J-S74032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANGEL COLON                                :
                                               :
                       Appellant               :   No. 1735 EDA 2018

               Appeal from the PCRA Order Entered May 9, 2018
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0002033-2004,
                            CP-15-CR-0004401-2004


BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                            FILED APRIL 22, 2019

        Angel Colon appeals pro se from the dismissal of his Post Conviction

Relief Act (“PCRA”) petition as untimely. See 42 Pa.C.S.A. §§ 9541-9546. We

affirm.

        Colon pleaded guilty in September 2005 to one count of corrupt

organizations and three counts of delivery of a controlled substance.1 The

court sentenced him in April 2006 to 20 to 50 years of imprisonment. Colon

appealed his judgment of sentence, and we affirmed in May 2007. He did not

immediately seek allowance of appeal in the Pennsylvania Supreme Court, but

in May 2008, he filed for allowance of appeal nunc pro tunc. The Supreme

Court ultimately denied his petition for allowance of appeal on November 6,

2008. Colon did not seek further review in the United States Supreme Court.
____________________________________________


1   18 Pa.C.S.A. § 911(b)(3), and 35 P.S. § 780-113(a)(30), respectively.
J-S74032-18



        Colon then filed the petition that is the subject of this appeal, on

February 9, 2018.2 He styled the petition as a “Motion for Time Credit” and

requested credit for his confinement from July 2004 to sentencing. His motion

did not address the PCRA’s one-year time limitation or raise any timeliness

exception. The lower court treated the filing as a PCRA petition and issued a

Pa.R.Crim.P. 907 notice of intent to dismiss. Colon filed a response to the Rule

907 notice arguing that he was entitled to time credit, but did not raise any

time-bar exception.

        The court dismissed the petition. It explained in its order that it treated

the petition as a PCRA petition because a failure to award time credit would

render the sentence illegal, and illegal sentences are cognizable under the

PCRA. It dismissed the petition because the petition was patently untimely

and Colon failed to plead any time-bar exception. Colon filed this timely

appeal, raising one issue: “Did the lower court err in not giving Appellant Angel

Colon a hearing on Motion For Time Credit[?]” Colon’s Br. at 4.

        This Court’s standard of review for the denial of a PCRA petition entails

only “examining whether the PCRA court’s determination is supported by

evidence of record and whether it is free of legal error.” Commonwealth v.

Jordan, 182 A.3d 1046, 1049 (Pa.Super. 2018).

        We do not reach the merits of Colon’s issue because the lower court

properly treated his petition as a PCRA petition, and Colon failed to plead and

____________________________________________


2   This was not Colon’s first PCRA petition.

                                           -2-
J-S74032-18



prove that it was timely. The timeliness of a PCRA petition is jurisdictional. A

PCRA petition “shall be filed within one year of the date the judgment 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

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

      If a petition is filed more than one year after the judgment of sentence

became final, the court will still have jurisdiction if the petitioner pleads and

proves that at least one of three exceptions applies. The exceptions are: (1)

unconstitutional interference by government officials; (2) newly discovered

facts that the petitioner could not have previously ascertained with due

diligence; or (3) a newly recognized constitutional right that either the United

States Supreme Court or the Supreme Court of Pennsylvania has held applies

retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      The Court of Common Pleas properly treated the petition as a PCRA

petition and dismissed it as untimely. The petition qualified as a PCRA petition

because, as the lower court explained, a claim that the trial court improperly

failed to award credit for time served goes to the legality of sentence, which

is cognizable under the PCRA. See Commonwealth v. Menezes, 871 A.2d

204, 207 (Pa.Super. 2005). Colon’s petition was therefore subject to the

PCRA’s time restrictions, and he was required to plead and prove timeliness.

This he failed to do. He filed his petition more than one year after his judgment




                                      -3-
J-S74032-18



of sentence became final, and he did not plead – much less prove – that any

time-bar exception applied. The lower court properly dismissed his petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/22/19




                                    -4-
                                                                              Circulated 03/29/2019 02:23 PM




    COMMONWEALTH OF PENNSYLVANIA                           IN   THE COURT OF COMMON PLEAS

                                                       :   CHESTER COUNTY, PENNSYLVANIA
                              VS.
                                                           NOS. 2033-04 and 4401-04

    ANGEL COLON                                            CRIMINAL ACTION                  J



                              OPINION PURSUANT TO PA.R.A.P. 1925(a)


           I.       Procedural Setting

                 This matter comes before this court as the result of     a   notice of appeal dated

    May 28, 2018 and docketed on June 4, 2018. Defendant Angel Colon (hereinafter

    "Colon") appeals from the Order dated May 9, 2018, which denied his Motion for Time

    Credit (filed on February 9, 2018), which this court treated as       a   petition pursuant to the

    Post -Conviction Relief Act1 ("PCRA"). The court issued an Order dated June

    directing Colon to file    a   concise statement of matters complained of on appeal. Colon's

    concise statement was filed on June 25, 2018 and received in chambers the same

    day. The matter is now ripe for review.

       II.          Facts

                 By way of background, Colon was charged with eleven (11) counts of Delivery

of     a        Controlled Substance, 35 P.S. §780-113(a)(30), greater than 1,000 grams, on

Criminal Information Number 4401-04. All eleven (11) of these counts involved

mandatory minimum sentences. The first count involved                 a   four (4) year mandatory

minimum, while the remaining ten (10) counts involved seven (7) year mandatory

minimum sentences. On Criminal Information Number 2033-04, Colon was charged




1
    42 Pa.C.S. §§9541-9546.
with Corrupt Organizations, 18 Pa.C.S.A. §911(b), and Dealing                            in   Proceeds of

    Unlawful Activities, 18 Pa.C.S.A. §5111(a)(1).

          On September 12, 2005, Colon pled guilty on Criminal Information Number

2033-04 to Corrupt Organizations, 18 Pa.C.S.A. §911(b)(3), and to three (3) counts of

    Delivery of   a   Controlled Substance on case number 4401-04. Although each of the

counts for Delivery of a Controlled Substance carries a mandatory minimum sentence,

the Commonwealth, by agreement, sought to enforce only one mandatory minimum

sentence of four (4) years.

          On      December 15, 2005, Nelson Lugo,           a        co-defendant   in    this case was

sentenced by the Honorable James               P.   MacElree,   II   to 26 to 68 years on the same

charges to which defendant pled open to on September 12, 2005.                           Lugo and Colon

were at the same level in the corrupt organization.                  The following day, on December

    16, 2005, Colon appeared before Judge MacElree for sentencing.                       He attempted to

withdraw his open guilty plea and ultimately requested                       a    continuance of the

sentencing.

          On April 7, 2006, Colon appeared before Judge MacElree and renewed his

request to withdraw his guilty plea.                The request was denied. Colon was then

sentenced to          a   period of twenty (20) to fifty (50) years for the three (3) counts of

delivery and one count of Corrupt Organizations. Colon filed                 a   post -sentence motion

which was denied.              He timely filed a direct appeal; however, the Superior Court

affirmed the judgment of sentence on May 14, 2007.2                       Colon did not timely seek

appellate review from the Supreme Court of Pennsylvania.




2   1343 EDA 2006.
                                                     2
         Colon filed his first PCRA petition on February 29, 2008. The court appointed

Robert    P.   Brendza, Esquire to assist Colon in the PCRA matter. Following        a   thorough

review of the matter, Attorney Brendza filed an amended PCRA petition on April 11,

2008. The PCRA Court granted the amended petition, with agreement of the

Commonwealth, for Colon to petition the Pennsylvania Supreme Court for allowance

of appeal nunc pro tunc from the Superior Court's affirmance of his judgment of

sentence.       Attorney Brendza withdrew from representation and Heather             J. Mattes,

Esquire was appointed Colon's counsel         in his    place. Attorney Mattes filed a Petition

for Allowance of Appeal with the Supreme Court on June 27, 2008; however, the

Supreme Court denied further review on November 6, 2008.3 Colon did not file                    a

Petition for Writ of Certiorari with the United States Supreme Court.             Consequently,

Colon's judgment of sentence became final 90 days thereafter on February 4, 2009.

          Colon filed another PCRA petition on August 3, 2009. This petition was treated

as Colon's first request for relief under the PCRA given the procedural issues raised

previously. The court again appointed Robert           P.   Brendza, Esquire to represent Colon.

Following his review of the matter, Attorney Brendza sought leave to withdraw as

counsel on September 30, 2009, having found no issues of arguable merit entitling

Colon to PCRA relief.       Upon conducting an independent review of the record in the

above -captioned matter, the court concurred with Attorney Brendza's conclusions that

Colon had presented no meritorious issues in his request for collateral relief and, on

November 13, 2009, the PCRA court issued           a    Notice of Intent to Dismiss Pursuant to

Pa.R.Crim.P. 907 with       a   detailed explanation of the basis for the court's findings.

Colon responded to the Notice of Intent on December 3, 2009.                  On December 17,



3   417 MAL 2008.
                                               3
2009, the court granted Attorney Brendza's request to withdraw and dismissed

Appellant's PCRA petition.

        Following dismissal        of the      petition,    Colon      appealed   Judge   MacElree's

December 17, 2009 Order to the Superior Court on December 28, 2009.4                              On

September 10, 2010, the Superior Court affirmed the dismissal of Colon's PCRA

petition.

        On April 16, 2013, Colon filed a subsequent (second) PCRA petition in which he

alleged alteration        of his   guilty plea colloquy.         The     PCRA court directed      the

Commonwealth to respond, which          it   did on September 3, 2013. Following review of the

matter, the PCRA court issued its 907 Notice and, subsequently, dismissed the

petition on June 25, 2014. Colon again appealed to the Superior Courts Meanwhile,

Colon also filed      a   Petition for Writ of Habeas Corpus on May 15, 2014, which was

denied.6 The Superior Court affirmed the dismissal of Colon's second PCRA on March

4, 2015.

        Colon filed a fourth PCRA petition on August 12, 2015. This petition was

dismissed on September 23, 2015. Colon again appealed to the Superior Court which

affirmed the PCRA Court's dismissal on July                6, 2016.7    This brings us to the current

posture of this matter.

        Due to Judge MacElree's retirement at the conclusion of 2017, this matter was

transferred to the undersigned.          On February 9, 2018, Colon filed his fifth PCRA

petition.   In it,   he requested that this not be considered as a petition filed under the

PCRA, but rather that it be treated as a petition for habeas corpus. This court

453 EDA 2010.
5
  2098 EDA 2014.
6 The Petition for Writ of Habeas Corpus was treated as Colon's third PCRA by Order dated October 10,

2014.
7
  3247 EDA 2015.
                                                    4
conducted an independent review of the record in the above -captioned matter. Upon

review, the court directed the Commonwealth to file a response which                 it   did on April

20, 2018. On April 24, 2018, this court issued         a   Notice of Intent to Dismiss the petition

without an evidentiary hearing after concluding that Colon's challenge to the trial

court's failure to award credit for time spent in custody prior to sentencing involves the

legality of the sentence, which is an issue cognizable under the PCRA. Thus, the

PCRA was the only avenue for relief available to Colon. See, Comonwealth                     v.   Fahy,

558 Pa. 313, 332, 737 A.2d 214, 224 (1999) (the writ continues to exist as an

independent basis for relief only         in   cases in which there is no remedy under the

PCRA). This court also determines that the petition was patently untimely. Colon

responded to the Notice, but raised no issues of arguable merit which would entitle

him to    a    timeliness exception. The court then dismissed the PCRA petition by Order

dated May 9, 2018.

          Appellant's concise statement contains two (2) alleged errors which are set

forth as follows:

          1.       The PCRA court has violated the Eighth Amendment of the United

States Constitution by failing to give Colon credit for time served resulting in him

serving more time than was judicially imposed.

          2.       The PCRA court has violated 42 Pa.C.S.A. §9760 by refusing to give

Colon credit for time served which amounts to          a   miscarriage of justice.

   III.         Issue

               Did the PCRA court err when it determined Colon did not establish
               entitlement to a timeliness exception giving the court jurisdiction over his fifth
               PCRA petition?




                                                   5
     IV.        Holding

                No, the PCRA court did not err when it determined Colon did not establish
                entitlement to a timeliness exception which is necessary to give the court
                jurisdiction over his fifth PCRA petition.

     V.         Rationale

                Appellant challenges this court's denial of his fifth PCRA petition.                    In

reviewing the trial court's disposition of a PCRA petition, the appellate court "must

determine whether the PCRA court's ruling is supported by the record and free from

legal error." See, Commonwealth              v.    Hawkins, 894 A.2d 716, 722 (Pa. 2006),

Commonwealth          v.   Allen, 732 A.2d 582, 586 (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.

Corn.      v.   Fahy, supra, 558 Pa. at 331, 737 A.2d at 223 citing Commonwealth v.

Chester, 557 Pa. 358, 733 A.2d 1242 (1999). Timeliness is crucial to any PCRA

appeal. The timeliness requirement for PCRA petitions "is mandatory and jurisdictional

in   nature, and the court may not ignore          it in   order to reach the merits of the petition."

Commonwealth          v.   Hernandez, 79 A.3d 049, 651 (Pa. Super. 2013) (citation omitted).

The question of whether a petition is timely raises                   a   question of law. Where the

petitioner raises questions of law, the appellate court's standard of review                  is de   novo

and scope of review plenary. Commonwealth                   v.   Taylor, 65 A.3d 462, 468 (Pa. Super.

2013) (citations omitted).

           A request for relief made in      a    second or subsequent PCRA petition will be

entertained only if a strong prima facie showing is offered to demonstrate that                          a

miscarriage of justice may have occurred. Commonwealth                     v.   Carpenter, 725 A.2d 154,

                                                     6
160 (Pa.1999). "A petitioner makes a prima facie showing if he demonstrates that

either the proceedings which resulted in his conviction were so unfair that                                        a


miscarriage of justice occurred which no civilized society could tolerate, or that he was

innocent of the crimes for which he was charged." Id. (internal quotation omitted). The

right to an evidentiary                     hearing    on   a       post -conviction   petition   is   not absolute.

Commonwealth                v.    Granberry, 434 Pa. Super. 524, 644 A.2d 204, 208 (1994).                     With

this standard          in        mind, this court concluded that Colon did not meet his burden

establishing his right to PCRA relief for the following reasons. An evidentiary hearing

would have been futile.

         Pursuant to 42 Pa.C.S.A. §9545(b)(1),                        a   PCRA petition must be filed within one

year of the date that the challenged judgment becomes final. "[A] judgment [of

sentence] 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 time for seeking the review." 42 Pa.C.S.A.

§9545(b)(3). Thus, to be timely, Appellant was required to file his PCRA petition no

later than February 4, 2009.                    The instant pro se PCRA petition was not filed until

February       9,   2018, which makes the petition untimely on its face.

         In    order for the court to have jurisdiction over this matter, Appellant was

required to make a prima facie showing of entitlement to one of the three timeliness

exceptions enumerated                  in   42 Pa.C.S.A. §9545(b)(1)(i-iii).           The timeliness exceptions

involve "(1) interference by government officials                          in   the presentation of the claim; (2)

newly -discovered                 facts;     and      (3)   an        after-recognized      constitutional    right."

Commonwealth                v.    Brandon,     51   A.3d 231, 233-34 (Pa. Super. 2012). Any petition

attempting to invoke one of these exceptions "shall be filed within 60 days of the date

                                                                7
the claim could have been presented." 42 Pa.C.S. §9545(b)(2).               Colon made no

attempt whatsoever to establish entitlement to any of the enumerated exceptions.

Consequently, his fifth PCRA petition was untimely.

        Based upon the foregoing discussion, this court lacked jurisdiction to consider

the merits     of Colon's    PCRA petition and no hearing was necessary.                     See,

Commonwealth      v.   Wah, 42 A.3d 335, 338 (Pa. Super. 2012) ("It is within the PCRA

court's discretion to decline to hold       a   hearing if the petitioner's claim    is   patently

frivolous and has no support either in the record or other evidence.").

        Based upon the foregoing,    I   respectfully request that the Order of May 9, 2018

be affirmed.

               All of which is respectfully submitted,


                                                     BY THE COURT:



Date:
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                                                          ey  .    6'4'u
                                                                 Sommer             J.




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