J-S70042-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :      IN THE SUPERIOR COURT OF
                                               :            PENNSYLVANIA
                         Appellee              :
                                               :
                     v.                        :
                                               :
RICHARD GRANT,                                 :
                                               :
                         Appellant             :      No. 1412 EDA 2014

                 Appeal from the Order Entered March 20, 2014,
                 in the Court of Common Pleas of Bucks County,
              Criminal Division at No(s): CP-09-CR-0005241-1999,
                            CP-09-CR-0005242-1999

BEFORE: LAZARUS, MUNDY, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                        FILED DECEMBER 09, 2014

        Richard Grant (Appellant) appeals pro se from the order entered March

20, 2014, which denied his “Petition for Credit for Time Served.” The lower

court treated the petition as an untimely-filed petition pursuant to the Post

Conviction Relief Act (PCRA).1 We affirm.

        A   panel   of    this   Court   previously   summarized   the    background

underlying this matter as follows:

              On December 9, 1999, Appellant was convicted by a jury
        of nine (9) counts of conspiracy (predicated on each of the
        completed crimes), two (2) counts each of false imprisonment
        and recklessly endangering another person, and one (1) count
        each of robbery, simple assault, aggravated assault, theft by
        unlawful taking, firearms not be carried without a license,
        terroristic threats, and delivery of a controlled substance.
        Additionally, before trial, Appellant pleaded guilty to a delivery of
        marijuana charge. On February 4, 2000, Appellant was

1
    42 Pa. C.S. §§ 9541-9546.


* Retired Senior Judge assigned to the Superior Court.
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     sentenced to serve not less than fifteen (15) nor more than
     thirty-two (32) years for the above convictions and he also
     received a consecutive sentence of not less than one (1) nor
     more than two (2) years for the prior delivery of marijuana
     conviction. Appellant filed a timely motion for reconsideration of
     sentence, the trial court held a hearing on April 14, 2000, and
     denied Appellant’s motion.

            Appellant then discharged his privately retained counsel,
     and a public defender from the Bucks County Public Defender’s
     Office was appointed to represent him in his first appeal to this
     Court. On August 27, 2001, we affirmed the trial court’s
     judgment of sentence, and Appellant’s counsel failed to file a
     timely petition for allowance of appeal to the Pennsylvania
     Supreme Court.       On November 29, 2002, Appellant filed a
     petition under the PCRA requesting nunc pro tunc relief to file a
     petition for allowance of appeal to our Supreme Court. On
     December 17, 2002, the PCRA court appointed new counsel. On
     September 5, 2003, the PCRA court granted relief to file a
     petition for allowance of appeal to our Supreme Court nunc pro
     tunc due to the ineffectiveness of Appellant’s original appellate
     counsel, who failed to file a timely petition. On December 19,
     2003, our Supreme Court denied Appellant’s petition for
     allowance of appeal without stating a reason for its denial. On
     May 28, 2004, Appellant filed another petition under the PCRA.
     On June 1, 2004, pursuant to Appellant’s second PCRA petition,
     the trial court appointed new counsel. On August 17, 2004,
     Appellant filed a memorandum of law requesting leave to amend
     his PCRA petition. As a result of Appellant expressing
     dissatisfaction with appointed counsel’s disinclination to request
     a hearing, the PCRA court appointed yet another new counsel.
     The PCRA court scheduled a hearing upon this counsel’s motion,
     and hearings were held March 1 and March 3, 2005. By an order
     dated March 3, 2005, the PCRA court denied Appellant’s request
     for post conviction collateral relief.

Commonwealth v. Grant, 897 A.2d 517 (Pa. Super. 2006) (unpublished

memorandum at 1-3) (footnotes omitted).




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         Appellant subsequently appealed to this Court. On February 8, 2006,

this Court affirmed the PCRA court’s order on the basis that Appellant

untimely filed his petition. Id.

         Appellant then filed a Petition for Credit for Time Served with the lower

court.      The petition was docketed on March 18, 2013; the Certificate of

Service attached to the petition is dated November 1, 2012; and the

envelope attached to the petition has a postage stamp of October 31, 2012.

When the lower court failed to act on the petition, Appellant sought

mandamus relief in the Pennsylvania Supreme Court.              On December 5,

2013, the Supreme Court directed the lower court to dispose of the petition

within 90 days. On February 6, 2014, the lower court held a hearing on the

petition.     At the hearing, the Commonwealth argued, inter alia, that the

court should treat Appellant’s petition as an untimely-filed PCRA petition.

         The lower court ultimately treated Appellant’s Petition for Credit for

Time Served as a PCRA petition.         By order entered March 20, 2014, the

lower court denied Appellant’s petition as untimely filed.       Appellant timely

filed the instant appeal. Both the lower court and Appellant have complied

with Pa.R.A.P. 1925.2

         On appeal, Appellant raises the following issues for our consideration:

2
  In its Pa.R.A.P. 1925(a) opinion, the lower court concluded that Appellant
failed to file timely a 1925(b) statement. The record, however, belies that
conclusion. By order dated May 23, 2014, the lower court directed Appellant
to file a 1925(b) statement within 21 days after entry of the order. The
docket reflects that Appellant filed his 1925(b) statement on June 5, 2014,
well within the 21-day time limitation.


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      1. Did the trial court err by denying the Appellant’s [Petition] for
         Credit for Time Served?

      2. Is the Appellant entitled, pursuant to 42 Pa. C.S.[ §] 9760(1),
         to the requested time credit?

Appellant’s Brief at 6.

      In his first issue, Appellant argues that the lower court improperly

treated his petition as a PCRA petition, rather than a post-sentence motion.

In the alternative, Appellant appears to contend that the lower court failed

to comply with the notice requirements of Pa.R.Crim.P. 907.

      It is well-settled 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.

Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002).                Moreover, “[a]n

appellant’s 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. Beck, 848 A.2d 987, 989

(Pa. Super. 2004). Because Appellant’s petition claimed that the sentencing

court failed to award him credit for time served, the lower court properly

treated the petition as a PCRA petition.

      Moreover, the lower court was not required to comply with the notice

provisions of Pa.R.Crim.P. 907, as they only apply when a court seeks to

dismiss a PCRA petition without a hearing.           See Pa.R.Crim.P. 907(1)

(providing that, when a judge seeks to dismiss a PCRA petition without a



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hearing, the judge must “give notice to the parties of the intention to

dismiss the petition and shall state in the notice the reasons for the

dismissal”). Because the lower court held a hearing on Appellant’s petition,

Appellant’s argument in this regard is without merit.

      We now address whether the lower court erred in concluding that

Appellant’s PCRA petition was untimely filed.3 Our standard of review of the

denial of a PCRA petition is limited to examining whether the court's rulings

are supported by the evidence of record and free of legal error.

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).

      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).

“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)).




3
  “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.” Commonwealth v. Fahy, 737 A.2d 214, 224 (Pa. 1999).


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      This Court previously decided that Appellant’s judgment of sentence

became final on September 26, 2001.4 Thus, Appellant had until September

26, 2002, to file timely a PCRA petition. Giving Appellant the benefit of the

prisoner mailbox rule,5 the earliest possible date Appellant’s petition could

have been deemed to have been filed is October 31, 2012.          Even with a

filing date of October 31, 2012, Appellant untimely filed the petition, unless

the petition alleged and Appellant offered to prove 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.

42 Pa.C.S. § 9545(b)(1).

      Appellant’s petition did not plead any of these exceptions.       In his

appellate brief, Appellant claims that he timely filed his petition pursuant to

the exceptions at 42 Pa.C.S. § 9545(b)(1)(i) and (ii).      These claims are

4
 Commonwealth v. Grant, 897 A.2d 517 (Pa. Super. 2006) (unpublished
memorandum at 7).
5
  “[I]n the interest of fairness, the prisoner mailbox rule provides that a pro
se prisoner’s document is deemed filed on the date he delivers it to prison
authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34, 38
(Pa. Super. 2011).


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waived. See Commonwealth v. Blackwell, 936 A.2d 497, 500 (Pa. Super.

2007) (stating that “failure to allege a timeliness exception in the PCRA

petition itself precludes the petitioner from raising it on appeal”). For these

reasons, we conclude that the lower court properly denied Appellant’s

petition. Accordingly, we affirm the lower court’s order.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/9/2014




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