J-S75038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH MALCOMB, :
:
Appellant : No. 809 WDA 2017
Appeal from the Order May 10, 2017
in the Court of Common Pleas of Beaver County,
Criminal Division at No(s): CP-04-CR-0002375-1991
BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 30, 2018
Joseph Malcomb (“Malcomb”) appeals from the Order dismissing his
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
Malcomb entered a guilty plea to burglary in the first degree after
burglarizing the Sterling Fox Bar on June 19, 1991. The trial court
sentenced him, on July 1, 1992, to 26 to 240 months in prison. Malcomb did
not file a direct appeal.
Over the years, Malcomb was released from prison, but returned for
parole violations. Relevant to this appeal, on April 13, 2017, Malcomb filed a
Motion for modification of his sentence. The PCRA court, treating the Motion
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1
See 42 Pa.C.S.A. §§ 9541-9546.
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as a Petition for relief filed pursuant to the PCRA, denied relief. Thereafter,
Malcomb filed the instant appeal, followed by a court-ordered Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal.
Malcomb presents the following six claims for our review:
1) Did the Beaver County court[] err[] and abuse its discretion
by denying numerous appeals/requests for relief, without
having a hearing or considering the substantial evidence and
case law presented?
2) Did the Beaver County court err[] by not changing
[Malcomb’s] sentence from 240 months to 120 months after
the offense gravity score was changed from a felony (1) to a
felony (2)?
3) Did the Beaver County court[] err[] when the Pa. Board of
Probation and Parole and Dep[artment] of Corrections
unconstitutionally changed [Malcomb’s] maximum date from
12-11-2011 to 5-19-2021 … ?
4) Has [Malcomb] been denied due process and effective
assistance of counsel on the numerous court appeals and
parole appeals?
5) Has [Malcomb] suffered cruel and unusual punishment at the
hands of Beaver County [c]ourts for not changing [his]
maximum [sentence] date from 12-11-2011 to 12-11-2001,
after the offense gravity score was changed by the [c]ourt
without notifying [Malcomb]?
6) Was [Malcomb’s] sentence changed unconstitutionally by the
Parole Board and Dep[artment] of Corrections for a conviction
in the Beaver County courts … for a summary offense?
Brief for Appellant at 2 (some capitalization omitted).
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
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Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and
internal quotation marks omitted).
Before addressing Malcomb’s claims, we first must determine whether
he timely filed his PCRA Petition. A PCRA petition must be filed within one
year of the date the petitioner’s judgment of sentence became final. 42
Pa.C.S.A. § 9545(b)(1). The one-year time limitation is jurisdictional, and a
PCRA court has no power to address the substantive merits of an untimely
petition. Commonwealth v. Abu-Jamal, 833 A.2d 719, 723-24 (Pa.
2003); Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa.
2000). The three exceptions to the one-year filing requirement are for
newly-discovered facts, interference by a government official, and a newly-
recognized constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition
asserting one of these exceptions must also establish that the exception was
raised within sixty days of the date the claim first could have been
presented. 42 Pa.C.S.A. § 9545(b)(2).
As such, when a PCRA petition is not filed within one year of the
expiration of direct review, or not eligible for one of the three
limited exceptions, or entitled to one of the exceptions, but not
filed within 60 days of the date that the claim could have been
first brought, the PCRA court has no power to address the
substantive merits of the petitioner’s claims.
Gamboa-Taylor, 753 A.2d at 783.
Malcomb filed the instant PCRA Petition on April 13, 2017, and
consequently, it is untimely on its face. In his brief Malcomb asserts that
the change in his sentence “occurred without [his] knowledge or [him]
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receiving notification from the court of such change. This change occurred
between 1999 and 2009, which [Malcomb] was notified by new criminal
charges, or [it] may have never [been] known.” Brief for Appellant at 6.
Thus, Malcomb did not assert his present claim within 60 days of it
becoming known to him. Consequently, Malcomb has failed to establish the
newly-discovered facts exception to the PCRA’s timeliness requirement.
Because Malcomb asserts no other exception to the timeliness requirement,
we affirm the dismissal of Malcomb’s present PCRA Petition as untimely filed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2018
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