Com. v. Morrison, B.

J-S85041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
BRYAN MICHAEL MORRISON
Appellant No. 1292 WDA 2017
Appeal from the PCRA Order Entered July 19, 2017
In the Court of Common Pleas of Venango County
Criminal Division at No.: CP-61-CR-0000351-2010
BEFORE: BOWES, PANELLA, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 19, 2018
Appellant Bryan Michael Morrison, pro se, appeals from the July 19,
2017 order entered in the Court of Common Pleas of Venango County (“PCRA
court”), which denied his “Motion for Credit for Time Served.” Upon review,
we affirm.
The facts and procedural history underlying this case are undisputed.
Briefly, after being convicted of burglary and several counts of robbery,
Appellant was sentenced to an aggregate of eight to sixteen years’
imprisonment on January 28, 2011. Appellant did not file a direct appeal.
Appellant, however, timely filed his first petition under Post Conviction Relief
Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46. The PCRA court appointed
counsel, who filed an amended petition arguing that Appellant was entitled to
a credit of 246 days for the time he spent in Venango County Prison. On
J-S85041-17
December 12, 2014, the PCRA court denied him PCRA relief. Appellant did
not appeal the denial of PCRA relief.
On July 19, 2017, Appellant pro se filed a “Motion for Credit for Time
Served,” wherein he once again sought credit for time served. The court
denied him relief. Appellant pro se timely appealed to this Court.
On appeal,1 Appellant argues only that the trial court erred in failing to
credit him for the time he served in Venango County Prison. Before we may
address the merits of Appellant’s claim, we must point out that his “Motion for
Credit for Time Served” must be construed as his second PCRA petition. It is
settled that the PCRA is intended to be the sole means of achieving post-
conviction relief. See Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.
Super. 2013). Thus, even though a petition for time credit challenges the
legality of the sentence, it is cognizable under the PCRA. See
Commonwealth v. Davis, 852 A.2d 392, 399-400 (Pa. Super. 2004),
appeal denied, 868 A.2d 1197 (Pa. 2005). Accordingly, Appellant’s “Motion
for Credit for Time Served” was his second petition for PCRA relief.
With the foregoing in mind, we now must determine whether the PCRA
court had jurisdiction over Appellant’s second PCRA petition.
____________________________________________
1 “On appeal from the denial of PCRA relief, our standard of review requires
us to determine whether the ruling of the PCRA court is supported by the
record and free of legal error.” Commonwealth v. Widgins, 29 A.3d 816,
819 (Pa. Super. 2011).
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The PCRA contains the following restrictions governing the timeliness of
any PCRA petition.
(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.
(3) For purposes of this subchapter, 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 Pennsylvania, or at the expiration of time for seeking the
review.
42 Pa.C.S.A. § 9545(b). Section 9545’s timeliness provisions are
jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
Additionally, we have emphasized repeatedly that “the PCRA confers no
authority upon this Court to fashion ad hoc equitable exceptions to the PCRA
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time-bar in addition to those exceptions expressly delineated in the Act.”
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
omitted).
Here, the record reflects Appellant’s judgment of sentence became final
on February 27, 2011. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).
Because Appellant had one year from February 27, 2011, to file his PCRA
petition, the current filing is facially untimely given it was filed on July 17,
2017.
The one-year time limitation, however, can be overcome if a petitioner
alleges and proves one of the three exceptions set forth in Section
9545(b)(1)(i)-(iii) of the PCRA. Here, Appellant has failed to allege, let alone
prove, any exceptions to the one-year time bar. Accordingly, the PCRA court
did not have jurisdiction to entertain Appellant’s “Motion for Credit for Time
Served,” his second PCRA petition, on the merits. We likewise lack jurisdiction
to consider the merits, if any, of the petition.
Order Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2018
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