Com. v. Pavlichko, J.

• Court: Superior Court of Pennsylvania
• Decided: November 21, 2017
• Docket: 762 MDA 2017
• Status: Unpublished

Opinion

J-S70006-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JAMES STEPHEN PAVLICHKO : : Appellant : No. 762 MDA 2017

Appeal from the PCRA Order April 17, 2017 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0000802-1996

BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED NOVEMBER 21, 2017

Appellant, James Stephen Pavlichko, appeals pro se from the order

entered in the Schuylkill County Court of Common Pleas, which dismissed his

pro se serial petition for collateral relief (labeled as a motion to modify and

correct illegal sentence nunc pro tunc) per the Post Conviction Relief Act

(“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. On July 16, 1997, Appellant

entered an open guilty plea to, inter alia, homicide generally and conspiracy

to commit homicide. Following a degree of guilt hearing, the court found

Appellant guilty of first-degree murder on July 22, 1997. On August 28,

1997, the court sentenced Appellant to life imprisonment for first-degree

murder and a consecutive term of 15-40 years’ incarceration for conspiracy

to commit to homicide. This Court affirmed the judgment of sentence on

June 29, 1998, and our Supreme Court denied allowance of appeal on J-S70006-17

December 23, 1998. See Commonwealth v. Pavlichko, 724 A.2d 959

(Pa.Super. 1998) (unpublished memorandum), appeal denied, 557 Pa. 645,

734 A.2d 393 (1998). So, the judgment of sentence became final on March

23, 1999.

Appellant timely filed his first pro se PCRA petition on April 13, 1999.

The PCRA court appointed counsel, and subsequently denied Appellant’s

petition on June 13, 2000. On March 27, 2001, this Court affirmed the

denial of PCRA relief. See Commonwealth v. Pavlichko, No. 1347 MDA

2000 (Pa.Super. filed March 27, 2001) (unpublished memorandum).

Appellant filed on March 3, 2005, his second pro se PCRA petition. On April

18, 2005, the PCRA court dismissed Appellant’s petition. This Court affirmed

on December 21, 2005. See Commonwealth v. Pavlichko, 894 A.2d 822

(Pa.Super. 2005) (unpublished memorandum). On August 8, 2006,

Appellant filed his third pro se PCRA petition, which the PCRA dismissed on

October 17, 2006. This Court affirmed on July 2, 2007. See

Commonwealth v. Pavlichko, 932 A.2d 260 (Pa.Super. 2007)

(unpublished memorandum).

On March 10, 2017, Appellant filed the current pro se “Motion to

Modify and Correct Illegal Sentence Nunc Pro Tunc,” which the PCRA court

deemed Appellant’s fourth PCRA petition. The PCRA court issued Rule 907

notice on March 27, 2017, and denied Appellant’s PCRA petition on April 17,

2017. On April 18, 2017, Appellant filed a pro se “Amended Motion to

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Correct Illegal Sentence,” which the PCRA denied on April 20, 2017. On May

4, 2017, Appellant timely filed a pro se notice of appeal from the PCRA

court’s April 17, 2017 order. The record indicates Appellant filed a voluntary

concise statement of errors complained of on appeal, per Pa.R.A.P. 1925(b),

on June 5, 2017.

Preliminarily, any petition for post-conviction collateral relief will

generally be considered a PCRA petition, even if captioned as a request for

habeas corpus relief, if the petition raises issues cognizable under the PCRA.

See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); 42

Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral

relief and encompasses all other common law and statutory remedies for

same purpose). The timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013),

appeal denied, 625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition must 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 or at the expiration of time for seeking review. 42 Pa.C.S.A. §

9545(b)(3). The exceptions to the PCRA time-bar allow for very limited

circumstances under which the late filing of a petition will be excused; a

petitioner asserting an exception must file a petition within 60 days of the

date the claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(1-

2).

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Instantly, Appellant purports to challenge the legality of his sentence.

Appellant’s claim is cognizable under the PCRA. See 42 Pa.C.S.A. §

9543(a)(2)(vii); Commonwealth v. Fowler, 930 A.2d 586 (Pa.Super.

2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008) (holding collateral

attack on legality of sentence must be raised in PCRA petition; challenges to

legality of sentence must first satisfy PCRA time limits or one of statutory

exceptions). Thus, the court properly treated Appellant’s most recent prayer

for relief as a PCRA petition. See Peterkin, supra. Nevertheless,

Appellant’s judgment of sentence became final on March 23, 1999, upon

expiration of the time to file a petition for writ of certiorari with the U.S.

Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the current, pro se

serial petition for collateral relief on March 10, 2017, which is patently

untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant did not assert any of

the exceptions to the PCRA time-bar. See 42 Pa.C.S.A. § 9545(b)(1).

Therefore, Appellant’s petition remains time-barred, and the PCRA court

lacked jurisdiction to review it. See Turner, supra. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/21/2017

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