Com. v. Bath, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ADAM J. BATH :
:
Appellant : No. 1090 EDA 2020
Appeal from the Order Entered March 6, 2020
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0000485-2016
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 23, 2020
Appellant, Adam J. Bath, appeals from the March 6, 2020 order
dismissing his petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. We affirm.
The facts of Appellant’s underlying convictions are not pertinent to our
disposition of this appeal. We need only note that on May 20, 2016, he pled
guilty to possession of a controlled substance and was sentenced, on July 26,
2016, to a term of 18 to 36 months’ incarceration. Appellant did not file a
timely appeal. However, he subsequently filed a PCRA petition seeking
restoration of his direct appeal rights, which the court granted. Appellant then
filed a nunc pro tunc appeal with our Court, but he discontinued that appeal
on May 4, 2018.
On September 19, 2019, Appellant filed a pro se PCRA petition. Counsel
was appointed and she filed an amended petition on Appellant’s behalf.
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Following a hearing, the court issued an order denying Appellant’s petition on
March 6, 2020. He then filed his present appeal.1
Herein, Appellant states five issues for our review:
1. Whether the trial court erred as a matter of law and abused its
discretion in failing to find that counsel was ineffective in failing to
advise [Appellant] that his sentence was illegal?
2. Whether the trial court erred as a matter of law and abused its
discretion in failing to find that counsel was ineffective in failing to
advise [Appellant] that his sentence violated the constitution?
3. Whether the trial court erred as a matter of law and abused its
discretion in failing to find that there is newly[-]discovered
evidence?
4. Whether the trial court erred as a matter of law and abused its
discretion in failing to find that counsel was ineffective in failing to
appeal the illegal sentence?
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1 Appellant did not file his notice of appeal until April 29, 2020. However, on
March 16, 2020, the Pennsylvania Supreme Court declared a general,
statewide judicial emergency because of the coronavirus that causes COVID-
19. In re: General Statewide Judicial Emergency, 228 A.3d 1281 (Pa.
filed Mar. 16, 2020) (per curiam). In its subsequent orders, the Supreme
Court expanded the scope and extended the length of the judicial emergency.
Further, as is relevant to the case at bar, the Supreme Court generally
suspended “all time calculations for purposes of time computation relevant to
court cases or other judicial business, as well as time deadlines.” See In re:
General Statewide Judicial Emergency, 228 A.3d 1283 (Pa. filed Mar. 18,
2020) (per curiam). As to the general suspension of time calculations and
deadlines, on April 28, 2020, the Supreme Court ordered that “legal papers or
pleadings (other than commencement of actions where statutes of limitations
may be in issue) which are required to be filed between March 19, 2020, and
May 8, 2020, generally shall be deemed to have been filed timely if they are
filed by close of business on May 11, 2020.” In re: General Statewide
Judicial Emergency, 230 A.3d 1015 (Pa. filed Apr. 28, 2020) (per curiam)
(emphasis omitted). Therefore, we consider Appellant’s appeal, which was
due on April 6, 2020 and filed on April 29, 2020, as being timely filed.
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5. Whether the trial court erred as a matter of law and abused its
discretion in holding that it was without jurisdiction to afford
relief?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
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 begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007). Under the PCRA, any petition for post-conviction 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
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(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). Additionally, any petition attempting to
invoke one of these exceptions must “be filed within one year of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on May 4, 2018,
when he discontinued his direct appeal. Thus, Appellant had until May 4,
2019, to file a timely petition, making his petition filed on September 19,
2019, facially untimely. Consequently, for this Court to have jurisdiction to
review the merits thereof, Appellant must prove that he meets one of the
exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b).
Appellant wholly fails to meet this burden, as he makes no attempt to
plead or prove the applicability of any timeliness exception. Instead, he
simply claims that “[l]egality of a sentence is always subject to review within
the PCRA[,]” and that such claims “may never be waived….” Appellant’s Brief
at 14 (citations omitted). However, our Supreme Court has held that, while
claims challenging the legality of sentence are subject to review within the
PCRA, they must first satisfy the PCRA’s time limits. See Commonwealth v.
Fahy, 737 A.2d 214, 223 (Pa. 1999). Because Appellant has not averred that
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any timeliness exception applies to his legality-of-sentencing claim, we lack
jurisdiction to review it.2
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2020
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2 In any event, the record also indicates that Appellant is not eligible for PCRA
relief because he is not currently serving the ostensibly illegal sentence that
he challenges in this case. See 42 Pa.C.S. § 9543(a)(1)(i) (requiring a
petitioner to prove that he is “currently serving a sentence of imprisonment,
probation or parole for the crime” at the time PCRA relief is granted). As the
PCRA court observes, Appellant “was sentenced … on July 26, 2016, to a term
of not less than 18 months, nor more than 36 months. Since the length of his
sentence could not exceed 36 months, the sentence [this court] imposed on
[Appellant] was completed on July 26, 2019.” PCRA Court Opinion, 3/6/20,
at 3-4. Therefore, even if Appellant’s petition were timely, he would not be
entitled to relief.
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