Com. v. Winston, S.

J-S63039-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : SHABORN WINSTON, : : Appellant : No. 1006 EDA 2015

Appeal from the PCRA Order entered on March 24, 2015 in the Court of Common Pleas of Lehigh County, Criminal Division, No. CP-39-CR-0000689-2008

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 13, 2015

Shaborn Winston (“Winston”) appeals, pro se, from the Order dismissing his second Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On October 9, 2008, Winston entered a negotiated guilty plea to aggravated assault. On November 13, 2008, the trial court sentenced Winston to a jail term of not less than four months to no more than twentythree months, followed by twelve months of probation. Winston did not file a direct appeal.

On May 15, 2013, Winston filed a pro se PCRA Petition. The PCRA court appointed Winston counsel, who subsequently filed a Petition to

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withdraw as Counsel pursuant to Turner/Finley.1 Following an evidentiary hearing, the PCRA court dismissed the Petition. This Court affirmed the dismissal. See Commonwealth v. Winston, 106 A.3d 178 (Pa. Super. 2014) (unpublished memorandum).

On March 19, 2015, Winston filed the instant PCRA Petition. After providing a Pa.R.Crim.P. 907 Notice, the PCRA court dismissed the Petition on March 24, 2015. Winston filed a timely Notice of Appeal.

On appeal, Winston raises the following questions for our review:

1. Due to [] Winston[’s] mental state, can he be held aware of evidence concerning his mental diagnosis evaluation[]s through[]out his life, [if he suffered] from mental retardation and [a] learning disorder since the year 1992[?]

2. Due to the lower court not reading [] Winston his right to file a PCRA petition[,] can he still be held to the one year [timeliness] limitation[?]

Brief for Appellant at 6 (unnumbered) (capitalization omitted).

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The review is limited to the findings of the PCRA court and the evidence of record. Id. The PCRA court’s decision will be upheld if it is supported by the record and free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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Initially, Winston is no longer serving the sentence pertaining to the conviction at issue in the instant Petition. See also Winston, 106 A.3d 178 (unpublished memorandum at 4-5). Thus, he is not eligible for relief under the PCRA. See 42 Pa.C.S.A. § 9543(a)(1)(i) (stating that to be eligible for relief, the petitioner must be currently serving a sentence of imprisonment, probation or parole for the crime).

Even if Winston was still serving a sentence, he must still comply with the PCRA’s timeliness requirements. Under the PCRA, any PCRA 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, including discretionary review in the Supreme Court of Pennsylvania, or at the expiration time for seeking the review.” Id. § 9545(b)(3).

Winston’s judgment of sentence became final on December 15, 2008, when the time to appeal to the Pennsylvania Superior Court expired. See Pa.R.A.P. 903(a). Thus, Winston’s instant Petition, which was filed on March 19, 2015, is facially untimely. See 42 Pa.C.S.A. § 9545(b)(3). Moreover, Winston has not properly pled and proven one of the three exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). See Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (stating that petitioner must plead and prove one of the three exceptions on an untimely PCRA

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petition). Based upon the foregoing, the PCRA court properly dismissed Winston’s PCRA Petition.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/13/2015

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