Com. v. Swiderski, J. ( 2015 )

J-S08007-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON MARTIN SWIDERSKI
Appellant No. 830 EDA 2014
Appeal from the Judgment of Sentence January 31, 2014
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0000002-2010
BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.
CONCURRING STATEMENT BY JENKINS, J.: FILED MAY 20, 2015
I join in the memorandum with the following observations.
This appeal is from Swiderski’s sentence for his second violation of
probation. In his first two arguments on appeal, Swiderski purports to
challenge his underlying original sentence of probation and restitution. I
agree with the majority’s determination that these two arguments are
without merit on the ground that Swiderski cannot use this appeal as a
vehicle for attacking the legality of his underlying original sentence.
I add, however, that the thorough analysis of this subject in
Commonwealth v. Infante, 63 A.3d 358 (Pa.Super.2014), deserves
reference:
When, on appeal from a sentence imposed following
probation revocation, an appellant collaterally
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attacks the legality of the underlying conviction or
sentence,
such an approach is incorrect and inadequate
for two reasons. First any collateral attack of
the underlying conviction [or sentence] must
be raised in a petition pursuant to the Post–
Conviction Relief Act. Second, such an
evaluation ignores the procedural posture of
[the] case, where the focus is on the probation
revocation hearing and the sentence imposed
consequent to the probation revocation, not
the underlying conviction and sentence.
Commonwealth v. Beasley, 391 Pa.Super. 287,
570 A.2d 1336, 1338 (1990). The PCRA provides the
sole means for obtaining collateral review of a
judgment of sentence. Commonwealth v. Fowler,
930 A.2d 586, 591 (Pa.Super.2007), appeal
denied, 596 Pa. 715, 944 A.2d 756 (2008); 42
Pa.C.S.A. § 9542. ‘[A] court may entertain a
challenge to the legality of the sentence so long as
the court has jurisdiction to hear the claim. In the
PCRA context, jurisdiction is tied to the filing of a
timely PCRA petition.’ Id. at 592 (quoting
Commonwealth v. Berry, 877 A.2d 479, 482
(Pa.Super.2005) (en banc), appeal denied, 591 Pa.
688, 917 A.2d 844 (2007)). ‘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.’ Fowler,
supra. Pennsylvania law makes clear no court has
jurisdiction to hear an untimely PCRA petition.
Commonwealth v. Robinson, 575 Pa. 500, 837
A.2d 1157 (2003). Thus, a collateral claim regarding
the legality of a sentence can be lost for failure to
raise it in a timely manner under the PCRA.
Commonwealth v. Wojtaszek, 951 A.2d 1169,
1173 n. 9 (Pa.Super.2008), appeal denied, 600 Pa.
733, 963 A.2d 470 (2009).
Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.Super.2013).
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I respectfully suggest that Infante squarely applies to Swiderski’s first
two issues in this appeal. Because the majority’s analysis of these issues is
consistent with Infante, I join in the memorandum.1
Judge Donohue and Judge Wecht join in this Concurring Statement.
____________________________________________
1
I also join in the memorandum’s disposition of the remaining issues in this
appeal.
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