J-S46019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LUIS DANIEL TIERRANEGRA                    :
                                               :
                       Appellant               :   No. 789 EDA 2019

             Appeal from the PCRA Order Entered February 5, 2019
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0000753-2005


BEFORE:      PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.:                           FILED SEPTEMBER 13, 2019

        Appellant, Luis Daniel Tierranegra, appeals pro se from the order

entered on February 5, 2019, which dismissed his petition filed under the Post

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

        In 2005, Appellant pleaded guilty to rape of a child, involuntary deviate

sexual intercourse with a child, endangering the welfare of children, and

corruption of minors.1        On October 27, 2005, the trial court sentenced

Appellant to serve an aggregate term of 15 to 30 years in prison for his

convictions.    Appellant did not file a direct appeal from his judgment of

sentence.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 3121(c), 3123(b), 4304(a), and 6301(a), respectively.
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      On June 8, 2018, Appellant filed a pro se “Motion for Time Credit and

Corrected Commitment” in the court of common pleas. Within this motion,

Appellant asked for relief because “he was not given credit for [] time served

in Chester County Prison[] prior to sentencing.” Appellant’s “Motion for Time

Credit and Corrected Commitment,” 6/8/18, at 1 (some capitalization

omitted).

      The court of common pleas construed Appellant’s motion to be a PCRA

petition. Moreover, since this was Appellant’s first PCRA petition, the PCRA

court appointed counsel to represent Appellant. PCRA Court Order, 7/13/18,

at 1-2. However, on October 23, 2018, appointed counsel filed a no-merit

letter and a request to withdraw as counsel, pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc). After reviewing counsel's no-merit letter,

the PCRA court issued Appellant notice, pursuant to Pennsylvania Rule of

Criminal Procedure 907, of its intent to dismiss Appellant's petition in 20 days,

without holding a hearing. PCRA Court Order, 12/26/18, at 1–3.

      On January 18, 2019, Appellant filed a pro se response to Rule 907

notice, where he claimed: 1) his petition is timely under the “governmental

interference” exception to the PCRA’s one-year time-bar, as Appellant first

learned that he was entitled to credit for time served when he was “in the

process of being deported by [United States authorities to] . . . Mexico;” 2)

his trial counsel was ineffective in failing to demand that Appellant receive

credit for the time he previously served; 3) his PCRA counsel was ineffective

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for failing to properly plead an exception to the PCRA’s one-year time-bar;

and, 4) the PCRA court erred in dismissing his petition without holding a

hearing. Appellant’s Pro Se Response to the Rule 907 Notice, 1/18/19, at 1-7.

      On February 5, 2019, the PCRA court granted counsel’s petition to

withdraw and finally dismissed Appellant’s petition.        PCRA Court Order,

2/5/19, at 1-2. Appellant filed a timely notice of appeal. On March 15, 2019,

the PCRA court ordered Appellant to file a concise statement of errors

complained of on appeal within 21 days, in accordance with Pennsylvania Rule

of Appellate Procedure 1925(b). PCRA Court Order, 3/15/19, at 1. Appellant

did not file a Rule 1925(b) statement.

      We will not restate the claims Appellant raises in his brief, as his failure

to file a Rule 1925(b) statement renders the claims waived. In re L.M., 923

A.2d 505, 509 (Pa. Super. 2007) (“[i]f an appellant does not comply with an

order to file a Rule 1925(b) statement, all issues on appeal are waived”);

Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the [Rule 1925(b)]

Statement . . . are waived”). Further, even if Appellant had not waived his

claims on appeal, we would still affirm the PCRA court’s order that dismissed

Appellant’s petition. To be sure, we do not have jurisdiction to consider the

merits of any substantive claim Appellant raises, as Appellant’s “Motion for

Time Credit and Corrected Commitment” constitutes an untimely PCRA

petition.

      The PCRA “provides for an action by which persons convicted of crimes

they did not commit and persons serving illegal sentences may obtain

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collateral relief.” 42 Pa.C.S.A. § 9542. As the statute declares, the PCRA “is

the sole means of obtaining collateral relief and encompasses all other

common law and statutory remedies . . . including habeas corpus and coram

nobis.” Id.; see also Commonwealth v. Ahlborn, 699 A.2d 718, 721 (Pa.

1997). Thus, under the plain terms of the PCRA, “if the underlying substantive

claim is one that could potentially be remedied under the PCRA, that claim is

exclusive to the PCRA.” Commonwealth v. Pagan, 864 A.2d 1231, 1233

(Pa. Super. 2004) (emphasis in original).

      Within his “Motion for Time Credit and Corrected Commitment,”

Appellant claimed that he was entitled to relief because, prior to sentencing,

the trial court failed to give him the proper amount of credit for time served.

Appellant’s “Motion for Time Credit and Corrected Commitment,” 6/8/18, at

1. This claim implicates the legality of Appellant’s sentence. Commonwealth

v. Davis, 852 A.2d 392, 399 (Pa. Super. 2004) (“[a]n attack upon the court's

failure to give credit for time served is an attack upon the legality of the

sentence”). The PCRA undoubtedly encompasses Appellant’s claim, as the

claim concerns “matters affecting [Appellant’s] conviction [or] sentence.”

Commonwealth v. Judge, 916 A.2d 511, 520 (Pa. 2007), quoting Coady v.

Vaughn, 770 A.2d 287, 293 (Pa. 2001) (Castille, J., concurring); see also 42

Pa.C.S.A. § 9542 (“[the PCRA] provides for an action by which persons

convicted of crimes they did not commit and persons serving illegal sentences

may obtain collateral relief”).


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      Appellant’s claim thus falls under the rubric of the PCRA and, since the

PCRA encompasses Appellant’s claim, Appellant “can only find relief under the

PCRA’s strictures.” Pagan, 864 A.2d at 1233; see also Commonwealth v.

Jackson, 30 A.3d 516, 521 (Pa. Super. 2011) (“[petitioner’s legality of

sentence] claim is cognizable under the PCRA . . . .       [Thus, petitioner’s]

‘motion to correct illegal sentence’ is a PCRA petition and cannot be considered

under any other common law remedy”).

      The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.    This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further, since

the time-bar implicates the subject matter jurisdiction of our courts, we are

required to first determine the timeliness of a petition before we are able to

consider any of the underlying claims. Commonwealth v. Yarris, 731 A.2d

581, 586 (Pa. 1999). Our Supreme Court has explained:


        the PCRA timeliness requirements are jurisdictional in nature
        and, accordingly, a PCRA court is precluded from considering
        untimely PCRA petitions. [The Pennsylvania Supreme Court
        has] also held that even where the PCRA court does not
        address the applicability of the PCRA timing mandate, th[e
        court would] consider the issue sua sponte, as it is a



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        threshold question implicating our subject matter jurisdiction
        and ability to grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003) (citations

omitted).   “The question of whether a [PCRA] petition is timely raises a

question of law. Where the petitioner raises questions of law, our standard of

review is de novo and our scope of review plenary.” Commonwealth v.

Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).

      The trial court sentenced Appellant on October 27, 2005 and Appellant

did not file a direct appeal to this Court. Thus, for purposes of the PCRA,

Appellant’s judgment of sentence became final on Monday, November 28,

2005, when the time for filing a notice of appeal to this Court expired. 42

Pa.C.S.A. § 9545(b)(3). As Appellant did not file his current petition until June

8, 2018, the current petition is manifestly untimely and the burden thus fell

upon Appellant to plead and prove that one of the enumerated exceptions to

the one-year time-bar applied to his case. See 42 Pa.C.S.A. § 9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to

properly invoke a statutory exception to the one-year time-bar, the PCRA

demands that the petitioner properly plead and prove all required elements of

the relied-upon exception).

      Within Appellant’s response to the Rule 907 notice, Appellant claimed

that his petition was timely because it fell within the governmental

interference exception to the PCRA’s one-year time-bar. See Appellant’s Pro

Se Response to the Rule 907 Notice, 1/18/19, at 1-7.         The governmental

interference exception provides:

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         (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[.]

                                           ...

         (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.

42 Pa.C.S.A. § 9545(b).2


       According to Appellant, his petition falls within the governmental

interference exception to the time-bar because he first learned that he was

entitled to credit for time served when he was “in the process of being

deported by [United States authorities to] . . . Mexico.” Appellant’s Pro Se

Response to the Rule 907 Notice, 1/18/19, at 1-7.               To establish the

governmental interference exception, Appellant was required to plead and

prove that his “failure to raise the claim previously was the result of
____________________________________________


2 Effective December 24, 2018, the legislature amended Section 9545(b)(2)
to read: “Any petition invoking an exception provided in paragraph (1) shall
be filed within one year of the date the claim could have been presented.”
See 42 Pa.C.S.A. § 9545(b)(2) (effective December 24, 2018). However, the
amendment to Section 9545(b)(2) only applies to “claims arising on
[December] 24, 2017 or thereafter.” See id. at Comment. Within Appellant’s
PCRA petition, Appellant did not plead the date upon which he learned he was
entitled to credit for time served. Therefore, we quoted the prior version of
Section 9545.


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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.”         42 Pa.C.S.A. § 9545(b)(1)(i).   Appellant’s

contention does not plead a cognizable governmental interference claim

because (among other things) Appellant does not allege: that government

officials interfered with his ability to raise the illegal sentencing claim earlier

or that government officials violated the Constitution or laws of either

Pennsylvania or the United States. 42 Pa.C.S.A. § 9545(b)(1)(i). Therefore,

Appellant did not properly plead the governmental interference exception to

the PCRA’s time-bar.

       Since Appellant failed to plead a valid exception to the PCRA's time-bar,

Appellant's petition is time-barred. Thus, our “courts are without jurisdiction

to offer [Appellant] any form of relief.”3 Commonwealth v. Jackson, 30

A.3d 516, 523 (Pa. Super. 2011). We affirm the PCRA court's order dismissing

Appellant’s PCRA petition without a hearing.

       Order affirmed. Jurisdiction relinquished.




____________________________________________


3 To the extent Appellant claims that his illegal sentencing claim is
non-waivable, we note that, in Commonwealth v. Fahy, our Supreme Court
held: “[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).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/19




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