J -S62027-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
CALVIN CAPERS
Appellant : No. 258 EDA 2018
Appeal from the PCRA Order Entered December 20, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0105741-2005, CP-51-CR-0800361-2004
BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 07, 2019
Calvin Capers appeals from the order dismissing as untimely his petition
for relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. He
maintains that he is serving an illegal sentence. We affirm.
Capers pled guilty in March 2005 to two counts of Possession with Intent
to Deliver.' The trial court sentenced Capers to one year in the County
Intermediate Punishment program, followed by two years of reporting
probation.2 He did not file an appeal to this Court. On November 15, 2007,
the trial court found Capers in technical violation of his probation after he
failed to report to the probation department. N.T., Violation of Probation
' 35 P.S. § 780-113(a)(30).
2The Commonwealth agreed not to seek the mandatory sentence for Capers' cases. See N.T., Violation of Probation Hearing, 2/11/13, at 4. J -S62027-18
("VOP") Hearing, 2/11/13, at 5. The same day, the trial court revoked Capers'
IP probation and imposed a consecutive sentence of 111/2 to 23 months of
incarceration followed by three years of reporting probation. Id. at 6. In 2010, Capers was arrested for multiple crimes from separate dates including persons
not to possess, use, manufacture, control, sell, or transfer firearms.3 Id. Capers pled guilty to the firearms charge and the Commonwealth nolle
prossed the remaining charges, and Capers was sentenced on January 31,
2013. Id. at 6-7. On February 11, 2013, the original trial court found Capers
in direct violation of his probation and sentenced him to five to ten years'
incarceration. Capers did not file a post sentence motion and did not appeal
to this Court.
On August 19, 2016, Capers filed the instant PCRA petition giving rise
to this appeal. In his PCRA petition, Capers claimed "the Commonwealth did
not indicate/charge intentions to seek mandatory sentence within indictment";
"defense counsel allowed [Capers] to plea to charge without knowing penalties
for said offense"; and "courts abuse of discretion in re -sentencing after
violation of IP sentence of 1-2 y[ea]r sentence running concurrently." PCRA
Petition, filed 8/19/16, at 3-4. Regarding the timeliness of his petition, Capers
asserted the time -bar exceptions of unknown facts and a newly recognized
constitutional right. See PCRA Petition at 2; see also 42 Pa.C.S.A. §
9545(b)(ii),(iii). His petition also recognized that he did not file a direct appeal
3 18 Pa.C.S.A. § 6105.
-2 J -S62027-18
from the sentence the court imposed on February 11, 2013. See PCRA Petition
at 5. However, he asserted that "an illegal sentence can be challenged at any
time." Id. at 8. The trial court appointed counsel, who reviewed Capers' petition.
"[A]fter a thorough review of the court record," including the transcripts from
sentencing hearing as well as the VOP hearing, PCRA counsel filed a Finley4
letter concluding that the petition was untimely, without merit, and failed to
plead or prove at least one of the time -bar exceptions:
In [Capers'] two cases as captioned above, judgment of sentence became final thirty (30) days after February 11, 2013. Capers should have filed his PCRA petition by no later than March 11, 2014. [] Capers took no direct appeal to the appellate courts and filed his PCRA petition on August 19, 2016, so it appears that the petition was almost 21/2 years too late and clearly untimely. Furthermore, [Capers] neither pleads nor proves that any of the applicable exceptions as evaluated in 42 Pa.C.S. § 9545(b) are applicable. ** * Accordingly, it is this counsel's opinion that [Capers] petition for PCRA relief is without merit and based upon baseless allegations of unsupported and frivolous allegations and a misreading of applicable case law. Finley Letter, filed 11/16/17, at 1-4 (unpaginated). The PCRA court issued notice of its intent to dismiss the petition without
a hearing, and Capers responded to the notice. See Pa.R.Crim.P. 907. The
trial court dismissed the petition on December 20, 2017, and permitted
appointed counsel to withdraw. This timely appeal followed.
4 Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). - 3 - J -S62027-18
On appeal, Capers asks us to review the following issues:
I. Whether the Court abuse[d] its discretion in re -sentencing [Capers] after violation of probation?
II. Whether the Court failed to explain, to ensure, and protect [Capers'] Constitutional Rights?
III. Whether Post Conviction counsel render[ed] ineffective assistance of counsel?
IV. Whether [p]lea counsel render[ed] ineffective assistance of counsel? Capers' Br. at 4.
Our standard of review of an order dismissing a PCRA petition is as
follows: "We must determine whether the PCRA court's ruling is supported by
the record and free of legal error." Commonwealth v. Presley, 193 A.3d
436, 442 (Pa.Super. 2018) (citation omitted).
We do not address the merits of Capers' claims because his PCRA
petition is untimely. See Commonwealth v. Smith, 194 A.3d 126, 132
(Pa.Super. 2018) ("PCRA's time limitations implicate our jurisdiction and may
not be altered or disregarded in order to address the merits of a petition"). A
timely PCRA is one that has been filed within one year of the date the
judgment of sentence became final. See 42 Pa.C.S.A. § 9545(b)(1). "[A] judgment [of sentence] 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
-4 J -S62027-18
the review." Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018)
(quoting 42 Pa.C.S.A. § 9545(b)(3)). A petitioner who files a PCRA petition after the one-year deadline must
plead and prove at least one of the three time -bar exceptions. These
exceptions are: (1) the failure to raise the claim previously was due to
governmental interference; (2) the facts of the claim were unknown to the
petitioner and could not have been ascertained by due diligence; or (3) a
newly recognized constitutional right that the United States Supreme Court or
Pennsylvania Supreme Court have held to apply retroactively. See 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii). The petitioner must raise a time -bar exception
within 60 days from the date that the petitioner could have first raised the
exception. See 42 Pa.C.S.A. § 9545(b)(2). Here, Capers' judgment of sentence became final on March 13, 2013,
when the 30 days to appeal his sentence to this Court expired. He therefore
had until March 13, 2014, to file a timely PCRA petition. Thus, the instant
petition filed two years after the one year time -bar is untimely and therefore
Free access — add to your briefcase to read the full text and ask questions with AI
J -S62027-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
CALVIN CAPERS
Appellant : No. 258 EDA 2018
Appeal from the PCRA Order Entered December 20, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0105741-2005, CP-51-CR-0800361-2004
BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 07, 2019
Calvin Capers appeals from the order dismissing as untimely his petition
for relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. He
maintains that he is serving an illegal sentence. We affirm.
Capers pled guilty in March 2005 to two counts of Possession with Intent
to Deliver.' The trial court sentenced Capers to one year in the County
Intermediate Punishment program, followed by two years of reporting
probation.2 He did not file an appeal to this Court. On November 15, 2007,
the trial court found Capers in technical violation of his probation after he
failed to report to the probation department. N.T., Violation of Probation
' 35 P.S. § 780-113(a)(30).
2The Commonwealth agreed not to seek the mandatory sentence for Capers' cases. See N.T., Violation of Probation Hearing, 2/11/13, at 4. J -S62027-18
("VOP") Hearing, 2/11/13, at 5. The same day, the trial court revoked Capers'
IP probation and imposed a consecutive sentence of 111/2 to 23 months of
incarceration followed by three years of reporting probation. Id. at 6. In 2010, Capers was arrested for multiple crimes from separate dates including persons
not to possess, use, manufacture, control, sell, or transfer firearms.3 Id. Capers pled guilty to the firearms charge and the Commonwealth nolle
prossed the remaining charges, and Capers was sentenced on January 31,
2013. Id. at 6-7. On February 11, 2013, the original trial court found Capers
in direct violation of his probation and sentenced him to five to ten years'
incarceration. Capers did not file a post sentence motion and did not appeal
to this Court.
On August 19, 2016, Capers filed the instant PCRA petition giving rise
to this appeal. In his PCRA petition, Capers claimed "the Commonwealth did
not indicate/charge intentions to seek mandatory sentence within indictment";
"defense counsel allowed [Capers] to plea to charge without knowing penalties
for said offense"; and "courts abuse of discretion in re -sentencing after
violation of IP sentence of 1-2 y[ea]r sentence running concurrently." PCRA
Petition, filed 8/19/16, at 3-4. Regarding the timeliness of his petition, Capers
asserted the time -bar exceptions of unknown facts and a newly recognized
constitutional right. See PCRA Petition at 2; see also 42 Pa.C.S.A. §
9545(b)(ii),(iii). His petition also recognized that he did not file a direct appeal
3 18 Pa.C.S.A. § 6105.
-2 J -S62027-18
from the sentence the court imposed on February 11, 2013. See PCRA Petition
at 5. However, he asserted that "an illegal sentence can be challenged at any
time." Id. at 8. The trial court appointed counsel, who reviewed Capers' petition.
"[A]fter a thorough review of the court record," including the transcripts from
sentencing hearing as well as the VOP hearing, PCRA counsel filed a Finley4
letter concluding that the petition was untimely, without merit, and failed to
plead or prove at least one of the time -bar exceptions:
In [Capers'] two cases as captioned above, judgment of sentence became final thirty (30) days after February 11, 2013. Capers should have filed his PCRA petition by no later than March 11, 2014. [] Capers took no direct appeal to the appellate courts and filed his PCRA petition on August 19, 2016, so it appears that the petition was almost 21/2 years too late and clearly untimely. Furthermore, [Capers] neither pleads nor proves that any of the applicable exceptions as evaluated in 42 Pa.C.S. § 9545(b) are applicable. ** * Accordingly, it is this counsel's opinion that [Capers] petition for PCRA relief is without merit and based upon baseless allegations of unsupported and frivolous allegations and a misreading of applicable case law. Finley Letter, filed 11/16/17, at 1-4 (unpaginated). The PCRA court issued notice of its intent to dismiss the petition without
a hearing, and Capers responded to the notice. See Pa.R.Crim.P. 907. The
trial court dismissed the petition on December 20, 2017, and permitted
appointed counsel to withdraw. This timely appeal followed.
4 Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). - 3 - J -S62027-18
On appeal, Capers asks us to review the following issues:
I. Whether the Court abuse[d] its discretion in re -sentencing [Capers] after violation of probation?
II. Whether the Court failed to explain, to ensure, and protect [Capers'] Constitutional Rights?
III. Whether Post Conviction counsel render[ed] ineffective assistance of counsel?
IV. Whether [p]lea counsel render[ed] ineffective assistance of counsel? Capers' Br. at 4.
Our standard of review of an order dismissing a PCRA petition is as
follows: "We must determine whether the PCRA court's ruling is supported by
the record and free of legal error." Commonwealth v. Presley, 193 A.3d
436, 442 (Pa.Super. 2018) (citation omitted).
We do not address the merits of Capers' claims because his PCRA
petition is untimely. See Commonwealth v. Smith, 194 A.3d 126, 132
(Pa.Super. 2018) ("PCRA's time limitations implicate our jurisdiction and may
not be altered or disregarded in order to address the merits of a petition"). A
timely PCRA is one that has been filed within one year of the date the
judgment of sentence became final. See 42 Pa.C.S.A. § 9545(b)(1). "[A] judgment [of sentence] 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
-4 J -S62027-18
the review." Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018)
(quoting 42 Pa.C.S.A. § 9545(b)(3)). A petitioner who files a PCRA petition after the one-year deadline must
plead and prove at least one of the three time -bar exceptions. These
exceptions are: (1) the failure to raise the claim previously was due to
governmental interference; (2) the facts of the claim were unknown to the
petitioner and could not have been ascertained by due diligence; or (3) a
newly recognized constitutional right that the United States Supreme Court or
Pennsylvania Supreme Court have held to apply retroactively. See 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii). The petitioner must raise a time -bar exception
within 60 days from the date that the petitioner could have first raised the
exception. See 42 Pa.C.S.A. § 9545(b)(2). Here, Capers' judgment of sentence became final on March 13, 2013,
when the 30 days to appeal his sentence to this Court expired. He therefore
had until March 13, 2014, to file a timely PCRA petition. Thus, the instant
petition filed two years after the one year time -bar is untimely and therefore
the PCRA court lacked jurisdiction to consider the petition unless one of the
three time -bar exceptions applied. See Commonwealth v. Albrecht, 994
A.2d 1091, 1093 (Pa.Super. 2010). It was Capers' burden to plead and prove
that one of the time -bar exceptions applied. See Commonwealth v. Woods,
179 A.3d 37, 43 (Pa.Super. 2017) (petitioner bears burden of pleading and
proving time -bar exception).
-5 J -S62027-18
In his PCRA petition, Capers pled but made no effort to prove at least
one of the time -bar exceptions. As such, we conclude that "the PCRA court's
ruling is supported by the record and free of legal error." Presley, 193 A.3d
at 442. We therefore do not address the merits of Capers' appellate issues
and affirm the order of the PCRA court.5
Order affirmed.
Judgment Entered.
.,
Jseph Seletyn, D. Prothonotary
Date: 1/7/19
5While Capers abandons the argument on appeal that he can raise an illegal sentence at any time, we note that this is incorrect. "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). -6