J-S47022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                             Appellee

                       v.

MICHAEL EDWARD SILUK, JR.

                             Appellant                       No. 1887 MDA 2015


               Appeal from the Order Entered September 2, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0004194-2001
                                          CP-22-CR-0004196-2001
                                          CP-22-CR-0004197-2001
                                          CP-22-CR-0004198-2001
                                          CP-22-CR-0004199-2001

BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                  FILED AUGUST 09, 2016

       Michael    Siluk     appeals   from     an   order   denying   his   petition   for

clarification of sentence. We treat this as a PCRA petition, and we affirm.

       In September 2001, Siluk was arrested for sexually assaulting several

prostitutes. Following a four-day trial, Siluk was found guilty of four counts

of rape, two counts each of aggravated indecent assault, aggravated assault,

and robbery, and one count each of involuntary deviate sexual intercourse,

sexual assault, and simple assault.1 On February 20, 2003, the trial court

____________________________________________


1
  18 Pa.C.S. §§ 3121, 3125, 2702, 3701, 3123, 3124.1, and 2701,
respectively.


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imposed     an   aggregate   sentence    of   621   months   to   1260   months’

imprisonment.     This Court affirmed Siluk’s judgment of sentence, and our

Supreme Court denied his petition for allowance of appeal on January 15,

2005.

        On October 12, 2005, Siluk filed a timely PCRA petition. On January

30, 2006, the PCRA court dismissed the petition, and on March 6, 2007, this

Court affirmed.    Siluk did not file a petition for allowance of appeal in the

Supreme Court. Additionally, Siluk filed multiple unsuccessful requests for

post-conviction relief in December 2005, January 2006, April 2007, May

2008, March 2010 and December 2011.

        Siluk argued in his December 2011 petition that (1) the trial court

imposed illegal flat-term sentences of 10 years for three of his offenses (one

count of sexual assault and two counts of aggravated indecent assault); (2)

the court should have imposed minimum and maximum terms for each

sentence, (3) the Department of Corrections (“DOC”) changed the sentences

to terms of 10-20 years’ imprisonment, and (4) the court should change

these sentences to include both a minimum and maximum of ten years (i.e.,

10-10 years’ imprisonment). On January 11, 2012, the court denied Siluk’s

petition on the ground that (1) imposition of flat ten-year sentences was a

clerical error, and the sentences should have been mandatory minimum

sentences of 10-20 years’ imprisonment under 42 Pa.C.S. § 9714, and (2)

the court had instructed the DOC to correct the sentences to 10-20 years’


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imprisonment.    On February 11, 2012, Siluk filed an untimely notice of

appeal. This Court quashed his appeal at 345 MDA 2012.

      On April 17, 2014, Siluk filed a petition for mandamus in the

Commonwealth Court at 524 M.D. 2013 requesting an order directing the

DOC to recalculate his sentence in accordance with the 10-10 years’

imprisonment formula envisioned in his prior PCRA petition – a formula that

would have reduced his maximum sentence by thirty years.              On June 5,

2014, the Commonwealth Court dismissed Siluk’s petition, reasoning that

(1) clerical sentencing errors can be corrected at any time, and (2) the DOC

properly corrected Siluk’s sentences to 10-20 years’ imprisonment pursuant

to the trial court’s request to correct the aforementioned clerical errors. On

February 17, 2015, the Supreme Court affirmed at No. 68 MAP 2014.

      On August 6, 2015, Siluk filed a petition in the lower court for

“clarification of sentence”, the petition presently under review in this appeal.

Once again, Siluk argued that it was illegal to change his flat 10-year

sentences to sentences of 10-20 years’ imprisonment. The Commonwealth

filed a response in opposition to Siluk’s motion. On September 2, 2015, the

court dismissed Siluk’s petition without a hearing.        On October 2, 2015,

Siluk filed a timely notice of appeal. Both Siluk and the court complied with

Pa.R.Crim.P. 1925.

      Although Siluk titled his request for relief a “petition for clarification of

sentence,” it falls within the scope of the PCRA. The PCRA is intended to be


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the sole means of achieving post-conviction relief.        42 Pa.C.S. § 9542.

Issues that are cognizable under the PCRA must be raised in a timely PCRA

petition and cannot be raised in a habeas corpus petition. Commonwealth

v. Peterkin, 722 A.2d 638, 640-41 (Pa.1998).

      Siluk’s petition is a challenge to the legality of his sentence, which falls

within the ambit of the PCRA. Commonwealth v. Jackson, 30 A.3d 516,

521 (Pa.Super.2011) (court properly addressed motion to correct illegal

sentence, filed after four unsuccessful PCRA petitions, as another PCRA

petition). Thus, the rules governing PCRA petitions apply to Siluk’s petition.

      Before we address the merits of Siluk’s claims, we must determine

whether the PCRA court had jurisdiction to review his petition. We conclude

that the PCRA court lacked jurisdiction to review Siluk’s challenge to the

legality of his sentence under the PCRA’s one-year statute of limitations, 42

Pa.C.S. § 9545(b).

      Section 9545     provides that a petition “including a second or

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

becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Commonwealth v.

Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). No court has jurisdiction to

hear an untimely PCRA petition.      Commonwealth v. Monaco, 996 A.2d

1076, 1079 (Pa.Super.2010) (citing Commonwealth v. Robinson, 837

A.2d 1157, 1161 (Pa.2003)). A judgment is final “at the conclusion of direct

review, including discretionary review in the Supreme Court of the United


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States and the Supreme Court of Pennsylvania, or at the expiration of time

for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

       Three exceptions to the PCRA’s time-bar provide for very limited

circumstances under which a court may excuse the late filing of a PCRA

petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079.               The late

filing of a petition will be excused if a petitioner alleges and proves:

              (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)-(iii).         A petition invoking an exception to the

PCRA time bar must “be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).

       Siluk’s judgment of sentence became final on April 15, 2005, his last

day to appeal to the United States Supreme Court. The statute of limitations

for filing a PCRA petition expired on Monday, April 17, 2006.2 The present
____________________________________________


2
  The statute of limitations expired on April 17, 2006 because April 15, 2006
fell on a Saturday. See 1 Pa.C.S. 1908 (“whenever the last day of any
(Footnote Continued Next Page)


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PCRA petition, which was filed on August 6, 2015, nine years after expiration

of the statute, is untimely on its face.

      None of the exceptions in section 9545(b)(i-iii) apply to this case.

Siluk does not allege that the government interference or newly acquired

evidence exceptions in section 9545(b)(i-ii) apply to his case.

      With regard to subsection (iii), while Siluk complains that his sentence

is illegal, he does not expressly claim that his aggregate term includes

unconstitutional mandatory minimum sentences under Alleyne v. United

States, 133 S.Ct. 2151 (2013).             Even if he raised Alleyne sub silentio,

subsection (iii) does not apply, because neither the United States Supreme

Court nor the Pennsylvania Supreme Court has held that Alleyne applies

retroactively to untimely PCRA petitions.            Indeed, our Supreme Court

recently held that Alleyne does not apply retroactively to cases pending on

collateral review.      Commonwealth v. Washington, -- A.3d --, 2016 WL

3909088 (Pa., 7/15/16).3

                       _______________________
(Footnote Continued)

[time] 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
  One other procedural matter deserves mention. The docket reflects that
before the court dismissed Siluk’s petition, it failed to issue a notice of intent
to dismiss the petition within twenty days. Pa.R.Crim.P. 907(a) provides:

      [T]he judge shall promptly review the petition, any answer by
      the attorney for the Commonwealth, and other matters of record
(Footnote Continued Next Page)


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      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




                       _______________________
(Footnote Continued)

      relating to the defendant’s claim(s). If the judge is satisfied from
      this review that there are no genuine issues concerning any
      material fact and that the defendant is not entitled to post-
      conviction collateral relief, and no purpose would be served by
      any further proceedings, the judge shall give notice to the
      parties of the intention to dismiss the petition and shall state in
      the notice the reasons for the dismissal. The defendant may
      respond to the proposed dismissal within 20 days of the date of
      the notice. The judge thereafter shall order the petition
      dismissed, grant leave to file an amended petition, or direct that
      the proceedings continue.

Pa.R.Crim.P. 907(1).

Siluk did not challenge the court’s failure to comply with Rule 907(1) in his
appellate brief. He has therefore waived any objection to the lack of a Rule
907 notice. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super.2013).



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