Com. v. Dinicola, J.

Opinion

J-S66037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JAMES D. DINICOLA, : : Appellant : No. 823 WDA 2015

Appeal from the PCRA Order Entered April 23, 2015, in the Court of Common Pleas of Erie County, Criminal Division, at No(s): CP-25-CR-0002789-2008

BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 05, 2016

James D. Dinicola (Appellant) appeals pro se from the order denying

his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. We affirm.

On March 11, 2010, Appellant pled guilty to charges of rape of a child,

involuntary deviate sexual intercourse with a child, corruption of minors, and

endangering the welfare of a child. His original sentence was imposed on

July 27, 2010, but following post-sentence motions, the court resentenced

Appellant to an aggregate 21 to 42½ years of imprisonment.1 This Court

affirmed Appellant’s judgment of sentence on December 28, 2011.

* Retired Senior Judge assigned to the Superior Court. 1 Appellant’s aggregate sentence included application of mandatory minimum sentences pursuant to 42 Pa.C.S. § 9718. J-S66037-15

Commonwealth v. Dinicola, 40 A.3d 205 (Pa. Super. 2011) (unpublished

memorandum).

Appellant’s first, timely-filed PCRA petition resulted in no relief.

Commonwealth v. Dinicola, 83 A.3d 1070 (Pa. Super. 2013) (unpublished

memorandum). On March 9, 2015, Appellant pro se filed a “Petition to

Correct Illegal Sentence Pursuant to the Court’s Inherent Jurisdiction to

Correct Illegal Sentence,” which the court treated as a PCRA petition.

Therein, Appellant claimed that his sentence is illegal under Alleyne v.

United States, 133 S.Ct. 2151 (2013), and its progeny.2 On March 23,

2015, the PCRA court issued notice of its intent to dismiss the petition

without a hearing pursuant to Pa.R.Crim.P. 907 for lack of jurisdiction on the

basis that the petition was untimely filed. On April 23, 2015, the PCRA court

dismissed the petition. This appeal followed.

On appeal, Appellant contends, inter alia, that the court erred in

treating his petition as an untimely-filed PCRA petition. In this regard,

Appellant essentially argues that, because section 9718 is unconstitutional

and “that unconstitutionality applies retroactively to the date of …

enactment,” the court imposed a sentence which was illegal ab initio and

subject to correction under the court’s inherent authority to correct patent

and obvious mistakes. Appellant’s Brief at 7-11.

2 This Court held section 9718 unconstitutional in Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 2014), appeal granted, 121 A.3d 433 (Pa. 2015). -2- J-S66037-15

Appellant’s argument is unavailing. “When an action is cognizable

under the PCRA, the PCRA is the ‘sole means of obtaining collateral relief

and encompasses all other common law and statutory remedies for the same

purpose.’” Commonwealth v. Jackson, 30 A.3d 516, 518 (Pa. Super.

2011) (quoting 42 Pa.C.S. § 9542); see also Commonwealth v. Fowler,

930 A.2d 586, 591 (Pa. Super. 2007) (quoting Commonwealth v.

Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002)) (“It is … well-settled 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.’”). We observe that “an issue pertaining to

Alleyne goes to the legality of the sentence,” Commonwealth v. Miller,

102 A.3d 988, 995 (Pa. Super. 2014), and that the PCRA “provides for an

action by which … persons serving illegal sentences may obtain collateral

relief.” 42 Pa.C.S. § 9542. Because Appellant’s legality-of-sentence claim

based on Alleyne is cognizable under the PCRA, Appellant’s petition was

properly treated as a PCRA petition.3

Moreover, we agree with the PCRA court that Appellant’s petition was

untimely filed. The timeliness of a post-conviction petition is jurisdictional.

3 Furthermore, this Court in Jackson rejected the claim that the PCRA court had authority to consider a challenge to the legality of a sentence under its inherent jurisdiction to correct patent errors in sentences in the absence of statutory jurisdiction under section 9545 of the PCRA. See Jackson, 30 A.3d at 518-23 (“[W]hen the one-year filing deadline of section 9545 has expired, and no statutory exception has been pled or proven, a PCRA court cannot invoke inherent jurisdiction to correct orders, judgments and decrees, even if the error is patent and obvious.”). -3- J-S66037-15

See, e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super.

2013) (quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.

2006)) (“‘[I]f a PCRA petition is untimely, neither this Court nor the [PCRA]

court has jurisdiction over the petition. Without jurisdiction, we simply do

not have the legal authority to address the substantive claims.’”). Thus, “[i]n

order for a court to entertain a PCRA petition, a petitioner must comply with

the PCRA filing deadline.” Jackson, 30 A.3d at 518.

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence is final unless the petition alleges, and the petitioner proves,

that an exception to the time for filing the petition is met, and that the claim

was raised within 60 days of the date on which it became available. 42

Pa.C.S. § 9545(b)(1)-(2).

It is clear that Appellant’s 2015 petition is facially untimely: his

judgment of sentence became final in 2012. Thus, the PCRA court had no

jurisdiction to entertain Appellant’s petition unless he pled and offered proof

of one or more of the three statutory exceptions to the time-bar. 42 Pa.C.S.

§ 9545(b)(1). Here, Appellant failed to invoke any of these exceptions.

Therefore, the PCRA court properly denied his petition for lack of jurisdiction

-4- J-S66037-15

on the basis that it was untimely filed.4 Accordingly, we affirm the PCRA

court’s order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/5/2016

4 Appellant observes throughout his PCRA petition and brief to this Court that legality-of-sentence claims brought pursuant to Alleyne cannot be waived. We note that, although true, such claims still must be presented in a timely-filed PCRA petition. See Miller, 102 A.3d at 995 (explaining that, “[t]hough not technically waivable, a legality [of sentence] claim may nevertheless be lost should it be raised … in an untimely PCRA petition for which no time-bar exception applies, thus depriving the court of jurisdiction over the claim”); Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013) (“[A]lthough illegal sentencing issues cannot be waived, they still must be presented in a timely PCRA petition.”). -5-