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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                   v.                     :
                                          :
TYLER CHARLES SMITH,                      :          No. 510 WDA 2018
                                          :
                        Appellant         :


                  Appeal from the PCRA Order, April 16, 2018,
               in the Court of Common Pleas of Crawford County
               Criminal Division at No. CP-20-CR-0000450-2013


BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED OCTOBER 30, 2018

      Tyler Charles Smith appeals from the order filed in the Court of

Common Pleas of Crawford County that dismissed his petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

Because we agree with the PCRA court that appellant’s facially untimely

petition failed to establish a statutory exception to the one-year jurisdictional

time limit for filing a petition under the PCRA, we affirm.

      The factual and procedural history as set forth by the trial court is as

follows:

            [Appellant] pleaded guilty to robbery, as a felony of
            the second degree, on August 15, 2013.[Footnote 2]
            He was sentenced on October 2, 2013, to
            imprisonment in a state correctional facility for a
            minimum term of sixteen months and a maximum
            term of sixty months, with 174 days of presentence
            incarceration credit. He did not file a post-sentence
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           motion or a direct appeal, and was released on
           parole on May 18, 2015.

                 [Footnote      2]        18     Pa.C.S.A.
                 [§] 3701(a)(1)(iv), (b).

           [Appellant] was again arrested on December 12,
           2016, and on April 3, 2017, pleaded guilty in Erie
           County to the identical criminal offense.       Case
           No. 25-CR-130-2017. He was sentenced there on
           May 31, 2017, to imprisonment for a term of two to
           nine years, with credit for 171 days of presentence
           incarceration, consecutive to any other sentence he
           was serving. The Commonwealth of Pennsylvania
           Board of Probation and Parole (the “Parole Board”),
           by decision rendered on September 26, 2017, found
           that [appellant] had violated the conditions of his
           parole by his Erie County conviction, and
           recommitted him to serve twenty-four months[’]
           backtime, beginning on the date of his Erie County
           sentence.     Consequently, he is not eligible for
           reparole until May 31, 2019, and his parole violation
           maximum date is April 24, 2020.

           [Appellant’s] PCRA petition was docketed on
           December 4, 2017, and counsel was appointed to
           represent him by Order dated December 6, 2017.
           His counseled amended petition . . . was filed on
           February 1, 2018.

PCRA court opinion, 2/13/18 at 1-2 (footnotes 3-5 omitted).

     By order and opinion filed February 13, 2018, the PCRA court informed

appellant of its intent to dismiss the petition without a hearing. Appellant

responded and asked the PCRA court to overturn the decision of the

Pennsylvania Board of Probation and Parole that extended the maximum

date of his original sentence from which he had been paroled. On March 13,

2018, the PCRA court dismissed the PCRA petition as untimely and not



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cognizable under the PCRA.       On April 10, 2018, appellant filed a notice of

appeal.   On April 12, 2018, the PCRA court filed an opinion pursuant to

Pa.R.A.P. 1925(a) that incorporated the February 13, 2018 and March 13,

2018 opinions.

      Appellant raises the following issue for this court’s review:      “Did the

[PCRA] court commit error by dismissing appellant’s PCRA action as untimely

and not cognizable, without hearing, when [the] State Parole Board modified

appellant’s   sentence    by   imposing    a   new    parole   maximum    date?”

(Appellant’s brief at 7 (full capitalization omitted).)

      All PCRA petitions must be filed within one year of when a defendant’s

judgment of sentence becomes final.            42 Pa.C.S.A. § 9545(b)(1).     “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 the time for seeking

the review.”      42 Pa.C.S.A. § 9545(b)(3).              The Supreme Court of

Pennsylvania has held that the PCRA’s time restriction is constitutionally

sound.    Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa. 2004).                  In

addition, our supreme court has instructed that the timeliness of a PCRA

petition is jurisdictional.    If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).



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      Here, the trial court sentenced appellant on October 2, 2013.

Appellant failed to file a direct appeal to this court, and consequently,

appellant’s judgment of sentence became final on November 1, 2013,

thirty days after imposition of sentence and the time for filing a direct appeal

expired. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903; Commonwealth

v. Cintora, 69 A.3d 759, 763 (Pa.Super. 2013).            Therefore, appellant’s

petition, filed December 4, 2017, is facially untimely. As a result, the PCRA

court lacked jurisdiction to review appellant’s petition, unless appellant

pleads and proves that he meets one of the following exceptions to the time

requirement:

            (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.A. § 9545(b)(1)(i)-(iii).     Section 9545 also mandates that any

petition filed under these exceptions must be filed within 60 days of the date

the claim could have been presented. Id. at § 9545(b)(2).


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     Appellant is claiming that he meets the exception contained in

42 Pa.C.S.A. § 9545(b)(1)(ii) that there are unknown facts, which he has

discovered, that allow him to proceed with an untimely PCRA petition.

Appellant claims that the Board’s recalculation of his maximum date is a

previously unknown fact, which enables him to obtain collateral relief under

the PCRA even though his petition was untimely. This court does not agree.

When a prisoner has a maximum sentence of two years or more, the Board

has the exclusive power to parole and reparole, commit and recommit for

violations, and to extend the maximum sentence date when a convicted

parole violator is recommitted. Commonwealth Dept. of Corrections v.

Reese, 774 A.2d 1255 (Pa.Super.), appeal denied, 790 A.2d 1016 (Pa.

2001).   Appellate review of a Board decision is within the exclusive

jurisdiction of Commonwealth Court and is not the subject of a PCRA

petition. Id. at 1259-1260. See also Commonwealth v. Vega, 754 A.2d

714, 718 (Pa.Super. 2000).    The recalculation of a maximum date by the

Board does not qualify as an exception under 42 Pa.C.S.A. § 9545(b)(1)(ii).

Appellant has not successfully pled or proved that he meets the exception to

the timeliness requirements of the PCRA.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/30/2018




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