J-S08007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

JASON MARTIN SWIDERSKI

                         Appellant                     No. 830 EDA 2014


          Appeal from the Judgment of Sentence January 31, 2014
           In the Court of Common Pleas of Northampton County
            Criminal Division at No(s): CP-48-CR-0000002-2010


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

CONCURRING STATEMENT BY JENKINS, J.:                     FILED MAY 20, 2015

      I join in the memorandum with the following observations.

      This appeal is from Swiderski’s sentence for his second violation of

probation.   In his first two arguments on appeal, Swiderski purports to

challenge his underlying original sentence of probation and restitution.   I

agree with the majority’s determination that these two arguments are

without merit on the ground that Swiderski cannot use this appeal as a

vehicle for attacking the legality of his underlying original sentence.

      I add, however, that the thorough analysis of this subject in

Commonwealth v. Infante, 63 A.3d 358 (Pa.Super.2014), deserves

reference:

             When, on appeal from a sentence imposed following
             probation revocation, an appellant collaterally
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          attacks the legality of the underlying conviction or
          sentence,

               such an approach is incorrect and inadequate
               for two reasons. First any collateral attack of
               the underlying conviction [or sentence] must
               be raised in a petition pursuant to the Post–
               Conviction Relief Act. Second, such an
               evaluation ignores the procedural posture of
               [the] case, where the focus is on the probation
               revocation hearing and the sentence imposed
               consequent to the probation revocation, not
               the underlying conviction and sentence.

          Commonwealth v. Beasley, 391 Pa.Super. 287,
          570 A.2d 1336, 1338 (1990). The PCRA provides the
          sole means for obtaining collateral review of a
          judgment of sentence. Commonwealth v. Fowler,
          930 A.2d 586, 591 (Pa.Super.2007), appeal
          denied, 596 Pa. 715, 944 A.2d 756 (2008); 42
          Pa.C.S.A. § 9542. ‘[A] court may entertain a
          challenge to the legality of the sentence so long as
          the court has jurisdiction to hear the claim. In the
          PCRA context, jurisdiction is tied to the filing of a
          timely PCRA petition.’ Id. at 592 (quoting
          Commonwealth v. Berry, 877 A.2d 479, 482
          (Pa.Super.2005) (en banc), appeal denied, 591 Pa.
          688, 917 A.2d 844 (2007)). ‘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.’ Fowler,
          supra. Pennsylvania law makes clear no court has
          jurisdiction to hear an untimely PCRA petition.
          Commonwealth v. Robinson, 575 Pa. 500, 837
          A.2d 1157 (2003). Thus, a collateral claim regarding
          the legality of a sentence can be lost for failure to
          raise it in a timely manner under the PCRA.
          Commonwealth v. Wojtaszek, 951 A.2d 1169,
          1173 n. 9 (Pa.Super.2008), appeal denied, 600 Pa.
          733, 963 A.2d 470 (2009).

Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.Super.2013).




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       I respectfully suggest that Infante squarely applies to Swiderski’s first

two issues in this appeal. Because the majority’s analysis of these issues is

consistent with Infante, I join in the memorandum.1


       Judge Donohue and Judge Wecht join in this Concurring Statement.




____________________________________________


1
 I also join in the memorandum’s disposition of the remaining issues in this
appeal.



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