J-S37029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TROY B. ZIMMERMAN,
Appellant No. 1632 WDA 2015
Appeal from the PCRA Order September 28, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000174-2013, CP-25-CR-0000636-
2012
BEFORE: GANTMAN, P.J., SHOGAN and LAZARUS, JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 27, 2016
Troy B. Zimmerman (“Appellant”) appeals pro se from the order
denying his petition for collateral relief filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
We glean the facts of this case from the certified record. At some
point between 11:00 p.m. on January 18, 2012, and 3:00 a.m. on January
19, 2012, in Erie County, Appellant stole a vehicle, crashed after failing to
negotiate a curve, and then fled the scene, leaving behind two passengers.
The Commonwealth filed a twelve-count information against Appellant on
March 22, 2012, at trial court docket number (“DN”) 636 of 2012. On April
4, 2012, Appellant pled guilty to one count of Accidents Involving Death or
Personal Injury, one count of Unauthorized Use of Motor Vehicles, one count
J-S37029-16
of Driving While Operating Privileges are Suspended or Revoked, one count
of Failure to Keep Right, and one count of Careless Driving. The trial court
sentenced Appellant on June 7, 2012, to incarceration for a period of one to
twelve months, followed by forty-eight months of probation. Based on credit
for time served, Appellant was immediately paroled.
One week after Appellant was paroled, he and three other men broke
into Rogers Sporting Goods store in Erie County and stole twenty-seven
firearms valued in excess of $7,000. The Commonwealth filed a two-count
information against Appellant on February 11, 2013, at DN 174 of 2013. On
March 28, 2013, Appellant pled guilty to one count of burglary and one
count of conspiracy to commit burglary.
Based on the charges at DN 174 of 2013, the trial court revoked
Appellant’s probation at DN 636 of 2012 on June 6, 2013, and re-sentenced
him to incarceration for a period of one to two years. Additionally, the trial
court sentenced Appellant at DN 174 of 2013 to incarceration for a period of
twelve to thirty-six months, consecutive to the revocation sentence at DN
636 of 2012.
Upon incarceration, Appellant filed two motions to modify his sentence
at DN 174 of 2013. He then filed a notice of appeal from the judgment of
sentence on November 12, 2013, which resulted in the appointment of
counsel, the filing of counsel’s statement of intent to file an
Anders/McClendon brief, and discontinuance of the appeal.
-2-
J-S37029-16
Appellant then filed a PCRA petition on June 16, 2014 (“2014
Petition”), and counsel was appointed on June 25, 2014. Two months later,
counsel filed a no-merit letter and, on September 11, 2014, a petition to
withdraw as counsel. The PCRA court granted counsel’s petition to withdraw
on September 11, 2014, and filed an opinion and notice of intent to dismiss
the 2014 Petition without a hearing. The PCRA court dismissed the 2014
Petition on October 8, 2014. Appellant did not appeal that dismissal.
Two days before the trial court denied Appellant’s 2014 Petition,
Appellant filed a motion for time credit and corrected commitment at DN 636
of 2012, which the trial court denied on October 16, 2014. Appellant filed a
second motion for time credit on November 18, 2014, which the trial court
did not address.
On July 31, 2015, Appellant filed a petition to vacate illegal sentence,
which was docketed at both trial court numbers. On August 13, 2015, the
trial court treated the petition to vacate illegal sentence as a PCRA petition
and appointed counsel.1 Counsel filed a no-merit letter and a petition to
withdraw on August 25, 2015. The PCRA court filed a notice of intent to
dismiss the petition without a hearing on August 27, 2015, and granted
____________________________________________
1
The common pleas court properly deemed this motion a PCRA petition
because the motion sought relief cognizable under the PCRA. See
Commonwealth v. Hockenberry, 689 A.2d 283, 288 (Pa. Super. 1997)
(“Issues relating to the legality of sentence cannot be waived and are
cognizable under the PCRA.”).
-3-
J-S37029-16
counsel permission to withdraw on August 28, 2015. Appellant filed a pro se
response to the PCRA court’s notice of intent on September 10, 2015, and
the PCRA court dismissed the petition on September 28, 2015. This appeal
followed. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our consideration, which we
restate here verbatim:
1. Did the Sentencing Court transgress its authority and
sentence the Appellant to an additional order of 48 months
probation, thus, subjecting the Appellant to be punished
twice for the same offense at Ct. 1 of 636 CR 2012?
2. Did the Sentencing Court abolish Appellant’s first guilty
plea of concurrent terms upon resentencing to terms of
consecutive?
3. Did the Sentencing Court transgress its authority by
accepting a guilty plea in regards to Burglary and
Conspiracy to commit burglary, in which the jurisdiction of
the charges were in error to the crime committed, thus,
depriving the appellant merging subjecting the Appellant
to a harsher punishment then permitted by law?
Appellant’s Brief at 2.
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.
-4-
J-S37029-16
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
A PCRA petition must be filed within one year of the date that the
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).
Although much of Appellant’s pro se brief is rambling and incoherent,
he challenges the legality of his sentences. “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.
Fowler, 930 A.2d 586, 592 (Pa. Super. 2007)
Our review of the record reflects that Appellant was re-sentenced at
DN 636 of 2012 on June 6, 2013. Appellant did not file a direct appeal from
the sentence at DN 636 of 2012. Accordingly, his judgment of sentence at
DN 636 of 2012 became final on July 5, 2013, when the time for filing an
appeal to this Court expired. See 42 Pa.C.S. § 9545(b)(3) (providing that
-5-
J-S37029-16
“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.”).
Appellant was also sentenced at 174 of 2013 on June 6, 2013, and,
although he filed a notice of appeal from that judgment of sentence, he
discontinued that appeal. Accordingly, his judgment of sentence at DN 174
of 2013 also became final on July 5, 2013, when the time for filing an appeal
to this Court expired. 42 Pa.C.S. § 9545(b)(3). Therefore, Appellant had to
file the current PCRA petition by July 5, 2014,2 in order for it to be timely.3
Appellant did not file the instant PCRA petition until July 31, 2015. Thus,
Appellant’s instant PCRA petition is patently untimely.
If a petitioner does not file a timely PCRA petition, his petition may
nevertheless be received when the petition alleges, and the petitioner
____________________________________________
2
Because July 5, 2014, fell on a Saturday, Appellant had until Monday, July
7, 2014, to file his PCRA petition. See 1 Pa.C.S. § 1908 (“Whenever the last
day of any such period shall fall on Saturday or Sunday, or on any day made
a legal holiday by the laws of this Commonwealth or of the United States,
such day shall be omitted from the computation.”).
3
We note that Appellant filed a timely PCRA petition at DN 174 of 2013 on
June 16, 2014, which the PCRA court dismissed on October 8, 2014.
However, under 42 Pa.C.S. § 9545(b), a second PCRA petition must be filed
within one year of the date the judgment of sentence becomes final, except
under the three limited circumstances set forth in 42 Pa.C.S. §
9545(b)(1)(i), (ii), and (iii). See Commonwealth v. Alcorn, 703 A.2d
1054 (Pa. Super. 1997).
-6-
J-S37029-16
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.4 That
burden necessarily entails an acknowledgment by the petitioner that the
PCRA petition under review is untimely but that one or more of the
exceptions apply. Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa.
1999). If a petitioner asserts one of these exceptions, he must file his
petition within sixty days of the date that the exception could be asserted.
42 Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
PCRA’s one-year filing deadline, “the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.
____________________________________________
4
The exceptions to the timeliness requirement are:
(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)(i), (ii), and (iii).
-7-
J-S37029-16
Here, Appellant appears to complain that the trial court sentenced him
twice for the same crime, imposed a harsher punishment by re-sentencing
him to consecutive terms, and failed to merge the sentence for conspiracy to
commit burglary with the burglary sentence. Appellant’s Brief at 6, 7, and 8.
However, Appellant does not plead or prove any of the exceptions to the
PCRA time-bar. 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
Consequently, because the instant PCRA petition was untimely and no
exceptions apply, the PCRA court lacked jurisdiction to address the claims
presented 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 the authority to address the
merits of any substantive claims raised in the PCRA petition. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007)
(“[J]urisdictional time limits go to a court’s right or competency to adjudicate
a controversy.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2016
-8-
J-S37029-16
-9-