Com. v. Burton, T. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TONY BURTON :
:
Appellant : No. 580 EDA 2022
Appeal from the PCRA Order Entered January 31, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005522-2012
BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 29, 2022
Appellant, Tony Burton, filed a Motion for Modification of Sentence
(“Modification Motion”) nearly seven years after his sentence was imposed.
Treating that motion as a petition under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546, the PCRA court dismissed it as untimely
without exception. After careful review, we affirm.
The facts underlying Appellant’s conviction are not germane to this
appeal. Briefly, following his arrest on March 17, 2012, Appellant proceeded
to a non-jury trial on August 5, 2013, where he was convicted of three
violations of the Uniform Firearms Act.1 On June 27, 2014, the court
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1 18 Pa.C.S. §§ 6105 (person not to possess a firearm), 6106 (carrying a
firearm without a license), and 6108 (carrying a firearm in public in
Philadelphia).
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sentenced Appellant to an aggregate term of 6-12 years’ incarceration.2 This
Court affirmed his judgment of sentence on January 12, 2016, and our
Supreme Court denied his petition for allowance of appeal on October 26,
2016. See Commonwealth v. Burton, 136 A.3d 1029 (Pa. Super. 2016)
(unpublished memorandum), appeal denied, 160 A.3d 763 (Pa. 2016).
Appellant filed his first PCRA petition, pro se, on December 22, 2016.
After the appointment of counsel, an amended PCRA petition was filed on
Appellant’s behalf on July 18, 2017. The PCRA court dismissed that petition
on March 14, 2018. This Court remanded due to per se ineffectiveness by
PCRA counsel based on counsel’s failure to file a Pa.R.A.P. 1925(b) statement.
See Commonwealth v. Burton, 219 A.3d 215 (Pa. Super. 2019)
(unpublished memorandum). Following that remand, this Court ultimately
affirmed the PCRA court’s order denying relief. See Commonwealth v.
Burton, 224 A.3d 781 (Pa. Super. 2019) (unpublished memorandum).
Appellant did not seek further review by our Supreme Court. Appellant, again
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2 Specifically, the court sentenced Appellant to 5-10 years’ incarceration for
his violation of Section 6105, to a consecutive term of 1-2 years’ incarceration
for his violation of Section 6106, and to 1-2 years’ incarceration for his
violation of Section 6108, to be served concurrently to his Section 6106
sentence. Sentencing Order, 6/27/14, at 1. As is pertinent to the issue raised
in this appeal, Appellant’s sentence for his violation of Section 6105 was
ordered to run concurrently to another sentence he was serving at the time of
sentencing, which Appellant alleges was back-time imposed for a parole
violation. Id. At the sentencing hearing, Appellant’s counsel stated that
Appellant was incarcerated on a state detainer. N.T. Sentencing, 6/27/14, at
4. Furthermore, the Commonwealth stated at that time that Appellant “was
on state parole for a gunpoint robbery when he was arrested for … carrying
[a] firearm” in this case. Id. at 6.
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acting pro se, filed a second PCRA petition on March 10, 2020, which the PCRA
court denied by order dated July 10, 2020. Appellant did not file an appeal
from that decision.
The instant action began on March 17, 2021, when Appellant filed the
Modification Motion pro se, alleging that his June 27, 2014 sentence for the
aforementioned firearms violations is illegal. Specifically, Appellant argued as
follows:
On August 5, 2013, following trial by jury before the Honorable
Listtee[]Shairdan[-]Harris, [Appellant] was convicted of
[violations of Sections] 6105, 6106, [and] 6108. On June 27,
2014, the court i[m]posed a term of i[m]prisonment totaling 6-12
years. During sentencing[,] the court further ordered that the
sente[n]ce of 6-12 years[’ incarceration] was to run
“concurrently” with [Appellant’s] sentence as a parole violator.
The Pennsylvania Board of Probation and Parole[] (Board)
subsequently imposed a sanction of 36 months[’] incarceration
based on [Appellant]’s new conviction. The [Department of
Corrections] calculated both sentences to run consecutively,
despite the sentencing order stating otherwise. [Appellant] filed
an inmate[] grievance seeking compliance with the sentencing
court’s order that the sentences run concurrently. Noting that the
law prohibited old and new sentences from being served
simultaneously, the DOC rejected [Appellant]’s grievance. In the
opinion of the DOC[,] the portion of the sentencing order directing
concurrency of the sentences was illegal. Research reveals the
DOC may be correct in its assessment rendering it impossible to
fulf[i]ll the intent of [the] sentencing judge. It is therefore
requested the sentence be modified so as to achieve the
sentencing court[’]s desired intent.
Motion for Modification of Sentence, 3/17/21, at 1.
Appellant filed a premature notice of appeal after 120 days, alleging that
his Modification Motion had effectively been denied by operation of law. This
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Court quashed that appeal on December 9, 2021, because no order dismissing
the Modification Motion had been filed in the lower court. See Order, 12/9/21,
at 1 (1648 EDA 2021). Subsequently, on December 21, 2021, the PCRA court
issued notice of its intent to dismiss the Modification Motion without a hearing
pursuant to Pa.R.Crim.P 907 “because it was an untimely[,] third PCRA
Petition.” PCRA Court Opinion (“PCO”), 3/2/22, at 3. Appellant did not file a
response to the court’s Rule 907 Notice. The PCRA court then dismissed the
Modification Motion as an untimely PCRA petition by order dated January 31,
2022. Appellant timely filed the instant appeal on February 16, 2022. The
PCRA court then issued its Pa.R.A.P. 1925(a) opinion on March 2, 2022.3
Appellant now presents the following question for our review: “Did the
lower court err by extending the scope of the PCRA beyond the plain language
of the statute regarding eligibility for relief?” Appellant’s Brief at 4.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must always begin by
addressing the timeliness of a PCRA petition, because the PCRA’s time
limitations implicate our jurisdiction and may not be altered or disregarded in
order to address the merits of a petition. Commonwealth v. Bennett, 930
A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-conviction
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3 The PCRA court did not order Appellant to file a concise statement pursuant
to Rule 1925(b).
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relief, including a second or subsequent one, must be filed within one year of
the date the judgment of sentence becomes final, unless one of the following
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). “Any petition invoking an exception provided
in paragraph (1) shall be filed within one year of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant asserts that the PCRA’s time limitations do not apply in this
case, arguing that the PCRA court improperly treated his Modification Motion
as a PCRA petition. He contends that, because “none of the statutory bases
for PCRA relief is presented in this case[,] the [PCRA] court erred by extending
its reach beyond the plain language of the statute.” Appellant’s Brief at 12.
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To be eligible for relief under the PCRA, petitioner must, inter alia, plead
and prove by a preponderance of the evidence:
That the conviction or sentence resulted from one or more of the
following:
(i) A violation of the Constitution of this Commonwealth or
the Constitution or laws of the United States which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the
circumstances make it likely that the inducement caused the
petitioner to plead guilty and the petitioner is innocent.
(iv) The improper obstruction by government officials of the
petitioner's right of appeal where a meritorious appealable
issue existed and was properly preserved in the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial of exculpatory
evidence that has subsequently become available and would
have changed the outcome of the trial if it had been
introduced.
(vii) The imposition of a sentence greater than the lawful
maximum.
(viii) A proceeding in a tribunal without jurisdiction.
42 Pa.C.S. § 9543(a)(2).
Appellant asserts that his illegal-sentencing claim does not fall within
any of the categories set forth in Section 9543(a)(2) and, therefore, that his
Modification Motion was not cognizable under the PCRA, citing
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Commonwealth v. West, 868 A.2d 1267 (Pa. Super. 2005), rev’d, 938 A.2d
1034 (Pa. 2007), and Commonwealth v. Judge, 916 A.2d 511 (Pa. 2007).
He further argues that he
is not challenging any aspect of the truth-determining process.
Appellant is not claiming an improper interference with the right
to appeal nor that his counsel was ineffective. Appellant does not
claim the later discovery of exculpatory evidence, the jurisdiction
of the tribunal in not being questioned. Most important, Appellant
is not alleging the sentence at issue exceeded the lawful
maximum. Indeed, Appellant has no qualms with the length of
the sentence imposed by the sentencing court. As none of the
statutory bases for PCRA relief is presented in this case[,] the
lower court erred by extending its reach beyond the plain
language of the statute.
Appellant’s Brief at 12.
Appellant contends that, because the text of Section 9543(a)(2) does
not encompass his illegal-sentencing claim, that claim was never cognizable
under the PCRA and, therefore, the PCRA court’s time limitations do not apply.
Essentially, Appellant’s argument is contingent on an extremely narrow
reading of Section 9543(a)(2)(vii), which explicitly provides eligibility for relief
for illegal-sentencing claims that involve the “imposition of a sentence greater
than the lawful maximum.”
Whether a PCRA court has jurisdiction to correct allegedly illegal
sentencing orders absent statutory jurisdiction under the PCRA is a question
of law. See Commonwealth v. Holmes, 933 A.2d 57, 65 (Pa. 2007).
“Accordingly, our scope of review is plenary and our standard of review is de
novo.” Id. Here, the PCRA court’s opinion does not contain any analysis of
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Appellant’s specific argument that his illegal sentencing claim is not cognizable
under the PCRA, despite the fact that Appellant explicitly presented that
argument in his Modification Motion. See Modification Motion, 3/17/21, at 1-
2 (“INAPPLICAB[I]L[IT]Y OF THE PCRA”). Nevertheless, because the question
before us is purely a matter of law, remand for reconsideration by the trial
court is unnecessary. “It is well settled that where the result is correct, an
appellate court may affirm a lower court’s decision on any ground without
regard to the ground relied upon by the lower court itself.” Commonwealth
v. Singletary, 803 A.2d 769, 772–73 (Pa. Super. 2002) (quoting Boyer v.
Walker, 714 A.2d 458, 463 n. 10. (Pa. Super. 1998)).
Here, Appellant concedes that his sentence fell within the lawful
maximum. Nevertheless, as this Court has previously explained:
“If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal sentence
must be vacated.” Commonwealth v. [] Watson, 945 A.2d 174,
178–79 (Pa. Super. 2008) (quoting Commonwealth v.
Leverette, 911 A.2d 998, 1001–02 (Pa. Super. 2006)). Section
6138 of the Parole Act states in pertinent part:
§ 6138. Violation of terms of parole
***
(5) If a new sentence is imposed on the parolee, the service
of the balance of the term originally imposed by a
Pennsylvania court shall precede the commencement of the
new term imposed in the following cases:
(i) If a person is paroled from a State correctional
institution and the new sentence imposed on the person
is to be served in the State correctional institution.
61 Pa.C.S.[] § 6138(a)(5)(i). In other words, where a state
parolee gets a new state sentence, he must serve his back[-]time
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first before commencement of the new state sentence. Id.
Imposition of a new state sentence concurrent with parolee’s
back[-]time on the original state sentence is an illegal sentence
under this statute. Lawrence v. Pennsylvania Dept. of
Corrections, 941 A.2d 70 (Pa. Cmwlth. 2007) (holding state
parolee could not serve his new state sentence before he satisfied
his original state sentence; imposition of new sentence essentially
concurrent with back[-]time service violates Parole Act and is
illegal).
Commonwealth v. Kelley, 136 A.3d 1007, 1013–14 (Pa. Super. 2016).
Thus, Appellant’s sentence is illegal under the Parole Act because it was
imposed concurrently to the back-time he was serving for violating his parole.4
Appellant essentially contends that this type of illegal sentence cannot be
addressed under the PCRA because it does not involve a sentence greater than
the lawful maximum, or otherwise fit any of the other criteria for eligibility set
forth in Section 9543(a)(2)(vii).
For the following reasons, we disagree. As this Court has previously
explained:
It is generally true that “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
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4 As Appellant acknowledged at his sentencing hearing, he was incarcerated
on a state-parole detainer at the time of sentencing. In his Modification
Motion, he further acknowledged that he was not sentenced to serve 36
months’ back-time for his parole violation until after he was sentenced for the
firearms violations at issue in this case. Appellant was presumably given time
credit for the time he spent incarcerated on the state-parole detainer toward
the back-time sentence, at which time Appellant’s sentence for his violation
of Section 6105 became illegal under the Parole Act. Regardless of what
doubts this timing suggests as to whether Appellant’s sentencing was illegal
under the Parole Act, any such questions go toward the merits of Appellant’s
sentencing claim, not to whether such a claim is cognizable under the PCRA.
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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 1242, 1254 (Pa. Super. 2011) (stating, “[a]
challenge to the legality of a sentence ... may be entertained as
long as the reviewing court has jurisdiction[ ]”) (citation omitted).
As this Court recently noted, “[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.] Seskey, [86 A.3d 237,] 242[ (Pa.
Super. 2014)].
Commonwealth v. Miller, 102 A.3d 988, 995–96 (Pa. Super. 2014).
The PCRA “provides for an action by which persons convicted of crimes
they did not commit and persons serving illegal sentences may obtain
collateral relief.” 42 Pa.C.S. § 9542 (emphasis added). When an action is
cognizable under the PCRA, the PCRA is the “sole means of obtaining collateral
relief and encompasses all other common law and statutory remedies for the
same purpose[.]” 42 Pa.C.S. § 9542. Despite the narrower language set forth
in Section 9543(a)(2)(vii) regarding sentences exceeding the “lawful
maximum,” our Supreme Court has “long has held that challenges to the
legality of a sentence fall within the purview of the PCRA.” Commonwealth
v. Prinkey, 277 A.3d 554, 560 (Pa. 2022); see also Commonwealth v.
Fahy, 737 A.2d 214, 223 (Pa. 1999) (holding that a timely challenge to “the
legality of sentence is always subject to review within the PCRA”).
As our Supreme Court recently explained in Commonwealth v. Moore,
247 A.3d 990 (Pa. 2021):
Historically, an illegal sentence claim was limited to a claim that a
sentence exceeded the maximum sentence prescribed by law or
was imposed by a court lacking jurisdiction. Commonwealth v.
DiMatteo, … 177 A.3d 182, 192 ([Pa.] 2018). Over the years,
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however, the definition of what constitutes an illegal sentence has
expanded.
Moore, 247 A.3d at 993. In Moore, the Supreme Court determined that a
claim that a “sentencing statute … is unconstitutionally vague … is an illegal
sentence claim and must be brought in a PCRA petition.” Id. at 991.
We conclude that because the Parole Act prohibits the sentence imposed
in this case, there is no statutory authority to support it and, therefore,
Appellant’s illegal-sentencing claim is cognizable under the PCRA. We also
find the cases cited by Appellant distinguishable. First, Appellant cites this
Court’s decision in West, where we determined that West’s “claim that his
substantive due process rights were violated by the lengthy delay in the
execution of his sentence [was] not a claim that is cognizable under the PCRA
but, rather, sounds in habeas corpus.” West, 868 A.2d at 1272. Our decision
in West was reversed by our Supreme Court on other grounds. See West,
938 A.2d at 1049 (holding that “West’s due process rights were not violated”).
Nevertheless, in determining that West’s claim fell outside the purview of the
PCRA, this Court recognized that he was “not challenging the legality or
discretionary aspects of the actual sentence imposed….” West, 868 A.2d at
1272. Here, by contrast, there is no dispute that Appellant’s claim is that his
sentence is illegal under the Parole Act. See Kelley, supra. Thus, our
decision in West affords Appellant no relief.
In Judge, our Supreme Court considered whether violations of the
International Covenant for Civil and Political Rights (“ICCPR”) were cognizable
under the PCRA. Judge argued, inter alia, that that “his death sentence is
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greater than the lawful maximum because, in his view, the lawful maximum
sentence under international law is life imprisonment.” Judge, 916 A.2d at
519. However, the Judge Court rejected that logic, reasoning instead that
Judge’s death sentence
is not greater than the lawful maximum, as it falls within the
statutory limits. Since the maximum penalty for first-degree
murder is death, see 18 Pa.C.S. § 1102(a)(1), [Judge]’s sentence
is legal under Pennsylvania law. The sentence is also legal under
the ICCPR, which allows States–Parties to impose the death
penalty for the most serious crimes pursuant to laws in effect at
the time the crimes were committed. In essence, [Judge] is
challenging the continued vitality of his sentence, a claim that is
at the heart of habeas corpus. Cf. Commonwealth v. Isabell,
… 467 A.2d 1287, 1291 ([Pa.] 1983) (holding that a challenge to
the interpretation of a sentence by the Bureau of Corrections could
be raised in a petition for writ of habeas corpus because it was
“not a direct or collateral attack on the conviction or sentence
imposed by the trial court” and thus was not cognizable under the
precursor to the PCRA); Commonwealth ex rel. Bryant v.
Hendrick, … 280 A.2d 110, 112–113 ([Pa.] 1971) (determining
that a claim that prison conditions constitute cruel and unusual
punishment may be raised in a petition for writ of habeas corpus).
Thus, since the PCRA does not provide a remedy for [Judge]’s
claims regarding the Committee’s determination that his
deportation from Canada violated the ICCPR, they may be raised
in a petition for writ of habeas corpus.
Id. at 520–21 (some citations omitted).
Here, by contrast, Appellant relies solely on Pennsylvania statutory law
under the Parole Act in arguing that his sentence is illegal. This is a claim that
could have been raised on direct appeal from his judgment of sentence.
Appellant is not challenging the conditions of his confinement, but instead the
legality of the terms of the sentencing order itself under well-established
Pennsylvania law, quite unlike the relatively unique and novel claims raised in
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Judge. For these reasons, we conclude that Judge also does not support
Appellant’s assertion that his illegal-sentencing claim is not cognizable under
the PCRA.
Recently, in Prinkey, our Supreme Court addressed “the question of
whether a particular type of claim constitutes a challenge to the legality of the
sentence, such that it is cognizable under the” PCRA. Prinkey, 277 A.3d at
555–56. The Court identified four general categories of illegal sentencing
claims that have been recognized as falling under the purview of the PCRA.
See id. at 562–63.5 Summarizing these categories, our Supreme Court
stated:
In each [category], the inquiry is whether, assuming the
appellant’s claim prevails, the result would be that the trial court
lacked authority to impose the sentence at issue. If so, then the
appellant’s challenge implicates the legality of his sentence.
Conversely, if the challenge is not to the existence of certain
authority but to the exercise of that authority, then the challenge
goes to the discretionary aspects of a sentence, not to its legality.
Relatedly, as the nomenclature suggests, all legality challenges
implicate a question of law, which is reviewed by appellate courts
de novo. A mere disagreement with the trial court’s weighing of
various sentencing considerations, on the other hand, is a claim
implicating only the discretionary aspects of sentencing. Finally,
many legality challenges involve the applicability of a mandatory
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5 The four general categories of illegal-sentencing claims identified by the
Prinkey Court are: 1) claims that “a sentence was imposed pursuant to a
facially unconstitutional sentencing statute[,]” id. at 562; 2) claims that “a
sentence was imposed without the fulfillment of statutory preconditions to the
court’s sentencing authority[,]” id.; 3) claims that “allege a violation of a
substantive restriction that the Constitution places upon a court’s power to
apply the statutory sentence to the defendant[,]” id.; and 4) claims “where
the statutory support for the underlying conviction is void ab initio[,]” id. at
563.
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minimum sentence. As [former] Chief Justice Baer cogently has
explained, “because a sentencing court loses its authority to
exercise discretion when a mandatory minimum sentence applies,
the question of the propriety of applying a mandatory minimum
sentencing provision implicates legality.” Commonwealth v.
Wolfe, 140 A.3d 651, 663–64 ([Pa.] 2016) (Baer, J.,
concurring)….
Id. at 563–64 (some citations omitted).
With this framework of analysis, the Prinkey Court considered whether
Prinkey’s claim, that a sentence “resulted from a prosecutor’s
unconstitutionally vindictive decision to pursue a mandatory minimum term of
years[,]” was an illegal-sentencing claim that was cognizable under the PCRA.
Id. at 556. Prinkey was initially sentenced to 5-10 years’ incarceration, but
after this Court vacated his sentence and remanded for resentencing after
granting him relief on a sufficiency claim, “the Commonwealth for the first
time notified Prinkey that it was seeking a twenty-five-year mandatory
minimum sentence” for one of the offenses that remained for resentencing.
Id. at 557.
The Prinkey Court concluded:
Prinkey’s vindictive[-]sentencing claim implicates the legality of
his sentence because, if it is correct, the trial court possessed no
authority to impose the twenty-five-year mandatory minimum
sentence. Put simply, Prinkey’s challenge is to the court’s
authority to impose a greater sentence on remand, not to the
exercise of valid sentencing discretion. As challenges to the
legality of sentence are cognizable under the PCRA, the Superior
Court committed an error of law in concluding that Prinkey’s
challenge to his sentence as presumptively vindictive was not
within the PCRA’s ambit.
Id. at 568.
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Similarly, here, although Appellant’s sentencing claim does not
specifically implicate a breach of the lawful maximum for the offense, see 42
Pa.C.S. § 9543(a)(2)(vii), or the jurisdiction of the sentencing court, see 42
Pa.C.S. § 9543(a)(2)(viii), his argument resembles the category of recognized
illegal-sentencing claims where the sentence was “imposed without the
fulfillment of statutory preconditions….” Prinkey, 277 A.3d at 562. Here, the
sentencing court ignored a “statutory precondition” that the Parole Act
specifically prohibits the imposition of a new sentence concurrent to a term of
back-time imposed for a violation of parole.
Regardless of the category, Appellant’s illegal-sentencing claim fits
squarely within the broader definition offered by the Prinkey Court: assuming
Appellant’s claim prevails on the merits, “the result would be that the trial
court lacked authority to impose the sentence at issue.” Id. at 563.
Furthermore, Appellant is not challenging the exercise of sentencing discretion
by the sentencing court, as there is no discretion afforded under the Parole
Act to issue a new sentence to run concurrently to a sentence of back-time
issued for a violation of parole. See id. at 563-64. Thus, Appellant’s issue
irrefutably “implicate[s] a question of law,” not factual questions. Id. at 564.
Under these criteria set forth in Prinkey, Appellant’s Modification Motion
presented an illegal-sentencing claim that is cognizable under the PCRA. Id.
at 568 (stating “challenges to the legality of sentence are cognizable under
the PCRA”).
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Because Appellant’s Modification Motion presented a challenge to the
legality of his sentence that was cognizable under the PCRA, the PCRA court
did not err in treating his Modification Motion as a PCRA petition. The PCRA
court then determined that Appellant’s “third PCRA petition is untimely
because it was not filed until March [of] 2021, over four years after his
judgment of sentence became final. The petition has not pled any exception
to the [PCRA’s] timeliness requirement. Accordingly, [it] must be dismissed
as untimely.” PCO at 5. We ascertain no error by the PCRA court. See
Commonwealth v. Perrin, 947 A.2d 1284, 1287 (Pa. Super. 2008) (holding
that the appellant’s failure “to establish a statutory exception to the one-year
jurisdictional time limit for filing a petition under the PCRA” requires this Court
to affirm the “PCRA court’s order dismissing … [the] PCRA petition without a
hearing”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2022
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