Com. v. Tirado, R. ( 2019 )

J-A09027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROGER JUAN TIRADO :
:
Appellant : No. 2396 EDA 2018
Appeal from the Order Entered July 18, 2018
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0003589-2009
BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.
MEMORANDUM BY MURRAY, J.: FILED MARCH 29, 2019
Roger Juan Tirado (Appellant) appeals pro se from the order denying his
petition for time credit. We affirm.
On October 14, 2010, a jury convicted Appellant of burglary, trespass,
theft by unlawful taking, and receiving stolen property.1 On December 6,
2010, the trial court sentenced Appellant to an aggregate 10 to 40 years of
imprisonment. Appellant filed a timely post-sentence motion, which the trial
court denied on April 8, 2011. While his post-sentence motion was still
pending, however, Appellant filed a direct appeal with this Court on March 3,
2011.
On October 24, 2012, the Superior Court affirmed Appellant’s judgment
of sentence. Commonwealth v. Tirado, 62 A.3d 464 (Pa. Super. 2012)
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1 18 Pa.C.S.A. §§ 3502, 3503, 3921, and 3925.
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* Retired Senior Judge assigned to the Superior Court.
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(unpublished memorandum). Appellant filed a petition for allowance of appeal
with the Pennsylvania Supreme Court, which was denied on July 23, 2013.
Commonwealth v. Tirado, 70 A.3d 811 (Pa. 2013). Appellant did not seek
further review with the United States Supreme Court.
On April 29, 2014, Appellant filed a pro se petition pursuant to the Post-
Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. Counsel was
appointed, an amended petition was filed, and two hearings were held. On
May 11, 2015, the PCRA court denied relief. Appellant appealed the denial of
his petition on June 9, 2015, and this Court affirmed the denial on October 25,
2016. Commonwealth v. Tirado, 159 A.3d 55 (Pa. Super. 2016)
(unpublished memorandum).2
On June 5, 2018, Appellant filed the underlying pro se “Petition for Time
Credit.” The court denied Appellant’s petition on July 18, 2018, and Appellant
filed this timely appeal. Appellant’s sole issue is that the court erred in failing
to credit him for 81 days he served in Bucks County Prison. See Appellant’s
Brief at 4-9.
At the outset, we note that Appellant’s petition must be construed as
being raised under the PCRA. It is well-settled that the PCRA is intended to
be the sole means of achieving post-conviction relief. See Commonwealth
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2 We note that Appellant also filed a writ of habeas corpus with the United
States District Court in the Eastern District of Pennsylvania on January 5,
2017. Appellant’s writ was denied on May 9, 2018. Tirado v. Sommers,
2018 WL 2129488 (E.D. Pa. May 9, 2018).
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v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013). 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). Accordingly, Appellant’s petition seeking time credit was his second
PCRA petition, and the court should have treated it as such. Because the court
did not treat the petition as a PCRA petition, it did not give Appellant notice of
intent to dismiss or afford him the opportunity to amend the petition. See
Pa.R.Crim.P. 907(1); Pa.R.Crim.P. 905(B). In this regard, the PCRA court
erred. However, Appellant has not challenged the court’s order on these
grounds, and the failure to challenge the absence of a Rule 907 notice results
in waiver of that issue. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.
Super. 2013). Furthermore, “even if the issue is raised, where the petition is
untimely, it does not automatically warrant reversal.” Id.Having established that the court should have treated Appellant’s
petition for time credit as a second PCRA petition, we must address the
petition’s timeliness. Section 9545 of the PCRA requires that “[a]ny petition
under this subchapter, including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final.” 42 Pa.C.S.A. §
9545(b)(1). The timeliness requirement of the PCRA is “mandatory and
jurisdictional in nature.” Commonwealth v. McKeever, 947 A.2d 782, 784-
85 (Pa. Super. 2008). Therefore, “no court may disregard, alter, or create
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equitable exceptions to the timeliness requirement in order to reach the
substance of a petitioner’s arguments.” Id. at 785.
The record in this case reflects that Appellant’s judgment of sentence
became final on October 21, 2013. See U.S. S. Ct. R. 13 (“A petition for a
writ of certiorari seeking review of a judgment of a lower state court that is
subject to discretionary review by the state court of last resort is timely when
it is filed with the Clerk within 90 days after entry of the order denying
discretionary review.”); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa.
Super. 1998) (finding that appellant’s judgment of sentence became final on
August 13, 1996, 90 days after Supreme Court of Pennsylvania denied
appellant’s petition for allocatur on May 15, 1996). As discussed above, the
Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on July 23, 2013. Thus, Appellant’s judgment became final 90 days
later, on October 21, 2013, and he had one year – until October 21, 2014 –
to file a timely petition under the PCRA. Since Appellant filed the underlying
petition on June 5, 2018, it is facially untimely. Although the one-year time
limit may 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, Appellant has
not alleged or proven any exception.
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We conclude, therefore, that even if the court had not erred by failing
to treat Appellant’s petition for time credit as a PCRA petition, Appellant would
have been unable to satisfy the PCRA’s timeliness requirements.3 Accordingly,
the PCRA court lacked jurisdiction to entertain Appellant’s claim, as do we.
Order affirmed.
Judge Kunselman joins the memorandum.
Judge Pellegrini concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/19
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3The rationale of the PCRA Court is not binding upon this Court; thus, we may
affirm on any basis. See Commonwealth v. Doty, 48 A.3d 451, 456 (Pa.
Super. 2012).
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