J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ADAM J. BATH

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1090 EDA 2020

Appeal from the Order Entered March 6, 2020 In the Court of Common Pleas of Monroe County Criminal Division at

No(s): CP

- 45

- CR

- 0000485

- 2016

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 23, 2020

Appellant, Adam J. Bath, appeals from the March 6, 2020 order

dismissing his petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541

- 9546. We affirm.

The facts of Appellant’s underlying convictions are not pertinent to our

disposition of t his appeal. We need only note that on May 20, 2016, he pled

guilty to possession of a controlled substance and was sentenced, on July 26,

2016, to a term of 18 to 36 months’ incarceration. Appellant did not file a

timely a ppeal. However, he subsequently filed a PCRA petition seeking

restoration of his direct appeal righ ts, which the court granted. Appellant then

filed a nunc pro tunc appeal with our Court, but he discontinued that appeal

on May 4, 2018.

On September 1 9, 2019, Appellant filed a pro se PCRA petition. Counsel

was appointed and she filed an amended petition on Appellant’s behalf.J

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Following a hearing, the court issued an order denying Appellant’s petition on

March 6, 2020. He then filed his present appea l. 1

Herein, Appellant states five issues for our review:

1. W hether the trial court erred as a matter of law and abused its discretion in failing to find that counsel was ineffective in failing to

advise [Appellant] that his sentence was illegal?

2. W hether the trial court erred as a matter of law and abused its discretion in failing to find that counsel was ineffective in failing to

advise [Appellant] that his sentence violated the constitution?

3. W hether the trial court erred as a matter of law and abused its discretion in failing to find that there is newly [

- ] discovered

evidence?

4. W hether the trial court erred as a matter of law and abused its discretion in failing to find that counsel was ineffective in failing to appeal the illegal sentence?

_________________ __________ ______ ____ _______

1 Appellant did not file his notice of appeal until April 29, 2020. However, o n March 16, 2020, the Pennsylvania Supreme Court declared a general,

statewide judicial emer gency because of the coronavirus that causes COVID

19. In re: General Statewide Judicial Emergency , 228 A.3d 1281 (Pa.

filed Mar. 16, 2020 ) ( per curiam ). In its subsequent orders, the Supreme Court expanded the scope and extended the length of the judicial emergency

. Further, as is relevant to the case at bar, the Supreme Court generally suspended “all time calculations for purposes of time computation relevant to

court cases or other judicial business, as well as time deadlines.” See In re: General Statewide Judicial Emergency

, 228 A.3d 1283 (Pa. filed Mar. 18,

20 20 ) ( per curiam ). As to the general suspension of time calculations and deadlines, on April 28, 2020, the Supreme Court ordered that “legal papers or pleadings (other than commencement of actions where statutes of limitations

may be in issue) which are required to be filed between March 19, 2020, and May 8, 2020, generally shall be deemed to have been filed timely if they are filed by close of business on May 11, 2020.” In re: General Statewide

Judicial Emergency

, 230 A.3d 1015 (Pa. filed Apr. 28, 2020 ) ( per curiam ) (emphasis omitted). Therefore, we consider Appellant’ s appeal, which was due on April 6, 2020 and filed on April 29, 2020, as being timely filed.J

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5

. W hether the trial court erred as a matter of law and abused its discretion in holding that it was without jurisdiction to afford

relief?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

This Court’s standard of review regarding an order denyin g a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. Commonwealth v.

Ragan , 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. See Commonwealth v. Bennett , 930 A.2d 1264, 1267

(Pa. 2007). Under the PCRA, any petition for post

- conviction relief, including

a second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)

- (iii) applies:

(b) Time for filing pe tition.

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(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:

(i) the failure to raise the cl aim 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; orJ

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- (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pen nsylvania 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)(i)

- (iii). Additionally, any petition attempting to

invoke one of these exceptions must “be filed within one year of t he date the

claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

Here, Appellant’s judgment of sentence became final on May 4, 2018,

when he discontinued his direct appeal. Thus, Appellant had until May 4,

2019 , to file a timely petition , making his petition filed on September 19,

2019, facially untimely . Consequently, for this Court to have jurisdiction to

review the merits thereof, Appellant must prove that he meets one of the

exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b).

Appellant wholly fails to meet this burden, as he makes no attemp t to

plead or prove the applicability of any timeliness exception. Instead, he

simply claims that “[l]egality of a sentence is always subject to review within

the PCRA[,]” and that such claims “may never be waived....” Appellant’s Brief

at 14 (citations om itted)

. However, o ur Supreme Court has held that

, while

claims challenging the legality of sentence are subject to review within the

PCRA, they must first satisfy the PCRA’s time limits. See Commonwealth v.

Fahy , 737 A.2d 214, 223 (Pa. 1999). Because Ap pellant has not averred thatJ

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any timeliness exception applies to his legality

- of

- sentencing claim, we lack

jurisdiction to review it. 2

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/23/2020

_________________ __________ ______ ____ _______

2 In any event, the record also indicates that Appellant is not eligible for PCRA relief because he is not currently serving the ostensibly illegal sentence that he challenges in this case. See 42 Pa.C.S. § 9543(a)(1)(i) (requiring a petitioner to prove th at he is “ currently serving a sentence of imprisonment, probation or parole for the crime ” at the time PCRA relief is granted)

. As the PCRA court observes, Appellant “was sentenced ... on July 26, 2016, to a term of not less than 18 months, nor more than 36 months. Since the length of his sentence could not exceed 36 months, the sentence [this court] imposed on [Appellant] was completed on July 26, 2019.” PCRA Court Opinion, 3/6/20,

at 3

- 4. Therefore, even if Appellant’s petition were timely, he would not be

entitled to relief.