J-S56042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DANIEL R. PETERS,                          :
                                               :
                       Appellant               :       No. 209 MDA 2018

             Appeal from the PCRA Order Entered January 4, 2018
               in the Court of Common Pleas of Bradford County
             Criminal Division at No(s): CP-08-CR-0000221-2016

BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED NOVEMBER 20, 2018

        Daniel R. Peters (“Peters”) appeals from the Order dismissing his first

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        On March 9, 2016, while Peters was on state parole,1 police

apprehended and charged him with numerous offenses, including, inter alia,

driving under the influence of a controlled substance, theft by unlawful taking,

and recklessly endangering another person.2           On May 10, 2016, Peters

entered a negotiated guilty plea to the above-listed offenses. On July 21,

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1 Peters was on parole regarding a prior case docketed at CP-08-CR-0000523-
2010 (hereinafter “Case No. 523-2010”). According to the PCRA court, at the
time Peters committed the offenses in the instant case, he was thirteen days
short of reaching his maximum sentence on Case No. 523-2010. The record
contains no other information concerning Case No. 523-2010 or any sentence
imposed in that case.

2   See 75 Pa.C.S.A. § 3802(d)(1)(ii); 18 Pa.C.S.A. §§ 3921(a), 2705.
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2016, the trial court sentenced Peters to an aggregate prison term of 27

months and three days to five years, plus fines, costs, and restitution. Notably

to the instant appeal, the court ordered this sentence to run concurrent with

the sentence at Case No. 523-2010. Peters did not file any post-sentence

motions or a direct appeal.

       On December 14, 2017, Peters filed a pro se “Motion to Modify Sentence

Nunc Pro Tunc,” which the PCRA court construed as a first PCRA Petition.3 By

an Order entered on January 4, 2018, the PCRA court dismissed the first PCRA

Petition as being untimely filed,4 and not subject to any of the PCRA’s

timeliness exceptions.

       Four days after the dismissal of the first PCRA Petition, Peters filed an

additional pro se PCRA Petition (hereinafter the “Supplemental PCRA

Petition”). The PCRA court, in an Order addressing this Petition, stated that

the Petition “likely crossed in the mail with the January [4], 2018 Order,” and


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3 We will likewise treat Peters’s Motion as a Petition filed pursuant to the PCRA,
and hereinafter refer to it as the “first PCRA Petition.” 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)).

4 We note that the PCRA court did not issue a Pa.R.Crim.P. 907 notice of its
intention to dismiss the first PCRA Petition without a hearing. However, we
need not determine whether the court’s omission was error because Peters
has not raised this issue on appeal. See Commonwealth v. Taylor, 65 A.3d
462, 468 (Pa. Super. 2013) (stating that “[t]he failure to challenge the
absence of a Rule 907 notice constitutes waiver.”).


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the court thus “dismissed [the Supplemental PCRA Petition] as having been

previously found to be untimely by said Order.” Order, 1/15/18 (capitalization

omitted).

       Peters timely filed a pro se Notice of Appeal, followed by a counseled,

court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of

on appeal.5 The PCRA court then issued a Rule 1925(a) Opinion.6

       Peters presents the following issues for our review:

       1. Did [the] trial court err[] in giving [Peters] a concurrent
          sentence?

       2. Did [the PCRA] court err[] in its denial of [Peters’s] Nunc Pro
          Tunc and PCRA [Petitions] to correct the illegal sentence?

Brief for Appellant at 3. We will address Peters’s issues simultaneously, as

they are related.




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5 Our review of the record discloses that Peters was represented by counsel
of record, John Bender, Esquire (“Attorney Bender”), of the Bradford County
Public Defender’s Office (“the PD Office”), during the collateral review
proceedings. A few days after Peters filed his pro se first PCRA Petition,
Attorney Bender filed a Petition to Withdraw his appearance, asserting that
Peters had discharged Attorney Bender, and retained private counsel, in July
2016. The PCRA court, upon considering Peters’s pro se Objection to Attorney
Bender’s Petition, denied the Petition and directed the PD Office to promptly
contact Peters to discuss his case and review the record for any potential
claims for collateral relief. A separate attorney with the PD Office thereafter
timely filed a Concise Statement on Peters’s behalf, followed by an appellate
brief. This new counsel has not taken issue with Peters’s representation in
connection with his first PCRA Petition.

6The PCRA court’s brief Opinion does not set forth any rationale for the court’s
ruling.
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      When reviewing an order dismissing a PCRA petition, we examine

whether the determination of the PCRA court is supported by the record and

free of legal error. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super.

2014). The merits of a PCRA petition cannot be addressed unless the PCRA

court has jurisdiction. Commonwealth v. Albrecht, 994 A.2d 1091, 1093

(Pa. 2010). Jurisdiction does not exist if the PCRA petition is untimely filed.

Id.

      The PCRA provides that “[a]ny [PCRA] petition … shall be filed within

one year of the date the judgment becomes final[.]”              42 Pa.C.S.A.

§ 9545(b)(1). Here, Peters’s judgment of sentence became final in August

2016. Peters did not file his first PCRA Petition until December 14, 2017, and,

therefore, it is facially untimely. Accordingly, Peters’s first PCRA Petition is

time-barred unless he has pled and proven one of the three exceptions to the

PCRA’s time limitation contained in 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

Importantly, any PCRA petition invoking one of the timeliness exceptions

“shall be filed within 60 days of the date the claim could have been presented.”

Id. § 9545(b)(2).

      Peters invokes the newly-discovered facts exception at subsection

9545(b)(1)(ii). We have explained that this exception

      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
      learned the new fact(s) earlier with the exercise of due diligence.
      This rule is strictly enforced. Additionally, the focus of this

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        exception is on the newly discovered facts, not on a newly
        discovered or newly willing source for previously known facts.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citations

and quotation marks omitted).

        In invoking the newly-discovered facts exception, Peters contends that

following “a state parole hearing in December 2017,”7 he discovered that his

sentence is illegal.8    Brief for Appellant at 6, 10. Peters maintains that upon

review, he discovered that

        section 6138 of the Prisons and Parole Code states that once a
        parolee is recommitted as a convicted violator, the original
        sentence and any new sentence must be served consecutive to
        each other. 61 Pa.C.[S.]A. § 6138(a)(5).[9] Thus, [Peters] must
        serve his … back time and the new sentence in consecutive order.
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7   The record contains no information regarding this purported hearing.

8 Aside from his vague reference to the December 2017 parole hearing, Peters
does not identify or explain the information that caused him to conclude his
sentence is illegal. However, a review of the record indicates that Peters is
likely referencing an exhibit that he attached to his Supplemental PCRA
Petition, a form correspondence issued by the Pennsylvania Department of
Corrections (“DOC”) titled “DC16E – Sentence Status Summary” (hereinafter
“the DOC Notice”). Among other things, the DOC Notice informed Peters of
his maximum release date, i.e., December 9, 2019. Significantly, the DOC
Notice is dated April 10, 2017.

9 Subsection 6138(a)(5) provides, in relevant part, as follows: “If a new
sentence is imposed on the parolee, the service of the balance of the term
originally imposed by a Pennsylvania court shall precede the commencement
of the new term imposed in the following cases: (i) If a person is paroled from
a State correctional institution and the new sentence imposed on the person
is to be served in the State correctional institution.”           61 Pa.C.S.A.
§ 6138(a)(5)(i) (paragraph break omitted); see also Commonwealth v.
Kelly, 136 A.3d 1007, 1013 (Pa. Super. 2016) (explaining subsection
6138(a)(5)(i) by stating, “[i]n other words, where a state parolee gets a new
state sentence, he must serve his backtime first before commencement of the
new state sentence.”).
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Brief for Appellant at 8-9 (emphasis and footnote added).10

       The   Pennsylvania      Supreme         Court   has   explained   that   although

“challenges to the legality of a sentence cannot be waived[,] and [] a court

may raise sentence illegality sua sponte, … a trial court must first have

jurisdiction to address the illegality ….”              Commonwealth v. Holmes,

933 A.2d 57, 60 (Pa. 2007) (emphasis added) (citing Robinson v. Pa. Board

of Probation and Parole, 582 A.2d 857, 860 (Pa. 1990) (stating that

“[j]urisdiction is the predicate upon which a consideration of the merits must

rest.”). Moreover, “[a]lthough 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.” Commonwealth v. Fahy, 737 A.2d 214, 223

(Pa. 1999) (emphasis added).

       Even assuming, arguendo, that the DOC Notice, and/or Peters’s

“discovery” of subsection 6138(a)(5)(i), constituted “new facts” for purposes

of the newly-discovered facts exception, Peters has not proven that he filed

his PCRA Petition within 60 days of discovering those “facts,” in violation of 42

Pa.C.S.A. § 9545(b)(2) (mandating that any PCRA petition invoking one of the


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10 Though Peters points out that the sentencing Order in the instant case
ordered his sentence to run concurrent with the sentence at Case No. 523-
2010, Peters avers that the latter sentence expired prior to sentencing in the
instant case. See Rule 1925(b) Concise Statement at 1; First PCRA Petition
at ¶ 5. Peters appears to believe that the trial court’s imposing a concurrent
sentence impacted his aggregate period of incarceration in some fashion that
Peters fails to explain.
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timeliness exceptions “shall be filed within 60 days of the date the claim could

have been presented.” (emphasis added)).              See Fahy, 737 A.2d at 219

(emphasizing that the 60-day time period is mandatory and jurisdictional in

nature); Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000)

(stating that if a PCRA petition invoking one of the timeliness exceptions is

“not filed within 60 days of the date that the claim could have been first

brought, the [PCRA] court has no power to address the substantive merits of

a petitioner’s PCRA claims.”); Commonwealth v. Vega, 754 A.2d 714, 718

(Pa. Super. 2000) (stating that the 60-day requirement “will be enforced

strictly”). Though the DOC Notice was issued on April 10, 2017,11 Peters did

not file his Supplemental PCRA Petition mentioning the DOC Notice until 273

days later. See Vega, 754 A.2d at 718 (stating that “[s]ince we cannot

ascertain whether [the PCRA petitioner] acted promptly and filed his PCRA

petition within sixty days of discovering the Parole Board’s alleged error, we

cannot     provide   relief   under    the     exception   set   forth   at   subsection

9545(b)(1)(ii).”).      Finally, concerning Peters’s “discovery” of subsection

6138(a)(5)(i), he failed to plead and prove specific facts to demonstrate that

he (1) invoked this statute within 60 days of his discovery of it, see

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000); and (2) could not




____________________________________________


11   The DOC Notice bears a notation that it was “distributed” to Peters.


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have discovered this information earlier by the exercise of due diligence.12

See Brown, supra.

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

the merits of Peters’s claims, the PCRA court did not err in dismissing Peters’s

first PCRA Petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2018




____________________________________________


12 Subsection 6138(a)(5)(i) was public and in effect at the time Peters received
his sentence, when he was represented by counsel. Thus, the statute’s
application as a public law was ascertainable through reasonable diligence.
See Commonwealth v. Shiloh, 170 A.3d 553, 558-59 (Pa. Super. 2017)
(stating that the presumption that public records cannot serve as newly-
discovered facts applies where a petitioner is represented by counsel); cf.
Kelly, 136 A.3d at 1011-12, 1014 (where Kelly, who was on state parole, pled
guilty to several offenses in exchange for a negotiated sentence, including a
specific effective date for his new sentence, but Kelly later learned that the
effective date of his new sentence would be nearly two years later because of
the application of subsection 6138(a)(5)(i), holding that the PCRA court erred
in denying Kelly’s timely PCRA petition alleging that his counsel was
ineffective for negotiating a plea that was unenforceable and that the sentence
he received pursuant to the plea was illegal).
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