J-S63034-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37


    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :        PENNSYLVANIA
                                               :
                 Appellee                      :
                                               :
                     v.                        :
                                               :
    TYREE A. LAWSON                            :
                                               :
                 Appellant                     :   No. 2543 EDA 2018


                  Appeal from the Order Entered July 30, 2018
             in the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0000542-2009

BEFORE:      GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                        FILED JANUARY 10, 2020

        Tyree A. Lawson (Appellant) pro se appeals from the July 30, 2018

order, which dismissed his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.            We vacate the order of the

PCRA court, and remand this case to consider the legality of Appellant’s

sentence.

              By way of a brief history, [Appellant] was convicted on
        March 9, 2011[,] of burglary, two counts of conspiracy, and
        three counts of robbery – inflicting serious bodily injury.[1] On
        June 1, 2011, [Appellant] was sentenced to a term of 19 to 60
        years’ imprisonment. His judgment of sentence was affirmed on
        appeal to the Pennsylvania Superior Court on August 7, 2012,
____________________________________________


1 These convictions stemmed from charges filed due to Appellant’s
participation in a “vicious home invasion robbery or attempted robbery” that
occurred on June 12, 2006. N.T., 6/1/2011, at 30.


*   Retired Senior Judge assigned to the Superior Court.
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      and the Pennsylvania Supreme Court denied allowance of appeal
      on January 18, 2013. [Commonwealth v. Lawson, 60 A.3d
      559 (Pa. Super. 2012) (unpublished memorandum), appeal
      denied, 62 A.3d 379 (Pa. 2013).]

            [Appellant] filed his first pro se PCRA petition on June 18,
      2013. Counsel was appointed and later wrote a no-merit letter.
      After a pre-dismissal notice was issued, a final order of dismissal
      was issued on October 7, 2013. [This Court affirmed the order
      denying this petition on September 19, 2014. Commonwealth
      v. Lawson, 107 A.3d 231 (Pa. Super. 2014) (unpublished
      memorandum).] Since that time, [Appellant] has filed a series of
      PCRA petitions, all of which have been denied.

             On June 19, 2018, Appellant filed his most current PCRA
      petition at issue in this appeal.     Therein he asserted that
      because a previous unrelated 2009 [federal] attempted murder
      conviction [(Federal Conviction)] was later vacated and nolle
      prossed in 2018, the information th[e trial court] had at the time
      of his 2011 sentencing hearing was incorrect and caused hi[m]
      to be sentenced to a harsher sentence than would have
      happened otherwise.

PCRA Court Opinion, 11/15/2018, at 1-2.

      On July 16, 2018, the PCRA court issued notice of its intent to dismiss

Appellant’s petition.   The PCRA court concluded that despite the facial

untimeliness of the petition, Appellant indeed established newly-discovered

facts pursuant to 42 Pa.C.S. § 9545(b)(1)(ii) (providing that PCRA petitions

must be filed “within one year of the date the judgment [of sentence]

becomes final, unless the petition alleges and the petitioner proves that […]

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”), and

therefore the petition was timely. However, the PCRA court concluded that

Appellant was not entitled to relief. Order, 7/13/2018.


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       Appellant filed a response on July 23, 2018.2 On July 30, 2018, the

PCRA court dismissed Appellant’s petition. “Due to an error, a second final

order was issued [by the PCRA court] on August 13, 2018.” PCRA Court

Opinion, 11/15/2018, at 2 n.1. On August 30, 2018, Appellant filed a notice

of appeal to this Court.3 Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

       On appeal, Appellant presents numerous issues for our review.4 See

Appellant’s Brief at 4.      However, before we reach the issues set forth on

appeal by Appellant, we must address the timeliness of the PCRA petition.

“Pennsylvania law makes it clear that no court has jurisdiction to hear an

____________________________________________
2This document is not in the certified record; however, that does not affect
our disposition.

3  According to Appellant, the notice of appeal was from both the July 30,
2018 and August 13, 2018 orders. To the extent this notice of appeal was
filed from the July 30, 2018 order, the notice was arguably filed late. See
Pa.R.A.P. 903(a) (providing a notice of appeal shall be filed within 30 days
after the entry of the order from which the appeal is taken). Here, the order
was entered on July 30, 2018, and a notice of appeal was due on August 29,
2018. The notice of appeal was filed one day late on August 30, 2018.
However, because Appellant is incarcerated, he is entitled to the benefit of
the prisoner-mailbox rule, which provides that the date of filing is the date
the prisoner provided the notice of appeal to prison authorities. See
Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997) and Smith v.
Pennsylvania Bd. of Probation and Parole, 683 A.2d 278 (Pa. 1996).
Here, Appellant dated his notice of appeal August 28, 2018, and presumably
provided it to prison authorities that day, such that it arrived and was
docketed by the clerk of courts on August 30, 2018. Accordingly, we
conclude that Appellant’s appeal from both orders was timely filed.

4 We note with disapproval that the Commonwealth has not filed a brief in
this appeal.


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untimely PCRA petition.” Commonwealth v. Ross, 140 A.3d 55, 57 (Pa.

Super. 2016). “The question of whether a [PCRA] petition is timely [filed]

raises a question of law. Where the petitioner raises questions of law, our

standard of review is de novo and our scope of review [is] plenary.”

Commonwealth v. Brown, 141 A.3d 491, 499 (Pa. Super. 2016).

       Instantly, Appellant conceded that his petition was filed untimely, and

he attempted to plead and prove the newly-discovered facts exception set

forth in 42 Pa.C.S. § 9545(b)(1)(ii).5 Here, it was Appellant’s position that

one factor that was considered in his 2011 sentencing hearing in the instant

case was the Federal Conviction.               According to Appellant, the Federal

Conviction was overturned on March 15, 2018. See PCRA Petition,

6/18/2018, at ¶ 6.        Thus, Appellant argued in his PCRA petition that he

satisfied the newly-discovered facts exception because this fact was




____________________________________________
5

       The timeliness exception set forth in [subs]ection 9545(b)(1)(ii)
       requires a petitioner to demonstrate he did not know the facts
       upon which he based his petition and could not have learned
       those facts earlier by the exercise of due diligence.        Due
       diligence demands that the petitioner take reasonable steps to
       protect his own interests. A petitioner must explain why he
       could not have obtained the new fact(s) earlier with the exercise
       of due diligence. This rule is strictly enforced.

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010)
(citations omitted). Furthermore, Appellant had to file his petition within
one year “of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).


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unknown to him prior to March 2018 and could not have been discovered

sooner.

       Upon review, we agree with the PCRA court that Appellant established

the applicability of the newly-discovered facts timeliness exception. See

PCRA Court Opinion, 11/15/2018, at 5.            Appellant could not have learned

that the Federal Conviction was overturned prior to March 15, 2018, and he

filed his PCRA petition shortly thereafter.

       Nevertheless, the PCRA court, citing 42 Pa.C.S. § 9543(a)(2)(vi), went

on to conclude that Appellant was not entitled to relief because the

overturning of the Federal Conviction did not satisfy the test for a claim of

after-discovered evidence. PCRA Court Opinion, 11/15/2018, at 6.            That

subsection provides for PCRA relief in cases where a petitioner establishes

the “unavailability at the time of trial of exculpatory evidence that has

subsequently become available and would have changed the outcome of the

trial if it had been introduced.” 42 Pa.C.S. § 9543(a)(2)(vi).

       It is Appellant’s position on appeal6 that he is entitled to a new

sentencing hearing because the trial court utilized the now-overturned

Federal Conviction to support its conclusion that Appellant was a violent

____________________________________________
6 In his PCRA petition, Appellant invoked the after-discovered evidence
subsection, as well as other subsections of the PCRA, including subsections
providing relief for violations of Appellant’s constitutional rights and for his
sentence being greater than the lawful maximum. See PCRA Petition,
6/19/2018, at ¶¶ 14-16. However, on appeal, Appellant limits his argument
to the after-discovered evidence subsection.


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criminal, and enhanced his sentence accordingly.7 See N.T., 6/1/2011, at 38

(sentencing court explaining that Appellant’s criminal history includes

“serious crimes of violence”). In other words, Appellant is arguing that the

outcome of his sentencing hearing would have been different.

       Our review of the case law reveals no instance where either this Court

or our Supreme Court has applied the after-discovered evidence subsection

of the PCRA to sentencing hearings.            In fact, the language of the statute

itself appears     to   preclude     this application, referring to   “exculpatory

evidence” which was unavailable “at the time of trial … and would have

changed the outcome of trial if it had been introduced.” 42 Pa.C.S.

§ 9543(a)(2)(vi).       Sentencing hearings are not trials, and one cannot be

exculpated at a sentencing hearing. Thus, we conclude that the PCRA court




____________________________________________
7 Our review of the sentencing transcript in the instant matter reveals that
Appellant successfully argued at sentencing that the Federal Conviction,
which resulted from an incident where Appellant attacked U.S. Marshalls
while resisting their arresting him, should not be calculated as part of his
prior record score in this case because the conviction occurred after the
commission of the crime for which Appellant was being sentenced. N.T.,
6/1/2011, at 14. The Commonwealth agreed with Appellant’s position and
changed Appellant’s prior record score accordingly. Id. at 15. Thus, the
record is clear that the subsequent vacatur of the attempted murder
conviction did not affect Appellant’s prior record score. However, the trial
court was made aware, through the pre-sentence investigation report, of
Appellant’s numerous prior crimes and arrests, including the resisting arrest
incident that led to the Federal Conviction.


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did not err in denying relief on the basis that Appellant failed to satisfy the

standard for after-discovered evidence.8

       We now consider the legality of Appellant’s sentence in light of the

reversal of the Federal Conviction.            Although Appellant did not raise this

issue on appeal, issues concerning the legality of a sentence may be raised

by   this   Court    sua    sponte    so   long    as   we   have   jurisdiction.   See

Commonwealth v. Randal, 837 A.2d 1211 (Pa. Super. 2003).                      Where a

petitioner has satisfied a timeliness exception to the PCRA, as has occurred

in this case, we have jurisdiction to address a claim regarding the legality of

Appellant’s sentence. See Commonwealth v. DiMatteo, 177 A.3d 182,

192 (Pa. 2018).

       The statute governing credit for time served provides that “[i]f the

defendant is serving multiple sentences, and if one of the sentences is set

aside as the result of direct or collateral attack, credit against the maximum

and any minimum term of the remaining sentences shall be given for all

time served in relation to the sentence set aside since the commission of the

offenses on which the sentences were based.” 42 Pa.C.S. § 9760(3). Thus,

to the extent Appellant was serving prison time for the Federal Conviction at
____________________________________________
8 To the extent Appellant is arguing that the PCRA court should consider
Appellant’s newly-discovered fact in deciding to reduce his sentence, such a
claim clearly implicates the discretionary aspects of Appellant’s sentence.
Issues concerning the discretionary aspects of a sentence, other than those
couched as the ineffective assistance of counsel, are not cognizable under
the PCRA. See Commonwealth v. Watson, 835 A.2d 786, 801 (Pa. Super.
2003).


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the same time he was serving prison time for the instant case, he may be

entitled to credit for time served.9 However, the record before this Court is

inadequate for us to make that determination. Accordingly, we remand this

case to the PCRA court to consider this issue.

       Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/20




____________________________________________
9 “A claim asserting that the trial court failed to award credit for time served
implicates the legality of the sentence.” Commonwealth v. Gibbs, 181
A.3d 1165, 1166 (Pa. Super. 2018).


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