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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN A. MAXWELL                           :
                                               :
                       Appellant               :   No. 1834 EDA 2017

                    Appeal from the PCRA Order May 3, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0012238-2010,
                            CP-51-CR-0012242-2010


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY SHOGAN, J.:                              FILED AUGUST 09, 2018

       Following his conviction by a jury of two counts each of rape and sexual

assault and one count of involuntary deviate sexual intercourse (“IDSI”),1

Appellant, Kevin A. Maxwell, appeals pro se from the May 3, 2017 order

denying his first petition for relief filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.

       We previously summarized the facts of the crimes and the initial

procedural history as follows:

       In December 2008 and January 2009, Appellant raped two
       prostitutes. In both cases, Appellant found his victims while
       driving his pickup truck. Appellant offered to pay the victims for
       sex and drove each woman to the back of a nearby cemetery.
       After parking his vehicle, Appellant refused to pay his victims,
       threatened them with violence, and raped them. Appellant left
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1   18 Pa.C.S. §§ 3121, 3124.1, and 3123, respectively.
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      each victim naked in the cemetery. Appellant also took nude
      photographs of one of the victims, and he demanded money or a
      cell phone from the other victim.

            On February 15, 2012, a jury convicted Appellant of two
      counts each of rape and sexual assault and one count of IDSI. At
      the conclusion of the proceedings, the court ordered a pre-
      sentence investigation (“PSI”) report and deferred sentencing.
      With the benefit of the PSI report, the court conducted Appellant’s
      sentencing hearing on November 16, 2012.             For the rape
      convictions, the court sentenced Appellant to consecutive terms
      of six (6) to twelve (12) years[ of] imprisonment.2 The court
      imposed a concurrent term of six (6) to twelve (12) years[ of]
      imprisonment for the IDSI conviction, and it imposed no further
      penalty for the sexual assault convictions. Thus, the court
      sentenced Appellant to an aggregate term of twelve (12) to
      twenty-four (24) years[ of] imprisonment.

            2 With a prior record score of zero (0) and an offense
            gravity score of twelve (12), the standard range for
            Appellant’s rape convictions was forty-eight (48) to
            sixty-six (66) months, plus or minus twelve (12)
            months for aggravating or mitigating circumstances.

Commonwealth v. Maxwell, 93 A.3d 499, 3446 EDA 2012 (Pa. Super. filed

December 4, 2013) (unpublished memorandum at 1–2).

      Appellant timely filed a motion for reconsideration of sentence on

November 26, 2012, claiming the court imposed aggravated-range sentences

for the rape convictions without proper consideration of mitigating factors.

The trial court eventually entered an order denying the post-sentence motion

by operation of law. Appellant filed a notice of appeal, and both Appellant and

the trial court complied with Pa.R.A.P. 1925.

      We affirmed Appellant’s judgment of sentence on December 4, 2013.

Maxwell, 3446 EDA 2012. Our Supreme Court denied Appellant’s petition for


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allowance of appeal on May 22, 2014. Commonwealth v. Maxwell, 92 A.3d

811, 1 EAL 2014 (Pa. filed May 22, 2014).        Appellant did not seek further

review in the United States Supreme Court.

         On September 18, 2015, Appellant filed a pro se PCRA petition. The

PCRA court appointed counsel, who sought to withdraw on January 31, 2017,

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc),

asserting that the PCRA petition was untimely.        The PCRA court issued a

Pa.R.Crim.P. 907 notice of intent to dismiss the petition on February 1, 2017.

On February 21, 2017, Appellant, pro se, wrote a letter to the PCRA court

stating, “I realize and accept that my appeal and PCRA [were] denied. All I’m

looking for now is to be credited with the time I did in Philadelphia Count[y]

jail.”   Motion for Credit for Time Served, 2/21/17, at 2.      The PCRA court

dismissed Appellant’s petition on May 3, 2017, and permitted PCRA counsel

to withdraw. Appellant filed the instant timely appeal pro se on May 30, 3017.

Both the PCRA court and Appellant complied with Pa.R.A.P. 1925.

         Appellant raises the following issues on appeal:

         1. Whether or not the trial attorney for the petitioner was
         ineffective during any of the proceedings?

         2. Whether the trial court erred by imposing an illegal sentence
         on the petitioner and/or the sentence exceeded the lawful
         maximum?

         3. Whether the trial court erred in not correctly computing
         sentence and giving the petitioner his proper time credit for time
         served?

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      4. Whether the trial court erred in imposing an unconstitutional
      sentence?

Appellant’s Brief at v.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).    This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016).   The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).

      Moreover, “[t]here is no absolute right to an evidentiary hearing on a

PCRA petition, and if the PCRA court can determine from the record that no

genuine issues of material fact exist, then a hearing is not necessary.”

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (quoting

Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003)). “[S]uch a

decision is within the discretion of the PCRA court and will not be overturned

absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601,

617 (Pa. 2015).




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       Initially, we must determine whether the PCRA court had jurisdiction to

review the merits of Appellant’s issues. The timeliness of a PCRA petition is a

jurisdictional threshold that may not be disregarded in order to reach the

merits   of   the   claims    raised    in     a   PCRA   petition   that   is   untimely.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citing

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)).                               Here,

Appellant’s judgment of sentence became final on August 20, 2014, when the

time expired to seek relief in the United States Supreme Court.2                   See 42

Pa.C.S. § 9545(b)(3) (for purposes of calculating the timeliness of a petition,

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”); U.S.Sup.Ct.R. 13 (petition for a writ of certiorari seeking review of

a judgment of a lower state court that is subject to discretionary review by

the state court of last resort is timely when it is filed with the Clerk within 90

days after entry of the order denying discretionary review).                     Therefore,



____________________________________________


2   In his Turner/Finley letter, PCRA counsel asserted that Appellant’s
judgment of sentence became final on May 22, 2014, upon denial of
Appellant’s petition for allowance of appeal. Counsel was incorrect. 42
Pa.C.S. § 9545(b)(3) (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.”) (emphasis added). Nevertheless, based
upon the correct application of 42 Pa.C.S. § 9545(b)(3), counsel’s conclusion
that Appellant’s petition was untimely is accurate.

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Appellant had until August 20, 2015, to file a timely PCRA petition. See 42

Pa.C.S. § 9545(b)(1) (A PCRA petition, “including a second or subsequent

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

final. . . .”). Appellant filed the instant PCRA petition on September 18, 2015.

Hence, the petition is facially untimely.

       The jurisdictional time bar can be overcome only by satisfaction of one

of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)–(iii).3

Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). Further, “[a]ny

petition invoking an exception . . . shall be filed within 60 days of the date the

claim could have been presented.”              42 Pa.C.S. § 9545(b)(2).   The PCRA

petitioner bears the burden of proving the applicability of one of the

exceptions. Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).



____________________________________________


3   The exceptions to the timeliness requirement are:

       (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.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).


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      Appellant’s first issue asserts ineffective assistance of trial counsel, but

Appellant relates the claim to credit for time served on his sentence.

Appellant’s other issues all relate to his sentence as well. Thus, we address

the claims together.

      On appeal, Appellant does not invoke any specific exception to the

PCRA’s time bar; indeed, he makes no argument concerning the timeliness of

the petition. Regarding his purported allegation of ineffective assistance of

counsel,   Appellant   suggests   counsel   “failed   to   conduct   a    thorough

investigation,” and “did not raise any of the claims of the Appellant.”

Appellant’s Brief at 1. He complains trial counsel did not “receive approval for

the brief being filed,” purportedly in Appellant’s direct appeal. Id.

      To plead and prove the ineffective assistance of counsel (“IAC”), a

petitioner must establish: (1) that the underlying issue has arguable merit;

(2) counsel’s actions lacked an objective reasonable basis; and (3) actual

prejudice resulted from counsel’s act or failure to act. Commonwealth v.

Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc).                   A claim of

ineffectiveness will be denied if the petitioner’s evidence fails to meet any one

of these prongs. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).

Counsel is presumed to have rendered effective assistance of counsel.

Commonwealth v. Montalvo, 114 A.3d 401, 410 (Pa. 2015).                   We have

explained that trial counsel cannot be deemed ineffective for failing to pursue

a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super.


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2003) (en banc). “We need not analyze the prongs of an ineffectiveness claim

in any particular order.   Rather, we may discuss first any prong that an

appellant cannot satisfy under the prevailing law and the applicable facts and

circumstances of the case.” Commonwealth v. Johnson, 139 A.3d 1257,

1272 (Pa. 2016) (citing Commonwealth v. Albrecht, 720 A.2d 693, 701

(Pa. 1998)).

      None of Appellant’s assertions are sufficient to assert counsel’s

ineffectiveness. Appellant does not identify the claims Appellant wished to

present that counsel failed to raise; he does not state how or why counsel’s

investigation was faulty. He cites no case law in support and fails to cite to

the record. We conclude that his purported allegations of ineffectiveness are

waived. Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014) (claims

failing to advance developed argument or citation to supporting authorities

and record are waived). Moreover, even if not waived, we note that a claim

of ineffective assistance of counsel does not save an otherwise untimely

petition for review on merits. Commonwealth v. Perrin, 947 A.2d 1284,

1287 (Pa. Super. 2008)).

      Appellant’s other issues relate to his sentence.    Appellant makes a

conclusory claim that his sentence was beyond the Sentencing Guidelines, but

he does not assert anything beyond that observation. Appellant’s Brief at 3.

He vaguely alludes to Alleyne v. United States, 570 U.S. 99 (2013), and

suggests he was sentenced to a mandatory minimum sentence. Id. at 3, 5.


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Appellant posits that he was never credited for time served for the period

November 17, 2009, to August 4, 2011. Id. at 3.

       As we observed supra, Appellant fails to reference any of the exceptions

to the PCRA time bar. To the extent Appellant attempts to invoke the newly

discovered facts exception based upon the decision in Alleyne, we observe

that Appellant is contending that his sentence is illegal.              To the extent

Appellant attempts to invoke the newly-recognized constitutional right

exception under section 9545(b)(1)(iii), we note that he filed the instant PCRA

petition more than sixty days after Alleyne was decided.4                42 Pa.C.S. §

9545(b)(2); see also Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.

Super.    2007)     (stating   that    “[w]ith   regard   to   a[    newly]-recognized

constitutional right, this Court has held that the sixty-day period begins to run

upon the date of the underlying judicial decision.”).

       Furthermore, it is well settled that “[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.

Fowler, 930 A.2d 586, 592 (Pa. Super. 2007) (citations omitted). Moreover,

the decision in Alleyne does not invalidate a mandatory minimum sentence

when presented in an untimely PCRA petition. Commonwealth v. Miller,

102 A.3d 988, 995 (Pa. Super. 2014).             Indeed, herein, Appellant was not


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4Alleyne was decided on June 17, 2013. Appellant filed the instant PCRA
petition on September 18, 2015.

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sentenced to a mandatory minimum sentence. Sentencing Order, 11/16/12.

To the extent Appellant suggests he received an illegal sentence that was

“beyond the prescribed fixed penalty associated with the offense,” Appellant’s

Brief at 3, Appellant is wrong.         The trial court did not impose a sentence

beyond the statutory maximum penalty for the crime of rape.          Id. Finally,

Appellant previously raised and this Court addressed the propriety of his

aggravated-range sentences for rape in his direct appeal.         Maxwell, 3446

EDA 2012.      For all of these reasons, Appellant’s attempts to invalidate his

sentence fail.

       Appellant also maintains that he did not receive proper credit for time

served. If Appellant’s challenge is to the trial court’s failure to award credit

for time spent in custody prior to sentencing, such a challenge involves the

legality of sentence and is cognizable. Commonwealth v. Menezes, 871

A.2d 204 (Pa. Super. 2005). Such a claim, however, still must first satisfy the

PCRA’s time limits, Commonwealth v. Fahy, 237 A.2d 214 (Pa. 1999), and

Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007), and as

explained, Appellant did not.5




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5   If Appellant is suggesting he was not credited for the correct period,
Appellant’s Brief at 3, such a claim is properly addressed in an original action
in the Commonwealth Court. Commonwealth v. Heredia, 97 A.3d 392, 395
(Pa. Super. 2014); Commonwealth v. Hollawell, 604 A.2d 723, 725 (Pa.
Super. 1992).

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      In conclusion, because Appellant’s PCRA petition was untimely and no

exceptions apply, the PCRA court correctly determined that it lacked

jurisdiction to address the issues presented and grant relief.             See

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding

that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we lack

the authority to address the merits of any substantive claims raised in the

PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007) (“[J]urisdictional time limits go to a court’s right or competency to

adjudicate a controversy.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/18




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