J-S38022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

DYLAN L. MATTERN

                        Appellant                   No. 2136 MDA 2014


            Appeal from the Order entered November 20, 2014
             In the Court of Common Pleas of Montour County
             Criminal Division at No: CP-47-CR-0000003-2007


BEFORE: WECHT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                      FILED SEPTEMBER 14, 2015

     Appellant Dylan L. Mattern pro se appeals from an order of the Court

of Common Pleas of Montour County, denying as untimely his “Petition for

Sentence Reduction.” Upon review, we affirm.

     The facts and procedural history underlying this case are undisputed.

On January 30, 2007, Appellant pled guilty to aggravated indecent assault

for sexually abusing a fifteen-year-old girl. On July 23, 2007, Appellant was

sentenced to 4 to 10 years’ imprisonment and designated as a sexually

violent predator. Appellant did not appeal his judgment of sentence and, as

a result, it became final on August 22, 2007.

     On November 26, 2007, Appellant filed his first petition under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46, challenging only

his designation as a sexually violent predator. The PCRA court denied relief
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on August 11, 2008.           More than four years later, on April 25, 2013,

Appellant filed a motion titled “Motion to Credit Time Served” in the PCRA

court, arguing that he was credited an incorrect amount of days for time

served prior to sentencing. The PCRA court denied the motion on May 28,

2013. Appellant did not appeal the denial.

          On January 24, 2014, Appellant filed a “Writ of Habeas Corpus,”

raising the same argument as in his previously denied “Motion to Credit for

Time Served.” The PCRA court denied Appellant’s habeas writ on March 4,

2014.       In so doing, the PCRA court “cautioned [Appellant] against filing

multiple and frivolous [m]otions pertaining to the same topic, even if he calls

[them] by another name.”           PCRA Court Order, 3/4/14.   Appellant timely

appealed the denial of his writ of habeas corpus to this Court.          In its

Pa.R.A.P. 1925(a) opinion, the PCRA court explained that it treated as a

PCRA petition Appellant’s writ of habeas corpus and dismissed it as untimely

under PCRA.1 Additionally, the PCRA court noted that Appellant “alleged no

facts which would bring this case under any exception to the requirement

that PCRA petitions be filed within one year after the sentencing order is

final.”     PCRA Court’s Opinion, 6/24/14.       Thereafter, upon Appellant’s

application, this Court discontinued the appeal from the denial of his writ of


____________________________________________


1
  A collateral challenge to legality of sentence for failure to credit for time
served must be brought under the PCRA. See Commonwealth v. Beck,
848 A.2d 987, 989 (Pa. Super. 2004).



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habeas corpus on November 25, 2014.              While the appeal was pending,

however, on November 5, 2014, Appellant filed a “Petition for Sentence

Reduction” in the PCRA court, challenging the credit for time served as well

as the legality of the sentence imposed under Alleyne v. United States,

133 S. Ct. 2151 (2013).          The PCRA court denied Appellant’s petition on

November 20, 2014.2          On December 16, 2014, Appellant timely appealed

from the denial of his “Petition for Sentence Reduction.”

       On appeal,3 Appellant raises two issues for our review, reproduced

here verbatim:

       [1.] The [PCRA] court improperly denied Appellant’s motion to
       correct time credited the court only credited 87 days instead of
       crediting a total of 250 days already served correction is needed
       and appropriate.

       [2.] Appellant was unconstitutionally sentenced to the statutory
       maximum based upon facts found by the judge, not a jury thus
       violating the due process clause of the 14th Amendment and
       further violating the 6th Amendment right to a jury trial.


Appellant’s Brief at D-4.4
____________________________________________


2
   Although not apparent from the record, we assume the PCRA court
dismissed the “Petition for Sentence Reduction” for the reasons outlined in
its Rule 1925(a) opinion in support of its denial of Appellant’s writ of habeas
corpus.
3
  “In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
4
  Based on the outcome, we need not address the merits of this case.
Nonetheless, assuming Appellant had not pled guilty and had raised the
Alleyne challenge within the sixty-day period specified in Section
(Footnote Continued Next Page)


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      Preliminarily, we must note that Appellant does not challenge the

PCRA court’s decision to treat his “Petition for Sentence Reduction” as a

PCRA petition.    Indeed, it is settled that the PCRA subsumes common law

remedies where the relief sought is available under the PCRA: “The action

established in this subchapter shall be the sole means of obtaining collateral

relief and encompasses all other common law and statutory remedies for the

same purpose that exit when this subchapter takes effect[.]” 42 Pa.C.S.A.

§ 9542.    If relief is available under the PCRA, the PCRA is the exclusive

means of obtaining the relief sought.            See Commonwealth v. Eller, 807

A.2d 838, 842 (Pa. 2002).

      Because Appellant’s “Petition for Sentence Reduction” falls under the

PCRA, we must conclude that the PCRA court did not err in dismissing it. As

noted earlier, Appellant filed the “Petition for Sentence Reduction” on

November 5, 2014, while his appeal from the denial of his writ of habeas

corpus was pending in this Court.                  Appellant did not apply for a

discontinuance of the appeal until November 19, 2014, which we granted on

November 25, 2014. Our Supreme Court has held that a subsequent PCRA

petition cannot be filed until “resolution of review of the pending [prior]
                       _______________________
(Footnote Continued)

9545(b)(2) of the PCRA following the United States Supreme Court’s
decision in Alleyne, we still would decline to address his Alleyne challenge.
See Commonwealth v. Riggle, 2015 PA Super. 147, __ A.3d __, 2015 WL
4094427, at *4 (filed July 7, 2015) (explaining that Alleyne does not apply
retroactively to cases on PCRA review) (citing Commonwealth v. Miller,
102 A.3d 988, 995 (Pa. Super. 2014)).



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PCRA petition by the highest state court in which review is sought, or upon

the expiration of the time for seeking such review.”      Commonwealth v.

Lark, 746 A.2d 585, 588 (Pa. 2000). Thus, Appellant was prohibited from

filing the “Petition for Sentence Reduction,” while his appeal from the writ of

habeas corpus was pending in this Court. Our reasoning differs from that of

the PCRA court. We, however, may affirm the PCRA court’s decision on any

basis.     Commonwealth v. Charleston, 94 A.3d 1012, 1028 (Pa. Super.

2014) (citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).

         Even if Appellant was not prohibited from filing another petition, we

still would conclude that we lack jurisdiction to address his legality of

sentence claims.     We note that “[a]lthough 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. Fahy,

737 A.2d 214, 223 (Pa. 1999). Here, Appellant not only filed the “Petition

for Sentence Reduction” more than 4½ years after his sentence became

final, but he also failed to allege and prove that any exceptions to the one-

year time-bar were met.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/14/2015


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