J-S85041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

BRYAN MICHAEL MORRISON

                          Appellant                  No. 1292 WDA 2017


              Appeal from the PCRA Order Entered July 19, 2017
              In the Court of Common Pleas of Venango County
              Criminal Division at No.: CP-61-CR-0000351-2010


BEFORE: BOWES, PANELLA, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                            FILED APRIL 19, 2018

      Appellant Bryan Michael Morrison, pro se, appeals from the July 19,

2017 order entered in the Court of Common Pleas of Venango County (“PCRA

court”), which denied his “Motion for Credit for Time Served.” Upon review,

we affirm.

      The facts and procedural history underlying this case are undisputed.

Briefly, after being convicted of burglary and several counts of robbery,

Appellant was sentenced to an aggregate of eight to sixteen years’

imprisonment on January 28, 2011. Appellant did not file a direct appeal.

Appellant, however, timely filed his first petition under Post Conviction Relief

Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46.         The PCRA court appointed

counsel, who filed an amended petition arguing that Appellant was entitled to

a credit of 246 days for the time he spent in Venango County Prison. On
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December 12, 2014, the PCRA court denied him PCRA relief. Appellant did

not appeal the denial of PCRA relief.

       On July 19, 2017, Appellant pro se filed a “Motion for Credit for Time

Served,” wherein he once again sought credit for time served.                The court

denied him relief. Appellant pro se timely appealed to this Court.

       On appeal,1 Appellant argues only that the trial court erred in failing to

credit him for the time he served in Venango County Prison. Before we may

address the merits of Appellant’s claim, we must point out that his “Motion for

Credit for Time Served” must be construed as his second PCRA petition. It is

settled that the PCRA is intended to be the sole means of achieving post-

conviction relief.    See Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.

Super. 2013). Thus, even though a petition for time credit challenges the

legality   of   the   sentence,    it   is     cognizable   under   the   PCRA.   See

Commonwealth v. Davis, 852 A.2d 392, 399-400 (Pa. Super. 2004),

appeal denied, 868 A.2d 1197 (Pa. 2005). Accordingly, Appellant’s “Motion

for Credit for Time Served” was his second petition for PCRA relief.

       With the foregoing in mind, we now must determine whether the PCRA

court had jurisdiction over Appellant’s second PCRA petition.




____________________________________________


1 “On appeal from the denial of PCRA relief, our standard of review requires
us to determine whether the ruling of the PCRA court is supported by the
record and free of legal error.” Commonwealth v. Widgins, 29 A.3d 816,
819 (Pa. Super. 2011).

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      The PCRA contains the following restrictions governing the timeliness of

any PCRA petition.

      (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.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have been
      presented.

      (3) For purposes of this subchapter, a judgment becomes final 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.

42   Pa.C.S.A.    §   9545(b).     Section    9545’s   timeliness   provisions   are

jurisdictional.   Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).

Additionally, we have emphasized repeatedly that “the PCRA confers no

authority upon this Court to fashion ad hoc equitable exceptions to the PCRA


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time-bar in addition to those exceptions expressly delineated in the Act.”

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

omitted).

        Here, the record reflects Appellant’s judgment of sentence became final

on February 27, 2011.      See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).

Because Appellant had one year from February 27, 2011, to file his PCRA

petition, the current filing is facially untimely given it was filed on July 17,

2017.

        The one-year time limitation, however, can be overcome if a petitioner

alleges and proves one of the three exceptions set forth in Section

9545(b)(1)(i)-(iii) of the PCRA. Here, Appellant has failed to allege, let alone

prove, any exceptions to the one-year time bar. Accordingly, the PCRA court

did not have jurisdiction to entertain Appellant’s “Motion for Credit for Time

Served,” his second PCRA petition, on the merits. We likewise lack jurisdiction

to consider the merits, if any, of the petition.

        Order Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2018




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