J-S52042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

WILLIAM E. VUKICH

                        Appellant                   No. 427 WDA 2015


            Appeal from the PCRA Order of February 11, 2015
             In the Court of Common Pleas of Beaver County
          Criminal Division at Nos.: CP-04-CR-0001236-2008
                                     CP-04-CR-0001869-2008
                                     CP-04-CR-0001862-2008
                                     CP-04-CR-0001864-2008


BEFORE: SHOGAN, J., WECHT, J., and OLSON, J.

MEMORANDUM BY WECHT, J.:                        FILED NOVEMBER 4, 2015

     William E. Vukich appeals the February 11, 2015 order dismissing his

petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-46, as untimely. We affirm.

     In 2008, Vukich entered a guilty plea to theft and burglary offenses.

Vukich received an aggregate sentence of two to four years’ imprisonment,

and seven years’ probation. In 2013, Vukich violated his probation, and was

re-sentenced to one to three years’ imprisonment.          The PCRA court

summarized the relevant procedural history of this case as follows:

        On November 7, 2014, Vukich filed pro se a Petition under
        the PCRA. On December 9, 2014, the court entered an
        order appointing conflicts counsel to represent Vukich in
        his PCRA Petition and granting counsel sixty (60) days to
        amend Vukich’s PCRA Petition. On January 26, 2015,
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            counsel for Vukich filed a No-Merit Memorandum and
            Petition to Withdraw from the PCRA Proceeding.            On
            January 29, the court entered an Order granting counsel’s
            motion to withdraw and an Order for Rule to Show Cause
            why Vukich’s PCRA Petition should not be dismissed, which
            notified Vukich of the court’s intent to dismiss the Petition
            and of Vukich’s right to proceed either pro se or by private
            counsel.

            On February 6, 2015, Vukich filed a request for Leave to
            Amend [his] PCRA Petition. . . . On February 11, 2015,
            the court entered an Order denying Vukich’s Request for
            Leave to Amend, an Order dismissing Vukich’s PCRA
            Petition Without Hearing, and an Order granting Vukich
            leave to proceed in forma pauperis and directing Vukich to
            specify which transcripts he was requesting.

PCRA Court Opinion (“P.C.O.”), 4/10/2015, at 1-2 (minor modifications for

clarity).

      On February 23, 2015, Vukich timely filed a notice of appeal.            On

March 12, 2015, the PCRA court ordered Vukich to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).            Vukich

timely complied.       On April 10, 2015, the PCRA court filed a Pa.R.A.P.

1925(a) opinion.

      On appeal, we interpret Vukich’s brief as raising the following issues

for our consideration:

      1. Whether the sentence that followed [Vukich’s] revocation of
         probation was illegal and unconstitutional under the United
         States Constitution and [the] Pennsylvania Constitution?

      2. Whether [Vukich’s] sentence breached his plea agreement?

      3. Whether [Vukich’s] appointed counsel was ineffective and
         incompetent?




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See Brief for Vukich at 6-9.

      Our standard of review for an order denying PCRA relief is well-settled:

      This Court’s standard of review regarding a PCRA court’s order is
      whether the determination of the PCRA court is supported by the
      evidence of record and is free of legal error. Great deference is
      granted to the findings of the PCRA court, and these findings will
      not be disturbed unless they have no support in the certified
      record. Moreover, a PCRA court may decline to hold a hearing
      on the petition if the PCRA court determines that a petitioner’s
      claim is patently frivolous and is without a trace of support in
      either the record or from other evidence.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted).

      Before we can consider the merits of Vukich’s issues, we first must

determine whether his PCRA petition was timely filed, thereby conferring

jurisdiction upon the PCRA court to rule upon the petition in the first

instance. In Commonwealth v. Jackson, 30 A.3d 516 (Pa. Super. 2011),

we articulated the timeliness standards under the PCRA as follows:

      The PCRA “provides for an action by which persons convicted of
      crimes they did not commit and persons serving illegal sentences
      may obtain collateral relief.” 42 Pa.C.S.A. § 9542. When an
      action is cognizable under the PCRA, the PCRA is the “sole
      means of obtaining collateral relief and encompasses all other
      common law and statutory remedies for the same purpose[.]”
      42 Pa.C.S.A. § 9542.

      In order for a court to entertain a PCRA petition, a petitioner
      must comply with the PCRA filing deadline.                 See
      Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.
      2003).    The time for filing a petition is set forth in
      42 Pa.C.S.A. § 9545(b), which provides in relevant part:

         (b) Time for filing petition.—


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        (1) Any petition under this subchapter, including a second
        or subsequent petition, shall be filed within one year of the
        date the judgment becomes final, unless the petition
        alleges and the petitioner proves that:

           (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).

     “[T]he time limitations pursuant to . . . the PCRA are
     jurisdictional.” Commonwealth v. Fahy, 737 A.2d 214, 222
     (Pa. 1999). “[Jurisdictional time] limitations are mandatory and
     interpreted literally; thus, a court has no authority to extend
     filing periods except as the statute permits.” Id. “If the petition
     is determined to be untimely, and no exception has been pled
     and proven, the petition must be dismissed without a hearing
     because Pennsylvania courts are without jurisdiction to consider
     the merits of the petition.” Commonwealth v. Perrin, 947
     A.2d 1284, 1285 (Pa. Super. 2008).

Id. at 518-19.

     Instantly, Vukich was sentenced for violating his probation in each of

the above-captioned cases on January 13, 2013. Vukich did not file a direct

appeal. Thus, his judgment of sentence became final on February 13, 2013.

See 42 Pa.C.S. § 9545(b)(3) (“A judgment becomes final at the conclusion


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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.”).   To be timely, Vukich had to file his PCRA

petition within one year of that date, on or before February 13, 2014. See

42 Pa.C.S. § 9545(b)(1) (“[A]ny petition under this subchapter, including a

second or subsequent petition, shall be filed within one year of the date the

judgment becomes final.”). Vukich filed the instant petition on November 7,

2014, approximately one year and nine months after his judgment of

sentence became final.     Consequently, Vukich’s PCRA petition facially is

untimely.

      Nonetheless, as noted above, an untimely PCRA petition will be

deemed to be timely filed if the petitioner has pleaded and proven in his

PCRA petition one of the three enumerated exceptions to the PCRA’s time

bar. See 42 Pa.C.S. § 9545(b)(1). The PCRA court noted in its opinion that

Vukich has failed to demonstrate that one of the exceptions applies.     See

P.C.O. at 5. We agree.

      In his pro se PCRA petition, Vukich checked two boxes alleging

interference by government officials and newly-discovered facts, referencing

42 Pa.C.S. § 9545(b)(i)-(ii).   The core of Vukich’s claim for relief, as set

forth in his PCRA petition and in his brief to this Court, are his contentions

that the sentence imposed following his probation violation was illegal, that

he received ineffective assistance of counsel, and that he was subject to

double jeopardy due to an alleged breach of his plea agreement.

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      The PCRA court highlighted that Vukich’s argument for governmental

interference is strongly rooted in his claim of ineffective assistance of

counsel. We agree. Ineffective counsel will not satisfy the requirements to

meet the government interference exception.        Thus, Vukich’s argument is

without merit. 42 Pa.C.S. § 9545(b)(4) (“For purposes of this subchapter,

‘governmental officials’ shall not include defense counsel, whether appointed

or retained); Commonwealth v. Crews, 863 A.2d 498, 503 (Pa. 2004) (“It

is well settled that the alleged ineffectiveness of all prior counsel, including

the first PCRA counsel, does not fall within the governmental interference

exception.”).

      Similarly, Vukich’s newly discovered facts claim is primarily tied to his

claim of ineffective assistance of counsel, as he asserts that his appointed

counsel lied to him.    Once more, an allegation of ineffective assistance of

counsel will not suffice to satisfy the newly discovered facts exception.

Commonwealth v. Edmiston, 65 A.3d 339, 349 (Pa. 2013) (“[W]e have

previously rejected attempts to circumvent the timeliness requirements of

the PCRA by asserting prior counsel’s ineffectiveness for failing timely to

raise a claim.     As we have explained, the nature of the constitutional

violations alleged has no effect on the application of the PCRA time bar.

Rather,   the    only   cognizable   exceptions   are   set   forth   at   Section

9545(b)(1).”).

      Vukich finally argues that his sentence was illegal, constituting both a

breach of his plea agreement and double jeopardy because he is serving a

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second sentence for the same offense. We recognize that “the legality of a

sentence is a non-waivable issue subject to review at any stage of the

judicial process or sua sponte by the court.” Commonwealth v. Sharpe,

665 A.2d 1194, 1195 (Pa. Super. 1995). But, it is well-settled that such a

claim does not, ipso facto, provide a PCRA court with jurisdiction. Although

it is true that claims regarding the legality of a sentence generally cannot be

waived, See Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super.

2008), waiver and jurisdiction are separate matters. “Though not technically

waivable, a legality [of sentence] claim may nevertheless be lost should it be

raised for the first time in an untimely PCRA petition for which no time-bar

exception applies, thus depriving the court of jurisdiction over the claim.”

Commonwealth v. Slotcavage, 939 A.2d 901, 903 (Pa. Super. 2007)

(citing Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“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.”)).

      Vukich has not established the PCRA court’s jurisdiction to grant relief

on his untimely PCRA petition. Vukich filed his PCRA petition approximately

one year and nine months after his judgment of sentence became final.

Vukich has not proved the applicability of any of the enumerated exceptions

to the PCRA’s time bar.     Thus, the PCRA court lacked jurisdiction over his

petition, and did not err or abuse its discretion in dismissing the petition on

that basis.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/4/2015




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