J-A09027-19

____________________________________

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROGER JUAN TIRADO 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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. 
J-A09027-19

- 2 -

(unpublished memorandum).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 PostConviction 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(unpublished memorandum).2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). 
J-A09027-19

- 3 -

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 
J-A09027-19

- 4 -

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. 
J-A09027-19

- 5 -

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

____________________________________________

3 The 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).