J-S05019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellee         :
                                         :
            v.                           :
                                         :
CHRISTOPHER BEASON,                      :
                                         :
                        Appellant        :     No. 1269 WDA 2014


                 Appeal from the Order Entered July 11, 2014,
                 In the Court of Common Pleas of Erie County,
              Criminal Division, at No. CP-25-CR-0002954-2008.


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED FEBRUARY 18, 2015

      Appellant, Christopher Beason, appeals from the order denying his

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

42 Pa.C.S. §§ 9541-9546. We affirm.

      On March 25, 2009, following a jury trial, Appellant was convicted of

one count of aggravated assault.        On May 12, 2009, Appellant was

sentenced to a term of eighteen to thirty-six months of imprisonment,

followed by a period of five years of probation.     Appellant filed a direct

appeal and on March 12, 2010, his judgment of sentence was affirmed by

this Court. Commonwealth v. Beason, 793 WDA 2009, 996 A.2d 535 (Pa.

Super. filed March 12, 2010) (unpublished memorandum at 1).
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     On December 20, 2012, Appellant’s probation was revoked and he was

resentenced to a term of five to ten years of imprisonment, with credit for

300 days served. Appellant filed an untimely motion to modify his sentence,

which was denied on April 18, 2013.        On September 10, 2013, Appellant

filed a pro se “petition for case dismissed.”   The trial court construed the

petition as Appellant’s first pro se PCRA petition. Order, 9/20/12, at 1. The

PCRA court appointed counsel and on October 15, 2013, Appellant filed a

counseled PCRA petition.    The petition included claims that the original

sentence was illegal and invalid and that the time Appellant served in

addition to the revocation sentence imposed exceeded “the maximum

amount of time to which [Appellant] is subject,” thus resulting in an illegal

revocation sentence. PCRA Petition, 10/15/13, at 2.

     On June 16, 2014, the PCRA court issued an order granting the

petition in part and denying it in part.    The PCRA court granted relief by

directing that Appellant should be awarded an additional three years of

credit for time served on his original sentence. Order, 6/16/14, at 1. The

PCRA court denied Appellant’s challenge on the original sentence and issued

notice of its intent to dismiss that claim without a hearing. Id. On July 11,

2014, the PCRA court issued a final order denying Appellant’s PCRA petition.

This appeal followed.




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      The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b)

statement, and Appellant complied.       Appointed counsel was permitted to

withdraw on September 4, 2014.1 The PCRA court filed a Pa.R.A.P. 1925(a)

opinion, incorporating and relying upon its reasoning provided in the June

16, 2014 order and notice of intent to dismiss.

      Appellant presents the following issue for our review:

             Whether the lower court erred in denying only partial PCRA
      relief in the nature of provision of time credit and failing to grant
      substantive relief as to the Appellant’s challenge to the legal
      efficacy of the probation revocation itself?

Appellant’s Brief at 3.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).       The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      We first note that it is with difficulty that we attempt to fully discern

the basis of Appellant’s argument as presented in his brief.           Appellant



1
   Although unclear from the record when it occurred, we note that Appellant
is represented by counsel on appeal.

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asserts that while he was admitted to a state hospital, a parole agent visited

Appellant “even though he was not supposed to see a parole officer until

2017, or upon release from the mental ward where the [A]ppellant was then

living as a patient.” Appellant’s Brief at 4. Appellant further avers that he

“cannot have violated, and therefore be revoked, on a sentence, when it is

documented that he was not supposed to see the agent.”              Id. at 5.

Accordingly, Appellant appears to be asserting that there was no basis for

the probation revocation.    Id.   Appellant further challenges his original

sentence on the aggravated assault conviction.       Id. at 5.    Additionally,

Appellant states that “he maxed out on the docket for which he is currently

incarcerated.”   Id.   Thus, we surmise that Appellant is arguing that the

subsequent probation revocation resentence was illegal. Id. at 5-6.2

      We first note that Appellant’s challenge to his original sentence is

untimely and we therefore lack the jurisdiction to consider that claim on the

merits. A PCRA petition must be filed within one year of the date that the


2
   Appellant fails to properly develop his issues or cite to any relevant legal
authority in support of his claims. Our rules of appellate procedure require
an appellant to support his or her argument with pertinent analysis,
including citation to and discussion of relevant authority and facts of record.
Pa.R.A.P. 2119. This court will not become the counsel for an appellant and
develop arguments on an appellant’s behalf, Commonwealth v. Gould,
912 A.2d 869, 873 (Pa. Super. 2006), and waiver of an issue results when
an appellant fails to properly develop an issue or cite to legal authority to
support his contention in his appellate brief. Commonwealth v. Williams,
959 A.2d 1252, 1258 (Pa. Super. 2008). While we could refuse to address
these issues because Appellant has not developed an argument with citation
to legal authority, we choose not to find it waived in this instance.

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judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.           Commonwealth v.

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013) (citing Commonwealth v.

Murray, 753 A.2d 201, 203 (Pa. 2000)). 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.”                       42 Pa.C.S.

§ 9545(b)(3).    However, an untimely petition may be received when the

petition alleges, and the petitioner proves, that any of the three limited

exceptions to the time for filing the petition, set forth at 42 Pa.C.S.

§ 9545(b)(1)(i), (ii), and (iii), is met.

        Our review of the record reveals that Appellant was sentenced on May

12, 2009. This Court affirmed the judgment of sentence on March 12, 2010.

Appellant’s sentence became final after expiration of the thirty days within

which    Appellant   could    have   sought       discretionary    review    with   the

Pennsylvania Supreme Court. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a).

Accordingly, Appellant’s judgment of sentence became final on April 12,

2010,3 thirty days after the time expired for Appellant to file an appeal with



3
  We note that because April 11, 2010 fell on a Sunday, Appellant had until
April 12, 2010 to file his motion. See 1 Pa.C.S. § 1908 (stating that, for
computations of time, whenever the last day of any such period shall fall on

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the Pennsylvania Supreme Court.           42 Pa.C.S. § 9545(b)(3); Pa.R.A.P.

1113(a).   Thus, Appellant had until April 12, 2011 to file a timely PCRA

petition. 42 Pa.C.S. § 9545(b)(1). Appellant did not file the instant PCRA

petition until September 10, 2013. Thus, Appellant’s instant PCRA petition,

to the extent it challenges his original sentence, is patently untimely.

Furthermore, Appellant did not plead or prove any of the exceptions under

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).

      Moreover, while it appears that Appellant is making an illegality-of-

sentence claim, we note that such claims must be raised in a timely PCRA.

“[A]lthough illegal sentencing issues cannot be waived, they still must be

presented in a timely PCRA petition.” Commonwealth v. Taylor, 65 A.3d

462, 465 (Pa. Super. 2013) (quoting Commonwealth v. Fahy, 737 A.2d

214, 223 (Pa. 1999)). Consequently, the PCRA court lacked jurisdiction to

address the claim regarding the original sentence and grant relief.     See

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding

that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we

lack jurisdiction to reach the merits of this claim on appeal.          See

Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)




Saturday or Sunday, or a legal holiday, such day shall be omitted from the
computation.). See also Commonwealth v. Green, 862 A.2d 613, 618
(Pa. Super. 2004).

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(holding that Superior Court lacks jurisdiction to reach merits of appeal from

untimely PCRA petition).

      We next address Appellant’s assertion that the revocation of his

probation was illegal. The majority of Appellant’s brief makes claims of the

impropriety of the probation revocation. Despite Appellant’s assertion that

there was no legal basis for his probation revocation, Appellant fails to

properly develop his argument in support of this claim.                    Somewhat

disjointedly, Appellant avers that “he was not violated for the offense he was

charged with (indecent exposure), but rather for threats.” Appellant’s Brief

at 5. Further, “[A]ppellant argues he cannot have violated, and therefore be

revoked, on a sentence, when it is documented that he was not supposed to

see the agent.” Id. In making these allegations of wrongful conduct on the

part of the probation officer, Appellant fails to make citation to the record or

to applicable law regarding the impropriety of his probation revocation.

Appellant’s claim could be dismissed on this basis.           Gould, 912 A.2d at

1258; Williams, 959 A.2d at 1258.

      Moreover, Appellant has not preserved this issue in either his pro se or

his   counseled   PCRA   petition.   As      a   result,   this   claim   is   waived.

Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (“a claim not

raised in a PCRA petition cannot be raised for the first time on appeal.”)




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         We next consider the legality of the probation revocation sentence

imposed. When we consider an appeal from a sentence imposed following

the revocation of probation, our standard of review is well settled:

         Our review is limited to determining the validity of the probation
         revocation proceedings and the authority of the sentencing court
         to consider the same sentencing alternatives that it had at the
         time of the initial sentencing. 42 Pa.C.S. § 9771(b). See also
         Commonwealth v. Gheen, 455 Pa. Super. 299, 688 A.2d
         1206, 1207 (1997) (the scope of review in an appeal following a
         sentence imposed after probation revocation is limited to the
         validity of the revocation proceedings and the legality of the
         judgment of sentence).       Also, upon sentencing following a
         revocation of probation, the trial court is limited only by the
         maximum sentence that it could have imposed originally at the
         time of the probationary sentence. Id., 688 A.2d at 1207-1208.
         Accord Commonwealth v. Ware, 737 A.2d 251, 254 (Pa.
         Super. 1999).

Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006). It

is also well settled that the revocation of a probationary sentence is a matter

committed to the sound discretion of the trial court and that court’s decision

will not be disturbed on appeal in the absence of an error of law or an abuse

of discretion.    MacGregor, 912 A.2d at 317.       “[A]n abuse of discretion is

more than a mere error of judgment; thus, a sentencing court will not have

abused its discretion unless the record discloses that the judgment exercised

was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-

will.”   Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (internal

quotation marks omitted). We reiterate that upon revocation of probation,

the sentencing court has all of the alternatives available at the time of the



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initial sentencing.     See 42 Pa.C.S. § 9771(b); Commonwealth v.

Mazzetti, 44 A.3d 58, 61 (Pa. 2012).

      Appellant was originally convicted of aggravated assault under 18

Pa.C.S. § 2702(a)(3).    This conviction was graded a felony of the second

degree. 18 Pa.C.S. § 2702(b). A person convicted of a felony of the second

degree may be sentenced to imprisonment “for a term which shall be fixed

by the court at not more than ten years.” 18 Pa.C.S. § 1103(2).

      Appellant’s original sentence was a split sentence. “When determining

the lawful maximum allowable on a split sentence, the time originally

imposed cannot exceed the statutory maximum.”               Commonwealth v.

Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010).           As a result, Appellant’s

original sentence of eighteen to thirty-six months of imprisonment, followed

by a period of probation for five years, was not illegal because it did not

exceed the statutory maximum.4 18 Pa.C.S. § 1103(2).

      Additionally, Appellant’s resentence following probation revocation was

within the original statutorily allowable sentence. 18 Pa.C.S. § 1103(2). As

this Court has noted:

      as a general rule, “upon revocation, the sentencing alternatives
      available to the court shall be the same as the alternatives
      available at the time of initial sentencing ....” Normally, “the trial


4
   Although we previously noted that Appellant’s challenge to the original
sentence was untimely raised, we address the legality of the original
sentence solely for purposes of our analysis regarding the legality of the
probation revocation sentence.

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      court is limited only by the maximum sentence that it could have
      imposed originally at the time of the probationary sentence.”

Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013) (internal

citations omitted).

      Upon consideration of Appellant’s PCRA petition, though, the PCRA

court recognized that the total time that Appellant had already served, which

was three years, in conjunction with the sentence of five to ten years could

result in Appellant serving a sentence of incarceration in excess of the

statutory maximum.     “The statutory language is clear that a person is

entitled to credit toward his or her sentence if time is spent in custody.”

Crump, 995 A.2d at 1284.       However, “a defendant [is not] automatically

granted credit for time served while incarcerated on the original sentence

unless the court imposes a new sentence that would result in the defendant

serving time in prison in excess of the statutory maximum.”              Id.

Furthermore, “in a situation where probation is revoked on a split

sentence . . . a defendant is not entitled to credit for time spent on

probation.” Id.

      In the case sub judice, because the resentence could result in

Appellant serving time incarcerated in excess of the statutory maximum, the

PCRA court properly awarded Appellant credit for his total time served.

Crump, 995 A.2d at 1284. Moreover, Appellant was not entitled to credit

for time spent on probation.    Id.   Thus, the sentence imposed following


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probation revocation, as remedied by the PCRA court in granting partial

relief in response to Appellant’s PCRA petition, does not exceed the

maximum allowable sentence. As a result, Appellant’s resentence following

probation revocation was not illegal.

      The PCRA court did not err in granting the petition to the extent that it

afforded Appellant credit for all time Appellant served, as opposed to

crediting him only with three hundred days as was set forth in the revocation

sentence. Furthermore, the PCRA court did not err in denying the petition as

to claims of illegality of the original sentence.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/18/2015




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