J-S68040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ERIC S. RUTH, : : Appellant : No. 641 MDA 2017
Appeal from the PCRA Order March 15, 2017 in the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0002591-2010
BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 30, 2017
Eric S. Ruth (Appellant) appeals from the order dismissing his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. We affirm.
The PCRA court described the procedural history as follows.
On November 12, 2009, the Office of Attorney General filed a criminal complaint charging [Appellant] with eight counts each of conflict of interest, theft by unlawful taking, theft of services, theft by deception, theft by failure to make required disposition of funds, and criminal conspiracy (to commit conflict of interest). On August 31, 2011, [Appellant] entered a plea of guilty to count 1 (conflict of interest) and count 41 (criminal conspiracy/conflict of interest). On March 21, 2012, [Appellant] was sentenced to [60] months of probation, fines totaling $7,500, payment of the costs of prosecution, and restitution in the amount of $50,000. No direct appeal was filed.
* Retired Senior Judge assigned to the Superior Court. J-S68040-17
PCRA Court Opinion, 3/15/2017, at 1 (unnecessary capitalization and
footnotes omitted).
Appellant, through counsel, filed the instant PCRA petition, his first, on
January 19, 2017. After receiving an answer from the Commonwealth, the
PCRA court conducted an evidentiary hearing and subsequently dismissed
Appellant’s petition as untimely filed on March 15, 2017. Shortly thereafter,
Appellant’s term of probation ended on March 21, 2017. PCRA Court Opinion,
6/15/2017, at 1. Appellant timely filed a notice of appeal.1
Before we may consider the merits of Appellant’s issues, we must
determine whether his PCRA petition was timely filed, as the timeliness of a
post-conviction petition is jurisdictional. Commonwealth v. Leggett, 16
A.3d 1144, 1145 (Pa. Super. 2011) (quoting Commonwealth v. Abu–
Jamal, 941 A.2d 1263, 1267–68 (Pa. 2008) (“[O]ur Supreme Court has
stressed that ‘[t]he PCRA's timeliness requirements are jurisdictional in nature
and must be strictly construed; courts may not address the merits of the
issues raised in a petition if it is not timely filed.’”)).
Generally, a petition for relief under the PCRA 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) and (c).
1 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925. -2- J-S68040-17
Appellant filed his petition almost five years after his judgment of
sentence became final. Thus, the petition is facially untimely, and 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).
Appellant averred his petition was filed timely because he filed it within
60 days of our Supreme Court’s decision in Commonwealth v. Veon, 150
A.3d 435 (Pa. 2016) (holding that restitution order directing payment to
Commonwealth agency as crime victim constituted illegal sentence). PCRA
Petition, 1/19/2017, at 2 n.1. Appellant claims he has satisfied the timeliness
exception set forth in 42 Pa.C.S. § 9545(b)(2). Appellant’s Brief at 11.
Subsection 9545(b)(2), however, does not constitute an exception. It simply
requires petitions attempting to invoke the exceptions set forth in subsection
9545(b)(1) to “be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
To the extent that Appellant is attempting to rely upon the newly-
recognized and retroactively-applicable constitutional right exception set forth
in subsection 9545(b)(1)(iii), his attempt fails. See 42 Pa.C.S.
§ 9545(b)(1)(iii) (providing “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”). In Veon, our Supreme Court
-3- J-S68040-17
analyzed 18 Pa.C.S. § 1106 to determine whether the Pennsylvania
Department of Community and Economic Development could be a victim
eligible for restitution under that statute. Veon, 150 A.3d at 448-55. The
Court did not announce a new constitutional right in Veon, let alone a
constitutional right that is retroactively applicable.
“Although illegal sentencing issues cannot be waived, they still must be
presented in a timely[-filed] PCRA petition.”2 Commonwealth v. Taylor, 65
A.3d 462, 465 (Pa. Super. 2013). Thus, while Appellant argues that his
sentence is illegal pursuant to Veon, and illegality of sentence issues cannot
be waived, we do not have jurisdiction to consider the legality of his sentence.3
In the alternative, Appellant argues that notwithstanding the lack of
jurisdiction under the PCRA, this Court may vacate his sentence of restitution
sua sponte based upon its inherent equitable power to correct an illegal
sentence pursuant to Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007),
2 Appellant claims that the PCRA court had jurisdiction to correct his illegal sentence because this Court vacated the sentence for his co-defendant, Perzel, based upon Veon. Appellant’s Brief at 9-10. However, unlike Appellant, Appellant’s co-defendant timely filed his PCRA petition.
3Even if the PCRA court and this Court had jurisdiction to entertain Appellant’s petition pursuant to the PCRA, he would still not be entitled to relief. To be eligible for relief pursuant to the PCRA, inter alia, at the time relief is granted, a petitioner must “currently [be] serving a sentence of imprisonment, probation, or parole for the crime[.]” 42 Pa.C.S. § 9543(a)(1)(i); Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997). As noted supra, Appellant’s term of probation ended on March 21, 2017. Because Appellant is not currently serving a sentence of imprisonment, probation, or parole, he is not entitled to PCRA relief. -4- J-S68040-17
or its power to modify restitution orders set forth in 18 Pa.C.S. § 1106(c)(3).
Appellant’s Brief at 15-18.
In Holmes, our Supreme Court reaffirmed the very limited ability of
courts to correct patent sentencing errors outside of the PCRA process or the
modification period provided by 42 Pa.C.S. § 5505. However, this Court later
held that Holmes does “not establish an alternate remedy for collateral relief
that sidesteps the jurisdictional requirements of the PCRA.” Commonwealth
v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011). The PCRA “provides for an
action by which ... persons serving illegal sentences may obtain collateral
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J-S68040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ERIC S. RUTH, : : Appellant : No. 641 MDA 2017
Appeal from the PCRA Order March 15, 2017 in the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0002591-2010
BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 30, 2017
Eric S. Ruth (Appellant) appeals from the order dismissing his petition
filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. We affirm.
The PCRA court described the procedural history as follows.
On November 12, 2009, the Office of Attorney General filed a criminal complaint charging [Appellant] with eight counts each of conflict of interest, theft by unlawful taking, theft of services, theft by deception, theft by failure to make required disposition of funds, and criminal conspiracy (to commit conflict of interest). On August 31, 2011, [Appellant] entered a plea of guilty to count 1 (conflict of interest) and count 41 (criminal conspiracy/conflict of interest). On March 21, 2012, [Appellant] was sentenced to [60] months of probation, fines totaling $7,500, payment of the costs of prosecution, and restitution in the amount of $50,000. No direct appeal was filed.
* Retired Senior Judge assigned to the Superior Court. J-S68040-17
PCRA Court Opinion, 3/15/2017, at 1 (unnecessary capitalization and
footnotes omitted).
Appellant, through counsel, filed the instant PCRA petition, his first, on
January 19, 2017. After receiving an answer from the Commonwealth, the
PCRA court conducted an evidentiary hearing and subsequently dismissed
Appellant’s petition as untimely filed on March 15, 2017. Shortly thereafter,
Appellant’s term of probation ended on March 21, 2017. PCRA Court Opinion,
6/15/2017, at 1. Appellant timely filed a notice of appeal.1
Before we may consider the merits of Appellant’s issues, we must
determine whether his PCRA petition was timely filed, as the timeliness of a
post-conviction petition is jurisdictional. Commonwealth v. Leggett, 16
A.3d 1144, 1145 (Pa. Super. 2011) (quoting Commonwealth v. Abu–
Jamal, 941 A.2d 1263, 1267–68 (Pa. 2008) (“[O]ur Supreme Court has
stressed that ‘[t]he PCRA's timeliness requirements are jurisdictional in nature
and must be strictly construed; courts may not address the merits of the
issues raised in a petition if it is not timely filed.’”)).
Generally, a petition for relief under the PCRA 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) and (c).
1 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925. -2- J-S68040-17
Appellant filed his petition almost five years after his judgment of
sentence became final. Thus, the petition is facially untimely, and 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).
Appellant averred his petition was filed timely because he filed it within
60 days of our Supreme Court’s decision in Commonwealth v. Veon, 150
A.3d 435 (Pa. 2016) (holding that restitution order directing payment to
Commonwealth agency as crime victim constituted illegal sentence). PCRA
Petition, 1/19/2017, at 2 n.1. Appellant claims he has satisfied the timeliness
exception set forth in 42 Pa.C.S. § 9545(b)(2). Appellant’s Brief at 11.
Subsection 9545(b)(2), however, does not constitute an exception. It simply
requires petitions attempting to invoke the exceptions set forth in subsection
9545(b)(1) to “be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
To the extent that Appellant is attempting to rely upon the newly-
recognized and retroactively-applicable constitutional right exception set forth
in subsection 9545(b)(1)(iii), his attempt fails. See 42 Pa.C.S.
§ 9545(b)(1)(iii) (providing “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”). In Veon, our Supreme Court
-3- J-S68040-17
analyzed 18 Pa.C.S. § 1106 to determine whether the Pennsylvania
Department of Community and Economic Development could be a victim
eligible for restitution under that statute. Veon, 150 A.3d at 448-55. The
Court did not announce a new constitutional right in Veon, let alone a
constitutional right that is retroactively applicable.
“Although illegal sentencing issues cannot be waived, they still must be
presented in a timely[-filed] PCRA petition.”2 Commonwealth v. Taylor, 65
A.3d 462, 465 (Pa. Super. 2013). Thus, while Appellant argues that his
sentence is illegal pursuant to Veon, and illegality of sentence issues cannot
be waived, we do not have jurisdiction to consider the legality of his sentence.3
In the alternative, Appellant argues that notwithstanding the lack of
jurisdiction under the PCRA, this Court may vacate his sentence of restitution
sua sponte based upon its inherent equitable power to correct an illegal
sentence pursuant to Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007),
2 Appellant claims that the PCRA court had jurisdiction to correct his illegal sentence because this Court vacated the sentence for his co-defendant, Perzel, based upon Veon. Appellant’s Brief at 9-10. However, unlike Appellant, Appellant’s co-defendant timely filed his PCRA petition.
3Even if the PCRA court and this Court had jurisdiction to entertain Appellant’s petition pursuant to the PCRA, he would still not be entitled to relief. To be eligible for relief pursuant to the PCRA, inter alia, at the time relief is granted, a petitioner must “currently [be] serving a sentence of imprisonment, probation, or parole for the crime[.]” 42 Pa.C.S. § 9543(a)(1)(i); Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997). As noted supra, Appellant’s term of probation ended on March 21, 2017. Because Appellant is not currently serving a sentence of imprisonment, probation, or parole, he is not entitled to PCRA relief. -4- J-S68040-17
or its power to modify restitution orders set forth in 18 Pa.C.S. § 1106(c)(3).
Appellant’s Brief at 15-18.
In Holmes, our Supreme Court reaffirmed the very limited ability of
courts to correct patent sentencing errors outside of the PCRA process or the
modification period provided by 42 Pa.C.S. § 5505. However, this Court later
held that Holmes does “not establish an alternate remedy for collateral relief
that sidesteps the jurisdictional requirements of the PCRA.” Commonwealth
v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011). The PCRA “provides for an
action by which ... persons serving illegal sentences may obtain collateral
relief” and is the “sole means of obtaining collateral relief.” Id. (citing 42
Pa.C.S. § 9542). Because Appellant’s claim is cognizable under the PCRA and
his claim is time-barred, he cannot rely on Holmes for relief. Id. at 522.
Turning to Appellant’s attempt to invoke subsection 1106(c)(3), that
subsection provides the following.
The court may, at any time or upon the recommendation of the district attorney … alter or amend any order of restitution made pursuant to paragraph (2), provided, however, that the court states its reasons and conclusions as a matter of record for any change or amendment to any previous order.
18 Pa.C.S. § 1106(c)(3). This Court has interpreted subsection 1106(c)(3) as
creating an independent cause of action, which permits “a defendant to seek
a modification or amendment of the restitution order at any time directly from
the trial court.” Commonwealth v. Gentry, 101 A.3d 813, 816 (Pa. Super.
2014) (citing Commonwealth v. Stradley, 50 A.3d 769, 772 (Pa. Super.
-5- J-S68040-17
2012)). This Court will not grant relief pursuant to subsection 1106(c)(3) if
the issue has not been raised directly with the trial court. See
Commonwealth v. Mitsdarfer, 837 A.2d 1203, 1204 (Pa. Super. 2003)
(declining to address Mitsdarfer’s request for modification of restitution
because he did not raise subsection 1106(c)(3) modification request with the
trial court and Superior Court is not a fact-finder; since statute afforded trial
court authority to amend or alter restitution order at any time, defendant was
not time-barred from filing an appropriate motion with the trial court).
In the instant case, the record reveals that the first time Appellant
sought relief pursuant to subsection 1106(c)(3) was in his brief. Therefore,
subsection 1106(c)(3) cannot provide the relief Appellant currently seeks on
appeal. Id.
Based on the foregoing, the PCRA court properly dismissed Appellant’s
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/30/2017
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