Com. v. Tirado, R.

• Court: Superior Court of Pennsylvania
• Decided: March 29, 2019
• Docket: 2396 EDA 2018
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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)

____________________________________________

1 18 Pa.C.S.A. §§ 3502, 3503, 3921, and 3925. ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-A09027-19

(unpublished memorandum).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(unpublished memorandum).2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 ____________________________________________

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).

-2- J-A09027-19

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

-3- J-A09027-19

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.

-4- J-A09027-19

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

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).

-5-