J-S22026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROGELIO ZALDIVAR PENA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1724 MDA 2019

Appeal from the Order Entered September 25, 2019

In the Court of Common Pleas of Lebanon County Criminal Division at 

No(s): CP-38-CR-0000942-2010

BEFORE: OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.: FILED MAY 29, 2020

Rogelio Zaldivar Pena (Appellant) appeals pro se from the order denying 

his pro se “Motion for Corrected Time Credit.” We affirm.

This case has a lengthy and convoluted history. For purposes of this 

appeal, we recount that on January 6, 2011, a jury found Appellant guilty of 

third-degree murder, 18 Pa.C.S.A. § 2501, and aggravated assault, 18 

Pa.C.S.A. § 2702(a)(1). On February 28, 2011, the trial court sentenced 

Appellant to an aggregate term of 20 to 40 years of incarceration.

On March 28, 2014, this Court affirmed Appellant’s judgment of 

sentence. See Commonwealth v. Pena, 1499 MDA 2013 (Pa. Super. Mar. 

28, 2014 (unpublished memorandum). On October 15, 2014, our Supreme 

Court denied Appellant’s petition for allowance of appeal. See

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* Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Pena, 110 A.3d 997, 241 MAL 2014 (Pa. 2014). 

Appellant did not file a petition for certiorari with the United States Supreme 

Court. Over the ensuing years, Appellant filed two unsuccessful petitions

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

On September 18, 2019, Appellant filed the underlying pro se “Motion 

for Corrected Time Credit” (Motion), in which he asserted that he did not 

receive credit for 288 days of time served prior to sentencing. Motion, 

9/18/19, ¶ 5. On September 25, 2019, the court entered an order denying 

relief on the basis that it lacked jurisdiction to consider the merits of the Motion

because it was an untimely PCRA petition. See Trial Court Order, 9/25/19; 

see also Trial Court Opinion, 11/26/19, at 4-6. Appellant filed a timely pro 

se appeal to this Court.

On appeal, Appellant presents the following issue for review:

IS [APPELLANT] ENTITLED TO TIME CREDIT, AND DID THE 

SENTENCING COURT ERR IN FINDING THAT IT DID NOT HAVE 

JURISDICTION TO GRANT THE SAME?

Appellant’s Brief at 5.

Prior to addressing Appellant’s issue, we must determine whether we 

have jurisdiction. Appellant identified his filing as a “Motion for Corrected 

Time Credit” and the court construed the Motion as serial PCRA petition. Our 

Supreme Court has held that “the PCRA subsumes all forms of collateral relief, 

including habeas corpus, to the extent a remedy is available under such 

enactment.” Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007) 
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(emphasis in original). “[A] challenge to the trial court’s failure to award credit 

for time spent in custody prior to sentencing involves the legality of sentence 

and is cognizable under the PCRA.” Commonwealth v. Fowler, 930 A.2d 

586, 595 (Pa. Super. 2007) (quotations and citations omitted). Consequently,

the trial court was correct in construing Appellant’s Motion as a serial PCRA 

petition. We therefore consider the petition’s timeliness.

1

“Pennsylvania law makes clear no court has jurisdiction to hear an 

untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076, 1079 

(Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 A.2d 1157, 

1161 (Pa. 2003)). A petitioner must file a PCRA petition within one year of 

the date on which the petitioner’s judgment became final, unless one of the 

three statutory exceptions applies:

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

interference by 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.

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1 “[T]hough not technically waivable, a legality [of sentence] claim may 

nevertheless be lost should it be raised . . . in an untimely PCRA petition for 

which no time-bar exception applies, thus depriving the court of jurisdiction 

over the claim.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 

2014) (quotations and citation omitted).
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42 Pa.C.S.A. § 9545(b)(1). A petitioner must file a petition invoking one of 

these exceptions “within one year of the date the claim could have been 

presented.” 42 Pa.C.S.A. § 9545(b)(2). If a petition is untimely, and the 

petitioner has not pled and proven any exception, “neither this Court nor the 

trial court has jurisdiction over the petition. Without jurisdiction, we simply 

do not have the legal authority to address the substantive claims.” 

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) 

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

In this case, the trial court sentenced Appellant on February 28, 2011. 

This Court affirmed his judgment of sentence on March 28, 2014, and our 

Supreme Court denied his petition for allowance of appeal on October 15, 

2014. Because Appellant did not file a petition for certiorari with the United 

States Supreme Court, his judgment of sentence became final on January 13, 

2015, 90 days after our Supreme Court denied his petition for allowance of 

appeal. See 42 Pa.C.S.A. § 9545(b)(3) (stating that 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 the review”); see also

U.S.Sup.Ct.R. 13. As explained above, Appellant had one year – until January 

13, 2016 – to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). 

Appellant filed the underlying petition on September 18, 2019, more than 

three-and-a-half years later. Accordingly, the petition is untimely, and we 
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lack jurisdiction to decide the merits unless Appellant has pled and proved one 

of the three timeliness exceptions of section 9545(b)(1). See Derrickson, 

923 A.2d at 468. Our review reveals that Appellant did not attempt to plead 

or prove any of the timeliness exceptions. See Motion, 9/18/19. As Appellant 

has failed to plead and prove an exception under section 9545(b)(1), we lack

jurisdiction to address the merits of this appeal. See Derrickson, 923 A.2d 

at 468.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/29/2020