Opinion
J-S74032-18 No. 1735 EDA 2018
04-22-2019
COMMONWEALTH OF PENNSYLVANIA v. ANGEL COLON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered May 9, 2018
In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0002033-2004, CP-15-CR-0004401-2004 BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J. MEMORANDUM BY McLAUGHLIN, J.:
Angel Colon appeals pro se from the dismissal of his Post Conviction Relief Act ("PCRA") petition as untimely. See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
Colon pleaded guilty in September 2005 to one count of corrupt organizations and three counts of delivery of a controlled substance. The court sentenced him in April 2006 to 20 to 50 years of imprisonment. Colon appealed his judgment of sentence, and we affirmed in May 2007. He did not immediately seek allowance of appeal in the Pennsylvania Supreme Court, but in May 2008, he filed for allowance of appeal nunc pro tunc. The Supreme Court ultimately denied his petition for allowance of appeal on November 6, 2008. Colon did not seek further review in the United States Supreme Court.
18 Pa.C.S.A. § 911(b)(3), and 35 P.S. § 780-113(a)(30), respectively.
Colon then filed the petition that is the subject of this appeal, on February 9, 2018. He styled the petition as a "Motion for Time Credit" and requested credit for his confinement from July 2004 to sentencing. His motion did not address the PCRA's one-year time limitation or raise any timeliness exception. The lower court treated the filing as a PCRA petition and issued a Pa.R.Crim.P. 907 notice of intent to dismiss. Colon filed a response to the Rule 907 notice arguing that he was entitled to time credit, but did not raise any time-bar exception.
This was not Colon's first PCRA petition.
The court dismissed the petition. It explained in its order that it treated the petition as a PCRA petition because a failure to award time credit would render the sentence illegal, and illegal sentences are cognizable under the PCRA. It dismissed the petition because the petition was patently untimely and Colon failed to plead any time-bar exception. Colon filed this timely appeal, raising one issue: "Did the lower court err in not giving Appellant Angel Colon a hearing on Motion For Time Credit[?]" Colon's Br. at 4.
This Court's standard of review for the denial of a PCRA petition entails only "examining whether the PCRA court's determination is supported by evidence of record and whether it is free of legal error." Commonwealth v. Jordan , 182 A.3d 1046, 1049 (Pa.Super. 2018).
We do not reach the merits of Colon's issue because the lower court properly treated his petition as a PCRA petition, and Colon failed to plead and prove that it was timely. The timeliness of a PCRA petition is jurisdictional. A PCRA petition "shall be filed within one year of the date the judgment becomes final." 42 Pa.C.S.A. § 9545(b)(1). 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)(3).
If a petition is filed more than one year after the judgment of sentence became final, the court will still have jurisdiction if the petitioner pleads and proves that at least one of three exceptions applies. The exceptions are: (1) unconstitutional interference by government officials; (2) newly discovered facts that the petitioner could not have previously ascertained with due diligence; or (3) a newly recognized constitutional right that either the United States Supreme Court or the Supreme Court of Pennsylvania has held applies retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
The Court of Common Pleas properly treated the petition as a PCRA petition and dismissed it as untimely. The petition qualified as a PCRA petition because, as the lower court explained, a claim that the trial court improperly failed to award credit for time served goes to the legality of sentence, which is cognizable under the PCRA. See Commonwealth v. Menezes , 871 A.2d 204, 207 (Pa.Super. 2005). Colon's petition was therefore subject to the PCRA's time restrictions, and he was required to plead and prove timeliness. This he failed to do. He filed his petition more than one year after his judgment of sentence became final, and he did not plead - much less prove - that any time-bar exception applied. The lower court properly dismissed his petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/22/19
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