J-S06043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                   PENNSYLVANIA
                                 :
              v.                 :
                                 :
                                 :
    JOHN OLIVER JR.,             :
                                 :
                    Appellant    :                  No. 717 EDA 2017


                  Appeal from the PCRA Order February 16, 2017
              in the Court of Common Pleas of Philadelphia County,
              Criminal Division at No(s): CP-51-CR-0409581-1997

BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED MARCH 22, 2018

       John Oliver, Jr. (“Oliver”), pro se, appeals from the Order dismissing his

pro se Petition for relief, which the court of common pleas treated as his fifth

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 See 42

Pa.C.S.A. §§ 9541-9546. We affirm.

       The PCRA court concisely summarized the relevant procedural history in

its Opinion, which we incorporate as though fully stated herein. See PCRA

Court Opinion, 2/28/17, at 1-3.

       In this timely appeal, Oliver presents the following issue for our review:

“May a criminal court judge[,] within its discretion[,] change the caption

headed [sic] of a pro se petitioner to a PCRA[,] and den[y] relief the same
____________________________________________


1 See Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011)
(stating that this Court has “repeatedly held that any petition filed after the
judgment of sentence becomes final will be treated as a PCRA petition.”)
(citation and ellipses omitted).
J-S06043-18



without an evidentiary hearing?” Brief for Appellant at 6 (citations to statutory

and case law omitted).

      “In reviewing the [dismissal] of PCRA relief, we examine whether the

PCRA court’s determination is supported by the record and free of legal error.”

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and

internal quotation marks omitted). We further note that a PCRA court may

decline to hold a hearing on a PCRA petition if the petitioner’s claim is patently

frivolous and is without a trace of support in either the record or from other

evidence. Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super.

2007); see also Pa.R.Crim.P. 907 (setting forth conditions whereby a PCRA

petition may be dismissed without a hearing).

      In its Opinion, the PCRA court cogently addressed Oliver’s claim,

summarized the applicable law, and correctly determined that the court (1)

properly treated Oliver’s Petition as being filed under the PCRA; and (2) lacked

jurisdiction to address the Petition due to its untimeliness. See PCRA Court

Opinion, 2/28/17, at 3-6. We agree with the PCRA court’s apt reasoning and

determination and therefore affirm on this basis in rejecting Oliver’s sole issue

on appeal. See id.

      Accordingly, as both the PCRA court and this Court lack jurisdiction to

address the merits of Oliver’s untimely fifth PCRA Petition, we affirm the Order

dismissing the Petition.

      Order affirmed.


                                      -2-
J-S06043-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/18




                          -3-
                                                                                                 ..
                                                                                          Circulated 02/28/2018 05:11 PM

,.
                   IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY                                  FIL·ED·
                           FIRST JUDIC°fAL:'DISTRIC1' OF.PENNSYLVANIA
                                   CRIMINAL TRIAt DIVISION                                                FEB 2� 201W
                                                                                                                   •
                                                                                                     Criminal Appeals Unii
                                                                                                 . first Judicia\ District of I
             COMMONWEALTH OF                                      CP-51-CR-0409581-1997
             PENNSYLVANIA

                    v.

             JOHN OLIVER


                                                      OPINION ..

             BY:    Patricia A Mcinerney, J.                                      February 28, 2017

                    This is an appeal from an order dismissing Defendant John Oliver's fifth (or

             subsequent) petition for relief under the Post Conviction Relief Act, 42 Pa. C.S. §§ 9541-

             9546. Because the petition/letter at issue was filed more than one year after the judgment

             of sentence became final and none of the exceptions to the one-year time bar were alleged

             much less proven, this Court properly dismissed it without a_ hearing and should be

             affinned.1

             I.     BACKGROUND

                    In March of 1996, Defendant John Olivet ("Defendant") raped his mentally

             challenged l 4-year-oid biological daughter while also first threatening to kill her and then
     •   I
             offering to payher $20.00. On June 30, 1998, following a four-day jury trial in which



                     This Court received correspondence from Defendant John Oliver dated September
             30, 2016. While almost completely incomprehensible, the Court could make out that he
             was asking/petitioning: "why at the.age of 79-years old petitioner's requested for
             expungement of all non prior convictions and his entirety criminal history, as well as his
             time served credit of 19-months shall not be granted:" While not filed as such, the Court
             treated this correspondence as a petition for relief pursuant to the Post-Conviction Relief
             Act, 42 Pa. C.S. §§ 9541-9546.                                                        .



         £/.. F
Defendant chose to represent himself, Defendant was convicted of rape and corrupting the

morals of a minor. He was thereafter sentenced to. a term of 10 to 20 years of imprisonment

for the rape charge and a consecutive term of 5 years of probation for the corruption of

minors charge. Defendant filed a direct appeal, which the Superior Court of Pennsylvania

dismissed on May 21, 1999 for failure of counsel to file a brief.

       On June 18, I 999, Defendant filed a prose petition pursuant to the Post Conviction

Relief Act ("PCRA"), 42 Pa. C.S. §§ 9541-9546, seeking the reinstatement of his direct

appeal rights nunc pro tune. Defendant's request was granted. Counsel for Defendant

then filed a nunc pro tune appeal. On August 22, 2000, judgment of sentence was affirmed

by the Superior Court. Defendant did not thereafter file a petition for allowance of appeal

with the Supreme Court of Pennsylvania.

       Subsequently, Defendant filed four PCRA petitions, all of which were dismissed.

Presently, this Court received correspondence from Defendant dated September 30, 2016.

While almost completely incomprehensible, the Court could make out that he was

asking/petitioning: "why at the age of 79-years old petitioner's requested for expungement

of all non prior convictions and his entirety criminal history, as well as his time served

credit of 19-months shall not be granted." (Def. 's Correspondence, Sept. 30, 2016 (sic)).

       While not filed as such, the Court treated Defendant's September 30, 2016

correspondence as a PCRA petition. On January 23, 2017, this Court gave notice pursuant

to Pennsylvania Rule of Criminal Procedure 907 of its intention to dismiss the petition as

untimely filed and not invoking an exception to the PCRA's timeliness provision as well as

being without merit. No response having been filed by Defendant, the Court dismissed the

petition as untimely by order dated February 16, 2017. That same day, Defendant .




                                              2
..
     appealed.

            In the instant notice of appeal, Defendant states he is "appealjing] from the denial

     of due process and equal protection clause by grabbing [his] habeas corpus ... [ and]

     changing it into a PCRA and den[ying]. .. the same!!" (Def.'s Notice of Appeal, Feb. 16,

     20 l 7(some changes to font). The Court issues this opinion in support ofthe order

     dismissing Defendant's fifth (or subsequent) PCRA petition.

     II.    DISCUSSION

            As a preliminary matter, the Court did not err in determining Defendant's

     September 30, 2016 correspondence should be considered a PCRA petition. The Superior

     Court has explained:

            It is well settled that any collateral petition raising issues with respect to
            remedies offered under the PCRA will be considered a PCRA petition.
            However, a petition raising a claim for which the PCRA does not offer a
            remedy will not be considered a PCRA petition. Thus, the question then
            becomes whether petitioner had an available remedy under the PCRA[.]

     Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super. Ct. 2001) (citations and

     quotations omitted).

            In most relevant 'part, Defendant's correspondence suggests the Court failed to give

     him credit for time served. The Superior Court has already determined a defendant's

     "challenge to the trial court's failure to award credit for time spent in custody prior to

     sentencing involves the legality-of sentence." Commonwealth v. Beck, 848 A.2d 989, 989

     (Pa. Super. Ct. 2004). The Superior Court has also already determined "[i]ssues concerning

     the legality of sentence are cognizable under the PCRA.'' Id. As such, to the extent that

     Defendant's correspondence suggests the Court failed to give him credit for time served,




                                                    3
  there was no error in determining his correspondence should be treated as a PCRA.2• 3 id.

  (holding a collateral challenge to legality of the sentence imposed by the trial court for

  failing to give credit for time served should be treated as a PCRA petition despite being

  labeled a habeas corpus petition).

         42 Pa. C.S. § 9545 addresses jurisdiction and proceedings in post conviction relief

  matters. Defendant's petition was subject to the timing requirements of Section 9545(b),

  which first provide that: "Any petition under this subchapter, 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). Pursuant to Section 9545(b)(3), "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:" 42 Pa. C.S. § 9545(b)(3).

         Here, Defendant's judgment of sentence became final on September 21, 2 000. The

  Superior Court affirmed the judgment of sentence on August 22, 2000. The judgment of

  sentence became final 30 days thereafter-upon the expiration of the time period within

 which Defendant had to file- a petition for allowance of appeal with the Supreme Court of

 Pennsylvania. See Pa. R. App. P. l 113(a). As the instant petition was clearly not filed


 2
         If Defendant is challenging the computation of his sentence by the Department of
 Corrections ("DOC"), the Court would note a petition for writ of habeas corpus in the trial
 court "is not the proper vehicle to raise his claim."' Co,nrtJJJ_nwealth v. "Jf.ygtt, 115 A.3d 876,
 879�80 (Pa. Super. Ct. 2015). Rather, the proper vehicle would be an original action in the
 Commonwealth Court challenging the DOC's computation, not an action in the trial court
 challenging the same. Id. at 880.
 J
          To whatever extent relevant, the Court would- also note an irunate does not have a
., due process right to petition for expungement while incarcerated. Commonwealth v.
  \Wallace, 97 A.Jd 310, 322 (Pa. 2014).




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     ·<

I,
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              within one year of the judgment
                                       .
                                              of sentence becoming final, an . exception to the one-year

              time-bar would have to be applicable.

                      At subsections (b)(l_)(i)-(iii), Section 9545 provides three very limited

              circumstances which allow_for review of a petition not filed within its one-year time

             . limitation. 42 Pa. C.S. § _9545 (b )(1 )(i)-(iii). In order to invoke one of these exceptions, the

              petition must allege and the petitioner must prove 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 andcould 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 th_at court
                      to apply retroactively.

             42 Pa. C.S. § 9545(b)(l).

                      The PCRA also makes it "clear that where ... the petition is untimely, it is the

             petitioner's burden to plead in the petition and prove that one ofthe exceptions applies."

             Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999), citing 42 Pa. C.S. §

             9545(b)(l). "Thatburden necessarily entails an acknowledgement by the petitioner that the_

             PCRA petition under review is untimely but that one or more of the exceptions apply."

             Beasley, 741 A.2d at 1261.

                     Here, Defendant did not meet his burden. Defendant's petition did not

             acknowledge its untimeliness or allege the applicability of any exception. Therefore, as

             Defendant did not meet his burden of first acknowledging the untimeliness of his petition




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. ' . . •, .
        '

               and then alleging and proving that one of the exceptions applied, this Court properly

               dismissed
                    . .
                         Defendant's petition
                                           .
                                              asuntimely and was without
                                                                      .
                                                                         jurisdiction to consider the
                                         '\
               merits of the petition. See Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)

               (noting "the PCRA's timeliness requirements leave the courts without jurisdiction to

               consider the merits of a PCRA petition that is filed in an untimely manner, unless the

               petition alleges, and the petitioner proyes, that one or more of the enumerated exceptions to

               the timeliness requirements appliesto the claims raised therein."),

                     · WHEREFORE, for the above mentioned reasons, this Court's order dismissing

               Defendant's petition as untimely should _be affirmed.


                                                                   ·BY THE COURT:



                                                                       .Jj((
                                                                    McINERNEY, J_




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