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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                              :
                                                :
                                                :
    ROGELIO ZALDIVAR PENA                       :
                                                :
                       Appellant                :    No. 1724 MDA 2019

               Appeal from the Order Entered September 25, 2019
      In the Court of Common Pleas of Lebanon County Criminal Division at
                        No(s): CP-38-CR-0000942-2010

BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                                    FILED MAY 29, 2020

        Rogelio Zaldivar Pena (Appellant) appeals pro se from the order denying

his pro se “Motion for Corrected Time Credit.” We affirm.

        This case has a lengthy and convoluted history. For purposes of this

appeal, we recount that on January 6, 2011, a jury found Appellant guilty of

third-degree murder, 18 Pa.C.S.A. § 2501, and aggravated assault, 18

Pa.C.S.A. § 2702(a)(1).        On February 28, 2011, the trial court sentenced

Appellant to an aggregate term of 20 to 40 years of incarceration.

        On March 28, 2014, this Court affirmed Appellant’s judgment of

sentence. See Commonwealth v. Pena, 1499 MDA 2013 (Pa. Super. Mar.

28, 2014 (unpublished memorandum). On October 15, 2014, our Supreme

Court     denied     Appellant’s   petition    for   allowance   of   appeal.   See

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Pena, 110 A.3d 997, 241 MAL 2014 (Pa. 2014).

Appellant did not file a petition for certiorari with the United States Supreme

Court.   Over the ensuing years, Appellant filed two unsuccessful petitions

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

      On September 18, 2019, Appellant filed the underlying pro se “Motion

for Corrected Time Credit” (Motion), in which he asserted that he did not

receive credit for 288 days of time served prior to sentencing.             Motion,

9/18/19, ¶ 5. On September 25, 2019, the court entered an order denying

relief on the basis that it lacked jurisdiction to consider the merits of the Motion

because it was an untimely PCRA petition. See Trial Court Order, 9/25/19;

see also Trial Court Opinion, 11/26/19, at 4-6. Appellant filed a timely pro

se appeal to this Court.

      On appeal, Appellant presents the following issue for review:

      IS [APPELLANT] ENTITLED TO TIME CREDIT, AND DID THE
      SENTENCING COURT ERR IN FINDING THAT IT DID NOT HAVE
      JURISDICTION TO GRANT THE SAME?

Appellant’s Brief at 5.

      Prior to addressing Appellant’s issue, we must determine whether we

have jurisdiction.   Appellant identified his filing as a “Motion for Corrected

Time Credit” and the court construed the Motion as serial PCRA petition. Our

Supreme Court has held that “the PCRA subsumes all forms of collateral relief,

including habeas corpus, to the extent a remedy is available under such

enactment.” Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007)


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(emphasis in original). “[A] challenge to the trial court’s failure to award credit

for time spent in custody prior to sentencing involves the legality of sentence

and is cognizable under the PCRA.” Commonwealth v. Fowler, 930 A.2d

586, 595 (Pa. Super. 2007) (quotations and citations omitted). Consequently,

the trial court was correct in construing Appellant’s Motion as a serial PCRA

petition. We therefore consider the petition’s timeliness.1

       “Pennsylvania law makes clear no court has jurisdiction to hear an

untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa. 2003)). A petitioner must file a PCRA petition within one year of

the date on which the petitioner’s judgment became final, unless one of the

three statutory exceptions applies:

       (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.
____________________________________________


1 “[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.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.
2014) (quotations and citation omitted).

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42 Pa.C.S.A. § 9545(b)(1). A petitioner must file a petition invoking one of

these exceptions “within one year of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2). If a petition is untimely, and the

petitioner has not pled and proven any exception, “neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      In this case, the trial court sentenced Appellant on February 28, 2011.

This Court affirmed his judgment of sentence on March 28, 2014, and our

Supreme Court denied his petition for allowance of appeal on October 15,

2014. Because Appellant did not file a petition for certiorari with the United

States Supreme Court, his judgment of sentence became final on January 13,

2015, 90 days after our Supreme Court denied his petition for allowance of

appeal. See 42 Pa.C.S.A. § 9545(b)(3) (stating that a judgment of sentence

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”); see also

U.S.Sup.Ct.R. 13. As explained above, Appellant had one year – until January

13, 2016 – to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1).

Appellant filed the underlying petition on September 18, 2019, more than

three-and-a-half years later. Accordingly, the petition is untimely, and we

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lack jurisdiction to decide the merits unless Appellant has pled and proved one

of the three timeliness exceptions of section 9545(b)(1). See Derrickson,

923 A.2d at 468. Our review reveals that Appellant did not attempt to plead

or prove any of the timeliness exceptions. See Motion, 9/18/19. As Appellant

has failed to plead and prove an exception under section 9545(b)(1), we lack

jurisdiction to address the merits of this appeal. See Derrickson, 923 A.2d

at 468.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/29/2020




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