J-S87019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KARL R. SAMPSELL,
Appellant No. 1010 MDA 2016
Appeal from the PCRA Order entered May 24, 2016,
in the Court of Common Pleas of Union County,
Criminal Division, at No(s): CP-60-CR-0000166-2010
& CP-60-CR-0000178-2009
BEFORE: LAZARUS, SOLANO, and PLATT, JJ.
MEMORANDUM BY SOLANO, J.: FILED JANUARY 24, 2017
Appellant, Karl R. Sampsell, appeals pro se from the order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. Upon review, we affirm.
In a previous appeal, this Court summarized the pertinent facts and
procedural history as follows:
Appellant initially pled guilty at No. 178-2009 to one
count of possession with intent to deliver (“PWID”) and
one count of criminal use of a communication facility. He
was sentenced on October 12, 2010, to eleven and one-
half months to twenty-three months imprisonment
followed by three years [of] probation on the PWID count.
On the other count, he was sentenced to five years [of]
probation to run concurrently to the sentence imposed at
the first count.
On September 15, 2011, Appellant pled guilty at No.
166-2010 to one count of PWID and was sentenced to six
J-S87019-16
to twelve months [of] incarceration, to run concurrently
with the sentence at No. 178-2009, and a five-year period
of probation to run consecutively to [the term of]
imprisonment and probation at that number. Thus, in
effect, Appellant began serving an aggregate sentence of
incarceration on October 12, 2010.
On March 24, 2014, while on probation, Appellant was
charged with PWID, possession of a controlled substance,
and possession of drug paraphernalia. The Commonwealth
filed a motion to revoke Appellant’s probation at both
numbers on March 31, 2014. Following a hearing on May
16, 2014, the court revoked Appellant’s probation and
resentenced him at No. 178-2009 to one to two years [of]
imprisonment on the communications facility count and a
consecutive term of one to three years [of] incarceration
on the PWID count. At No. 166-2010, Appellant was
resentenced to two and one-half to five years [of]
incarceration, to be served consecutive to the sentence
imposed at no. 178-2009. Thus, Appellant’s new
aggregate sentence was four and one-half years to ten
years [of] incarceration. The Court then stated that
Appellant would receive a Recidivism, Risk, Reduction,
Incentive (“RRRI”) sentence of forty-five months and
twenty-five days, with a credit for time served of fifty-
three days from March 24, 2014 to May 16, 2014.
On May 30, 2014, Appellant filed a motion to modify his
sentence to state intermediate punishment, which the
court denied. Upon subsequently learning that its RRRI
calculation was incorrect, however, the court issued a June
25, 2014 order amending the sentence to forty-five
months with the same credit for time served.
On October 23, 2014, Appellant filed [a] pro se petition
for credit for time spent in custody . . . alleging that he
was entitled to 598 days of credit for time served in prison
on the aforementioned sentences. Counsel was appointed.
On January 20, 2015, the court issued a rule upon the
Commonwealth to respond to the petition, which it did.
Following a hearing on February 5, 2015, the court
dismissed the petition.
-2-
J-S87019-16
Commonwealth v. Sampsell, No. 980 MDA 2015, unpublished
memorandum at 1-4 (Apr. 19, 2016) (footnotes omitted).
Appellant filed a timely appeal to this Court. We first noted that the
trial court should have treated Appellant’s petition for time credit as a timely
PCRA. The panel then determined that Appellant’s claim regarding the
award of credit for time served prior to the revocation of probation
presented a legality of sentence question subject to plenary review.
Sampsell, unpublished memorandum at 5 (citing Commonwealth v.
Menezes, 871 A.2d 204 (Pa. Super. 2005), appeal denied, 890 A.2d 1057
(Pa. 2005). We then thoroughly discussed Appellant’s request in conjunction
with pertinent case law and concluded that he was not entitled to the 598
day credit. The panel did conclude, however, that Appellant was entitled to
an additional one day of credit for when he was in custody awaiting bail on
charges at No. 178-2009. We therefore vacated the trial court’s order
dismissing Appellant’s petition, and remanded for further proceedings.
Upon remand, the trial court, by an order dated May 2, 2016, granted
Appellant’s petition for time credit in part, and, in accordance with our
directive, credited Appellant for an additional day of credit against his
aggregate prison sentence.
On May 23, 2016, Appellant filed the pro se PCRA petition underlying
this appeal, in which he asserted the ineffective assistance of appellate
counsel and an illegal sentence claim. The next day, the PCRA court entered
an order dismissing the PCRA petition because Appellant failed to “exhaust
-3-
J-S87019-16
his appellate remedies by appealing this Court’s May 2, 2016 Order.” Order,
5/24/16, at 1 (footnote omitted). Appellant filed this timely appeal on June
13, 2016.
Preliminarily, we recognize that in reviewing the propriety of the PCRA
court’s order denying Appellant relief, we are limited to ascertaining whether
the record supports the determination of the PCRA court and whether the
ruling is free of legal error. Commonwealth v. Johnson, 966 A.2d 523,
532 (Pa. 2009). We defer to the factual findings of the PCRA court, “but its
legal determinations are subject to our plenary review.” Id. The PCRA court
has discretion to dismiss a petition without a hearing when the court is
satisfied that no genuine issues of material fact have been raised, no
legitimate purpose would be served by further proceedings, and the
petitioner is not entitled on the merits to post-conviction relief. Pa.
R.Crim.P. 909(B). This Court may affirm a PCRA court’s decision on any
grounds supported by the record. Commonwealth v. Rykard, 55 A.3d
1177, 1183 (Pa. Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013).
In his pro se brief, Appellant presents the following issues:
I. Was [Appellant] required to exhaust claims of
appellate counsel ineffectiveness and illegal sentence
prior to filing a PCRA petition?
II. Was appellate counsel ineffective for failing to cite
and discuss Commonwealth v. Johnson, 967 A.2d
1001 (Pa. Super. 2008), in his appellate brief?
Appellant’s Brief at 4.
-4-
J-S87019-16
Before addressing Appellant’s claims, we must first determine whether
Appellant’s PCRA petition was timely filed. The timeliness of a post-
conviction petition is jurisdictional. Commonwealth v. Hernandez, 79
A.3d 649, 651 (Pa. Super. 2013). Generally, a petition for relief under the
PCRA must be filed within one year of the date the judgment is final unless
the petition alleges and the petitioner proves one of the three exceptions to
the time limitations for filing the petition set forth in Section 9545(b)(1) of
the statute.1 A PCRA petition invoking one of these statutory exceptions
must “be filed within 60 days of the date the claims could have been
presented.” Id. at 651-52 (citing 42 Pa.C.S. § 9545(b)(2)). Asserted
exceptions to the time restrictions in the PCRA must be included in the
petition and may not be raised for the first time on appeal.
____________________________________________
1
The three exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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).
-5-
J-S87019-16
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007), appeal
denied, 959 A.2d 927 (Pa. 2008).
Appellant did not file a direct appeal after he was resentenced on
May 16, 2014. As a result, his judgment of sentence became final thirty
days thereafter, on June 16, 2014. See 42 Pa.C.S. § 9545(b)(3). He thus
had to file this PCRA petition within one year, by January 20, 2015, for it to
be timely. 42 Pa.C.S. § 9545(b)(1). As Appellant filed the instant petition
on May 23, 2016, it is untimely unless he has satisfied his burden of
pleading and proving that one of the enumerated exceptions applies. See
Hernandez, 79 A.3d at 652.
Within his brief, Appellant has neither acknowledged the PCRA’s time
bar nor attempted to prove any exception to that bar. Instead, he raises a
claim of appellate ineffectiveness and argues that his sentence was illegal.
“It is well settled that allegations of ineffective assistance of counsel will not
overcome the jurisdictional timeliness requirements of the PCRA.”
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005). Moreover,
although generally a legality of sentencing issue is reviewable and cannot be
waived, it must be raised in a timely filed PCRA petition. See 42 Pa.C.S. §
9545(b)(1); Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)
(explaining that, “[a]lthough legality of sentence is always subject to review
-6-
J-S87019-16
within the PCRA, claims must first satisfy the PCRA’s time limits or one of
the exceptions thereto”).2
In sum, for the above reasons, the PCRA court lacked jurisdiction to
consider Appellant’s untimely PCRA petition. We therefore affirm the PCRA
court’s order denying Appellant post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2017
____________________________________________
2
Although not relating to jurisdiction, we also agree with the conclusion by
both the PCRA court and the Commonwealth that Appellant’s claim regarding
proper time credit, and the corresponding legality of his sentence, was
previously litigated in his first PCRA petition and therefore may not be
relitigated here. See Sampsell, at 4-9; 42 Pa.C.S. §§ 9543(a)(3) (requiring
“[t]hat the allegation of error has not been previously litigated”), 9544(a)(3)
(stating that an issue has been previously litigated if “it has been raised and
decided in a proceeding collaterally attacking the conviction or sentence”).
-7-