J-S87019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

KARL R. SAMPSELL,

                         Appellant                   No. 1010 MDA 2016


            Appeal from the PCRA Order entered May 24, 2016,
              in the Court of Common Pleas of Union County,
           Criminal Division, at No(s): CP-60-CR-0000166-2010
                        & CP-60-CR-0000178-2009


BEFORE: LAZARUS, SOLANO, and PLATT, JJ.

MEMORANDUM BY SOLANO, J.:                         FILED JANUARY 24, 2017

      Appellant, Karl R. Sampsell, appeals pro se from the order denying his

petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. Upon review, we affirm.

      In a previous appeal, this Court summarized the pertinent facts and

procedural history as follows:

             Appellant initially pled guilty at No. 178-2009 to one
         count of possession with intent to deliver (“PWID”) and
         one count of criminal use of a communication facility. He
         was sentenced on October 12, 2010, to eleven and one-
         half months to twenty-three months imprisonment
         followed by three years [of] probation on the PWID count.
         On the other count, he was sentenced to five years [of]
         probation to run concurrently to the sentence imposed at
         the first count.

           On September 15, 2011, Appellant pled guilty at No.
         166-2010 to one count of PWID and was sentenced to six
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       to twelve months [of] incarceration, to run concurrently
       with the sentence at No. 178-2009, and a five-year period
       of probation to run consecutively to [the term of]
       imprisonment and probation at that number. Thus, in
       effect, Appellant began serving an aggregate sentence of
       incarceration on October 12, 2010.

           On March 24, 2014, while on probation, Appellant was
       charged with PWID, possession of a controlled substance,
       and possession of drug paraphernalia. The Commonwealth
       filed a motion to revoke Appellant’s probation at both
       numbers on March 31, 2014. Following a hearing on May
       16, 2014, the court revoked Appellant’s probation and
       resentenced him at No. 178-2009 to one to two years [of]
       imprisonment on the communications facility count and a
       consecutive term of one to three years [of] incarceration
       on the PWID count. At No. 166-2010, Appellant was
       resentenced to two and one-half to five years [of]
       incarceration, to be served consecutive to the sentence
       imposed at no. 178-2009.         Thus, Appellant’s new
       aggregate sentence was four and one-half years to ten
       years [of] incarceration.   The Court then stated that
       Appellant would receive a Recidivism, Risk, Reduction,
       Incentive (“RRRI”) sentence of forty-five months and
       twenty-five days, with a credit for time served of fifty-
       three days from March 24, 2014 to May 16, 2014.

          On May 30, 2014, Appellant filed a motion to modify his
       sentence to state intermediate punishment, which the
       court denied. Upon subsequently learning that its RRRI
       calculation was incorrect, however, the court issued a June
       25, 2014 order amending the sentence to forty-five
       months with the same credit for time served.

          On October 23, 2014, Appellant filed [a] pro se petition
       for credit for time spent in custody . . . alleging that he
       was entitled to 598 days of credit for time served in prison
       on the aforementioned sentences. Counsel was appointed.
       On January 20, 2015, the court issued a rule upon the
       Commonwealth to respond to the petition, which it did.
       Following a hearing on February 5, 2015, the court
       dismissed the petition.




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Commonwealth        v.   Sampsell,     No.   980   MDA     2015,   unpublished

memorandum at 1-4 (Apr. 19, 2016) (footnotes omitted).

      Appellant filed a timely appeal to this Court. We first noted that the

trial court should have treated Appellant’s petition for time credit as a timely

PCRA.    The panel then determined that Appellant’s claim regarding the

award of credit for time served prior to the revocation of probation

presented a legality of sentence question subject to plenary review.

Sampsell, unpublished memorandum at 5 (citing Commonwealth v.

Menezes, 871 A.2d 204 (Pa. Super. 2005), appeal denied, 890 A.2d 1057

(Pa. 2005). We then thoroughly discussed Appellant’s request in conjunction

with pertinent case law and concluded that he was not entitled to the 598

day credit. The panel did conclude, however, that Appellant was entitled to

an additional one day of credit for when he was in custody awaiting bail on

charges at No. 178-2009.       We therefore vacated the trial court’s order

dismissing Appellant’s petition, and remanded for further proceedings.

      Upon remand, the trial court, by an order dated May 2, 2016, granted

Appellant’s petition for time credit in part, and, in accordance with our

directive, credited Appellant for an additional day of credit against his

aggregate prison sentence.

      On May 23, 2016, Appellant filed the pro se PCRA petition underlying

this appeal, in which he asserted the ineffective assistance of appellate

counsel and an illegal sentence claim. The next day, the PCRA court entered

an order dismissing the PCRA petition because Appellant failed to “exhaust

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his appellate remedies by appealing this Court’s May 2, 2016 Order.” Order,

5/24/16, at 1 (footnote omitted). Appellant filed this timely appeal on June

13, 2016.

      Preliminarily, we recognize that in reviewing the propriety of the PCRA

court’s order denying Appellant relief, we are limited to ascertaining whether

the record supports the determination of the PCRA court and whether the

ruling is free of legal error.   Commonwealth v. Johnson, 966 A.2d 523,

532 (Pa. 2009).     We defer to the factual findings of the PCRA court, “but its

legal determinations are subject to our plenary review.” Id. The PCRA court

has discretion to dismiss a petition without a hearing when the court is

satisfied that no genuine issues of material fact have been raised, no

legitimate purpose would be served by further proceedings, and the

petitioner is not entitled on the merits to post-conviction relief.         Pa.

R.Crim.P. 909(B).    This Court may affirm a PCRA court’s decision on any

grounds supported by the record.       Commonwealth v. Rykard, 55 A.3d

1177, 1183 (Pa. Super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013).

      In his pro se brief, Appellant presents the following issues:

         I.    Was [Appellant] required to exhaust claims of
               appellate counsel ineffectiveness and illegal sentence
               prior to filing a PCRA petition?

         II.   Was appellate counsel ineffective for failing to cite
               and discuss Commonwealth v. Johnson, 967 A.2d
               1001 (Pa. Super. 2008), in his appellate brief?

Appellant’s Brief at 4.




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        Before addressing Appellant’s claims, we must first determine whether

Appellant’s PCRA petition was timely filed.              The timeliness of a post-

conviction petition is jurisdictional.         Commonwealth v. Hernandez, 79

A.3d 649, 651 (Pa. Super. 2013). Generally, a petition for relief under the

PCRA must be filed within one year of the date the judgment is final unless

the petition alleges and the petitioner proves one of the three exceptions to

the time limitations for filing the petition set forth in Section 9545(b)(1) of

the statute.1     A PCRA petition invoking one of these statutory exceptions

must “be filed within 60 days of the date the claims could have been

presented.”       Id. at 651-52 (citing 42 Pa.C.S. § 9545(b)(2)).                Asserted

exceptions to the time restrictions in the PCRA must be included in the

petition    and    may    not    be    raised    for   the   first   time   on    appeal.
____________________________________________


1
    The three exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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.

42 Pa.C.S. § 9545(b)(1).



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Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007), appeal

denied, 959 A.2d 927 (Pa. 2008).

      Appellant did not file a direct appeal after he was resentenced on

May 16, 2014.      As a result, his judgment of sentence became final thirty

days thereafter, on June 16, 2014. See 42 Pa.C.S. § 9545(b)(3). He thus

had to file this PCRA petition within one year, by January 20, 2015, for it to

be timely.   42 Pa.C.S. § 9545(b)(1). As Appellant filed the instant petition

on May 23, 2016, it is untimely unless he has satisfied his burden of

pleading and proving that one of the enumerated exceptions applies.          See

Hernandez, 79 A.3d at 652.

      Within his brief, Appellant has neither acknowledged the PCRA’s time

bar nor attempted to prove any exception to that bar. Instead, he raises a

claim of appellate ineffectiveness and argues that his sentence was illegal.

“It is well settled that allegations of ineffective assistance of counsel will not

overcome     the   jurisdictional   timeliness   requirements   of   the   PCRA.”

Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005). Moreover,

although generally a legality of sentencing issue is reviewable and cannot be

waived, it must be raised in a timely filed PCRA petition. See 42 Pa.C.S. §

9545(b)(1); Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)

(explaining that, “[a]lthough legality of sentence is always subject to review




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within the PCRA, claims must first satisfy the PCRA’s time limits or one of

the exceptions thereto”).2

       In sum, for the above reasons, the PCRA court lacked jurisdiction to

consider Appellant’s untimely PCRA petition. We therefore affirm the PCRA

court’s order denying Appellant post-conviction relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/2017




____________________________________________


2
  Although not relating to jurisdiction, we also agree with the conclusion by
both the PCRA court and the Commonwealth that Appellant’s claim regarding
proper time credit, and the corresponding legality of his sentence, was
previously litigated in his first PCRA petition and therefore may not be
relitigated here. See Sampsell, at 4-9; 42 Pa.C.S. §§ 9543(a)(3) (requiring
“[t]hat the allegation of error has not been previously litigated”), 9544(a)(3)
(stating that an issue has been previously litigated if “it has been raised and
decided in a proceeding collaterally attacking the conviction or sentence”).



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