Com. v. Bailey, T. ( 2014 )

J-S54025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TREVAR B. BAILEY
Appellant No. 91 MDA 2014
Appeal from the PCRA Order December 17, 2013
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001471-2007
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED SEPTEMBER 05, 2014
Appellant, Trevar B. Bailey, appeals from the December 17, 2013
order dismissing his petition for relief filed pursuant to the Post Conviction
Relief Act, 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
We summarize the factual and procedural background of this case as
follows. On April 20, 2007, the Commonwealth filed an information charging
Appellant with two counts of possession with intent to deliver (PWID).1
Appellant entered into a negotiated guilty plea for both charges on May 18,
2011. After accepting the plea, the trial court imposed an aggregate
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1
35 P.S. § 780-113(a)(30).
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2
Appellant did not file a post-
sentence motion with the trial court nor did he file a direct appeal to this
Court.
On December 14, 2012, Appellant filed a pro se motion for time
credit.3 The trial court denied said motion without a hearing on January 15,
2013.4 Appellant did not file a notice of appeal to this Court. On March 18,
2013, Appellant filed a pro se PCRA petition.5 The PCRA court appointed
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2
count. Both sentences were to run concurrently to each other and
concurrently to a separate sentence Appellant was given in New Jersey.
3
however, that the certified record contains the envelope in which Appellant
mailed the motion, which is postmarked December 14, 2012. Under the
pri a pro se
Commonwealth v.
Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citation omitted), appeal
denied, 46 A.3d 715 (Pa. 2012). Therefore, we treat December 14, 2012 as
the filing date.
4
Although for reasons discussed infra, it is not essential to our conclusion in
this case, we note that the trial court should have treated this filing as
rst PCRA petition and appointed counsel. See Commonwealth
v. Heredia, --- A.3d ---, 2014 WL 3670010, *2 (Pa. Super. 2014)
accord Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.
-
conviction collateral
5
certified record contains the postmark bearing the date of March 18, 2013.
(Footnote Continued Next Page)
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counsel, who filed an amended PCRA petition on May 30, 2013. The
Commonwealth filed its answer on July 10, 2013. On December 12, 2013,
the PCRA court held an evidentiary hearing. On December 17, 2013, the
January 10, 2014, Appellant filed a timely notice of appeal.6
On appeal, Appellant raises one issue for our review.
A. Whether the [PCRA] court erred in denying []
[a]mended [PCRA] petition?
We begin by noting our well- In reviewing
de
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
of the PCRA court and the evidence of record, viewed in the light most
Commonwealth v.
Spotz -settled
c Commonwealth v.
_______________________
(Footnote Continued)
Therefore, pursuant to the prisoner mailbox rule we treat March 18, 2013 as
the filing date. See Chambers, supra.
6
Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
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Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
because it
implicates the jurisdiction of this Court and the PCRA court.
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014) (citation
omitted). As the PCRA time-bar is jurisdictional, we may raise it sua sponte,
even if the Commonwealth does not do so. Commonwealth v. Concordia,
--- A.3d ---, 2014 WL 3615413, *2 (Pa. Super. 2014) (citation omitted).
a PCRA petition is untimely,
Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014) (citation
omitted). CRA petition is not subject to the doctrine
of equitable tolling; instead, the time for filing a PCRA petition can be
Commonwealth v.
Ali, 86 A.3d 173, 177 (Pa. 2014) (internal quotations marks and citation
Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted).
However, an untimely petition may be received when the petition alleges,
and the petitioner proves, that any of the three limited exceptions to the
time for filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and
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(iii) Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super.
2014) (citation omitted). The act provides, in relevant part, as follows.
§ 9545. Jurisdiction and proceedings
(b) Time for filing petition.
(1) Any petition under this subchapter,
including a second or subsequent petition, shall
be filed within one year of the date the
judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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.
(2) Any petition invoking an exception
provided in paragraph (1) shall be filed within
60 days of the date the claim could have been
presented.
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42 Pa.C.S.A. § 9545(b).
In the case sub judice, Appellant was sentenced on May 18, 2011 and
did not file a post-sentence motion in the trial court or a direct appeal with
June 17, 2011, when the filing period for Appellant to file a notice of appeal
to this Court expired. See 42 Pa.C.S.A. § 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
;
[i]n a criminal case in which no post-sentence
motion has been filed, the notice of appeal shall be filed within 30 days of
the imposition of the judgment of sentence in open court
Appellant had until June 18, 2012 to file a timely PCRA petition. 7 As
Appellant filed the instant petition on March 18, 2013, it was filed 273 days
past the deadline, and therefore it is patently untimely.8
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7
We note that June 17, 2012 was a Sunday. When calculating a filing
period, weekends are excluded from this computation. 1 Pa.C.S.A. § 1908.
Therefore, Appellant had until Monday, June 18, 2012 to timely file any
PCRA petition.
8
pro se
deadline.
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Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013) (citation
omitted), cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013);
accord Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.
that any of the three time-bar exceptions applies.
the legality of the sentence. See Beck, supra
prior to sentencing involves the legality of sentence
this Court is endowed with the ability to consider an issue of illegality
of sentence sua sponte Commonwealth v. Orellana, 86 A.3d 877, 883
n.7 (Pa. Super. 2014) (citation omitted). However, in order for this Court to
review a legality of sentence claim, there must be a basis for our jurisdiction
to engage in such review. See Commonwealth v. Borovichka, 18 A.3d
not technically waivable, a legality [of sentence] claim may nevertheless be
-bar
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Seskey, supra. Based on these considerations, we conclude that the PCRA
untimely filed.9 See Lawson, supra.
Based on the foregoing, we conclude the PCRA court properly
10
Accordingly, the PCRA
December 17, 2013 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/5/2014
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9
rather than on the basis of untimeliness. However, we note that as an
appellate court, we may affirm the PCRA court on any legal basis supported
by the record. Commonwealth v. Doty, 48 A.3d 451, 456 (Pa. Super.
2012).
10
calculation of the applicable time credit, Appellant is not necessarily without
a remedy. Appellant would be able to file a petition for a writ of mandamus
in the Commonwealth Court. See , 872 A.2d
1127, 1130-1131 (Pa. 2005) (holding a writ of mandamus is appropriate,
rather the actions of the Dep
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