sub hapter provides for an action by which persons

... serving illegal Commonwealth v. Taylor , 65 Aj.3d 462, 465-66 (Pa. Super. 2013). Here, Petitioner's legality of sentence claim was cognizable under the PCRA. See 42 Pa It is well-settled that th PCRA is intended to be the sole means of achieving post-conviction relief. 42 Pa.C.S. § 95 · 2; Commonwealth v. Haun, 32 A.3d 697 (Pa. 2011). Unless the PCRA could not provi e for a potential remedy, the PCRA statute subsumes the writ of habeas corpus . Fahy, upra at 223-224; Commonwealth v. Chester, 733 A.2d 1242 (Pa

. 1999). Issues that are c gnizable under the PCRA must be raised in a timely PCRA petition and cannot be raised in a habeas corpus petition. See Commonwealth v . Peterkin, 722 A.2d 638 (Pa. 1998) ; see al o Commonwealth v. Deaner, 779 A.2d 578 (Pa. Super. 2001) (a collateral petition that r ises an issue that the PCRA statute could remedy is to be considered a PCRA petition). Phr sed differently, a defendant cannot escape the PCRA time-bar by titling his petition or m tion as a writ of habeas corpus. Superior Court, PCRA because they raised a laim potentially remediable under the PCRA. As iterated by the Petitioner's instant sub issions seeking habeas corpus relief fell within the ambit of the A. Petitioner's habeas co pus petition was reviewed pursuant to the dictates of the PCRA. II. DISCUSSION7 The "governmental interfer nee" exception, § 9545(b)(l)(i) requires a petitioner to plead and

prove: (1) the failure to previ usly raise the claim was the result of interference by government officials and (2) the informati n on which he relies could not have been obtained earlier with the exercise of due diligence. Co monwealth v. Williams, 105 A.3d 1234, 1240 (Pa. 2014) (citing Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa

. 2008)). 4 in Commonwealth v. Wendo ski, 420 A.2d 628 (Pa l Super. 1980) (addressing revocation of 9545(b)(l)(i). 7 See 907 Respo se, 7/25/16 at 3. Petitioner argued that the Superior Court's decision notice styled "Amended Petiti n" wherein he invoked the "governmental interference" exception, § Petitioner's sole refere e to the PCRA's time-bar was found in his response to the Rule 907 Id § 9545(b)(l)(i)-(iii). (iii) the right asserted i a constitutional right that was recognized by the Supreme Court of the United States or th Supreme Court of Pennsylvania after the time period provided in this section and has bee held by that court to apply retroactively. (ii) the facts upon whi the claim is predicated ! were unknown to the petitioner and could not have been ascertain d by the exercise of due diligence; or (i) the failure to raise e claim previously was the result of interference by government officials with the prese tation of the claim in violation of the Constitution or laws of this Commonwealth or the onstitution or laws of the United States; must prove: subsections 9545(b)(l)(i)-(iii). To invoke an exception, a petition must allege and the petitioner , . petitioner alleges and proves o e of the three narrow e f ceptions to the mandatory time-bar under Despite the one-year eadline, the PCRA permits the late filing of a petition where a untimely by approximately fo years: 

### See 42 Pa. Cons. Stat.§ 9545(b)(l). Ct. R. 13 (effective January 1, 1990)

. His current peti t ion, filed on March 24, 2015 , was therefore filing a petition for writ of cert orari in the United States Supreme Court expired. See id.; U.S. Sup. Petitioner's judgment o sentence became final for purposes of the PCRA on June 7, 2010, ninety days after the Pennsyl ania Supreme Court denied allowance of appeal and the time for

C. Petitioner was not elig hie for the limited timeliness exception under 42 Pa. Cons. Stat. 

### § 9545 (b )(1 )(i).8

. Even if Petitioner established jurisdiction, no relief would be due. Contrary to Petitioner's

argument, a court can revoke a \ defendant's probation even before the probation has actually begun , where revocation was based on actions occurring during the parole period and not the probationary period. See Commonwealth 

## t. Ware, 737 A.2d 251 (Pa. Super. 1999); Commonwealth v. Wendowski, 420 A.2d 628 (Pa. \ super . 1980) (holding that a defendant's probationary sentence could be revoked prior to commencement of such sentence if his conduct after the probationary sentence was imposed, but before it ~ egan, warranted such revocation). Moreover, the Superior Court previously determined that P titioner' s revocation sentence was legal. See Commonwealth v. McKnight, 2013 WL 11271520 at 4 (Pa. Super. 2013). 5 BY THE COURT: affirmed. This court has once again evaluated a collateral petition filed by Mr. McKnight. Petitioner failed to meet his burden of p t ving an exception to the PCRA's statutory time-bar. Accordingly, for the reasons stated herein, ~ he decision of the court dismissing the PCRA petition should be 

### I statutory time-bar. 8
III. CONCLUSION probation sentences) dissuaded him · from seeking collateral relief and therefore constituted governmental interference. P + tioner failed, however, to demonstrate how the Superior Court's 1980 decision in Wendowski n t just "influenced," but actually obstructed his timely presentation of a claim for collateral relief. Petitioner therefore failed to plead and prove an exception to the 

### I