J-S32034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 :       IN THE SUPERIOR COURT OF
                                              :             PENNSYLVANIA
                       Appellee               :
                                              :
               v.                             :
                                              :
JOHN AVERY COY,                               :
                                              :
                       Appellant              :          No. 1973 WDA 2014

          Appeal from the PCRA Order entered on November 13, 2014
               in the Court of Common Pleas of Clarion County,
                Criminal Division, No. CP-16-CR-0000524-2006

BEFORE: SHOGAN, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                                  FILED JUNE 03, 2015

        John Avery Coy (“Coy”), pro se, appeals from the Order denying his

“Motion for Credit for Time Served.” We affirm.

        In 2007, Coy was convicted by a jury of multiple counts of child

molestation, and sentenced to ten to twenty years in prison. In 2008, Coy

timely filed his first Petition for relief pursuant to the Post Conviction Relief

Act (“PCRA”),1 resulting in his direct appeal rights being reinstated. On May

17,    2010,    this   Court   affirmed   Coy’s   judgment    of   sentence.   See

Commonwealth v. Coy, 4 A.3d 191 (Pa. Super. 2010). In 2013, Coy filed

his second PCRA Petition, which the PCRA court denied as untimely. Coy did

not appeal that Order. On October 30, 2014, Coy filed the present “Motion

for Credit for Time Served.” The PCRA court treated the Motion as a nunc



1
    See 42 Pa.C.S.A. §§ 9541-9546.
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pro tunc Motion for modification of sentence, and on November 13, 2014

dismissed the Motion as untimely. Coy filed a timely Notice of Appeal, and a

court-ordered Statement of Errors Complained of on Appeal.

      On appeal, Coy has failed to include in his appellate brief a statement

of questions raised on appeal, in violation of Pa.R.A.P. 2111(a)(4) and 2116.

However, our review of his appellate brief reveals the following issues

presented for our review:

      1. [Whether the trial c]ourt [] err[ed] by not granting [Coy]
         credit for time served [while he was] incarcerated[?]

      2. [Whether the trial c]ourt [] err[ed] by not scheduling a
         hearing or appointing counsel[,] pursuant to Pa.R.Crim.P. 901
         et seq., to review [the] merits of [Coy’s P]etition and illegal
         sentence computations[?]

Brief for Appellant at 7-8.

      Coy’s “Motion for Credit for Time Served” consitutes his third PCRA

Petition. See Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super.

2011) (discussing a “motion to correct illegal sentence” and stating that “any

petition filed after the judgment of sentence becomes final will be treated as

a PCRA petition.”)

             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.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).


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      Under the PCRA, any PCRA petition, “including a second or subsequent

petition, shall be filed within one year of the date the 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 Pennsylvania, 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.        Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, Coy’s judgment of sentence became final on June 16, 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). Coy had until June 16, 2011, to file the

instant PCRA Petition, but did not do so until October 30, 2014. Thus, Coy’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 these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.




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     Here, Coy 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); Albrecht, 994 A.2d at 1094.2 Accordingly, Coy has failed to

overcome the untimeliness of his Petition.

     Because Coy’s “Motion for Credit for Time Served” constitutes his third

PCRA Petition, we affirm the PCRA court’s dismissal of Coy’s Motion as

untimely.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/3/2015




2
   Coy’s time credit challenge implicates the legality of his sentence. See
Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009).
While a legality of sentence claim cannot be waived, a PCRA court must first
have jurisdiction over the claim in order to address it. See Commonwealth
v. Holmes, 933 A.2d 57, 60 (Pa. 2007) (stating that although legality of
sentence claims are subject to review by a PCRA court, such claims must still
first satisfy the PCRA’s time limits or one of the exceptions thereto).

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