J-S45018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FREDERICO ANTONIO DACENZO, JR.

                            Appellant                  No. 80 MDA 2015


             Appeal from the Order Entered on December 19, 2014
              In the Court of Common Pleas of Lycoming County
               Criminal Division at No.: CP-41-CR-0000074-2009


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                               FILED JULY 21, 2015

       Frederico Dacenzo appeals the December 19, 2014 order that denied

his petition to be declared eligible for the Recidivism Risk Reduction

Incentive (RRRI) Act, 61 Pa.C.S. § 4501 et seq. We treat Dacenzo’s petition

as a petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-46, and we conclude that the PCRA court lacked jurisdiction

to grant Dacenzo any form of relief. Therefore, we affirm.

       In an earlier proceeding, the PCRA court summarized the relevant

procedural history of this case as follows:1


____________________________________________


*
       Former Justice specially assigned to the Superior Court.
1
       Due to our disposition of this case, the facts underlying Dacenzo’s plea
are irrelevant, and we will not recite them here.
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     On October 13, 2009, Dacenzo pled guilty to one count of sexual
     abuse of children, a felony of the third degree, nine counts of
     sexual abuse of children, felonies of the second degree, and one
     count of criminal use of a communication facility, a felony of the
     third degree.     On January 15, 2010, Dacenzo received an
     aggregate sentence of ten to twenty years in a state correctional
     institution with a consecutive twenty years[’] probation under
     the supervision of the Pennsylvania Board of Probation and
     Parole. [The trial court informed Dacenzo that, based upon
     Dacenzo’s prior record and the nature of the charges, he was not
     eligible for RRRI.] No subsequent appeal was filed.

     On August 13, 2012, Dacenzo filed a PCRA petition alleging that
     his trial counsel was ineffective because they failed to file a
     motion to suppress. . . . [The PCRA court] dismissed the PCRA
     petition on January 8, 2013[, as untimely].

PCRA Court Opinion, 2/13/2013, at 1-2 (some capitalization modified).

     On September 19, 2013, this Court also concluded that Dacenzo’s

petition was untimely, and affirmed the PCRA court. See Commonwealth

v. Dacenzo, No. 172 MDA 2013, slip op. at 1, 7 (Pa. Super. Sep. 19, 2013).

On March 26, 2014, the Pennsylvania Supreme Court denied Dacenzo’s

request for allowance of appeal.   See Commonwealth v. Dacenzo, No.

913 EAL 2013 (Pa. March 26, 2014) (per curiam).

     On December 11, 2014, Dacenzo filed a “Petition for (RRRI) Illigibility

[sic] Amendment of Sentence.” The PCRA court denied the petition without

a hearing on December 19, 2014.      On January 6, 2015, Dacenzo filed a

notice of appeal, which prompted the PCRA court to direct Dacenzo to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).   Dacenzo filed a timely concise statement.   Finally, on March 9,

2015, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a).


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      The crux of Dacenzo’s appeal is that the PCRA court “erred as a matter

of law in denying [Dacenzo’s] motion for reduction of sentence/RRRI

request.” Brief for Dacenzo at 1 (unpaginated). Before we can consider the

merits of Dacenzo’s claim, we first must determine what type of pleading

Dacenzo filed, and whether, based upon that determination, the PCRA court

had jurisdiction to consider the petition at all. For the reasons that follow,

we construe Dacenzo’s petition as one seeking relief pursuant to the PCRA,

and we hold that the PCRA court was without the necessary jurisdiction to

consider the petition.

      “We have repeatedly held that the PCRA provides the sole means for

obtaining collateral review and that any petition filed after the judgment of

sentence    becomes      final   will   be    treated   as   a   PCRA   petition.”

Commonwealth v. Kubis, 808 A.2d 196, 199 (Pa. Super. 2002); see

Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002).

“[I]f the underlying substantive claim is one that could potentially be

remedied under the PCRA, that claim is exclusive to the PCRA,” and subject

to the jurisdictional requirements of the PCRA. Commonwealth v. Pagan,

864 A.2d 1231, 1233 (Pa. Super. 2004) (emphasis in original); see

Commonwealth v. Eller, 807 A.2d 838, 846 (Pa. 2002). Dacenzo claims

that he should be eligible for the RRRI program, which constitutes a

challenge to the legality of a sentence. Commonwealth v. Tobin, 89 A.3d

663, 669 (Pa. Super. 2014). “Issues concerning the legality of sentence are

cognizable under the PCRA.” Commonwealth v. Beck, 848 A.2d 987, 989

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(Pa. Super. 2004) (citing Commonwealth v. Hockenberry, 689 A.2d 283,

288 (Pa. Super. 1997)). Accordingly, Dacenzo’s petition must be construed

as a PCRA petition.

      Because we deem Dacenzo’s petition to be a PCRA petition, we must

determine whether the petition was timely. The PCRA was amended in 1995

to include strict time limits on filings, establishing that “[a]ny petition [filed

under the PCRA] . . . shall be filed within one year of the date the judgment

becomes final.” 42 Pa.C.S. § 9545(b)(1). Under the PCRA, “[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. § 9545(b)(3).      It is well-established that these time limits are

jurisdictional, and are meant to be both mandatory and applied literally by

the courts to all PCRA petitions, regardless of the potential merit of the

claims asserted.    Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.

Super. 2011); Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999)

(stating that a trial court has no authority to extend filing periods except as

the statute permits); see Commonwealth v. Gamboa-Taylor, 753 A.2d

780, 783 (Pa. 2000).

      Because Dacenzo did not file a direct appeal, his judgment of sentence

became final on February 15, 2010, thirty days after his sentence was

imposed. Thus, to be timely, any petition for post-conviction collateral relief


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had to be filed within one year of that date, i.e., on or before February 15,

2011. The petition at issue herein was not filed until December 11, 2014,

well beyond the deadline. Thus, the petition facially was untimely.

     Despite the untimeliness of the petition, there are three statutory

exceptions to this one-year time limit, which, when satisfied, permit a

defendant to file a PCRA petition more than one year after the underlying

judgment of sentence becomes final. These exceptions are as follows:


     (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.

42 Pa.C.S. § 9545(b).    “[I]t is the appellant’s burden to allege and prove

that one of the timeliness exceptions applies.”         Commonwealth v.

Albrecht, 994 A.2d 1091, 1094 (Pa. 2010).

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      Here, Dacenzo does not address the timeliness of his petition or any of

the exceptions. He has not met his burden to prove either the timeliness of

his petition or the applicability of any of the exceptions.     Therefore, his

petition was untimely and the PCRA court lacked jurisdiction to consider it.

      Finally, we recognize that a challenge to the legality of a sentence

cannot be waived. However, waiver and jurisdiction are separate matters.

“Though not technically waivable, a legality [of sentence] claim may

nevertheless be lost should it be raised for the first time in an untimely PCRA

petition for which no time-bar exception applies, thus depriving the court of

jurisdiction over the claim.”    Commonwealth v. Slotcavage, 939 A.2d

901, 903 (Pa. Super. 2007) (citing Commonwealth v. Fahy, 737 A.2d 214,

223 (Pa. 1999) (“Although 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.”)).

      For these reasons, Dacenzo’s petition must be considered as a PCRA

petition, which was untimely filed. Hence, the PCRA court lacked jurisdiction

to consider the petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/21/2015


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