Com. v. Pastories, A.

J-S64032-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ADAM PASTORIES :
:
Appellant : No. 821 WDA 2019
Appeal from the Order Dated May 30, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0011675-2015
BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 2, 2020
Adam Pastories (Pastories) appeals from the order of the Court of
Common Pleas of Allegheny County (trial court) denying his third petition for
relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546, as untimely. We affirm.
We take the following factual background and procedural history from
the PCRA court’s August 30, 2019 opinion and our independent review of the
record. On March 3, 2016, Pastories entered a negotiated guilty plea to two
counts of his second violation of Failure to Comply with Registration
Requirements.1 The same day, the court sentenced him on count one, failure
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 4915.1(a)(1), (2).
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to register with the Pennsylvania State Police, to a term of incarceration of not
less than four nor more than eight years’ incarceration pursuant to the plea’s
terms. No further penalty was imposed on the second count, failure to verify
address/be photographed. Pastories did not file post-sentence motions or a
direct appeal.
On January 1, 2018, Pastories filed his first PCRA petition pro se.
Appointed counsel filed an amended petition. The PCRA court dismissed it
without a hearing and on December 27, 2018, we affirmed the dismissal and
Pastories sought no further review from our Supreme Court.
On February 8, 2019, Pastories filed a Motion to Correct Illegal
Sentence. He maintained that at the time he entered his plea, both counts of
Failure to Register were graded felonies of the first degree when they should
have been felonies of the third degree, resulting in an illegal sentence that
exceeds the statutory maximum. Alternatively, he claimed that the counts
should have been graded as felonies of the third degree as of August 27, 2018,
when his first conviction of Failure to Register was vacated in his case at
docket number 3065-2012, thus making this a first, not second, offense. (See
PCRA Petition, 2/08/19, at 2).
Treating the motion as his second PCRA petition, the court, after a
hearing, denied Pastories’s request as untimely, with no exception allowing an
out-of-time PCRA to the time-bar pled or proven. (See Hearing, 5/24/19, at
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18; Order, 5/30/19; PCRA Court Opinion, 8/30/19, at 4). Pastories timely
appealed. He and the court complied with Rule 1925. See Pa.R.A.P. 1925.2
Before turning to Pastories’s illegal sentence claim, we must consider
whether the court properly treated his motion as a PCRA petition. It is well-
settled that any motion filed after a judgment of sentence becomes final is to
be treated as a PCRA petition because “the PCRA is intended to be the sole
means of achieving collateral relief.” Commonwealth v. Taylor, 65 A.3d
462, 465 (Pa. Super. 2013) (citation omitted). See Taylor, supra at 465-66(contention that sentence exceeds statutory limit “is undoubtedly cognizable
under the PCRA.”) (citing 42 Pa.C.S. § 9543(a)(2)(vii)); see also
Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011), appeal
denied, 47 A.3d 845 (Pa. 2012) (concluding defendant’s motion to correct
illegal sentence was properly addressed as PCRA petition). Therefore, the
court properly treated his motion as a PCRA petition subject to the time
restrictions provided in the statute.
Next, we must consider if the PCRA court properly found that Pastories’s
petition was untimely. “It is well-settled that the PCRA’s time restrictions are
jurisdictional in nature. As such, this statutory time bar implicates the
[C]ourt’s very power to adjudicate a controversy and prohibits a court from
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2 “The question of whether a petition is timely raises a question of law.
[Hence], our standard of review is de novo and our scope of review plenary.”
Taylor, infra at 468 (citations omitted).
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extending filing periods except as the statute permits.” Commonwealth v.
Robinson, 139 A.3d 178, 185 (Pa. 2016) (citations omitted). Under the
PCRA, any petition for relief must be filed within one year of the date on which
the judgment of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). “A
judgment becomes final for purposes of the PCRA 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.” Robinson, supra at 185 (internal quotation marks
and citation omitted). Because his judgment of sentence became final on April
3, 2016, i.e., 30 days after his time to file a direct appeal to this Court expired,
42 Pa.C.S. § 9545(b)(3), Pastories had until April 3, 2017, to file a timely
PCRA petition unless he pled and proved one of the statutory exceptions to
the time-bar.3
Not disputing that it would otherwise be time-barred, Pastories
references the newly discovered facts exception in his appellate brief. (See
Pastories’s Brief, at 13). However, “exceptions to the time bar must be pled
in the PCRA petition and may not be raised for the first time on appeal.”
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3 The three exceptions that allow for review of an untimely PCRA petition are
limited to: (1) the petitioner’s inability to raise a claim because of
governmental interference; (2) the discovery of previously unknown facts that
would have supported a claim; and (3) a newly recognized constitutional right.
See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke these
exceptions “shall be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
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Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007), appeal
denied, 959 A.2d 927 (Pa. 2008) (citations omitted); see also Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.”).
Our thorough examination of the certified record reveals that Pastories
failed to plead any timeliness exception below. (See PCRA Petition, at 1-2).
In fact, at the PCRA hearing, he maintained that his motion was not a PCRA
petition and conceded that if treated as such, it would be time-barred. (See
N.T. Hearing, 5/24/19, at 8, 10); (see also PCRA Ct. Op., at 4 (expressly
noting that Pastories “did not plead or otherwise present evidence that any of
the exceptions to the one-year time period applies.”). Hence, because
Pastories failed to set forth any of the enumerated exceptions to the time-bar
requirement in the PCRA court, he waived4 them and we lack jurisdiction to
review the claim he raises for the first time on appeal. See Burton, supra
at 525.
Accordingly, for the foregoing reasons, we lack jurisdiction to consider
Pastories’s issue on appeal and we affirm the PCRA court’s dismissal of his
petition as untimely. See Wiley, supra at 1157.
Order affirmed.
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4 Pastories maintains that illegal sentence claims cannot be waived. However,
it is well-settled that, “although illegal sentencing issues cannot be waived,
they still must be presented in a timely PCRA petition[,]” which implicates our
jurisdiction. Taylor, supra at 465 (citation omitted).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/2/2020
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