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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    ADAM PASTORIES                             :
                                               :
                       Appellant               :   No. 821 WDA 2019

                   Appeal from the Order Dated May 30, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0011675-2015


BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                          FILED JANUARY 2, 2020

        Adam Pastories (Pastories) appeals from the order of the Court of

Common Pleas of Allegheny County (trial court) denying his third petition for

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

9541-9546, as untimely. We affirm.

        We take the following factual background and procedural history from

the PCRA court’s August 30, 2019 opinion and our independent review of the

record. On March 3, 2016, Pastories entered a negotiated guilty plea to two

counts of his second violation of Failure to Comply with Registration

Requirements.1 The same day, the court sentenced him on count one, failure

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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 4915.1(a)(1), (2).
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to register with the Pennsylvania State Police, to a term of incarceration of not

less than four nor more than eight years’ incarceration pursuant to the plea’s

terms. No further penalty was imposed on the second count, failure to verify

address/be photographed. Pastories did not file post-sentence motions or a

direct appeal.

      On January 1, 2018, Pastories filed his first PCRA petition pro se.

Appointed counsel filed an amended petition. The PCRA court dismissed it

without a hearing and on December 27, 2018, we affirmed the dismissal and

Pastories sought no further review from our Supreme Court.

      On February 8, 2019, Pastories filed a Motion to Correct Illegal

Sentence. He maintained that at the time he entered his plea, both counts of

Failure to Register were graded felonies of the first degree when they should

have been felonies of the third degree, resulting in an illegal sentence that

exceeds the statutory maximum. Alternatively, he claimed that the counts

should have been graded as felonies of the third degree as of August 27, 2018,

when his first conviction of Failure to Register was vacated in his case at

docket number 3065-2012, thus making this a first, not second, offense. (See

PCRA Petition, 2/08/19, at 2).

      Treating the motion as his second PCRA petition, the court, after a

hearing, denied Pastories’s request as untimely, with no exception allowing an

out-of-time PCRA to the time-bar pled or proven. (See Hearing, 5/24/19, at




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18; Order, 5/30/19; PCRA Court Opinion, 8/30/19, at 4). Pastories timely

appealed. He and the court complied with Rule 1925. See Pa.R.A.P. 1925.2

        Before turning to Pastories’s illegal sentence claim, we must consider

whether the court properly treated his motion as a PCRA petition. It is well-

settled that any motion filed after a judgment of sentence becomes final is to

be treated as a PCRA petition because “the PCRA is intended to be the sole

means of achieving collateral relief.” Commonwealth v. Taylor, 65 A.3d

462, 465 (Pa. Super. 2013) (citation omitted). See Taylor, supra at 465-66

(contention that sentence exceeds statutory limit “is undoubtedly cognizable

under    the   PCRA.”) (citing 42         Pa.C.S. §   9543(a)(2)(vii));   see also

Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011), appeal

denied, 47 A.3d 845 (Pa. 2012) (concluding defendant’s motion to correct

illegal sentence was properly addressed as PCRA petition).          Therefore, the

court properly treated his motion as a PCRA petition subject to the time

restrictions provided in the statute.

        Next, we must consider if the PCRA court properly found that Pastories’s

petition was untimely. “It is well-settled that the PCRA’s time restrictions are

jurisdictional in nature.       As such, this statutory time bar implicates the

[C]ourt’s very power to adjudicate a controversy and prohibits a court from


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2 “The question of whether a petition is timely raises a question of law.
[Hence], our standard of review is de novo and our scope of review plenary.”
Taylor, infra at 468 (citations omitted).


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extending filing periods except as the statute permits.” Commonwealth v.

Robinson, 139 A.3d 178, 185 (Pa. 2016) (citations omitted).             Under the

PCRA, any petition for relief must be filed within one year of the date on which

the judgment of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). “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.” Robinson, supra at 185 (internal quotation marks

and citation omitted). Because his judgment of sentence became final on April

3, 2016, i.e., 30 days after his time to file a direct appeal to this Court expired,

42 Pa.C.S. § 9545(b)(3), Pastories had until April 3, 2017, to file a timely

PCRA petition unless he pled and proved one of the statutory exceptions to

the time-bar.3

       Not disputing that it would otherwise be time-barred, Pastories

references the newly discovered facts exception in his appellate brief. (See

Pastories’s Brief, at 13). However, “exceptions to the time bar must be pled

in the PCRA petition and may not be raised for the first time on appeal.”


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3 The three exceptions that allow for review of an untimely PCRA petition are
limited to:   (1) the petitioner’s inability to raise a claim because of
governmental interference; (2) the discovery of previously unknown facts that
would have supported a claim; and (3) a newly recognized constitutional right.
See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke these
exceptions “shall be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).


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Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007), appeal

denied, 959 A.2d 927 (Pa. 2008) (citations omitted); see also Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.”).

       Our thorough examination of the certified record reveals that Pastories

failed to plead any timeliness exception below. (See PCRA Petition, at 1-2).

In fact, at the PCRA hearing, he maintained that his motion was not a PCRA

petition and conceded that if treated as such, it would be time-barred. (See

N.T. Hearing, 5/24/19, at 8, 10); (see also PCRA Ct. Op., at 4 (expressly

noting that Pastories “did not plead or otherwise present evidence that any of

the exceptions to the one-year time period applies.”).        Hence, because

Pastories failed to set forth any of the enumerated exceptions to the time-bar

requirement in the PCRA court, he waived4 them and we lack jurisdiction to

review the claim he raises for the first time on appeal. See Burton, supra

at 525.

       Accordingly, for the foregoing reasons, we lack jurisdiction to consider

Pastories’s issue on appeal and we affirm the PCRA court’s dismissal of his

petition as untimely. See Wiley, supra at 1157.

       Order affirmed.


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4 Pastories maintains that illegal sentence claims cannot be waived. However,
it is well-settled that, “although illegal sentencing issues cannot be waived,
they still must be presented in a timely PCRA petition[,]” which implicates our
jurisdiction. Taylor, supra at 465 (citation omitted).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/2/2020




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