J. S22029/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
MARK DAVID MILLER,                         :
                                           :
                         Appellant         :     No. 1641 MDA 2015

                  Appeal from the PCRA Order August 24, 2015
            In the Court of Common Pleas of Northumberland County
                 Criminal Division No.: CP-49-CR-0000789-2006

BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                                   FILED MAY 12, 2016

        Appellant, Mark David Miller, appeals pro se from the order entered in

the Northumberland County Court of Common Pleas dismissing his “Writ of

Habeas Corpus” as an untimely petition under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

        On February 26, 2007, Appellant entered a negotiated guilty plea to

two counts each of Indecent Assault of a person less than 13 years of age

and Corruption of Minors1 stemming from Appellant’s continuous sexual

abuse of his wife’s two children over the course of approximately eleven

years. Appellant also entered a negotiated guilty plea to Forgery in another

matter.      Pursuant to the plea negotiations, the trial court sentenced

*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3126(a)(7) and 18 Pa.C.S. § 6301(a), respectively.
J.S22029/16


Appellant to an aggregate term of 18 to 48 months’ incarceration, followed

by a consecutive term of two years’ probation. Appellant did not file a direct

appeal.

        Following Appellant’s release, the trial court found Appellant in

violation of his probation conditions for failing to have an approved home

plan.     On April 7, 2011, the trial court resentenced Appellant to an

aggregate term of 1 to 36 months’ incarceration. Appellant did not appeal

that sentence.

        Appellant filed the instant PCRA petition, his first, on February 10,

2015.     On August 24, 2015, after giving proper notice, the PCRA court

dismissed the petition without a hearing as untimely.

        Appellant timely appealed and raises three issues on appeal:

             (1) Did the trial court err in converting the writ of
             habeas corpus into a PCRA?

             (2) Should the trial court have granted a hearing?

             (3) Was the probation violation sentence illegal?

Appellant’s Brief at 3 (capitalization omitted, reordered for ease of

disposition).

        The PCRA court properly addressed Appellant’s Petition for Writ of

Habeas Corpus as a PCRA petition. The PCRA is the sole means by which a

defendant may obtain collateral relief. 42 Pa.C.S. § 9542. It subsumes the

remedy of habeas corpus with respect to remedies offered under the Post-




                                      -2-
J.S22029/16


Conviction Relief Act. Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa.

Super. 2013) (citations omitted).

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”    Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc). Before addressing

the merits of Appellant’s claims, we must first determine whether we have

jurisdiction to entertain the underlying PCRA petition. See Commonwealth

v. Hackett, 956 A.2d 978, 983 (Pa. 2008) (explaining that the timeliness of

a PCRA petition is a jurisdictional requisite).

      Under the PCRA, any 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. § 9545(b)(1). 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. §

9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature,

and a court may not address the merits of the issues raised if the PCRA

petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091,

1093 (Pa. 2010).

      Here, Appellant’s judgment of sentence became final on May 7, 2011.

Because Appellant filed the instant petition in February 2015, nearly four



                                       -3-
J.S22029/16


years after his Judgment of Sentence became final, it is facially untimely

under the PCRA.

      Pennsylvania courts may consider an untimely PCRA petition if the

appellant can explicitly plead and prove one of the three exceptions set forth

in 42 Pa.C.S. § 9545(b), which provides the following:

      (b) Time for filing petition.

      (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.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have
      been presented.

42 Pa.C.S. § 9545(b)(1)-(2).     See, e.g., Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000) (applying sixty-day timeframe after reviewing

specific facts that demonstrated the claim was timely raised).




                                      -4-
J.S22029/16


      Here, Appellant did not assert a timeliness exception.     Rather, he

argues that his petition is not untimely because “an illegal sentence is

always available for challenge.” Appellant’s Brief at 9. Appellant does not

develop this argument in his brief, and Appellant cites no legal authority to

support his conclusory statement.        As such, this limited untimeliness

argument is waived for lack of development.          See Pa.R.A.P. 2119(a);

Commonwealth v. Spotz, 18 A.3d 244, 282 (Pa. 2011). Moreover, as a

matter of law, Appellant’s assertion is incorrect.

      As long as this Court has jurisdiction over the matter, a legality of

sentencing issue is reviewable and cannot be waived. Commonwealth v.

Jones, 932 A.2d 179, 182 (Pa. Super. 2007).           However, a legality of

sentencing issue must be raised in a timely filed PCRA petition.     See 42

Pa.C.S. § 9545(b)(2); 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”). Appellant must present an illegal sentencing claim in a

timely PCRA petition over which we have jurisdiction. See id. at 223.

      Here, Appellant’s probation-revocation Judgment of Sentence became

final on May 7, 2011, upon expiration of the time to file a Notice of Appeal

with the Pennsylvania Superior Court.         See 42 Pa.C.S. § 9545(b)(3).

Appellant needed to submit his PCRA petition by May 7, 2012.       Appellant

filed this PCRA petition on February 10, 2015, well after the one-year



                                      -5-
J.S22029/16


deadline.   After concluding that Appellant failed to plead and prove the

applicability of one of the timeliness exceptions, the PCRA court properly

dismissed Appellant’s PCRA petition as untimely without a hearing.2

      The PCRA court’s dismissal is supported by the evidence of record and

free of legal error. After a careful review of the parties’ arguments and the

record, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/12/2016




2
   “[T]o obtain reversal of a PCRA court's decision to dismiss a petition
without a hearing, an appellant must show that he raised a genuine issue of
fact which, if resolved in his favor, would have entitled him to relief, or that
the court otherwise abused its discretion in denying a hearing.”
Commonwealth v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012) (quotation and
citation omitted). Appellant did not raise a genuine issue of fact and the trial
court did not abuse its discretion in dismissing the petition without a
hearing.



                                     -6-
