J-S21043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

KEITH SILFIES,

                          Appellant                    No. 2683 EDA 2015


                    Appeal from the Order August 21, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0004272-2004

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED MARCH 18, 2016

      This is a pro se appeal from the order denying Appellant’s most recent

motion for writ of habeas corpus.        Because Appellant’s filing constitutes a

serial untimely petition under the Post Conviction Relief Act, (PCRA), 42

Pa.C.S.A. §§ 9541-9546, we affirm.

      During the history of this case, Appellant has filed a plethora of pro se

motions.    Previously, this Court has summarized the pertinent facts and a

partial procedural history as follows:

               On April 27, 2005, Appellant pled guilty to several
           burglary and theft-related offenses [at multiple docket
           numbers]. He was sentenced on June 8, 2005, to [an
           aggregate term of] 2 ½ to 6 years of incarceration,
           followed by 10 years on state-supervised special
           probation. The consecutive probationary sentence was
           only imposed [at Case No. 4272 of 2004].

              Appellant served his time in prison and completed
           parole [as to all his other dockets], at which time the ten


*Former Justice specially assigned to the Superior Court.
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       year probationary sentence from the within matter, Case
       No. 4272 of 2004, began to run.

          Appellant committed technical violations of his
       probation on or around September 2, 2011 and/or
       September 3, 2011. A Gagnon II hearing was held on
       October 18, 2011, at which time Appellant’s probation was
       revoked and he was sentenced to 10 years of special
       probation.

           On or around December 12, 2011, Appellant was
       arrested and charged with Driving Under the Influence
       (DUI), which constituted a violation of his special
       probation.     He was convicted of the DUI offense on
       February 15, 2012. On February 28, 2012, a Gagnon II
       hearing was held during which [Appellant] conceded the
       allegations in the petition against him. As a result of the
       violation, a five-to-ten year sentence was recommended.
       The Court postponed sentencing until April 3, 2012, in
       order to look into Appellant’s eligibility for a County
       Intermediate Punishment drug offender program for
       purposes of obtaining treatment as requested by defense
       counsel.

          On April 3, 2012, Appellant was resentenced to ten
       years of probation with the first 22 months to be served in
       the Lehigh County Treatment Continuum Alternative
       Program (TCAP) based on representations by defense
       counsel that he was eligible for the TCAP program.

          Appellant absconded from the TCAP program’s
       treatment house on June 6, 2012, at which time a warrant
       was issued for his arrest. He was subsequently arrested
       and a Gagnon II hearing was held on July 17, 2012.
       During that hearing, Appellant brought to the Court’s
       attention that due to the nature of the underlying offenses,
       he is ineligible for TCAP, which rendered the April 3, 2012,
       sentence illegal. As a result of that, at the end of the
       hearing, the Court vacated the April 3, 2012, sentence and
       resentenced Appellant to five to ten years in a State
       Correctional Institution. This resentencing was not based
       on any violation incurred as a result of [Appellant]
       absconding from TCAP. As a procedural matter, the Court
       treated the TCAP sentence as a legal nullity. The five to
       ten year sentence was a resentencing based on the


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       sustained violations arising from the DUI conviction. Thus,
       it was procedurally imposed following Appellant’s
       concession to the violation on February 28, 2012.

           Appellant filed a Petition for Reconsideration on July 25,
       2012, which this Court denied by Order dated July 27,
       2012. Appellant subsequently filed several pro se motions,
       all of which were denied.

          On August 9, 2012, Appellant filed a Notice of Appeal,
       but filed it under an incorrect case number. The Court
       ordered him to file a Statement of Matters Complained of
       on Appeal (1925(b) Statement) within twenty-one days.
       On September 11, 2012, Appellant filed a second Notice of
       Appeal, this one captioned under the correct case number.
       The Court granted an extension of time to file the Concise
       Statement.     Appellant filed his 1925(b) Statement on
       October 8, 2012[.] The Court filed a 1925(a) Opinion on
       November 13, 2012.

          On November [3]0, 2012, the Superior Court entered
       an Order quashing Appellant’s appeal as untimely because
       the Notice of Appeal was filed more than thirty days after
       the date he received his sentence.

          On December 27, 2012, Appellant filed a pro se PCRA
       petition. Because at the time this Court had not yet
       received the official notification that the appeal was
       quashed, this Court stayed the PCRA.

          On February 4, 2013, after having received notice of
       the outcome of the appeal, this Court lifted the stay on the
       PCRA proceedings and appointed [PCRA counsel] to
       represent Appellant for his PCRA.

          Appellant continued his pro se letter and motion-writing
       campaign while the PCRA matter was stayed pending the
       outcome of the initial appeal.       On January 29, 2013,
       Appellant filed a “Motion to Enter Self as Pro-Se and
       Remove Counsel of Record on Actions,” which was filed
       prior to the formal appointment of [PCRA counsel]. As a
       consequence of all of Appellant’s filings, this Court decided,
       in an exercise of fairness to Appellant, to grant him a
       hearing at which time he could be advised of his right to
       waive court-appointed counsel and the ramifications
       thereof, [see Commonwealth v. Grazier, 713 A.2d 81 (Pa.

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         1998),] along with giving him the opportunity to be heard
         in open court.

            Appellant also filed a pro se “Motion for Extrordinary
         (sic) Relief under Rule (704)” on February 8, 2013. It
         appeared this is a reference to Pa.R.Crim.P. 704(B), which
         addresses oral motions for extraordinary relief raised at
         the time of sentencing.

            On February 26, 2013, the Court conducted a hearing
         for Appellant. At the hearing, Appellant chose to waive his
         court-appointed counsel and proceed pro se. He also
         withdrew his pro se PCRA petition. At the end of the
         hearing, the Motion for Extraordinary Relief was denied
         because it was inappropriate for the procedural posture of
         the case. The PCRA petition was also dismissed due to
         Appellant withdrawing it. Appellant finally requested to
         withdraw a pro se Motion to Withdraw Counsel/Habeas
         Corpus Hearing. This Court found that Appellant’s request
         was a knowing, intelligent, and voluntary decision and
         granted his request to withdraw the Motion.

           Appellant filed a pro se Notice of Appeal on March [7],
         2013.

Commonwealth v. Silfies, 97 A.3d 796 (Pa. Super. 2014), unpublished

memorandum at 1-4 (citations omitted).

      In affirming the denial of Appellant’s motion for extraordinary relief,

we first noted that, because the PCRA subsumes other post-conviction

remedies including habeas corpus, the motion should have been treated as a

timely PCRA petition.   Silfies, at 5 (citing Commonwealth v. Peterkin,

722 A.2d 638, 639 n.1 (Pa. 1998)). Utilizing our standard of review under

the PCRA, we adopted the rationale expounded by the court below in

rejecting Appellant’s claims that his July 17, 2012 sentence was illegal. See

id. at 6-8.



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       Undaunted by this Court’s decision, Appellant continued to seek relief

by filing numerous petitions.1         On June 5, 2015, Appellant filed a pro se

“Motion to Correct/Modification of An Illegal Sentence Pursuant to 42

Pa.C.S.A. [§]9760” and a pro se “Motion for Appointment of Counsel and In

Forma Pauperis.”       Treating the dual filings as a serial PCRA petition, the

PCRA court filed Pa.R.Crim.P. 907 notice of intent to dismiss the filing

without a hearing. Appellant filed a notice of appeal to this Court, which is

docketed at No. 2208 EDA 2015.

       On July 30, 2015, Appellant sent a pro se motion for “Writ of Habeas

Corpus” to the PCRA court’s chambers. The record indicates that this filing

was docketed on August 4, 2015.                That same day, the PCRA court issued

Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s pro se motion for

writ of habeas corpus. Additionally, in a separate order entered that same

day,    the     PCRA     court     denied        Appellant’s   pro   se   “Motion   to

Correct/Modification of an Illegal Sentence Pursuant to 42 Pa.C.S.A. [§]

9760.” After considering Appellant’s timely response, the PCRA court denied

Appellant’s pro se motion for writ of habeas corpus on August 21, 2015.

This timely appeal follows.           Although the PCRA court did not require

Pa.R.A.P. 1925 compliance, it did file a Rule 1925(a) opinion.


____________________________________________


1
  Additionally, Appellant continues to seek post-conviction relief in the
federal courts.




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      In this appeal, Appellant again presents several challenges to the

legality of his July 17, 2012 sentence. Before addressing Appellant’s claims,

we must first determine whether they PCRA court correctly concluded that

Appellant’s pro se motion for writ of habeas corpus, which it treated as a

serial PCRA petition, was untimely filed.     This Court’s standard of review

regarding an order dismissing a petition under the PCRA is whether the

determination of the PCRA court is supported by the evidence of record and

is free of legal error.   Commonwealth v. Halley, 870 A.2d 795, 799 n.2

(Pa. 2005). The PCRA court’s findings will not be disturbed unless there is

no support for the findings in the certified record. Commonwealth v. Carr,

768 A.2d 1164, 1166 (Pa. Super. 2001).

      The   timeliness    of   a   post-conviction   petition   is   jurisdictional.

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

petition for relief under the PCRA, including a second or subsequent petition,

must be filed within one year of the date the judgment is final unless the

petition alleges, and the petitioner proves, that an exception to the time for

filing the petition, set forth at 42 Pa.C.S.A. sections 9545(b)(1)(i), (ii), and

(iii), is met. See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783

(Pa. 2000); 42 Pa.C.S.A. § 9545.       A PCRA petition invoking one of these

statutory exceptions must “be filed within 60 days of the date the claims

could have been presented.” Gamboa-Taylor, 753 A.2d at 783; see also

42 Pa.C.S.A. § 9545(b)(2).


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       Appellant’s judgment of sentence became final on August 16, 2012,

when the thirty-day time period for filing a direct appeal to this Court

expired.    See 42 Pa.C.S.A. § 9545(b)(3).       Therefore, Appellant needed to

file the PCRA petition at issue August 16, 2013, in order for it to be timely.

As Appellant filed the instant petition on August 4, 2015, it is untimely

unless he has satisfied his burden of pleading and proving that one of the

enumerated exceptions applies.            See Commonwealth v. Beasley, 741

A.2d 1258, 1261 (Pa. 1999).


       Within his brief, Appellant has neither acknowledged the PCRA’s time

bar nor attempted to prove any exception thereto. Instead, he asserts that

his issues raised on appeal are reviewable, because “illegal sentences are

non-waivable. Appellant’s Brief at 3 (citations omitted). Unfortunately for

Appellant, although illegal sentencing issues cannot be waived, they still

must be presented in a timely PCRA petition. Commonwealth v. Taylor,

65 A.3d 426 (Pa. Super. 2013). Thus, the PCRA court correctly concluded

that it lacked jurisdiction to consider Appellant’s serial PCRA petition.   We

therefore affirm the PCRA court’s order denying Appellant post-conviction

relief.2

____________________________________________


2
  In doing so, we agree with the PCRA court’s conclusion that, even if his
latest PCRA petition was timely, Appellant’s challenge to the legality of his
sentence “was fully litigated both on appeal and at the PCRA stage and there
was no merit to his request.” PCRA Court Opinion, 8/31/15, at 1.




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     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2016




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