Com. v. Bailey, J.

• Court: Superior Court of Pennsylvania
• Decided: May 19, 2015
• Docket: 3185 EDA 2014
• Status: Unpublished

Opinion

J. S30029/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JACK R. BAILEY, : No. 3185 EDA 2014 : Appellant :

Appeal from the Order, October 20, 2014, in the Court of Common Pleas of Chester County Criminal Division at No. CP-15-CR-0002760-2009

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 19, 2015

Appellant appeals from the order denying what is effectively his third

collateral petition for relief from his sentence. Finding that such a petition is

untimely, we affirm the orders below.

On June 9, 2010, appellant pleaded guilty to receiving stolen property

and was immediately sentenced to 2 to 4 years’ imprisonment plus

restitution in the amount of $21,533. No direct appeal was taken.

On February 15, 2012, appellant filed a pro se motion challenging the

legality of his sentence of restitution. Although untimely, we note that this

petition should have been treated as a petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541 to 9546. The PCRA is

the sole means by which a defendant may obtain collateral relief.

42 Pa.C.S.A. § 9542; Commonwealth v. Johnson, 803 A.2d 1291, 1293 J. S30029/15

(Pa.Super. 2002) (“We have repeatedly held that . . . any petition filed after

the judgment of sentence becomes final will be treated as a PCRA

petition.”); Commonwealth v. Lutz, 788 A.2d 993, 996 n.7 (Pa.Super.

2001) (holding that, generally, a filing that raises issues cognizable under

the PCRA will be considered a PCRA petition); Commonwealth v. Guthrie,

749 A.2d 502, 503 (Pa.Super. 2000) (appellant’s “motion to correct illegal

sentence” must be treated as a PCRA petition). Moreover, counsel must be

appointed even where the PCRA petition is untimely so that appellant has

the assistance of counsel in determining if one of the time of filing

exceptions applies.1 Id. at 504.

Counsel was not appointed. A hearing was held on April 30, 2012, at

which appellant proceeded pro se. On May 8, 2012, appellant’s motion was

denied. As no appeal was taken, the error in not treating this petition as a

PCRA petition and appointing counsel went uncorrected.

On October 19, 2012, appellant filed a formal PCRA petition pro se.

Therein, he claimed that he filed a pro se appeal from the May 8, 2012

order denying his motion challenging the legality of his sentence of

restitution.2 Counsel was appointed but, on July 1, 2013, filed a petition to

withdraw and “no-merit” brief. See Commonwealth v. Turner, 544 A.2d

1 We note that the PCRA court is required to appoint counsel for the first PCRA petition that is filed. Pa.R.Crim.P., Rule 904(C), 42 Pa.C.S.A. 2 There is no trial docket entry indicating the filing of a notice of appeal.

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927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988)

(en banc).

Thereafter, on July 10, 2013, the court filed notice, pursuant to

Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its intention to dismiss appellant’s

petition without hearing. Following a response by appellant, appellant’s

petition was dismissed on December 13, 2013. Although an appeal was

taken, it was discontinued on June 6, 2014. Commonwealth v. Bailey,

No. 184 EDA 2014.

On March 25, 2014, during the pendency of the appeal of his formal

PCRA petition, appellant filed a motion to vacate or modify the order of

restitution. Although the motion should again have been treated as a PCRA

petition and denied as an appeal of a prior PCRA petition was still pending,

the court instead inadvertently granted the motion on March 26, 2014.

(Notes of testimony, 10/8/14 at 2.) On August 11, 2014, appellant filed a

motion for return of restitution. On September 3, 2014, the Commonwealth

filed a motion to rescind the order granting appellant’s motion to vacate or

modify the order of restitution. On September 19, 2014, the court entered

an order rescinding its mistaken order of March 26, 2014. A hearing was

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held on October 8, 2014. On October 20, 2014, the court denied appellant’s

motions.3 Appellant now appeals.

We first find that appellant’s appeal must be treated as being taken

from the denial of a PCRA petition, and no purpose would be served by

remanding to the trial court to do so in this case. Our standard of review for

an order denying post-conviction relief is whether the record supports the

PCRA court’s determination, and whether the PCRA court’s determination is

free of legal error. Commonwealth v. Franklin, 990 A.2d 795, 797

(Pa.Super. 2010). The PCRA court’s findings will not be disturbed unless

there is no support for the findings in the certified record. Id.

A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition. Commonwealth v.

Taylor, 933 A.2d 1035, 1038 (Pa.Super. 2007), appeal denied, 951 A.2d

1163 (Pa. 2008).

Appellant’s judgment of sentence became final on July 8, 2010, when

the time for filing a direct appeal expired. See 42 Pa.C.S.A. § 9545(b)(3);

Pa.R.A.P., Rule 903, 42 Pa.C.S.A. The instant petition, filed March 25,

3 The court actually entered two separate orders; one order denied appellant’s motion to vacate or modify the order of restitution and the other order denied appellant’s motion for return of restitution. We treat this as a single action for the purpose of appeal.

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2014,4 is manifestly untimely and cannot be reviewed unless appellant

invokes a valid exception to the time bar of the PCRA. See 42 Pa.C.S.A.

§ 9545(b)(1)(i-iii). Appellant failed to invoke any exception; therefore,

appellant’s petition is untimely and was properly denied.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/19/2015

4 The August 11, 2014 motion for return of restitution would function as an amendment to this original petition.

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