Opinion
J-S16011-14 No. 1246 MDA 2013
04-09-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. LUIS ANTONIO ROSADO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered June 12, 2013
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004902-2006
BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J. MEMORANDUM BY BENDER, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Luis Antonio Rosado, appeals pro se from the court's June 12, 2013 order denying his "Petition for Time Credit." After careful review, we affirm.
Appellant pled guilty on February 6, 2008, to robbery and criminal conspiracy. He was sentenced that same day to an aggregate term of seven to fourteen years' incarceration. Appellant did not file a direct appeal. Instead, on May 10, 2010, he filed a petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, which the court ultimately denied. Appellant timely appealed and this Court affirmed. Commonwealth v. Rosado, 31 A.3d 746 (Pa. Super. 2011) (unpublished memorandum).
On April 17, 2013, Appellant filed the pro se "Petition for Time Credit" underlying the instant appeal. Therein, he claimed he was entitled to credit for 180 days of time he spent incarcerated prior to the imposition of his sentence. On June 12, 2013, the trial court issued an order denying Appellant's petition.
Appellant filed a timely pro se notice of appeal. Herein, he raises one issue for our review: "Whether the court abused [its] discretion and erred when [it] denied [Appellant's] petition for credit ... for time served prior to sentencing[?]" Appellant's Brief at v (unnecessary capitalization omitted).
Before addressing this issue, we must assess whether Appellant has preserved it for our review. The trial court's docket indicates that on July 29, 2013, the court issued an order directing Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant did not adhere to the court's order. On September 4, 2013, the trial court issued a Rule 1925(a) decision, stating that it had yet to receive a concise statement from Appellant. Trial Court Opinion, 9/4/13, at 2 (pages unnumbered).
Consequently, the court found that Appellant had waived any issue(s) he intended to raise on appeal. Id. at 3; see also Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of paragraph (b)(4) are waived."). In its brief to this Court, the Commonwealth agrees with the court's waiver determination. See Commonwealth's Brief at 5. Appellant does not mention the issue of waiver in his pro se brief.
We are compelled to disagree with the Commonwealth and the trial court. "An attack upon the court's failure to give credit for time served is an attack upon the legality of the sentence and cannot be waived." Commonwealth v. Davis, 852 A.2d 392, 399 (Pa. Super. 2004) (citation omitted). Consequently, the trial court and the Commonwealth are incorrect that Appellant has waived his legality of sentencing issue by failing to file a Rule 1925(b) statement.
Nevertheless, we are without jurisdiction to consider Appellant's claim. "Issues concerning the legality of sentence are cognizable under the PCRA." Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004). Pertinent to this case, we have repeatedly held that challenges to the trial court's failure to award credit for time served fall within the ambit of the PCRA. See id.; Commonwealth v. Clark, 885 A.2d 1030, 1032 n.1 (Pa. Super. 2005) (finding the appellant's pro se "letter requesting credit for time served was in the nature of a ... petition filed under the [PCRA]"); Commonwealth v. Davis, 852 A.2d 392, 399-400 (Pa. Super. 2004) (noting that "Beck indicates that a failure to give credit for time served presentencing may be addressed under the PCRA"). Therefore, the trial court should have treated Appellant's "Petition for Time Credit" as his second PCRA petition.
Because this was Appellant's second PCRA petition, there was no requirement that the court appoint counsel. See Pa.R.Crim.P. 904(C) ("Except as provided in paragraph (H), when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant's first petition for post-conviction collateral relief."). We also note that because the court did not consider Appellant's pro se filing as a PCRA petition, the court did not issue Pa.R.Crim.P. 907 notice of its intent to dismiss. However, Appellant has waived any objection to this omission by failing to raise that issue on appeal. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) ("The failure to challenge the absence of a Rule 907 notice constitutes waiver.").
Despite the court's error in this regard, we are permitted to affirm its denial of Appellant's petition "on any valid basis, as long as the court came to the correct result...." Wilson v. Transport Ins. Co., 889 A.2d 563, 577 n.4 (Pa. Super. 2005) (citations omitted). We conclude that the court did come to the correct result in this case, as Appellant's petition was patently untimely. 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 exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. "Although legality of sentence is always subject to review within the PCRA, claims must still first satisfy the PCRA's time limits or one of the exceptions thereto." Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999); see also Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007) (stating that where a petitioner files an untimely PCRA petition raising a legality of sentence claim, jurisdictional limits of the PCRA render the claim incapable of review).
That section states:
(b) Time for filing petition.42 Pa.C.S. § 9545(b)(1)(i)-(iii).
(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.
Here, Appellant's judgment of sentence became final on March 7, 2008. See 42 Pa.C.S. § 9545(b)(3) (stating judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking the review); Pa.R.A.P. 903 (stating "the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken"). Thus, Appellant had until March 7, 2009, to file a timely petition. Consequently, his "Petition for Time Credit" filed on April 17, 2013, is clearly untimely. Appellant proffers no argument that his legality of sentencing issue satisfies any of the exceptions set forth in section 9545(b)(1)(i)-(iii). Accordingly, we are without jurisdiction to review the merits of his claim.
Order affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary