J-S25012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PAUL A. GOOD,

                            Appellant                No. 1267 WDA 2014


                    Appeal from the PCRA Order July 9, 2014
                In the Court of Common Pleas of Greene County
              Criminal Division at No(s): CP-30-CR-0000234-2011


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 09, 2015

        Appellant, Paul A. Good, appeals from the trial court’s July 9, 2014

order denying as untimely his third petition for relief under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.         After careful

review, we affirm.

        We summarize the procedural history of Appellant’s case as follows.

Appellant pled guilty on January 11, 2012, to his second offense of driving

under the influence of alcohol (DUI), 75 Pa.C.S. § 3802(a)(1).    Under 75

Pa.C.S. § 3803(a)(1), a first or second DUI offense is graded as a

misdemeanor and carries a maximum sentence of six months’ incarceration.

However, because Appellant had refused to submit to a Breathalyzer test,
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*
    Retired Senior Judge assigned to the Superior Court.
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his DUI offense was graded as a misdemeanor of the first degree under 75

Pa.C.S. § 3803(b)(4).1 Under the Crimes Code, misdemeanors of the first

degree carry a statutory maximum term of five years’ imprisonment. See

18 Pa.C.S. § 106(b)(6).        On March 13, 2012, Appellant was sentenced to

one to two years’ incarceration.         Appellant did not file an appeal from his

judgment of sentence.

        On June 28, 2013, this Court issued Commonwealth v. Musau, 69

A.3d 754 (Pa. Super. 2013), holding that “regardless of the fact that refusal

to submit to blood alcohol testing results in the grading of the [DUI] offense

as a first degree misdemeanor, the maximum sentence for a first or second

DUI conviction is six months’ imprisonment.”          Id. at 758.   On October 3,

2013, Appellant filed a pro se petition for relief under the PCRA, arguing that

his sentence of one to two years’ imprisonment is illegal pursuant to Musau.

Without appointing counsel or issuing a Pa.R.Crim.P. 907 notice, the PCRA




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1
    That section reads:

        (4) An individual who violates section 3802(a)(1) where the
        individual refused testing of blood or breath, or who violates
        section 3802(c) or (d) and who has one or more prior offenses
        commits a misdemeanor of the first degree.

75 Pa.C.S. § 3803



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court concluded that Appellant’s petition was untimely and denied it on

November 11, 2013. Appellant did not file an appeal.2

       On December 11, 2013, Appellant filed a pro se “Motion to Correct

Illegal Sentence,” which the court treated as a second PCRA petition. This

time, the court appointed PCRA counsel, who filed an amended petition on

February 26, 2014.         Therein, counsel argued, inter alia, that Appellant’s

sentence is illegal under Musau. On March 10, 2014, the PCRA court denied

Appellant’s petition as untimely filed. Again, Appellant did not file an appeal.

       On March 28, 2014, Appellant (who was still represented by the

attorney appointed for his second PCRA petition) filed the “Motion for Habeas

Corpus Relief” underlying the present appeal. In that document, Appellant

reiterated the same sentencing challenge proffered in his first and second

PCRA petitions, i.e. that his sentence is illegal under Musau.        The court
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2
  We do not have jurisdiction to address any errors committed in the
disposition of Appellant’s first PCRA petition.         Nevertheless, we are
compelled to note that when a pro se petitioner claims they are indigent and
requests counsel in their first petition, the PCRA court must determine
whether the petitioner is indigent and, if so, appoint an attorney to represent
him. See Commonwealth v. Ferguson, 722 A.2d 177, 179 (Pa. Super.
1998) (“Simply stated, when Appellant explicitly requested the appointment
of counsel in his pro se petition, the PCRA court erred in not determining his
possible indigence and in not appointing counsel if it determined that
Appellant was indigent.”); see also Commonwealth v. Kutnyak, 781 A.2d
1259, 1262 (Pa. Super. 2001) (holding that an appellant is entitled to
representation of counsel on first PCRA petition “despite any apparent
untimeliness of the petition or the apparent non-cognizability of the claims
presented”).




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considered Appellant’s motion as a PCRA petition and issued an order

denying it as untimely on July 9, 2014.3 Appellant filed a timely notice of

appeal, as well as a timely Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Herein, Appellant raises two issues for our review:

       I.     Did the [c]ourt fail to resolve a known conflict that exists
              between sentencing under the Crimes Code and sentencing
              under the Motor Vehicle Code for a specific offense,
              thereby allowing a defendant to serve a substantially
              longer prison sentence than is permitted under the statute
              he was sentenced under?

       II.    Did the [c]ourt err when it determined that it cannot or will
              not review the legality of sentence it imposed? Further,
              [d]id the [c]ourt commit reversible error by making a de
              facto determination that it is time-barred from granting
              relief for imposing a sentence that is illegal?

Appellant’s Brief at 3.

       Before we may address the merits of Appellant’s claims, we must

determine if his PCRA petition is timely. As this Court has explained:

       It is undisputed that a PCRA petition must be filed within one
       year of the date that the judgment of sentence becomes final. 42
       Pa.C.S.A. § 9545(b)(1). This time requirement is mandatory and
       jurisdictional in nature, and the court may not ignore it in order
       to reach the merits of the petition. Commonwealth v. Murray,
       562 Pa. 1, 753 A.2d 201, 203 (2000).

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3
  Again, the PCRA court failed to file a Rule 907 notice of its intent to dismiss
Appellant’s petition without a hearing. However, Appellant does not object
to that omission on appeal. Consequently, any claim relating to that error
by the court is waived. See Commonwealth v. Williams, 909 A.2d 383,
384 n.4 (finding that because the appellant did not raise the PCRA court’s
failure to provide a Rule 907 notice, “any defect in notice is waived”).




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      …

      However, an untimely petition may be received when the
      petition alleges, and the petitioner proves, that any of the three
      limited exceptions to the time for filing the petition, set forth at
      42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Section 9545(b)(1)(i)-(iii) states:

      (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).

      Additionally, “[a] petition invoking one of these exceptions must be

filed within sixty days of the date the claim could first have been presented.”

Hernandez, 79 A.3d at 651-652 (citing 42 Pa.C.S. § 9545(b)(2)). “In order

to be entitled to the exceptions to the PCRA's one-year filing deadline, the

petitioner must plead and prove specific facts that demonstrate his claim


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was raised within the sixty-day time frame under section 9545(b)(2).” Id.

at 652 (citation and internal quotation marks omitted).

      Here, because Appellant did not file an appeal with this Court following

the imposition of his sentence on March 13, 2012, his judgment of sentence

became final on April 12, 2012. See 42 Pa.C.S. § 9545(b)(3) (“For purposes

of this subchapter, a judgment becomes final at the conclusion of direct

review, … or at the expiration of time for seeking the review.”); Pa.R.A.P.

903(a) (“Except as otherwise prescribed by this rule, the notice of appeal …

shall be filed [with the Superior Court] within 30 days after the entry of the

order from which the appeal is taken.”). Thus, Appellant had until April 12,

2013, to file a timely petition, making his March 28, 2014 petition patently

untimely. Consequently, Appellant must plead and prove the applicability of

one of the above-stated exceptions to the PCRA’s one-year time-bar for this

Court to have jurisdiction over his appeal.

      Appellant has failed to meet this burden. In his first issue, Appellant

relies on Musau to argue that his sentence is illegal. However, Musau was

a timely direct appeal from the defendant’s judgment of sentence, and

nothing in that decision indicates that it applies retroactively to defendants,

such as Appellant, whose judgments of sentence have become final.

Moreover, the Musau decision was filed on June 28, 2013, and Appellant did

not file his instant petition until March 28, 2014, well beyond the 60-day




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requirement of section 9545(b)(2).             Thus, Appellant’s first argument does

not prove the applicability of any timeliness exception.

       In his second issue, Appellant essentially contends that his legality of

sentencing claim is not subject to the PCRA’s timeliness requirement

because such claims cannot be waived. While it is true that challenges to

the legality of a sentence cannot be waived, the time limits of the PCRA

“have been held to apply to questions raising the legality of sentence.”

Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super. 2000).                     In

other words, “[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). Therefore, Appellant’s second argument also fails to prove that

any timeliness exception applies to his legality of sentencing claim.4


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4
   We also note that Appellant raised this same sentencing claim in both his
first and second PCRA petitions. Consequently, it has been ‘previously
litigated’ as that term is defined in 42 Pa.C.S. § 9544(a)(3) (“For purposes
of this subchapter, an issue has been previously litigated if: … (3) it has
been raised and decided in a proceeding collaterally attacking the
sentence.”). While Appellant argues that his legality of sentencing claim
cannot be deemed previously litigated because this Court never addressed
that issue on its merits, Appellant completely disregards the language of
section 9544(a)(3), which clearly applies to bar his claim. Moreover, it would
be unreasonable to allow Appellant to reassert his legality of sentencing
claim in the present PCRA petition simply because he declined to appeal
from the PCRA court’s denials of this same claim in his initial two petitions.
Accordingly, Appellant would not be entitled to PCRA relief even if his instant
petition satisfied an exception in section 9545(b)(1). See 42 Pa.C.S. §
(Footnote Continued Next Page)


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      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2015




                       _______________________
(Footnote Continued)

9543(a)(3) (“To be eligible for relief under this subchapter, the petitioner
must prove by a preponderance of the evidence all of the following: … (3)
That the allegation of error has not been previously litigated or waived.”).




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