J-S45038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                      Appellee              :
                                            :
               v.                           :
                                            :
 ERIC LEVINER                               :
                                            :
                     Appellant              :       No. 102 MDA 2018


                Appeal from the PCRA Order December 27, 2017
                in the Court of Common Pleas of Luzerne County
               Criminal Division at No.: CP-40-CR-0000584-2015


BEFORE:      OTT, J., MUSMANNO, J., and PLATT*, J.

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

      Appellant, Eric Leviner, appeals, pro se, from the order dismissing the

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546, as untimely.        Because the petition is untimely without an

applicable exception, we affirm.

      The PCRA court set forth the facts and procedural history of this case as

follows:
               On March 7, 2016, [Appellant] pled guilty to possession
           of firearm prohibited pursuant to 18 Pa.C.S.A. [§]
           6105(a)(1) and possession of a controlled substance
           pursuant to 35 P.S. [§] 780-113(a)(16). [Appellant’s]
           request for immediate sentencing was granted. He had a
           prior record score of five so his standard range on the
           firearm charge was forty-eight to sixty months and six to
           sixteen months on the controlled substance charge.

              As part of the plea agreement, the Commonwealth and
           [Appellant] agreed to a sentence of four to eight years. This
           agreement was honored by the court so that forty-eight to

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* Retired Senior Judge assigned to the Superior Court.
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        ninety-six months was imposed on the firearm charge and
        three to six months concurrent on the controlled substance
        charge. There was no appeal.

           [Appellant] filed a pro se motion for post conviction
        collateral relief on August 14, 2017. Counsel was appointed
        to represent [Appellant] on September 1, 2017 and he
        submitted a “no merit” letter and motion to withdraw three
        months later. The motion to withdraw was granted.

           On December 5, 2017, a notice of intention to dismiss
        motion for post conviction collateral relief pursuant to
        Pa.R.Crim.P. 907 was filed and served on [Appellant]. In
        addition to the fact that [Appellant’s] PCRA motion was
        meritless, the notice of intention also indicated that the
        motion was not filed within one year of the date his
        judgment of sentence became final on April 7, 2016 and
        none of the exceptions provided in 42 Pa.C.S.A. [§] 9545(b)
        applied.

            [Appellant] failed to respond to the notice so his motion
        for post conviction collateral relief was dismissed by order
        dated December 27, 2017. A timely notice of appeal was
        filed by [Appellant] on January 9, 2018. He failed to serve
        this court with a copy of the notice of appeal as required by
        Pa.R.A.P. 906(a)(2).

           As a result of [Appellant’s] appeal, an order was issued
        on January 22, 2018 which required that a concise
        statement of errors complained of on appeal pursuant to
        Pa.R.A.P. 1925(b) be filed by [Appellant] within twenty-one
        days. [Appellant] complied with the order by filing his
        concise statement on February 2, 2018. [Appellant] alleged
        various errors similar to those raised in his untimely PCRA
        motion.

(PCRA Court Opinion, 3/18/18, at 1-2).

     Appellant raises the following issues for our review:

        1. Whether the Lower Court erred in denying Appellant’s
        PCRA as untimely when Appellant timely filed a Petition
        challenging Act 84 deductions and sentencing issues well
        within the One Year Statute of Limitations which by law

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          should have been considered a Pro-Se PCRA Petition for
          which counsel should have been appointed and permitted to
          amend.

          2. Whether the Lower Court erred in finding Appellant’s
          PCRA to be untimely where Appellant’s counsel was
          ineffective and was still active when Appellant attempted to
          file said PCRA.

          3. Whether the Lower Court erred in finding Appellant’s
          PCRA as untimely when Appellant’s challenge to his
          sentence under Act 84 was still pending and Appellant raised
          issues of an illegal sentence which can never be time barred
          when the Court has jurisdiction which the court clearly had.

(Appellant’s Brief, at 3).1

       Our standard of review for an order denying PCRA relief is well-settled:

              Our standard of review of an order denying PCRA relief is
          whether      the   record   supports   the    PCRA     court's
          determination, and whether the PCRA court's determination
          is free of legal error. The PCRA court's findings will not be
          disturbed unless there is no support for the findings in the
          certified record.

Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations

omitted).    However, “if a PCRA [p]etition is untimely, a trial court has no

jurisdiction to entertain the petition.”       Commonwealth v. Hutchins, 760

A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

       We begin by addressing the timeliness of Appellant’s petition.

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1We note that Appellant cites no legal authority in support of issues one and
two. Therefore, even if the PCRA petition were timely, “where an appellate
brief fails to provide any discussion of a claim with citation to relevant
authority . . . that claim is waived.” Commonwealth v. Johnson, 985 A.2d
915, 924 (Pa. 2009).



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        . . . [A] PCRA petition, including a second or subsequent
        petition, must be filed within one year of the date that
        judgment becomes final. A judgment becomes final for
        purposes of the PCRA 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.

           It is well-settled that the PCRA's time restrictions are
        jurisdictional in nature. As such, this statutory time-bar
        implicates the court's very power to adjudicate a
        controversy and prohibits a court from extending filing
        periods except as the statute permits. Accordingly, the
        period for filing a PCRA petition is not subject to the doctrine
        of equitable tolling; instead, the time for filing a PCRA
        petition can be extended only by operation of one of the
        statutorily enumerated exceptions to the PCRA time-bar.

           The exceptions to the PCRA time-bar are found in Section
        9545(b)(1)(i)–(iii) (relating to governmental interference,
        newly discovered facts, and newly recognized constitutional
        rights), and it is the petitioner's burden to allege and prove
        that one of the timeliness exceptions applies. Whether a
        petitioner has carried his burden is a threshold inquiry that
        must be resolved prior to considering the merits of any
        claim.

Commonwealth v. Robinson, 139 A.3d 178, 185–86 (Pa. 2016) (quotation

marks and some citations omitted).

     In the instant case, Appellant’s judgment of sentence became final on

April 6, 2016, when his time to file a direct appeal expired. See Pa.R.A.P.

903(a); 42 Pa.C.S.A. § 9545(b)(3). Because Appellant filed the instant PCRA

petition on August 14, 2017, it is untimely on its face, and the PCRA court

lacked jurisdiction to review it unless he pleaded and proved one of the

statutory exceptions to the time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).




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      Section 9545 of the PCRA provides three exceptions that allow for review

of an untimely PCRA petition:

         (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.

Id.

      When a petition is filed outside the one-year time limit, a petitioner must

plead and prove the applicability of one of the three exceptions to the PCRA

timeliness requirement. See Commonwealth v. Johnston, 42 A.3d 1120,

1126 (Pa. Super. 2012). Any petition invoking an exception must “be filed

within 60 days of the date the claim could have been presented.” Id. (citing

42 Pa.C.S.A. § 9545(b)(2)). “If the petition is untimely and the petitioner has

not pled and proven an exception, the petition must be dismissed without a

hearing because Pennsylvania courts are without jurisdiction to consider the

merits of the petition.” Commonwealth v. Hudson, 156 A.3d 1194, 1197

(Pa. Super. 2017), appeal denied, 170 A.3d 1007 (Pa. 2017) (citation

omitted).


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       Appellant avers that the PCRA court erred in finding his petition untimely

because his Act 842 petition was still pending. (Appellant’s Brief at 10). The

PCRA court noted that Appellant filed a “Petition to Cease and Desist

Deductions Pursuant to Act 84” on July 22, 2016. (PCRA Ct. Op., at 4). The

petition was not addressed by the trial court. Instantly, the PCRA court opined

that the Act 84 petition was not a PCRA petition, citing 42 Pa.C.S.A. §

9543(a)(2).3 (See id. at 4-5).

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242 Pa.C.S.A. § 9728, commonly referred to as Act 84, authorizes the county
correctional facility to which the defendant has been sentenced or the
Department of Corrections to deduct monies from inmate prison accounts as
payment towards outstanding court costs and restitution. Commonwealth
v. Jackson, 858 A.2d 627, 628 n.1 (Pa. Super. 2004).

3 Section 9543(a)(2) provides to be eligible for PCRA relief, a petition must
plead and prove

          (2) That the conviction or sentence resulted from one or
          more of the following:

          (i) A violation of the Constitution of this Commonwealth or
          the Constitution or laws of the United States which, in the
          circumstances of the particular case, so undermined the
          truth-determining process that no reliable adjudication of
          guilt or innocence could have taken place.

          (ii) Ineffective assistance of counsel which, in the
          circumstances of the particular case, so undermined the
          truth-determining process that no reliable adjudication of
          guilt or innocence could have taken place.

          (iii) A plea of guilty unlawfully induced where the
          circumstances make it likely that the inducement caused the
          petitioner to plead guilty and the petitioner is innocent.




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        Generally, petitions seeking the cessation of Act 84 deductions from

state prison accounts fall within the original jurisdiction of the Commonwealth

Court.4 Jackson, 858 A.2d at 629-30;5 see also 42 Pa.C.S.A. § 761.6 A

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           (iv) The improper obstruction by government officials of the
           petitioner's right of appeal where a meritorious appealable
           issue existed and was properly preserved in the trial court.

           (v) Deleted.

           (vi) The unavailability at the time of trial of exculpatory
           evidence that has subsequently become available and would
           have changed the outcome of the trial if it had been
           introduced.

           (vii) The imposition of a sentence greater than the lawful
           maximum.

           (viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S.A. § 9543(a)(2)(i)-(viii).

4 See 42 Pa.C.S.A. § 9730(b). Subsection 9730(b)(1) allows the court to
“conduct a hearing to determine whether the defendant is financially able to
pay.” Id. However, the Commonwealth Court has instructed that “Section
9730 . . . applies only when the defendant’s sentence prescribes financial
obligations without confinement, which is not the case here.” Dep’t of
Corr. v. Tate, 133 A.3d 350, 356 (Pa. Cmwlth. 2016) (emphasis added).
Thus, section 9730(b) is not applicable in the instant case.

5 This Court in Jackson affirmed the trial court’s conclusion that it lacked
jurisdiction over the defendant’s Act 84 motion without prejudice to seek relief
in the Commonwealth Court. Id. at 630.

6   The Judiciary Code provides:

           (a) General rule- The Commonwealth shall have original
           jurisdiction of all civil actions or proceedings:




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motion seeking to enjoin Act 84 deductions is a civil action against the

Department of Corrections for             which the   Commonwealth Court       had

jurisdiction. See Commonwealth v. Danysh, 833 A.2d 151, 153-54 (Pa.

Super. 2003).7

       Furthermore, Appellant claims that his sentence is illegal because “his

prior record score has been miscalculated” with regard to his prior out-of-state

convictions. (Appellant’s Brief at 10). His claim that his sentence is illegal

does not allow him to circumvent the PCRA’s timeliness requirements.

However, “[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)

(citation omitted).

              It is well settled that, “in order for this Court to review a
       legality of sentence claim, there must be a basis for our
       jurisdiction to engage in such review. . . . [T]hough not technically
       waivable, a legality [of sentence] claim may nevertheless be lost
       should it be raised . . . in an untimely PCRA petition for which no
       time-bar exception applies, thus depriving the court of jurisdiction
       over the claim.”




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              (1) Against the Commonwealth government, including
              any officer thereof, acting in his official capacity[.]

42 Pa.C.S.A. § 761(a)(1).

7This Court in Danysh observed that a defendant could seek relief in common
pleas court where the defendant was in a county prison. See id. at 154.

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Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citations

and internal quotation marks omitted). Here, Appellant has not established

the applicability of any exception to the PCRA’s time-bar. (See Appellant’s

Brief, at 6-12).

      Because Appellant failed to meet his burden to plead and prove that one

of the timeliness exceptions applies, we conclude that his petition is untimely

and the PCRA court properly found that it lacked jurisdiction to consider the

merits of his claims. See Johnston, supra at 1126. Accordingly, we affirm

the order of the PCRA court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2018




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