J-S45018-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FREDERICO ANTONIO DACENZO, JR.

Appellant No. 80 MDA 2015

Appeal from the Order Entered on December 19, 2014

In the Court of Common Pleas of Lycoming County

Criminal Division at No.: CP-41-CR-0000074-2009

BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.: FILED JULY 21, 2015

Frederico Dacenzo appeals the December 19, 2014 order that denied 

his petition to be declared eligible for the Recidivism Risk Reduction 

Incentive (RRRI) Act, 61 Pa.C.S. § 4501 et seq. We treat Dacenzo’s petition 

as a petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S. §§ 9541-46, and we conclude that the PCRA court lacked jurisdiction 

to grant Dacenzo any form of relief. Therefore, we affirm. 

In an earlier proceeding, the PCRA court summarized the relevant 

procedural history of this case as follows:1

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 Due to our disposition of this case, the facts underlying Dacenzo’s plea 

are irrelevant, and we will not recite them here. 
J-S45018-15

- 2 -

On October 13, 2009, Dacenzo pled guilty to one count of sexual 

abuse of children, a felony of the third degree, nine counts of 

sexual abuse of children, felonies of the second degree, and one 

count of criminal use of a communication facility, a felony of the 

third degree. On January 15, 2010, Dacenzo received an 

aggregate sentence of ten to twenty years in a state correctional 

institution with a consecutive twenty years[’] probation under 

the supervision of the Pennsylvania Board of Probation and 

Parole. [The trial court informed Dacenzo that, based upon 

Dacenzo’s prior record and the nature of the charges, he was not 

eligible for RRRI.] No subsequent appeal was filed. 

On August 13, 2012, Dacenzo filed a PCRA petition alleging that 

his trial counsel was ineffective because they failed to file a 

motion to suppress. . . . [The PCRA court] dismissed the PCRA 

petition on January 8, 2013[, as untimely].

PCRA Court Opinion, 2/13/2013, at 1-2 (some capitalization modified).

On September 19, 2013, this Court also concluded that Dacenzo’s 

petition was untimely, and affirmed the PCRA court. See Commonwealth 

v. Dacenzo, No. 172 MDA 2013, slip op. at 1, 7 (Pa. Super. Sep. 19, 2013). 

On March 26, 2014, the Pennsylvania Supreme Court denied Dacenzo’s 

request for allowance of appeal. See Commonwealth v. Dacenzo, No. 

913 EAL 2013 (Pa. March 26, 2014) (per curiam). 

On December 11, 2014, Dacenzo filed a “Petition for (RRRI) Illigibility 

[sic] Amendment of Sentence.” The PCRA court denied the petition without 

a hearing on December 19, 2014. On January 6, 2015, Dacenzo filed a 

notice of appeal, which prompted the PCRA court to direct Dacenzo to file a 

concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b). Dacenzo filed a timely concise statement. Finally, on March 9, 

2015, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a).
J-S45018-15

- 3 -

The crux of Dacenzo’s appeal is that the PCRA court “erred as a matter 

of law in denying [Dacenzo’s] motion for reduction of sentence/RRRI 

request.” Brief for Dacenzo at 1 (unpaginated). Before we can consider the 

merits of Dacenzo’s claim, we first must determine what type of pleading 

Dacenzo filed, and whether, based upon that determination, the PCRA court 

had jurisdiction to consider the petition at all. For the reasons that follow, 

we construe Dacenzo’s petition as one seeking relief pursuant to the PCRA, 

and we hold that the PCRA court was without the necessary jurisdiction to 

consider the petition. 

“We have repeatedly held that the PCRA provides the sole means for 

obtaining collateral review and that any petition filed after the judgment of 

sentence becomes final will be treated as a PCRA petition.” 

Commonwealth v. Kubis, 808 A.2d 196, 199 (Pa. Super. 2002); see 

Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002). 

“[I]f the underlying substantive claim is one that could potentially be 

remedied under the PCRA, that claim is exclusive to the PCRA,” and subject 

to the jurisdictional requirements of the PCRA. Commonwealth v. Pagan, 

864 A.2d 1231, 1233 (Pa. Super. 2004) (emphasis in original); see 

Commonwealth v. Eller, 807 A.2d 838, 846 (Pa. 2002). Dacenzo claims 

that he should be eligible for the RRRI program, which constitutes a 

challenge to the legality of a sentence. Commonwealth v. Tobin, 89 A.3d 

663, 669 (Pa. Super. 2014). “Issues concerning the legality of sentence are 

cognizable under the PCRA.” Commonwealth v. Beck, 848 A.2d 987, 989 
J-S45018-15

- 4 -

(Pa. Super. 2004) (citing Commonwealth v. Hockenberry, 689 A.2d 283, 

288 (Pa. Super. 1997)). Accordingly, Dacenzo’s petition must be construed 

as a PCRA petition. 

Because we deem Dacenzo’s petition to be a PCRA petition, we must 

determine whether the petition was timely. The PCRA was amended in 1995 

to include strict time limits on filings, establishing that “[a]ny petition [filed 

under the PCRA] . . . shall be filed within one year of the date the judgment 

becomes final.” 42 Pa.C.S. § 9545(b)(1). Under the PCRA, “[a] judgment 

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.” 42

Pa.C.S. § 9545(b)(3). It is well-established that these time limits are 

jurisdictional, and are meant to be both mandatory and applied literally by 

the courts to all PCRA petitions, regardless of the potential merit of the 

claims asserted. Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. 

Super. 2011); Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999) 

(stating that a trial court has no authority to extend filing periods except as 

the statute permits); see Commonwealth v. Gamboa-Taylor, 753 A.2d 

780, 783 (Pa. 2000). 

Because Dacenzo did not file a direct appeal, his judgment of sentence 

became final on February 15, 2010, thirty days after his sentence was 

imposed. Thus, to be timely, any petition for post-conviction collateral relief 
J-S45018-15

- 5 -

had to be filed within one year of that date, i.e., on or before February 15, 

2011. The petition at issue herein was not filed until December 11, 2014, 

well beyond the deadline. Thus, the petition facially was untimely. 

Despite the untimeliness of the petition, there are three statutory 

exceptions to this one-year time limit, which, when satisfied, permit a 

defendant to file a PCRA petition more than one year after the underlying 

judgment of sentence becomes final. These exceptions are as follows: 

(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 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.

(2) Any petition invoking an exception provided in paragraph (1) 

shall be filed within 60 days of the date the claim could have 

been presented.

42 Pa.C.S. § 9545(b). “[I]t is the appellant’s burden to allege and prove 

that one of the timeliness exceptions applies.” Commonwealth v. 

Albrecht, 994 A.2d 1091, 1094 (Pa. 2010). 
J-S45018-15

- 6 -

Here, Dacenzo does not address the timeliness of his petition or any of 

the exceptions. He has not met his burden to prove either the timeliness of 

his petition or the applicability of any of the exceptions. Therefore, his 

petition was untimely and the PCRA court lacked jurisdiction to consider it.

Finally, we recognize that a challenge to the legality of a sentence 

cannot be waived. However, waiver and jurisdiction are separate matters. 

“Though not technically waivable, a legality [of sentence] claim may 

nevertheless be lost should it be raised for the first time in an untimely PCRA 

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

jurisdiction over the claim.” Commonwealth v. Slotcavage, 939 A.2d 

901, 903 (Pa. Super. 2007) (citing Commonwealth v. Fahy, 737 A.2d 214, 

223 (Pa. 1999) (“Although legality of sentence is always subject to review 

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

of the exceptions thereto.”)). 

For these reasons, Dacenzo’s petition must be considered as a PCRA 

petition, which was untimely filed. Hence, the PCRA court lacked jurisdiction 

to consider the petition.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2015