J-S24037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                    Appellee              :
                                          :
             v.                           :
                                          :
DERECK WELLS,                             :
                                          :
                    Appellant             :           No. 3205 EDA 2014

          Appeal from the PCRA Order entered on September 18, 2014
              in the Court of Common Pleas of Delaware County,
                Criminal Division, No. CP-23-CR-0006558-2009

BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED APRIL 29, 2015

        Dereck Wells (“Wells”) appeals from the Order dismissing his second

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

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        In 2010, following a jury trial, Wells was convicted of robbery,

aggravated assault, possession of an instrument of crime, and theft by

unlawful taking.1    The trial court sentenced Wells to an aggregate term of

five to ten years in prison, and an additional five years of probation.    On

September 19, 2011, this Court affirmed the judgment of sentence.

Commonwealth v. Wells, 34 A.3d 231 (Pa. Super. 2011) (unpublished

memorandum). Wells did not file a petition for allowance of appeal with the

Pennsylvania Supreme Court.



1
    18 Pa.C.S.A. §§ 3701, 2702, 907, 3921.
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      Wells filed his first PCRA Petition, pro se, in 2011.     The PCRA court

appointed Wells counsel, who filed an amended Petition.              Following a

hearing, the PCRA court denied Wells’s Petition. Wells did not file a notice of

appeal.

      Wells filed the instant “Motion for Writ of Habeas Corpus/Time Credit,”

pro se, in October 2013, arguing that his sentence was illegal because he did

not receive credit for time served prior to sentencing. Prior to consideration

of the Motion, Wells filed an identical Motion in July 2014. The PCRA court

addressed the Motions together and treated them as a PCRA Petition. 2 After

issuing a Notice of Intent to Dismiss, the PCRA court dismissed Wells’s

Petition as untimely filed. Wells filed a timely Notice of Appeal and a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on

Appeal.

      On appeal, Wells raises the following questions for our review:

      I. [Whether the PCRA] court erred when it determined [that
      Wells’s Petition was] untimely[?]

      II. [Whether Wells] must be granted credit for all time spent in
      custody [] from February 2, 2009[,] to July 27, 2010[?] []

Brief for Appellant at v (questions reordered for ease of disposition).

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA


2
  See Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super. 2007)
(stating that “[a] challenge to the trial court’s failure to award credit for time
spent in custody prior to sentencing involves the legality of sentence and is
cognizable under the PCRA.”).


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      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      In his first claim, Wells argues that the PCRA court erred in dismissing

his Petition as untimely.    See Brief for Appellant at 7.   Wells claims that

although his Petition is facially untimely, he was previously unaware that he

had not received credit for the time he served in custody prior to sentencing.

Id. at 7-9.

      Initially, under the PCRA, any PCRA petition “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment

of sentence becomes final “at the conclusion of direct review, including

discretionary review in the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” Id. § 9545(b)(3). The PCRA’s

timeliness requirements are jurisdictional in nature and a court may not

address the merits of the issues raised if the PCRA petition was not timely

filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, Wells’s Petition is facially untimely under the PCRA.       See 42

Pa.C.S.A. § 9545(b).        However, Pennsylvania courts may consider an

untimely petition if the appellant can explicitly plead and prove one of three

exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition


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invoking one of these exceptions “shall be filed within 60 days of the date

the claim could have been presented.”         Id. § 9545(b)(2); Albrecht, 994

A.2d at 1094.

      Wells invokes the newly-discovered facts exception at 42 Pa.C.S.A.

§ 9545(b)(1)(ii).   Brief for Appellant at 9.      Wells asserts that, prior to

receiving the PCRA court’s Notice of Intent to Dismiss, he was unaware that

he had not received credit for time spent in custody prior to sentencing. Id.

Further, Wells claims that he practiced due diligence, and therefore could not

have learned that he was deprived of time credit sooner. Id.

      The Pennsylvania Supreme Court “has held that, for purposes of 42

Pa.C.S.[A.] § 9545(b)(1)(ii), information is not ‘unknown’ to a PCRA

petitioner   when   the   information   was    a   matter   of   public   record.”

Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006).                    Further,

“[t]he after-discovered evidence exception [] focuses on newly discovered

facts, not on a newly discovered or a newly willing source for previously

known facts.” Commonwealth v. Johnson, 863 A.2d 423, 427 (Pa. 2004).

      Here, Wells’s judgment of sentence was imposed July 27, 2010, and

the trial court did not award credit for time served.       Thus, the terms of

Wells’s sentence were known to him in 2010.            Further, Wells has not

demonstrated that he raised the claim within 60 days of when it could have

been raised.    Therefore, Wells has failed to plead and prove the newly-




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discovered facts exception provided in 42 Pa.C.S.A. § 9545(b)(1)(ii) to

overcome the untimeliness of his Petition.

     In his second claim, Wells argues that he must be granted credit for

the time he spent in custody prior to sentencing. Brief for Appellant at 5.

He claims that he was unjustly subjected to a longer term of confinement

simply because he could not furnish bail. Id. at 6.

     However, because Wells failed to overcome the untimeliness of his

Petition, we may not address the merits of his claim.    See Albrecht, 994

A.2d at 1093; see also Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.

Super. 2014) (stating that legality of sentence claims must be raised in a

timely PCRA petition). Regardless, “[i]t is well established that there is no

constitutional right to credit for time served prior to trial or sentence.”

Commonwealth v. Johnson, 967 A.2d 1001, 1003 (Pa. Super. 2009).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/29/2015




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