J-S21028-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CHARLES LUCAS                            :
                                          :
                    Appellant             :   No. 1348 WDA 2019

            Appeal from the PCRA Order Entered May 21, 2019
   In the Court of Common Pleas of Jefferson County Criminal Division at
                     No(s): CP-33-CR-0000053-2006


BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                                FILED MAY 18, 2020

      Appellant, Charles Lucas, appeals pro se from the May 21, 2019 Order

that dismissed as untimely his second Petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. Because Appellant’s

PCRA Petition was patently untimely and Appellant has failed to plead and

prove an exception to the PCRA time bar, we affirm the PCRA court’s dismissal.

      This Court previously set forth the underlying factual and procedural

history in our Memorandum denying Appellant relief on direct appeal. See

Commonwealth v. Lucas, No. 1254 WDA 2015, unpublished memorandum,

at 1-3 (Pa. Super. filed June 2, 2016).       Briefly, on February 15, 2006,

Appellant pled guilty to four counts of Burglary and on July 10, 2006, the trial

court sentenced Appellant to an aggregate term of 6 to 12 months’

imprisonment followed by 9 years’ probation. On February 20, 2008, following

new criminal charges, the violation of probation (“VOP”) court revoked
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Appellant’s probation and resentenced Appellant to an aggregate term of 1-2

years’ incarceration, followed by 5 years’ probation. On February 17, 2015,

again following new criminal charges, the VOP court held a Gagnon I1

hearing, and ordered Appellant to remain incarcerated pending the outcome

of the new charges on the two counts of misdemeanor Theft. On June 17,

2015, the court held a Gagnon II hearing and took judicial notice of

Appellant’s guilty plea to the above charges. On July 1, 2015, the trial court

revoked     Appellant’s    probation,     and    resentenced   Appellant   to   three

consecutive sentences of 5 to 10 years’ imprisonment, for an aggregate

sentence of 15 to 30 years’ imprisonment.

       Appellant filed a timely notice of appeal and on June 2, 2016, this Court

affirmed Appellant’s Judgment of Sentence. See Lucas, supra. Appellant

did not seek review by the Pennsylvania Supreme Court. Thus, his sentence

became final on July 2, 2016. See 42 Pa.C.S. § 9545(b)(3) (providing “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”); Pa.R.A.P. 903(a) (providing that a notice of appeal “shall be filed

within 30 days after the entry of the order from which the appeal is taken.”).

       On April 15, 2019, Appellant filed the instant pro se PCRA Petition, his

second, alleging that his VOP sentence is illegal. PCRA Petition, 4/15/19, at
____________________________________________


1 Gagnon v. Scarpelli, 411 U.S. 778 (1973) (setting forth the procedural
requirements for probation and parole revocations).

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2. On April 17, 2019, the PCRA court issued a Pa.R.Crim.P. 907 Notice of

Intention to Dismiss Second PCRA Petition without a hearing, to which

Appellant filed a Response. On May 21, 2019, the PCRA court issued an Order

dismissing Appellant’s PCRA as untimely.

      Appellant filed the instant pro se Notice of Appeal. Appellant and the

trial court both complied with Pa.R.A.P. 1925.

      Appellant raises the following issues for our review:

      I.     PCRA Court erred when it deemed [A]ppellant’s 2nd PCRA
             [P]etition untimely where all documents presented by
             appellant demonstrated that the petition as timely.

      II.    Court erred in resentencing [A]ppellant to a consecutive
             sentence where initial sentence was concurrent.

      III.   Resentence exceeds suspended sentence from original plea
             agreed to in Feb[r]uary of 200[]6, thus violating
             Santobello v. Ne[w] York, 404 U.S. 257 (1971).

Appellant’s Br. at 5 (unpaginated).

      We review the denial of a PCRA petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007).    We give no such deference, however, to the court’s legal

conclusions.    Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).




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      In order to obtain relief under the PCRA, a petition must be timely filed.

See 42 Pa.C.S. § 9545 (providing jurisdictional requirements for the timely

filing of a petition for post-conviction relief). A petition must be filed within

one year from the date the judgment of sentence became final. 42 Pa.C.S. §

9545(b)(1). Appellant’s Petition, filed almost three years after his Judgment

of Sentence became final, is facially untimely.

      Pennsylvania courts may consider an untimely PCRA petition, however,

if an appellant pleads and proves one of the three exceptions set forth in

Section 9545(b)(1). Any petition invoking a timeliness exception must be filed

within one year of the date the claim could have been presented. 42 Pa.C.S

§ 9545(b)(2).

      We note that even though a defendant cannot waive a legality of

sentence issue, we do not have jurisdiction to review the legality of a sentence

in a PCRA petition unless it is timely raised. Commonwealth v. Jones, 932

A.2d 179, 182 (Pa. Super. 2007); see 42 Pa.C.S. § 9545(b); 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.” (citation omitted)).

      Instantly, Appellant fails to acknowledge the untimeliness of his PCRA

petition or invoke any exception.     Appellant’s claim that his sentence was

illegal, without more, fails to overcome the time bar.     See Jones, supra;

Fahy, supra.




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      In conclusion, Appellant has not pleaded and proved the applicability of

any of the PCRA’s timeliness exceptions and, therefore, we are without

jurisdiction to consider the merits of this appeal. The PCRA court properly

dismissed Appellant’s Petition. The record supports the PCRA court’s findings

and its Order is free of legal error. We, thus, affirm the denial of PCRA relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2020




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