Opinion
J-S52024-16 No. 3180 EDA 2015
10-20-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. WARREN B. SEXTON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order entered October 8, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0714521-1981 BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER, JJ. MEMORANDUM BY STABILE, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Warren B. Sexton, appeals pro se from the October 8, 2015 order entered in the Court of Common Pleas of Philadelphia County, denying his petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the procedural background of this matter in its Pa.R.A.P. 1925(a), which we incorporate here by reference. PCRA Court Opinion, 12/4/15, at 1-2. Briefly, on October 8, 1981, after a non-jury trial, Appellant was found guilty of robbery, second degree murder, possession of an instrument of crime, and conspiracy. On August 12, 1983, on direct appeal, this Court vacated the robbery sentence and affirmed the sentences imposed on the remaining convictions. Appellant did not petition the Supreme Court for allowance of appeal.
The robbery sentence was vacated based on the following reasoning:
Appellant was sentenced on both the conviction for robbery and the conviction for second degree murder, or felony murder. Since robbery was the felony underlying the conviction of second degree murder the sentence imposed on robbery should have merged with the sentence imposed on second degree murder.Commonwealth v. Sexton , No. 128 Philadelphia 1982, unpublished memorandum at 10 (Pa. Super. filed August 12, 1983).
Accordingly, for purposes of the PCRA, Appellant's judgment became final at the expiration of the time to seek allowance of appeal, 42 Pa.C.S.A. § 9545(b)(3), which was September 12, 1983.
Appellant filed his first petition for post-conviction relief on October 24, 1986. The court denied relief on May 27, 1987. This Court affirmed the denial on May 18, 1988. The Supreme Court denied Appellant's petition for allowance of appeal on November 17, 1988.
Appellant filed the instant petition on February 2, 2015. The PCRA court dismissed the petition as untimely on October 8, 2015. This appeal followed.
In his rather confusing brief, Appellant seems to challenge the legality of his sentence. Despite acknowledging the patent untimeliness of the instant PCRA petition, Appellant believes this Court could review the merits of his challenge because the alleged claim constitutes a Brady violation. Appellant's Brief at 4. Appellant believes that Brady violations "are not time barred or procedurally barred." Id. We disagree.
Appellant alleges that he never received the sentencing order, which, in Appellant's view, constitutes a Brady v. Maryland , 373 U.S. 83 (1963) violation. In 2014, approximately 33 years after being convicted, Appellant requested a copy of his sentencing order. Upon receipt of the order, Appellant "discovered" his sentence was illegal. According to Appellant, the sentence is illegal because the terms of his sentence, as memorialized in the written order, are different from what he was told at the sentencing hearing. Appellant also argues that the terms of the convictions are contradictory: the sentencing court "made these (3) conviction agreements, then it's (Contradict) one another, first he convict, then he nolle pros and then merge a sentence." Appellant's Brief at 3 (verbatim). Appellant misapprehends the sentence. The PCRA court addressed Appellant's misapprehension in its memorandum. See PCRA Court Opinion, 12/4/15, at 4.
"[A]n appellate court reviews the PCRA court's findings of fact to determine whether they are supported by the record, and reviews its conclusions of law to determine whether they are free from legal error." Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa. 2014). All PCRA petitions, "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final" unless an exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). "The PCRA's time restrictions are jurisdictional in nature. Thus, [i]f a PCRA petition is untimely, neither this Court nor the [PCRA] court has jurisdiction over the petition. Without jurisdiction, we simply do not have the legal authority to address the substantive claims." Commonwealth v. Chester , 895 A.2d 520, 522 (Pa. 2006) (first alteration in original) (internal citations and quotation marks omitted). As timeliness is separate and distinct from the merits of Appellant's underlying claims, we first determine whether this PCRA petition is timely filed. See Commonwealth v. Stokes , 959 A.2d 306, 310 (Pa. 2008) (consideration of Brady claim separate from consideration of its timeliness). The timeliness requirements of the PCRA petition must be met, even if the underlying claim is a challenge to the legality of the sentence. See Commonwealth v. Holmes , 933 A.2d 57, 60 (Pa. 2007) ("Although legality of sentence is always subject to review within the PCRA, claims must still first satisfy the PCRA's time limits or one of the exceptions thereto.") (citing Commonwealth v. Fahy , 737 A.2d 214, 223 (1999)).
It should be noted that Appellant's judgment became final prior to the effective date of the 1995 PCRA amendments (January 16, 1996). A "petition where the judgment of sentence became final before the effective date of the amendments shall be deemed timely if the petitioner's first petition was filed within one year of the effective date of the amendments." Act of November 17, 1995, P.L. 1118, No. 32 (Spec. Sess. No. 1), § 3(1). However, as this is Appellant's second petition for collateral relief, Appellant does not qualify for this exception, which only applies to a first PCRA petition. See Commonwealth v. Peterkin , 722 A.2d 638, 641 (Pa. 1998). Even if it were Appellant's first petition, he would still not be entitled to relief because his petition was filed more than one year after the effective date of the amendments.
The challenge raised here pertains to the merits of the case, but does not address the timeliness of the petition. Thus, couching the instant petition as a legality and/or Brady challenge does not address, much less exempt, the challenge from its jurisdictional timeliness requirements. Because Appellant addressed only the merits of the petition, but not its timeliness, we conclude Appellant's petition is untimely. We direct that a copy of the PCRA court's December 4, 2015 opinion be filed along with this Memorandum.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/20/2016
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