J-S73034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL RIVERA,                            :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                    Appellant              :
                                           :
            v.                             :
                                           :
COMMONWEALTH OF PENNSYLVANIA,              :
JEROME WALSH, AND JOHN T. ADAMS,           :
                                           :
                    Appellees              :           No. 990 MDA 2014

                 Appeal from the Order entered on May 14, 2014
                 in the Court of Common Pleas of Berks County,
                           Civil Division, No. 14-5720

BEFORE: BOWES, WECHT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED JANUARY 22, 2015

      Michael Rivera (“Rivera”) appeals, pro se, from the Order denying his

Petition for Writ of Habeas Corpus Ad Subjiciendum (hereinafter “Habeas

Corpus Petition”).1 We affirm.

      In December 2001, Rivera pled guilty to third-degree murder, firearms

not to be carried without a license, possessing an instrument of crime, and

receiving stolen property.      In accordance with the plea agreement Rivera

reached with the Commonwealth, the trial court sentenced Rivera to serve




1
  As we discuss below, the common pleas court should have treated the
Habeas Corpus Petition as a Petition for collateral relief filed under the Post
Conviction Relief Act (“PCRA”).       See 42 Pa.C.S.A. §§ 9541-9546.
Accordingly, we will hereinafter refer to the common pleas court as the
“PCRA court,” and refer to the Habeas Corpus Petition as the “PCRA
Petition/Habeas Corpus Petition.”
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an aggregate prison term of thirty to sixty years.      Notably, the trial court

also imposed a $1,300 fine and court costs of $959.34.

      Rivera did not file a direct appeal. However, in the following years, he

appears to have filed several PCRA Petitions,2 and this Court affirmed the

dismissal of at least one of the Petitions. See Commonwealth v. Rivera,

864 A.2d 583 (Pa. Super. 2004) (unpublished memorandum).3

      On April 28, 2014, Rivera filed the pro se PCRA Petition/Habeas Corpus

Petition, asserting that his sentence is illegal, and he was deprived of due

process, because the sentencing court imposed a fine and court costs

without ever inquiring into Rivera’s ability to pay, in violation of, inter alia,

42 Pa.C.S.A. § 9726(c)(1) (providing that “the court shall not sentence a

defendant to pay a fine unless it appears of record that [] the defendant is




2
  Rivera states that he previously had filed three PCRA Petitions, all of which
were dismissed. See PCRA Petition/Habeas Corpus Petition, 4/28/14, at
¶ 11. We observe that the certified record before us contains limited
information, as the instant case, which Rivera filed as a civil matter, is listed
under a separate docket number than Rivera’s underlying criminal case.

3
  Given our lack of the certified record for Rivera’s criminal case, our
research uncovered only the above-mentioned Superior Court case affirming
the dismissal of Rivera’s second PCRA Petition.        See Rivera, supra
(unpublished memorandum at 4-5) (since Rivera’s PCRA Petition was facially
untimely, and he did not invoke any of the three exceptions to the PCRA’s
jurisdictional time bar contained in 42 Pa.C.S.A. § 9545(b)(1)(i-iii), holding
that the PCRA court properly dismissed the PCRA Petition as being time-
barred).


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or will be able to pay the fine.”).4

      By an Order entered on May 14, 2014, the PCRA court denied Rivera’s

PCRA Petition/Habeas Corpus Petition.5 Rivera timely filed a pro se Notice of

Appeal.   In response, the PCRA court ordered Rivera to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal, after which

Rivera timely complied.

      Rivera presents the following issues for our review:

        1. Did the [PCRA] court err in denying [Rivera’s] … [PCRA
           Petition/]Habeas Corpus [Petition] pursuant to Buck[,
           supra]?

        2. Did the [trial] court violate [Rivera’s] Constitutional right
           to due process by imposing fines without inquiring into

4
  Rivera filed the PCRA Petition/Habeas Corpus Petition against Jerome
Walsh, Superintendent of the State Correctional Institution at Dallas
(wherein Rivera is incarcerated), and John T. Adams, the Berks County
District Attorney. In his Petition, Rivera also asserted that the Pennsylvania
Department of Corrections (“DOC”) was improperly deducting 20% of all
monies in his inmate account, despite knowing that there had been no
hearing conducted concerning his ability to pay the fine and costs.
5
  The PCRA court denied the PCRA Petition/Habeas Corpus Petition based
upon the holding of the Pennsylvania Supreme Court in Buck v. Beard, 879
A.2d 157, 159-61 (Pa. 2005) (where the inmate/appellant claimed that the
DOC had violated his due process rights, and 42 Pa.C.S.A. § 9726, by
deducting money from his inmate account to satisfy his court-ordered fines,
restitution and costs, without conducting a separate judicial hearing on his
ability to pay, holding that the appellant’s sentencing hearing afforded him
due process, and no additional hearing was necessary, since, inter alia, “[a]t
his sentencing hearing, [the appellant] had the opportunity to present
evidence to persuade the court not to impose fines, costs, and restitution.
He also had a right to file an appeal from that portion of the sentence.”);
see also PCRA Court Pa.R.A.P. 1925(a) Opinion, 7/23/14, at 3-4 (ruling that
Buck is dispositive of Rivera’s claims, and he was not deprived of due
process).



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            [Rivera’s] ability to pay those fines, as required by 42
            Pa.[C.S.A.] § 9726(c)(1)?

       3. Did the illegal fine in question unilaterally breach
          [Rivera’s] negotiated plea agreement that the [trial]
          court had previously accepted on the record?

       4. Did the [trial] court err in accepting [Rivera’s] plea of
          guilt?

       5. Did the [trial] court impose an illegal sentence?

Brief for Appellant at 4 (capitalization omitted).

      As stated above, the PCRA court should have treated the PCRA

Petition/Habeas Corpus Petition under the PCRA. See Commonwealth v.

Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013) (stating that any petition

filed after an appellant’s judgment of sentence becomes final, including a

praecipe for writ of habeas corpus, should be treated as a PCRA petition

where the PCRA could provide for a potential remedy); see also id. at 466

(stating that a petitioner cannot circumvent the jurisdictional strictures of

the PCRA by titling his petition as a petition for writ of habeas corpus).

Here, Rivera’s claim of an illegal sentence is cognizable under the PCRA.

Therefore, we must consider Rivera’s claims on appeal under the rubric of

the PCRA.

      The PCRA provides that “[a]ny [PCRA] petition …, including a second

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

judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). Because Rivera did

not file a direct appeal, his judgment of sentence became final in January



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2002. Rivera did not file the instant PCRA Petition/Habeas Corpus Petition

until April 2014, and, therefore, it is facially untimely.

        Accordingly, the PCRA Petition/Habeas Corpus Petition is time-barred

unless Rivera has pled and proven one of the three exceptions to the PCRA’s

time limitation set forth in 42 Pa.C.S.A. § 9545(b)(1)(i-iii).                    These

exceptions provide that a PCRA petition may be filed within sixty days from

the date the claim could have been presented, when the petition alleges,

and the petitioner proves, the following:

        (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 law of this
              Commonwealth or the Constitution 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 has been held by the court to apply
              retroactively.

Id.; see also id. § 9545(b)(2).

        In the PCRA Petition/Habeas Corpus Petition, Rivera does not allege

that the delay in filing his Petition was due to interference by government

officials; or that the facts underlying his Petition were unknown to him and

could not have been ascertained by the exercise of due diligence; or that the

right    he    has   asserted   is   a    retroactive   constitutional   right.    See

Commonwealth v. Crews, 863 A.2d 498, 501 (Pa. 2004) (stating that “it


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is the petitioner’s burden to plead in the petition and prove that one of the

exceptions applies.” (citation omitted, emphasis in original)). 6       Therefore,

Rivera’s PCRA Petition/Habeas Corpus Petition is time-barred, and neither

this Court nor the PCRA court has jurisdiction to address Rivera’s claims.

See Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006) (stating

that “[i]f a PCRA petition is untimely, neither this Court nor the [PCRA] court

has jurisdiction over the petition.    Without jurisdiction, we simply do not

have the legal authority to address the substantive claims.” (citation

omitted)).

      In so holding, we acknowledge that Rivera challenges the legality of

the fine and court costs component of his sentence.        See, e.g., Brief for

Appellant at 9 (citing Commonwealth v. Thomas, 879 A.2d 246, 264 (Pa.

Super. 2005) (observing that pursuant to 42 Pa.C.S.A. § 9726(c)(1), “the

court shall not sentence a defendant to pay a fine unless it appears of record

that [] the defendant is or will be able to pay the fine[,]” and holding that

the trial court erred in imposing a fine as part of the defendant’s sentence

without entering a specific finding concerning his ability to pay the fine)).

      The    Pennsylvania   Supreme    Court   has   explained   that    although

“challenges to the legality of a sentence cannot be waived[,] and [] a court

may raise sentence illegality sua sponte, … a [] court must first have


6
 Rivera also does not allege any of the exceptions in his appellate brief, nor
does he acknowledge that his PCRA Petition/Habeas Corpus Petition is in the
nature of an untimely PCRA Petition.


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jurisdiction to address the illegality ….”   Commonwealth v. Holmes, 933

A.2d 57, 60 (Pa. 2007) (citing Robinson v. Pa. Board of Probation and

Parole, 582 A.2d 857, 860 (Pa. 1990) (stating that “[j]urisdiction is the

predicate upon which a consideration of the merits must rest.”)). Moreover,

“[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).

        Accordingly, because Rivera did not plead or prove any of the

exceptions to the PCRA’s jurisdictional time bar, we cannot address his

legality of sentence challenge.     See id.; see also Commonwealth v.

Seskey, 86 A.3d 237, 241 (Pa. Super. 2014) (stating that “[t]hough not

technically waivable, a legality of sentence claim may nevertheless be lost

should it be raised ... in an untimely PCRA petition for which no time-bar

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

(brackets omitted)).

        Based upon the foregoing, we conclude that the PCRA court properly

denied Rivera’s PCRA Petition/Habeas Corpus Petition, although we do so on

other    grounds   than   those   set   forth   by   the   PCRA   court.   See

Commonwealth v. Charleston, 94 A.3d 1012, 1028 (Pa. Super. 2014)

(stating that “we may affirm the PCRA court’s decision on any basis.”).




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/22/2015




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