Full Opinion

J-S35035-26 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MIGUEL MILLAN : : Appellant : No. 257 EDA 2026 Appeal from the PCRA Order Entered December 22, 2025 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0014355-2010 BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and STEVENS, P.J.E. * MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 21, 2026 Appellant, Miguel Millan, appeals from the order entered in the Court of Common Pleas of Philadelphia County dismissing his petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, without an evidentiary hearing. After our careful review, we affirm. This Court has previously set forth the relevant facts and procedural history, in part, as follows: On November 24, 2009, [Appellant] was arrested and charged with retail theft. On April 7, 2010, he entered into a negotiated guilty plea, and the trial court sentenced him to twelve (12) months of the Intermediate Punishment Program (“IPP”) followed by two (2) years’ probation. Several months later, on October 7, 2010, following a violation of probation (“VOP”) hearing, the trial court continued [Appellant’s] probation. ____________________________________________ * Former Justice specially assigned to the Superior Court. J-S35035-26 On January 26, 2011, [Appellant] entered into a negotiated guilty plea to the 2010 possession with intent to deliver (“PWID”) at issue here [at lower court docket number CP-51-CR-0014355- 2010], and the trial court sentenced him to three (3) years’ probation. The trial court also found that [Appellant] violated his probation on the retail theft case and continued his probation. On June 3, 2011, following a VOP hearing, the trial court revoked [Appellant’s] probation on both cases and sentenced him to eleven and a half (11.5) to twenty-three (23) months’ incarceration followed by five (5) years’ probation on each case, to run concurrently. On April 9, 2013, [Appellant] entered into a negotiated guilty plea to a second charge of PWID. The trial court sentenced [Appellant] to eleven and a half (11.5) to twenty-three (23) months’ incarceration followed by five (5) years’ probation with immediate parole. Additionally, following a VOP hearing, the trial court continued [Appellant’s] probation on the retail theft and the 2010 PWID cases. On February 26, 2014, after another VOP hearing, the trial court again continued [Appellant’s] probation on the retail theft and the 2010 PWID cases. On April 3, 2014, [Appellant] was arrested for: (i) stalking- repeatedly committing acts to cause fear, (ii) harassment- communicating lewd, threatening language, and (iii) contempt for violation of a PFA order. At a hearing on June 25, 2014, on these new charges, [Appellant’s] ex-girlfriend and mother of his child testified that [Appellant] sent her a picture of him with a needle in his arm threatening to stab her with it. [Appellant] also repeatedly sent text messages with harsh and threatening language to her. [Appellant] ultimately entered into a negotiated guilty plea to the new charges. The trial court sentenced [Appellant] to eleven and a half (11.5) to twenty-three (23) months’ incarceration followed by eighteen (18) months’ probation. Additionally, the trial court specifically ordered [Appellant] to end all contact with the Complainant. The trial court also held a VOP hearing on [Appellant’s] three other probations cases. The trial court revoked [Appellant’s] probation in all three cases and resentenced him to one (1) to two (2) years’ incarceration plus five (5) years’ consecutive probation on the retail theft case, ten (10) years’ probation on the 2010 PWID case, and ten (10) years’ probation on the 2013 PWID case, each to run concurrently to the sentence imposed on the new charges. -2- J-S35035-26 [Appellant] continued to harass the Complainant by way of letters and phone calls from prison. The trial court held another VOP hearing on November 21, 2014, and, at the conclusion of the hearing, found [Appellant] in violation of its probation. The trial court revoked probation and sentenced [Appellant] to five (5) to ten (10) years’ incarceration on the [instant] 2010 PWID case, followed by ten (10) years’ probation on the 2013 PWID case. The trial court ordered these VOP sentences to run consecutively to any other sentence [Appellant] may have been serving. On December 10, 2014, [Appellant] filed a motion for reconsideration of his VOP sentences, which the trial court denied. No direct appeal was taken. Following two [PCRA] petitions, the trial court reinstated [Appellant’s] appellate rights nunc pro tunc regarding the VOP sentences for the retail theft case and the 2010 PWID case. On February 6, 2020, [Appellant] timely filed [a] direct appeal regarding only his VOP sentence of incarceration for the 2010 PWID case [at issue here at lower court docket number CP-51- CR-0014355-20101]. Commonwealth v. Millan, No. 536 EDA 2020, at *1-4 (Pa.Super. filed 3/5/21) (unpublished memorandum) (emphasis omitted) (footnote added). Regarding his direct appeal nunc pro tunc in the instant 2010 PWID case at lower court docket number CP-51-CR-0014355-2010, Appellant alleged his sentence of incarceration entered on November 21, 2014, for the violation of his probation, was unduly harsh and unreasonable. Finding no merit, on March 5, 2021, this Court affirmed his November 21, 2014, VOP sentence. Appellant filed a petition for allowance of appeal, which the Supreme Court denied on August 31, 2021. ____________________________________________ 1 Appellant was represented by Peter Alan Levin, Esquire, during the PCRA proceedings, as well as on direct appeal nunc pro tunc from his VOP sentence. -3- J-S35035-26 On or about July 10, 2023, Appellant filed a pro se document entitled “motion for credit for time served.” Therein, Appellant averred his sentence was illegal because the trial court failed to give him credit for time served when it entered the VOP sentence. Indicating it was treating Appellant’s petition under the auspices of the PCRA, the court appointed William Allan Love, Esquire, to represent Appellant.2 On May 16, 2024, Appellant filed a counseled, amended PCRA petition. Therein, Appellant alleged his VOP sentence was illegal because he was not given credit for time served when he was sentenced on his current probation revocation sentence. Appellant acknowledged that his PCRA petition was facially untimely; however, he averred that he was entitled to the newly discovered facts exception since “he first realized that he was not receiving credit for time served when he reviewed his DC-16E at the prison.” Appellant’s Amended PCRA Petition, filed 5/16/24, at 3. The Commonwealth filed a motion to dismiss Appellant’s PCRA petition on the basis it was untimely filed, and Appellant failed to plead and prove any of the timeliness exceptions. ____________________________________________ 2 We note the trial court properly concluded that Appellant’s petition fell under the auspices of the PCRA. See Commonwealth v. Gibbs, 181 A.3d 1165 (Pa.Super. 2018) (holding that a claim asserting the trial court failed to award credit for time served implicates the legality of the sentence). See also Commonwealth v. Fowler, 930 A.2d 586 (Pa.Super. 2007) (holding challenges to the legality of sentence fall under the auspices of the PCRA). -4- J-S35035-26 On November 10, 2025, the PCRA court provided Appellant with notice under Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s petition on the basis it was untimely filed. On November 25, 2025, Appellant filed a pro se response indicating that Attorney Levin, who represented him in prior PCRA petitions, as well as on direct appeal nunc pro tunc from his VOP sentence, was ineffective in failing to raise the claims sooner. Appellant averred that he asked Attorney Levin to raise the issues, but he failed to do so. Appellant’s Pro Se Response, filed 11/25/25, at 1. On December 22, 2025, the PCRA court denied Appellant’s PCRA petition, and this timely appeal followed on January 2, 2026. All Pa.R.A.P. 1925 requirements have been met. On appeal, Appellant, who is represented by counsel, sets forth the following issue in his “Statement of Questions Involved” (verbatim): [Did] the PCRA court err when it dismissed petitioner’s amended post-conviction relief petition on the grounds that it was untimely as a matter of law? Appellant’s Brief at 6 (suggested answer omitted). On appeal, Appellant questions whether the PCRA court erred in finding his PCRA petition to be untimely, thus erring in dismissing it without addressing the substantive legality of sentencing claim (to wit, whether his VOP sentence was illegal because the trial court failed to award him credit for time served). Initially, we note: -5- J-S35035-26 On appeal from the denial of PCRA relief, our standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free of legal error. The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record. The PCRA court’s factual determinations are entitled to deference, but its legal determinations are subject to our plenary review. Commonwealth v. Nero, 58 A.3d 802, 805 (Pa.Super. 2012) (quotation marks and quotations omitted). Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition. The most recent amendments to the PCRA, effective January 16, 1996, provide a PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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.A. § 9545(b)(3). Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010) (citations omitted). [There are] three statutory exceptions to the timeliness provisions in the PCRA [that] allow for the very limited circumstances under which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petitioner must allege and prove: (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. -6- J-S35035-26 Id. at 1079-80 (citing 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii)). Any petition invoking a timeliness exception must be filed within one year of the date the claim could have been presented.3 42 Pa.C.S.A. § 9545(b)(2). “We emphasize that it is the petitioner who bears the burden to allege and prove that one of the timeliness exceptions applies.” Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (citation omitted). Lastly, there is “no generalized equitable exception to the jurisdictional one-year time bar pertaining to post-conviction petitions.” Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008). Here, Appellant filed a timely direct appeal from his VOP sentence, and this Court affirmed Appellant’s judgment of sentence on March 5, 2021. The Pennsylvania Supreme Court denied Appellant’s petition for allowance of appeal on August 31, 2021. Appellant did not file a petition for a writ of certiorari with the United States Supreme Court, and, thus, his judgment of sentence became final ninety days thereafter, on November 29, 2021. See U.S. Sup.Ct. Rule 13; 42 Pa.C.S.A. § 9545(b)(3). Here, Appellant filed his ____________________________________________ 3 On October 24, 2018, the General Assembly amended Subsection 9545(b)(2) and extended the time for filing a petition from sixty days to one year from the date the claim could have been presented. See 2018 Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018. This amendment applies only to claims arising one year before the effective date of this section, December 24, 2017, or thereafter. -7- J-S35035-26 PCRA petition on or about July 10, 2023, which is clearly more than one year from when his VOP judgment of sentence became final. We note that Appellant admits his PCRA petition is facially untimely. See Appellant’s Brief at 10 (“Appellant’s petition was admittedly facially untimely.”). However, this does not end our inquiry as Appellant contends he is entitled to the newly discovered fact exception. Generally, to qualify for the newly discovered fact exception, petitioners must prove that the facts upon which their claim is based were unknown and could not have been discovered previously through the exercise of due diligence. 42 Pa.C.S.A. § 9545(b)(1)(ii). “Due diligence does not require perfect vigilance and punctilious care, but merely a showing the party [ ] put forth reasonable effort to obtain the information upon which a claim is based.” Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016) (quotation marks and quotation omitted). The petitioner must offer “evidence that he exercised due diligence in obtaining facts upon which his claim was based.” Id. at 227 (citation omitted). The question of whether a petitioner, based upon the circumstances of a particular case, would have been unable to discover the newly discovered fact notwithstanding the exercise of due diligence is a question that requires fact-finding, and the PCRA court, as the fact-finder, should determine whether a petitioner demonstrated this requirement of the exception. See id. Additionally, the focus of this -8- J-S35035-26 exception is on the newly discovered facts, not on a newly discovered or newly willing source for previously known facts. Id. Here, in invoking Subsection 9545(b)(1)(ii), Appellant contends that, as it relates to his November 21, 2014, VOP sentence, he did not realize that he was not given credit for time served until he reviewed his DC-16E at the prison. As the PCRA court notes, Appellant has not explained when he reviewed the DC-16E or why he could not have done so previously. Thus, Appellant has not demonstrated he put forth a reasonable effort to obtain the information upon which his claim is based.4 See Cox, supra. Accordingly, we conclude the PCRA court properly dismissed Appellant’s PCRA petition, and we affirm on this basis. 5 ____________________________________________ 4 We note the trial court’s written November 21, 2014, VOP sentence order specifically states: “NO RRRI ELIGIBILITY. CREDIT FOR TIME GRANTED.” VOP Sentence Order, filed 11/21/14 (capitalization in original). Accordingly, the record demonstrates the VOP court granted Appellant credit for time served in the instant matter. Thus, to the extent Appellant is actually challenging the Department of Corrections’ calculation of his credit for time served, the appropriate vehicle for redress would be an original action in the Commonwealth Court challenging the Bureau’s computation. Commonwealth v. Heredia, 97 A.3d 392, 394–95 (Pa.Super. 2014) (citations omitted). 5 We note that, in his 2010 PWID case, upon revocation of his probation, Appellant was sentenced on November 21, 2014, to five (5) to ten (10) years’ incarceration. Our Supreme Court has held that, to be eligible for relief under the PCRA, the petitioner must be “currently serving a sentence of imprisonment, probation or parole for the crime.” 42 Pa.C.S.A. § 9543(a)(1)(i). As soon as a petitioner’s sentence is completed, he becomes ineligible for relief, regardless of whether he was serving his sentence when he filed the petition. Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. (Footnote Continued Next Page) -9- J-S35035-26 Order affirmed. Date: 10/21/2026 ____________________________________________ 1997). Here, while the record is not entirely clear given Appellant’s extensive criminal history and VOPs, it appears Appellant may no longer be serving his sentence for the instant 2010 PWID case. - 10 -