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*Former Justice specially assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.
KEITH SILFIES, Appellant No. 2208 EDA 2015

Appeal from the PCRA Order June 24 , 2015 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP

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- CR

- 0004272

- 2004
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.* MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 18, 2016 This is a pro se appeal from the order notifying Appellant that his “Motion to Correct/Modification of An Illegal Sentence Pursuant to Pa.C.S.A. [§] 9760,” which was properly treated as an untimely ser ial petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541

- 9546, would be dismissed without a hearing. We affirm. 1 During the history of this case, Appellant has filed a plethora of pro se motions. Previously, this Court has sum marized the pertinent facts and a partial procedural history as follows:

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1 Although this order is interlocutory, it subsequently was rendered final when the PCRA court dismissed Appellant’s motion on August 4, 2015. See Pa.R.Crim.P. 905(a)(5) (providing that an appeal may be regarded as prematur ely filed, but then perfected once a final order is subsequently entered).J

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- On April 27, 2005, Appellant pled guilty to several burglary and theft

- related offenses [at multiple docket numbers]. He was sentenced on June 8, 2005, to [an aggregate term of] 2 1⁄2 to 6 years of incarceration, followed by 10 years on state

- supervised special probation. The consecutive probationary sentence was only imposed [at Case No. 4272 of 2004]. Appellant served his time in prison and completed parole [as to all his other doc kets], at which time the ten year probationary sentence from the within matter, Case No. 4272 of 2004, began to run. Appellant committed technical violations of his probation on or around September 2, 2011 and/or September 3, 2011. A Gagnon II hearing was held on October 18, 2011, at which time Appellant’s probation was revoked and he was sentenced to 10 years of special probation. On or around December 12, 2011, Appellant was arrested and charged with Driving Under the Influence (DUI), which constitut ed a violation of his special probation. He was convicted of the DUI offense on February 15, 2012. On February 28, 2012, a Gagnon II hearing was held during which [Appellant] conceded the allegations in the petition against him. As a result of the viola tion, a five

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- ten year sentence was recommended. The Court postponed sentencing until April 3, 2012, in order to look into Appellant’s eligibility for a County Intermediate Punishment drug offender program for purposes of obtaining treatment as requeste d by defense counsel. On April 3, 2012, Appellant was resentenced to ten years of probation with the first 22 months to be served in the Lehigh County Treatment Continuum Alternative Program (TCAP) based on representations by defense counsel that he was eligible for the TCAP program. Appellant absconded from the TCAP program’s treatment house on June 6, 2012, at which time a warrant was issued for his arrest. He was subsequently arrested and a Gagnon II hearing was held on July 17, 2012. During that h earing, Appellant brought to the Court’s attention that due to the nature of the underlying offenses,J

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- he is ineligible for TCAP, which rendered the April 3, 2012, sentence illegal. As a result of that, at the end of the hearing, the Court vacated the Apri l 3, 2012, sentence and resentenced Appellant to five to ten years in a State Correctional Institution. This resentencing was not based on any violation incurred as a result of [Appellant] absconding from TCAP. As a procedural matter, the Court treated t he TCAP sentence as a legal nullity. The five to ten year sentence was a resentencing based on the sustained violations arising from the DUI conviction. Thus, it was procedurally imposed following Appellant’s concession to the violation on February 28, 2 012. Appellant filed a Petition for Reconsideration on July 25, 2012, which this Court denied by Order dated July 27, 2012. Appellant subsequently filed several pro se motions, all of which were denied. On August 9, 2012, Appellant filed a Notice of App eal, but filed it under an incorrect case number. The Court ordered him to file a Statement of Matters Complained of on Appeal (1925(b) Statement) within twenty

- one days. On September 11, 2012, Appellant filed a second Notice of Appeal, this one captione d under the correct case number. The Court granted an extension of time to file the Concise Statement. Appellant filed his 1925(b) Statement on October 8, 2012[.] The Court filed a 1925(a) Opinion on November 13, 2012. On November [3]0, 2012, the Super ior Court entered an Order quashing Appellant’s appeal as untimely because the Notice of Appeal was filed more than thirty days after the date he received his sentence. On December 27, 2012, Appellant filed a pro se PCRA petition. Because at the time thi s Court had not yet received the official notification that the appeal was quashed, this Court stayed the PCRA. On February 4, 2013, after having received notice of the outcome of the appeal, this Court lifted the stay on the PCRA proceedings and appointe d [PCRA counsel] to represent Appellant for his PCRA. Appellant continued his pro se letter and motion

- writing campaign while the PCRA matter was stayed pending theJ

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- outcome of the initial appeal. On January 29, 2013, Appellant filed a “Motion to Enter Se lf as Pro

- Se and Remove Counsel of Record on Actions,” which was filed prior to the formal appointment of [PCRA counsel]. As a consequence of all of Appellant’s filings, this Court decided, in an exercise of fairness to Appellant, to grant him a hearing a t which time he could be advised of his right to waive court

- appointed counsel and the ramifications thereof, [ see Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998),] along with giving him the opportunity to be heard in open court. Appellant also filed a pro se “Motion for Extrordinary (sic) Relief under Rule (704)” on February 8, 2013. It appeared this is a reference to Pa.R.Crim.P. 704(B), which addresses oral motions for extraordinary relief raised at the time of sentencing. On February 26, 2013, the Court conducted a hearing for Appellant. At the hearing, Appellant chose to waive his court

- appointed counsel and proceed pro se . He also withdrew his pro se PCRA petition. At the end of the hearing, the Motion for Extraordinar y Relief was denied because it was inappropriate for the procedural posture of the case. The PCRA petition was also dismissed due to Appellant withdrawing it. Appellant finally requested to withdraw a pro se Motion to Withdraw Counsel/Habeas Corpus Heari ng. This Court found that Appellant’s request was a knowing, intelligent, and voluntary decision and granted his request to withdraw the Motion. Appellant filed a pro se Notice of Appeal on March [7], 2013.
Commonwealth v. Silfies , 97 A.3d 796 (Pa. Super . 2014), unpublished memorandum at 1

- 4 (citations omitted). In affirming the denial of Appellant’s motion for extraordinary relief, we first noted that, because the PCRA subsumes other post

- conviction remedies including habeas corpus , the motion should ha ve been treated as a timely PCRA petition. Silfies , at 5 (citing Commonwealth v. Peterkin ,J

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722 A.2d 638, 639 n.1 (Pa. 1998)). Utilizing our standard of review under the PCRA, we adopted the rationale expounded by the court below in rejecting Appellant’s claims that his July 17, 2012 sentence was illegal. See id. at 6

- 8. Undaunted by this Court’s decision, Appellant continued to seek relief by filing numerous petitions. 2 On June 5, 2015, Appellant filed a pro se “Motion to Correct/Modification of An I llegal Sentence Pursuant to 42 Pa.C.S.A. [§]9760” and a pro se “Motion for Appointment of Counsel and In Forma Pauperis.” Treating the dual filings as a serial PCRA petition, the PCRA court filed Pa.R.Crim.P. 907 notice of intent to dismiss the filing
wit hout a hearing. Appellant filed the instant appeal prematurely. See n.1, infra . On August 4, 2015, the PCRA court denied Appellant’s pro se Motion to Correct/Modification of an Illegal Sentence Pursuant to 42 Pa.C.S.A. [§]
9760. See n.1, supra . Althou gh the PCRA court did not require Pa.R.A.P. 1925 compliance, it did file a Rule 1925(a) opinion. In this appeal, Appellant again presents several challenges to the legality of his July 17, 2012 sentence. Before addressing Appellant’s claims,
we must first determine whether they PCRA court correctly concluded that Appellant’s pro se motion for writ of habeas corpus , which it treated as a

____________________________________________ 2 Additionally, Appellant continues to seek post

- conviction relief in the federal courts.J

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serial PCRA petition, was untimely filed. This Court’s standard of review regarding an order dismissing 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. Halley , 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not be disturbed unless there is
no suppo rt for the findings in the certified record. Commonwealth v. Carr , 768 A.2d 1164, 1166 (Pa. Super. 2001). The timeliness of a post

- conviction petition is jurisdictional. Commonwealth v. Murray , 753 A.2d 201, 203 (Pa. 2000). Generally, a petition for re lief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment is final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition, set forth at 42 P a.C.S.A. sections 9545(b)(1)(i), (ii), and (iii), is met. See Commonwealth v. Gamboa - Taylor , 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545. A PCRA petition invoking one of these statutory exceptions must “be filed within 60 days of the date the claim s could have been presented.” Gamboa - Taylor , 753 A.2d at 783; see also 42 Pa.C.S.A. § 9545(b)(2). Appellant’s judgment of sentence became final on August 16, 2012, when the thirty

- day time period for filing a direct appeal to this Court expired. See 42 P a.C.S.A. § 9545(b)(3). Therefore, Appellant needed to file the PCRA petition at issue August 16, 2013, in order for it to be timely.J

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As Appellant filed the instant petition on June 5, 2015, it is untimely unless he has satisfied his burden of pleading an d proving that one of the enumerated exceptions applies. See Commonwealth v. Beasley , 741 A.2d 1258, 1261 (Pa. 1999)

. Within his brief, Appellant has neither acknowledged the PCRA’s time bar nor attempted to prove any exception thereto. Instead, he asser ts that his issues raised on appeal are reviewable, because “illegal sentences are

non - waivable. Appellant’s Brief at 3 (citations omitted). Unfortunately for Appellant, although illegal sentencing issues cannot be waived, they still must be presented in a timely PCRA petition. Commonwealth v. Taylor , 65 A.3d 426 (Pa. Super. 2013). Thus, the PCRA court correctly concluded that it lacked jurisdiction to consider Appellant’s serial PCRA petition. We therefore affirm the PCRA court’s order denying Appella nt post

- conviction relief. 3
Order affirmed.

____________________________________________ 3 In doing so, we agree with the PCRA court’s conclusion that, even if his latest PCRA petition was timely, Appellant’s challenge to the legality of his sentence “was fully and properly litigated” in a previous appeal. PCRA Court Opinion, 8/4/15, at 1. Se e Silfies , supra .J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/18/2016