J-S28040-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   Appellee              :
                                         :
           v.                            :
                                         :
STEPFON LOVELL PULLIAM,                  :
                                         :
                   Appellant             :    No. 1704 WDA 2016

                      Appeal from the Order October 10, 2016
                    in the Court of Common Pleas of Erie County
                Criminal Division at No(s): CP-25-CR-0002790-2013

BEFORE: OLSON, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                        FILED JULY 11, 2017

        Stepfon Lovell Pulliam (Appellant) appeals from the order entered on

October 10, 2016, which denied his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        On August 15, 2014, Appellant was sentenced to an aggregate term of

72 to 144 months of incarceration after pleading guilty to one count each of

simple assault and sexual assault.1     Additionally, the trial court concluded

that Appellant was a sexually violent predator (SVP). 2 Appellant did not file

a post-sentence motion or direct appeal. On March 20, 2015, Appellant filed

a PCRA petition. Counsel was appointed and subsequently filed a no-merit

1
  The transcript from the guilty plea hearing shows that on July 27, 2013,
Appellant struck the victim’s face and choked her causing serious bodily
injury. Appellant also had sexual intercourse with the victim without her
consent. See N.T., 1/8/2014, at 10-11.
2
    See 42 Pa.C.S. § 9799.24.


* Retired Senior Judge assigned to the Superior Court.
J-S28040-17


letter in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa.

1998) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc). The PCRA court permitted counsel to withdraw and denied Appellant

relief.

          On appeal to this Court, Appellant argued that “his guilty plea was not

entered knowingly, intelligently, or voluntarily because counsel failed to

interview or to otherwise investigate the victim in this matter to ascertain

whether        she   was    willing    to     cooperate    with    the    prosecution.”

Commonwealth           v.   Pulliam,        153   A.3d    1097    (Pa.   Super.    2016)

(unpublished memorandum at 3).               This Court concluded that counsel was

not ineffective in his representation of Appellant, and that Appellant entered

his guilty plea knowingly, intelligently, and voluntarily. See id.            Thus, on

June 1, 2016, this Court affirmed the order denying Appellant PCRA relief.

Id.

          On July 26, 2016, Appellant filed a motion for time credit arguing that

the trial court erred in failing to award him credit time to which he was

entitled. Motion for Time Credit, 7/26/2016. On August 19, 2016, while his

motion was pending, Appellant filed the instant PCRA petition.                    In that

petition, Appellant acknowledged the facial untimeliness of his petition, but

argued that he pled an exception because “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



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in this section and has been held by that court to apply retroactively.” See

PCRA Petition, 8/19/2016; 42 Pa.C.S. § 9545(b)(1)(iii).           Specifically,

Appellant cited to the United States Supreme Court opinion issued in

Teague v. Lane, 489 U.S. 288 (1989) and an unpublished memorandum

from this Court. PCRA Petition, 8/19/2016, at 1.

     On September 7, 2016, the PCRA court consolidated Appellant’s

motion for time credit with the PCRA petition and issued a notice pursuant to

Pa.R.Crim.P. 907 of its intent to dismiss the petition without a hearing. The

PCRA court concluded that the petition was untimely filed and did not meet

the exception set forth in 42 Pa.C.S. § 9545(b)(1)(iii).     Appellant filed a

response, and on October 10, 2016, the PCRA court dismissed the petition.

Appellant timely filed a notice of appeal, and both Appellant and the PCRA

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

     On appeal, Appellant sets forth the following issues.

            I. Whether the [PCRA] court abused its discretion by
     treating Appellant’s motion for time credit and correction
     commitment as petition/motion under the [PCRA.]

           II. Whether [] Appellant is entitled to the 77 days [of]
     time credit the trial court refused to award [] Appellant[.]

            III. Whether the [PCRA] court abused its discretion when
     it accepted Appellant’s SVP issue as a claim cognizable under the
     PCRA and treated that motion as a second PCRA petition and
     dismissed it as untimely[.]

Appellant’s Brief at 5 (unnecessary capitalization and answers omitted).




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      In considering these issues, we bear in mind that our standard of

review of an order dismissing a PCRA petition is limited to examining

whether the PCRA court’s rulings are supported by the evidence of record

and free of legal error.   Commonwealth v. Brandon, 51 A.3d 231, 233

(Pa. Super. 2012).

      Appellant first contends the PCRA court erred by consolidating his

motion for time credit with his PCRA petition. See Appellant’s Brief at 1-2.

It is well settled that 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). Thus, we discern no error in the PCRA court’s

decision to consolidate the motion with the PCRA petition; therefore,

Appellant’s motion for time credit was subject to the time limitations of the

PCRA.3

      Under the PCRA, all petitions must be filed within one year of the date

that the petitioner’s judgment became final, unless one of three statutory

exceptions applies. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Chester,

895 A.2d 520, 522 (Pa. 2006).        For purposes of the PCRA, a judgment

becomes final at the conclusion of direct review. 42 Pa.C.S. § 9545(b)(3).


3
  Appellant argues that he is entitled to an additional 77 days credit for time
served. Appellant’s Brief at 10-11. However, because Appellant’s motion for
time credit was treated properly as a PCRA petition, and Appellant has not
met the timeliness requirements of the PCRA, see infra, we lack jurisdiction
to address the merits of the claim.


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“The PCRA’s time restrictions are jurisdictional in nature.”             Chester, 895

A.2d at 522. “Thus, ‘[i]f a PCRA petition is untimely, 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.’”

Id. (quoting Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa. 2005)).

“The question of whether a petition is timely raises a question of law. Where

the petitioner raises questions of law, our standard of review is de novo and

our scope of review plenary.” Commonwealth v. Brown, 141 A.3d 491,

499 (Pa. Super. 2016).

      Appellant acknowledges the facial untimeliness of his petition, but

argues   that   he     has   met   the   exception   set   forth    in    42   Pa.C.S.

§ 9545(b)(1)(iii), which sets forth the following.

            (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:

                                         ***

                     (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.




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42 Pa.C.S. § 9545(b)(1)(3). In addition, “Any petition invoking an exception

provided in paragraph (1) shall be filed within 60 days of the date the claim

could have been presented.” Id. at (b)(2).

      On appeal, Appellant contends that his PCRA petition is challenging his

status as an SVP and his lifetime registration requirement, and therefore his

claims fall outside the purview of the PCRA and are not subject to its

timeliness requirements.4 See Appellant’s Brief at 11-12.       Appellant sets

forth this argument for the first time in his brief on appeal. “Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.” Pa.R.A.P. 302(a). Accordingly, the issue of whether Appellant’s

SVP status is cognizable under the PCRA is waived.

      Moreover, even if Appellant had not waived the issue and presented

this in his PCRA petition, he would not be entitled to relief. We recognize

that a challenge to one’s classification as an SVP is not cognizable under the

PCRA. See Commonwealth v. Masker, 34 A.3d 841, 843–44 (Pa. Super.

2011) (en banc). However, “an issue is waived if the petitioner could have

raised it but failed to do so before trial, at trial, during unitary review, on

appeal or in a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b).

Appellant could have presented a challenge to his SVP status on direct


4
  In his petition, Appellant asserted baldly that “a proper SVP hearing was
never held in this matter.” PCRA Petition, 8/19/2016, at 1. He also asserted
that he was not notified of the proper version of Megan’s Law. Id. at 4.
However, he never asserts that his petition is not a PCRA petition or not
subject to the timeliness requirements he cites in the petition.


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appeal, but did not do so.   Accordingly, he is not entitled to relief on this

basis at this juncture.

      Order affirmed.

      Judge Moulton joins.

      Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2017




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