Com. v. Bailey, J. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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