J-S19028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

CLASTUL FELIZ,

                            Appellant                  No. 1479 MDA 2016


             Appeal from the PCRA Order Entered August 10, 2016
                In the Court of Common Pleas of Berks County
                          Criminal Division at No(s):
                           CP-06-CR-0004900-1999
                           CP-06-CR-0006080-2003

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                             FILED MAY 12, 2017

        Appellant, Clastul Feliz, appeals pro se from the post-conviction court’s

August 10, 2016 order denying, as untimely, his petition under the Post

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

        The facts of Appellant’s underlying convictions are unnecessary to our

disposition of his appeal. However, we briefly note that in February of 2000,

Appellant and a cohort chased Jose Osario Rodriguez down a public street in

the City of Reading, shooting Rodriguez 14 times while several innocent

bystanders looked on.         After the shooting, Appellant fled to Puerto Rico,

where he was eventually apprehended on unrelated, federal drug and

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*
    Former Justice specially assigned to the Superior Court.
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firearm charges. Upon his arrest, Appellant was extradited to Berks County

to face the charges stemming from Rodriguez’s murder.1

             On February 3, 2004, [Appellant] entered a guilty plea on
       docket 6080-2003 to one count of Murder of the Third Degree 1,
       and one count of Firearms not to be Carried without a License2,
       and [Appellant] was sentenced to serve not less than twenty
       (20) years, nor more than forty (40) years, in the Bureau of
       Corrections for that docket. In docket 4900-1999, [Appellant]
       pled guilty to one count of Receiving Stolen Property3, and was
       sentenced to serve not less than nine (9) months nor more than
       seven (7) years, concurrent with the sentence imposed at docket
       6080-2003. A post-sentence motion was filed on February 10,
       2004, and was denied after a hearing was held.
          1
              18 Pa.C.S.A. §2502(c).
          2
              18 Pa.C.S.A. §6106(a).
          3
              18 Pa.C.S.A. §3925(a).

PCRA Court Opinion (PCO), 11/29/16, at 1.

       Appellant did not file an appeal from his judgment of sentence for

receiving stolen property, which was imposed on February 3, 2004.

Consequently, the judgment of sentence in that case became final thirty

days thereafter, or on March 4, 2004. See 42 Pa.C.S. § 9545(b)(3) (stating

that a judgment of sentence becomes final at the conclusion of direct review

or the expiration of the time for seeking the review); Pa.R.A.P. 903(a)

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1
  According to the Commonwealth, at the time of his arrest in Puerto Rico,
Appellant also had an outstanding warrant for a charge of receiving stolen
property. Appellant had been charged with that offense in December of
1999, and he was initially admitted into the Accelerated Rehabilitative
Disposition program. However, in May of 2000, Appellant was removed from
that program and a bench warrant was issued for his arrest for that offense.




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(directing that a notice of appeal to Superior Court must be filed within 30

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

        Appellant did, however, file a timely appeal from the judgment of

sentence imposed for his murder and firearm convictions, and this Court

affirmed on March 7, 2005. Commonwealth v. Feliz, 875 A.2d 385 (Pa.

Super. filed March 7, 2005) (unpublished memorandum). Appellant did not

file   a   petition   for   allowance   of   appeal   with   our   Supreme   Court.

Consequently, his judgment of sentence in that case became final on April 6,

2005.      See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a) (stating that “a

petition for allowance of appeal shall be filed with the Prothonotary of the

Supreme Court within 30 days of the entry of the order of the Superior Court

sought to be reviewed”).

        In February of 2010, Appellant filed his first PCRA petition and counsel

was appointed. Ultimately, that petition was denied, and Appellant did not

file an appeal.

        On January 18, 2015, Appellant filed a “Motion for Corrected Time

Credit,” arguing “that he is owed time credit, because while he was in

federal detention in Puerto Rico, a Pennsylvania detainer was in place, which

prevented him from receiving bail on the federal ‘bailable’ offenses.” PCO at

2 (citing “Motion for Corrected Time Credit,” 1/18/15, at 2-3).         The court

properly treated Appellant’s motion as a PCRA petition, as the claim he




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raised therein challenged the legality of his sentence. 2 The court appointed

counsel to represent Appellant, but on January 12, 2016, counsel filed a

petition to withdraw and a Turner/Finley ‘no merit’ letter.3       On June 29,

2016, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to

dismiss Appellant’s petition as being untimely filed.      That same day, the

court also issued an order granting counsel’s petition to withdraw. Appellant

did not file a response to the Rule 907 notice, and on August 10, 2016, the

PCRA court issued an order denying his petition.

       Appellant filed a timely, pro se notice of appeal, and he also timely

complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Herein, he presents one issue

for our review: “Is [] Appellant entitled to time credit for the pre-trial period

he spent confined pursuant to both state and federal arrests?” Appellant’s

Brief at 5.

       This Court’s standard of review regarding an order denying a PCRA

petition is whether the determination of the PCRA court is supported by the
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2
  See Commonwealth v. Davis, 852 A.2d 392, 399 (Pa. Super. 2004)
(holding that a petition for time credit challenges the legality of the sentence
and is cognizable under the PCRA); see also Commonwealth v. Taylor,
65 A.2d 462, 465 (Pa. Super. 2013) (stating that “[i]t is well-settled that the
PCRA is intended to be the sole means of achieving post-conviction relief[,]”
and thus, “[i]ssues that are cognizable under the PCRA must be raised in a
timely PCRA petition”).
3
  See Commonwealth v. Turner, 544 A.2d 927                         (Pa.   1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).



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evidence of record and is free of legal error.    Commonwealth v. Ragan,

923 A.2d 1169, 1170 (Pa. 2007).          We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.    Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007).     Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of

the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (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.




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42 Pa.C.S. § 9545(b)(1)(i)-(iii).        Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

       Here, as set forth supra, Appellant’s judgment of sentence for

receiving stolen property became final in March of 2004, and his judgment of

sentence for murder and carrying a firearm without a license became final in

April of 2005. Consequently, his PCRA petition filed in January of 2015 is

patently untimely and, for this Court to have jurisdiction to review the merits

of his sentencing claim, Appellant must prove that he meets one of the

exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b).4

       Appellant wholly fails to meet this burden.       He at no point mentions

the timeliness exceptions set forth above, nor provides any discussion that

could even be liberally construed as an attempt to prove the applicability of

one of them.          Moreover, Appellant does not acknowledge the time

requirement set forth in section 9545(b)(2), or explain how we could

possibly view his current petition as being filed within 60 days of the date on

which this claim could have first been presented. Indeed, as the PCRA court

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4
  Although a challenge to the legality of a sentence is a non-waivable claim,
a petitioner must still satisfy the PCRA timeliness requirements to invoke this
Court’s jurisdiction to review such issues. See Commonwealth v. Fahy,
737 A.2d 214, 223 (Pa. 1999).




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points out, “in [Appellant’s] petition, he states that the sentencing judge

denied   his   request   to   receive   credit   toward   his   sentence[,]”   thus

demonstrating that Appellant has known about this issue since his

sentencing hearing over a decade ago. For these reasons, we see no error

in the PCRA court’s decision to deny Appellant’s petition as being untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2017




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