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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROGELIO ZALDIVAR PENA :
:
Appellant : No. 1724 MDA 2019
Appeal from the Order Entered September 25, 2019
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0000942-2010
BEFORE: OLSON, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED MAY 29, 2020
Rogelio Zaldivar Pena (Appellant) appeals pro se from the order denying
his pro se “Motion for Corrected Time Credit.” We affirm.
This case has a lengthy and convoluted history. For purposes of this
appeal, we recount that on January 6, 2011, a jury found Appellant guilty of
third-degree murder, 18 Pa.C.S.A. § 2501, and aggravated assault, 18
Pa.C.S.A. § 2702(a)(1). On February 28, 2011, the trial court sentenced
Appellant to an aggregate term of 20 to 40 years of incarceration.
On March 28, 2014, this Court affirmed Appellant’s judgment of
sentence. See Commonwealth v. Pena, 1499 MDA 2013 (Pa. Super. Mar.
28, 2014 (unpublished memorandum). On October 15, 2014, our Supreme
Court denied Appellant’s petition for allowance of appeal. See
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* Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Pena, 110 A.3d 997, 241 MAL 2014 (Pa. 2014).
Appellant did not file a petition for certiorari with the United States Supreme
Court. Over the ensuing years, Appellant filed two unsuccessful petitions
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
On September 18, 2019, Appellant filed the underlying pro se “Motion
for Corrected Time Credit” (Motion), in which he asserted that he did not
receive credit for 288 days of time served prior to sentencing. Motion,
9/18/19, ¶ 5. On September 25, 2019, the court entered an order denying
relief on the basis that it lacked jurisdiction to consider the merits of the Motion
because it was an untimely PCRA petition. See Trial Court Order, 9/25/19;
see also Trial Court Opinion, 11/26/19, at 4-6. Appellant filed a timely pro
se appeal to this Court.
On appeal, Appellant presents the following issue for review:
IS [APPELLANT] ENTITLED TO TIME CREDIT, AND DID THE
SENTENCING COURT ERR IN FINDING THAT IT DID NOT HAVE
JURISDICTION TO GRANT THE SAME?
Appellant’s Brief at 5.
Prior to addressing Appellant’s issue, we must determine whether we
have jurisdiction. Appellant identified his filing as a “Motion for Corrected
Time Credit” and the court construed the Motion as serial PCRA petition. Our
Supreme Court has held that “the PCRA subsumes all forms of collateral relief,
including habeas corpus, to the extent a remedy is available under such
enactment.” Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007)
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(emphasis in original). “[A] 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. Fowler, 930 A.2d
586, 595 (Pa. Super. 2007) (quotations and citations omitted). Consequently,
the trial court was correct in construing Appellant’s Motion as a serial PCRA
petition. We therefore consider the petition’s timeliness.1
“Pennsylvania law makes clear no court has jurisdiction to hear an
untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076, 1079
(Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 A.2d 1157,
1161 (Pa. 2003)). A petitioner must file a PCRA petition within one year of
the date on which the petitioner’s judgment became final, unless one of the
three statutory exceptions applies:
(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.
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1 “[T]hough not technically waivable, a legality [of sentence] claim may
nevertheless be lost should it be raised . . . in an untimely PCRA petition for
which no time-bar exception applies, thus depriving the court of jurisdiction
over the claim.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.
2014) (quotations and citation omitted).
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42 Pa.C.S.A. § 9545(b)(1). A petitioner must file a petition invoking one of
these exceptions “within one year of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). If a petition is untimely, and the
petitioner has not pled and proven any exception, “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.”
Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).
In this case, the trial court sentenced Appellant on February 28, 2011.
This Court affirmed his judgment of sentence on March 28, 2014, and our
Supreme Court denied his petition for allowance of appeal on October 15,
2014. Because Appellant did not file a petition for certiorari with the United
States Supreme Court, his judgment of sentence became final on January 13,
2015, 90 days after our Supreme Court denied his petition for allowance of
appeal. See 42 Pa.C.S.A. § 9545(b)(3) (stating that 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”); see also
U.S.Sup.Ct.R. 13. As explained above, Appellant had one year – until January
13, 2016 – to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1).
Appellant filed the underlying petition on September 18, 2019, more than
three-and-a-half years later. Accordingly, the petition is untimely, and we
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lack jurisdiction to decide the merits unless Appellant has pled and proved one
of the three timeliness exceptions of section 9545(b)(1). See Derrickson,
923 A.2d at 468. Our review reveals that Appellant did not attempt to plead
or prove any of the timeliness exceptions. See Motion, 9/18/19. As Appellant
has failed to plead and prove an exception under section 9545(b)(1), we lack
jurisdiction to address the merits of this appeal. See Derrickson, 923 A.2d
at 468.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/29/2020
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