J-S13042-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WALTER SAWYER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1213 MDA 2021

Appeal from the PCRA Order Entered August 23, 2021

In the Court of Common Pleas of Dauphin County Criminal Division at 

No(s): CP-22-CR-0004317-2013

BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 19, 2022

Appellant Walter Sawyer appeals from the order of the Court of Common 

Pleas of Dauphin County denying his petition pursuant to the Post-Conviction 

Relief Act (PCRA)1 as untimely filed. After careful review, we affirm.

On April 22, 2014, a jury convicted Appellant of kidnapping, unlawful 

contact with a minor, and providing false identification to law enforcement 

officers. On the same day, the trial court sentenced Appellant to twenty-five 

to fifty years’ imprisonment on the kidnapping charge, a concurrent term of 

five to ten years’ imprisonment on the unlawful contact charge, and a 

concurrent term of one to two years’ imprisonment on the false identification 

charge. The kidnapping sentence was imposed pursuant to the “three strikes” 

provision of 42 Pa.C.S.A. § 9714(a)(2).

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* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546. 
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On May 2, 2014, Appellant filed timely post-sentence motions. On June 

16, 2014, the trial court granted the motions in part, issuing an amended 

sentencing order which reduced Appellant’s sentence on the false 

identification charge to a term of six to twelve months’ imprisonment. In all 

other respects, the trial court denied Appellant’s post-sentence motions. 

On June 24, 2014, Appellant filed a pro se amendment to his counseled 

post-sentence motions, arguing that he only had one prior offense that 

qualified as a “strike” for sentencing purposes. On August 6, 2014, the trial 

court granted Appellant’s post-sentence motion in part, determining that 

Appellant had not committed two prior crimes of violence to support the 

imposition of a “third strike” sentence under 42 Pa.C.S.A. § 9714(a)(2). In 

its order, the trial court indicated that it would resentence Appellant on the

kidnapping count to 120-240 months’ imprisonment for a “second strike” 

conviction pursuant to 42 Pa.C.S.A. § 9714(a)(1).

On April 22, 2015, this Court upheld Appellant’s convictions but vacated 

his sentence and remanded for resentencing as the trial court’s sentencing 

order listed his sentence on the kidnapping charge as 120-140 months’ 

imprisonment. This Court found that the sentence was illegal because the 

maximum sentence did not equal twice the minimum sentence in violation of 

42 Pa.C.S.A. § 9714(a.1). 

On remand, the trial court resentenced Appellant to 120 to 240 months’ 

imprisonment. On July 19, 2016, this Court affirmed the judgment of 
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sentence, and on December 28, 2016, the Supreme Court denied Appellant’s 

petition for allowance of appeal. 

On January 25, 2017, Appellant filed a timely pro se PCRA petition. The 

PCRA court appointed counsel, who filed a supplemental PCRA petition on April 

18, 2017. After an evidentiary hearing, the PCRA court denied the petition on 

February 16, 2018, and this Court affirmed the PCRA court’s order on October 

16, 2018.

On May 20, 2019, Appellant filed a second PCRA petition. On December 

30, 2019, the PCRA court filed notice of its intent to dismiss the petition 

without a hearing pursuant to Pa.R.Crim.P. 907. On January 21, 2020, the 

PCRA court dismissed the petition and on November 6, 2020, this Court 

affirmed the PCRA court’s order.

On January 5, 2021, Appellant filed the instant PCRA petition as well as 

a “Petition for Extraordinary Relief Illegal Sentence,” both of which included a 

claim that Appellant should not have been sentenced under Section 9714 as 

he had no prior offenses that qualified as a “strike.” The PCRA court appointed 

counsel, who filed a supplemental petition on April 15, 2021.

On July 19, 2021, the PCRA court filed an order and opinion notifying 

Appellant of its intent to dismiss the petition pursuant to Rule 907, finding the 

instant petition was untimely filed. On August 23, 2021, the PCRA court 

entered a final order dismissing the petition. This timely appeal followed.

Appellant raises the following issues for our review:
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A. Whether the trial court erred in dismissing Appellant’s PCRA 

petition without an evidentiary hearing where [Appellant] 

presented genuine issues of material fact? 

B. Whether the trial court erred in dismissing Appellant’s PCRA 

petition where Appellant was sentenced to a mandatory 

[minimum sentence] pursuant to 42 Pa.C.S.A. § 9714 without 

having been convicted of a qualifying prior?

Appellant’s Brief, at 4.

As an initial matter, we must determine whether the instant PCRA 

petition was timely filed. It is well-established that “the PCRA's timeliness 

requirements are jurisdictional in nature and must be strictly construed; 

courts may not address the merits of the issues raised in a petition if it is not 

timely filed.” Commonwealth v. Walters, 135 A.3d 589, 591 (Pa.Super. 

2016) (citations omitted). 

Generally, a PCRA petition “including a second or subsequent petition, 

shall be filed within one year of the date the judgment of sentence becomes 

final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final at 

the conclusion of direct review or the expiration of the time for seeking the 

review. 42 Pa.C.S.A. § 9545(b)(3). 

However, Pennsylvania courts may consider an untimely PCRA petition 

if the petitioner explicitly pleads and proves one of the three exceptions 

enumerated in Section 9545(b)(1), which include: (1) the petitioner's inability 

to raise a claim as a result of governmental interference; (2) the discovery of 

previously unknown facts or evidence that would have supported a claim; or 

(3) a newly-recognized constitutional right that has been held to apply 
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retroactively by the Supreme Court of the United States or the Supreme Court 

of Pennsylvania. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

Any petition invoking a timeliness exception must be filed within one

year of the date the claim could have been presented. 42 Pa.C.S.A. § 

9545(b)(2).2 “We emphasize that it is the petitioner who bears the burden to 

allege and prove that one of the timeliness exceptions applies.”

Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) 

(citation omitted).

In this case, this Court affirmed the judgment of sentence on July 19, 

2016 and our Supreme Court denied Appellant’s petition for allowance of 

appeal on December 28, 2016. As such, the judgment of sentence became 

final in March 2017 after the time period for Appellant to file an appeal to the 

Supreme Court of the United States had expired. See U.S.Sup.Ct.R.13(1)

(stating “a petition for a writ of certiorari to review a judgment in any case ... 

is timely when it is filed with the Clerk of this Court within 90 days after entry 

of the judgment”). As Appellant had until March 2018 to file a petition and 

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2 Section 9545(b)(2) previously provided that a petition invoking a timeliness 

exception was required to be filed within sixty days of the date the claim could

first have been presented. However, effective December 24, 2018, the 

legislature amended Subsection 9545(b)(2) to read: “Any petition invoking an 

exception provided in paragraph (1) shall be filed within one year of the date 

the claim could have been presented.” See 42 Pa.C.S.A. § 9545(b)(2)

(effective December 24, 2018). The amendment to Subsection 9545(b)(2) 

only applies to “claims arising on [December] 24, 2017, or thereafter.” See

id., cmt. We shall assume, arguendo, the amended version of Subsection 

9545(b)(2) is applicable to the instant matter.
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Appellant did not file the instant petition until January 5, 2021, the instant 

petition is facially untimely. 

Appellant does not specifically claim that he is entitled to invoke any of 

the PCRA timeliness exceptions. He merely asserts that he relied on the 

expertise of his attorney and only discovered that he wished to raise a 

challenge to the legality of his sentence after researching the law on his own.

To the extent that Appellant is attempting to raise the newly-discovered 

fact exception to the PCRA time-bar, we find this argument to be meritless. 

To meet the timeliness exception set forth in Section 9545(b)(1)(ii), a 

petitioner must show that “he did not know the facts upon which he based his 

petition and could not have learned those facts earlier by the exercise of due 

diligence.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015).

After Appellant was resentenced in October 2015 and his sentence 

became final in March 2017, Appellant offers no reason as to why he could not 

have discovered that he wished to challenge the legality of his sentence within 

one year after his sentence became final, other than his suggestion that he 

researched the applicable law on his own without the assistance of his counsel 

and discovered he wished to raise a legality of sentence claim. 

Assuming arguendo that Appellant met the initial threshold of invoking

the exception within one year of the date the claim could have been presented, 

42 Pa.C.S.A. § 9545(b)(2), Appellant cannot carve out an exception to the 

jurisdiction timeliness requirements based on his allegation of the ineffective 

assistance of counsel. It is well-settled that allegations of ineffective 
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assistance will not overcome the jurisdiction timeliness requirements of the 

PCRA. See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785-86 (Pa. 

2000) (finding that the “fact” current counsel discovered that prior PCRA 

counsel failed to develop issue of trial counsel's ineffectiveness was not afterdiscovered evidence for exception to PCRA time-bar).

In addition, while a legality of sentence claim is eligible for review under 

the PCRA, the claim still must satisfy the PCRA’s time restrictions or qualify 

under one of the PCRA timeliness exceptions. Commonwealth v. Fahy, 737 

A.2d 214, 223 (Pa. 1999).

Our courts have emphasized that a petitioner must specifically plead 

and prove that one of the PCRA timeliness exceptions applies to the untimely 

petition in order to avoid the PCRA time bar. Commonwealth v. Beasley, 

741 A.2d 1258, 1261 (Pa. 1999). Accordingly, as Appellant has not pled or 

proven that one of the PCRA timeliness exceptions applies to this petition, we 

conclude that the PCRA court did not err in dismissing his petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/19/2022