J-S70043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JESUS M. GARCIA                            :
                                               :
                       Appellant               :   No. 1241 MDA 2017

                  Appeal from the Order Entered July 24, 2017
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0000829-2008


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                               FILED DECEMBER 12, 2017

       Jesus M. Garcia appeals pro se the order entered July 24, 2017, in the

Court of Common Pleas of Lebanon County, that denied his “Petition to Cease

Act 84 Deductions.” 1 Garcia claims, “[T]he court committed an error of law

in dismissing the petition to cease Act 84 deduction[s], where [Garcia]

requested [] a hearing. [Garcia] was not given the opportunity in accordance

____________________________________________


1  As will be discussed more fully below, the trial court concluded the
Commonwealth Court has original jurisdiction over petitions to stop the
Department of Corrections from making Act 84 deductions, and that it did not
have jurisdiction to grant the relief Garcia requested. Id. at 2-3.

       However, by denying Garcia’s motion instead of transferring the matter
to the Commonwealth Court, pursuant to 42 Pa.C.S. § 5103, the trial court
entered a final, appealable order over which this Court has appellate
jurisdiction. See Commonwealth v. Danysh, 833 A.2d 151 (Pa. Super.
2003) (Superior Court has jurisdiction to vacate common pleas court’s
improper denial of Act 84 injunction petition).
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with due process to make arguments why the deductions should not be made.”

Garcia’s Brief at 4. Based upon the following, we affirm, albeit on different

grounds than those relied on by the trial court.

       The facts underlying this case are discussed in this Court’s decision

addressing Garcia’s direct appeal. See Commonwealth v. Garcia, 990 A.2d

43 [437 MDA 2009] (Pa. Super. 2009) (unpublished memorandum).

Furthermore, the procedural history is fully set out in the trial court’s opinion

issued in connection with this appeal. See Trial Court Opinion, 8/18/2017, at

1–4.   Therefore, we simply state that this Court, on February 18, 2014,

affirmed the denial of Garcia’s first petition filed pursuant to the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Commonwealth v.

Garcia, 97 A.3d 804 [671 MDA 2013] (Pa. Super. 2014), appeal denied, 99

A.3d 924 (Pa. 2014). On January 29, 2016, this Court affirmed the dismissal

of Garcia’s second PCRA petition as untimely. Commonwealth v. Garcia,

136 A.3d 1041 (Pa. Super. 2016).

       Garcia asserts that Department of Corrections (DOC) officials are

deducting a 20% share from his inmate account for fines, costs and

restitution, and that the deductions were not ordered at sentencing, but

occurred later and without affording Garcia a hearing on the issue.

       The trial court, on July 25, 2017, denied Garcia’s Petition to Cease Act

84 Deductions, reasoning that “[a]ny complaint [Garcia] now has with

deduction of fines, costs and restitution must be submitted to the State Bureau




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of Corrections or the State Board of Probation and Parole.” Order, 7/25/2017

at 2.

        In support of its order, the trial court cites Commonwealth v. Danysh,

833 A.2d 151 (Pa. Super. 2003). See Trial Court Opinion, 8/18/2017, at 5–

6. In Danysh, this Court held the trial court lacked subject matter jurisdiction

over the defendant’s motion to stop Act 84 deductions because the claim was

in reality a civil action against the DOC. Danysh, 833 A.2d at 153. This Court

explained that the Commonwealth Court had exclusive original jurisdiction of

such claim pursuant to 42 Pa.C.S. § 761(a). Id. at 152–153.

        We agree with the trial court that generally an inmate’s Act 84 motion

lies within the exclusive original jurisdiction of the Commonwealth Court.

Danysh, supra. Here, however, Garcia’s petition implicitly raises a legality

of sentencing issue, based on Garcia’s assertion that the trial court failed to

assess whether he could pay his fines and costs. See Commonwealth v.

Boyd, 73 A.3d 1269, 1270 (Pa. Super. 2013) (en banc) (claim that sentencing

court failed to consider defendant's ability to pay before imposing fines

implicates legality of sentence). Therefore, because the PCRA, encompasses

challenges to the legality of sentence, 42 Pa.C.S. § 9543(a)(2)(vii), Garcia’s

Petition to Cease Act 84 Deductions should be construed as a PCRA petition.

        “It is well-settled that the PCRA’s time restrictions are jurisdictional in

nature.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). A

PCRA petition must be filed within one year of the date the judgment becomes

final. See 42 Pa.C.S. § 9545(b)(1). This Court previously determined Garcia’s

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judgment of sentence became final on July 9, 2012, and he had until July 9,

2013, to file a timely PCRA petition. See Commonwealth v. Garcia, 136

A.3d 1041 (Pa. Super. 2016) (unpublished memorandum). As such, Garcia’s

present petition, filed pro se July 3, 2017, is patently untimely under the PCRA.

      We recognize there are three statutory exceptions to the PCRA’s

timeliness provisions that allow for limited circumstances under which an

otherwise untimely PCRA petition may be reviewed, namely, where there is

governmental interference, newly discovered evidence, or a new constitutional

right that has been held to apply retroactively.           See 42 Pa.C.S. §

9545(b)(1)(i)-(iii). See also 42 Pa.C.S. § 9545(b)(2) (requiring petitioner

invoking an exception to file a petition within 60 days of the date the claim

could have been presented.) However, Garcia’s petition does not implicate

any of the PCRA’s statutory exceptions. Consequently, the trial court lacked

jurisdiction under the PCRA to entertain Garcia’s petition.

      While an illegal sentence claim can never be waived, a court must still

have jurisdiction to review an illegal sentence claim.     Commonwealth v.

Fahy, 737 A.2d 214, 223 (Pa. 1999). Here, we have concluded there is no

jurisdiction as the present petition is untimely under the PCRA, and no

statutory exception applies. Accordingly, for different reasons, we affirm the

order of the trial court. See Commonwealth v. Doty, 48 A.3d 451, 456 (Pa.

Super. 2012) (“This Court is not bound by the rationale of the trial court and

may affirm on any basis.” (citation omitted)).

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017




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