J-S37029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

TROY B. ZIMMERMAN,

                         Appellant                   No. 1632 WDA 2015


             Appeal from the PCRA Order September 28, 2015
                In the Court of Common Pleas of Erie County
 Criminal Division at No(s): CP-25-CR-0000174-2013, CP-25-CR-0000636-
                                   2012


BEFORE: GANTMAN, P.J., SHOGAN and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED MAY 27, 2016

      Troy B. Zimmerman (“Appellant”) appeals pro se from the order

denying his petition for collateral relief filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

      We glean the facts of this case from the certified record.       At some

point between 11:00 p.m. on January 18, 2012, and 3:00 a.m. on January

19, 2012, in Erie County, Appellant stole a vehicle, crashed after failing to

negotiate a curve, and then fled the scene, leaving behind two passengers.

The Commonwealth filed a twelve-count information against Appellant on

March 22, 2012, at trial court docket number (“DN”) 636 of 2012. On April

4, 2012, Appellant pled guilty to one count of Accidents Involving Death or

Personal Injury, one count of Unauthorized Use of Motor Vehicles, one count
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of Driving While Operating Privileges are Suspended or Revoked, one count

of Failure to Keep Right, and one count of Careless Driving. The trial court

sentenced Appellant on June 7, 2012, to incarceration for a period of one to

twelve months, followed by forty-eight months of probation. Based on credit

for time served, Appellant was immediately paroled.

      One week after Appellant was paroled, he and three other men broke

into Rogers Sporting Goods store in Erie County and stole twenty-seven

firearms valued in excess of $7,000. The Commonwealth filed a two-count

information against Appellant on February 11, 2013, at DN 174 of 2013. On

March 28, 2013, Appellant pled guilty to one count of burglary and one

count of conspiracy to commit burglary.

      Based on the charges at DN 174 of 2013, the trial court revoked

Appellant’s probation at DN 636 of 2012 on June 6, 2013, and re-sentenced

him to incarceration for a period of one to two years. Additionally, the trial

court sentenced Appellant at DN 174 of 2013 to incarceration for a period of

twelve to thirty-six months, consecutive to the revocation sentence at DN

636 of 2012.

      Upon incarceration, Appellant filed two motions to modify his sentence

at DN 174 of 2013. He then filed a notice of appeal from the judgment of

sentence on November 12, 2013, which resulted in the appointment of

counsel,   the   filing   of   counsel’s   statement   of   intent   to   file   an

Anders/McClendon brief, and discontinuance of the appeal.


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       Appellant then filed a PCRA petition on June 16, 2014 (“2014

Petition”), and counsel was appointed on June 25, 2014. Two months later,

counsel filed a no-merit letter and, on September 11, 2014, a petition to

withdraw as counsel. The PCRA court granted counsel’s petition to withdraw

on September 11, 2014, and filed an opinion and notice of intent to dismiss

the 2014 Petition without a hearing.           The PCRA court dismissed the 2014

Petition on October 8, 2014. Appellant did not appeal that dismissal.

       Two days before the trial court denied Appellant’s 2014 Petition,

Appellant filed a motion for time credit and corrected commitment at DN 636

of 2012, which the trial court denied on October 16, 2014. Appellant filed a

second motion for time credit on November 18, 2014, which the trial court

did not address.

       On July 31, 2015, Appellant filed a petition to vacate illegal sentence,

which was docketed at both trial court numbers. On August 13, 2015, the

trial court treated the petition to vacate illegal sentence as a PCRA petition

and appointed counsel.1         Counsel filed a no-merit letter and a petition to

withdraw on August 25, 2015.            The PCRA court filed a notice of intent to

dismiss the petition without a hearing on August 27, 2015, and granted

____________________________________________


1
   The common pleas court properly deemed this motion a PCRA petition
because the motion sought relief cognizable under the PCRA.       See
Commonwealth v. Hockenberry, 689 A.2d 283, 288 (Pa. Super. 1997)
(“Issues relating to the legality of sentence cannot be waived and are
cognizable under the PCRA.”).



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counsel permission to withdraw on August 28, 2015. Appellant filed a pro se

response to the PCRA court’s notice of intent on September 10, 2015, and

the PCRA court dismissed the petition on September 28, 2015. This appeal

followed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      Appellant raises the following issues for our consideration, which we

restate here verbatim:

      1.    Did the Sentencing Court transgress its authority and
            sentence the Appellant to an additional order of 48 months
            probation, thus, subjecting the Appellant to be punished
            twice for the same offense at Ct. 1 of 636 CR 2012?

      2.    Did the Sentencing Court abolish Appellant’s first guilty
            plea of concurrent terms upon resentencing to terms of
            consecutive?

      3.    Did the Sentencing Court transgress its authority by
            accepting a guilty plea in regards to Burglary and
            Conspiracy to commit burglary, in which the jurisdiction of
            the charges were in error to the crime committed, thus,
            depriving the appellant merging subjecting the Appellant
            to a harsher punishment then permitted by law?

Appellant’s Brief at 2.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).     The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.




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Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.   Commonwealth v.

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013) (citing Commonwealth v.

Murray, 753 A.2d 201, 203 (Pa. 2000)). 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.”              42 Pa.C.S.

§ 9545(b)(3).

      Although much of Appellant’s pro se brief is rambling and incoherent,

he challenges the legality of his sentences. “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.”     Commonwealth v.

Fowler, 930 A.2d 586, 592 (Pa. Super. 2007)

      Our review of the record reflects that Appellant was re-sentenced at

DN 636 of 2012 on June 6, 2013. Appellant did not file a direct appeal from

the sentence at DN 636 of 2012. Accordingly, his judgment of sentence at

DN 636 of 2012 became final on July 5, 2013, when the time for filing an

appeal to this Court expired. See 42 Pa.C.S. § 9545(b)(3) (providing that


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“a judgment 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.”).

       Appellant was also sentenced at 174 of 2013 on June 6, 2013, and,

although he filed a notice of appeal from that judgment of sentence, he

discontinued that appeal. Accordingly, his judgment of sentence at DN 174

of 2013 also became final on July 5, 2013, when the time for filing an appeal

to this Court expired. 42 Pa.C.S. § 9545(b)(3). Therefore, Appellant had to

file the current PCRA petition by July 5, 2014,2 in order for it to be timely.3

Appellant did not file the instant PCRA petition until July 31, 2015.    Thus,

Appellant’s instant PCRA petition is patently untimely.

       If a petitioner does not file a timely PCRA petition, his petition may

nevertheless be received when the petition alleges, and the petitioner
____________________________________________


2
   Because July 5, 2014, fell on a Saturday, Appellant had until Monday, July
7, 2014, to file his PCRA petition. See 1 Pa.C.S. § 1908 (“Whenever the last
day of any such period shall fall on Saturday or Sunday, or on any day made
a legal holiday by the laws of this Commonwealth or of the United States,
such day shall be omitted from the computation.”).
3
  We note that Appellant filed a timely PCRA petition at DN 174 of 2013 on
June 16, 2014, which the PCRA court dismissed on October 8, 2014.
However, under 42 Pa.C.S. § 9545(b), a second PCRA petition must be filed
within one year of the date the judgment of sentence becomes final, except
under the three limited circumstances set forth in 42 Pa.C.S. §
9545(b)(1)(i), (ii), and (iii). See Commonwealth v. Alcorn, 703 A.2d
1054 (Pa. Super. 1997).




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proves, that any of the three limited exceptions to the time for filing the

petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii), is met.4 That

burden necessarily entails an acknowledgment by the petitioner that the

PCRA petition under review is untimely but that one or more of the

exceptions apply. Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa.

1999).    If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted.

42 Pa.C.S. § 9545(b)(2).         In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.


____________________________________________


4
    The exceptions to the timeliness requirement are:

       (i)    the failure to raise the claim previously was the result of
       interference by government officials with the presentation of the
       claim in violation of the Constitution or laws of this
       Commonwealth or the Constitution or laws of the United States;

       (ii)  the facts upon which the claim is predicated were unknown
       to the petitioner and could not have been ascertained by the
       exercise of due diligence; or

       (iii) the right asserted is a constitutional right that was
       recognized by the Supreme Court of the United States or the
       Supreme Court of Pennsylvania after the time period provided in
       this section and has been held by that court to apply
       retroactively.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).




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      Here, Appellant appears to complain that the trial court sentenced him

twice for the same crime, imposed a harsher punishment by re-sentencing

him to consecutive terms, and failed to merge the sentence for conspiracy to

commit burglary with the burglary sentence. Appellant’s Brief at 6, 7, and 8.

However, Appellant does not plead or prove any of the exceptions to the

PCRA time-bar. 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).

      Consequently, because the instant PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief.    See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

hear untimely petition).    Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition.              See

Commonwealth        v.    Bennett,   930   A.2d   1264,    1267    (Pa.   2007)

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2016

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