Com. v. Santarelli, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TAMARA CATHERINE SANTARELLI
Appellant No. 902 MDA 2015
Appeal from the PCRA Order April 22, 2015
In the Court of Common Pleas of Susquehanna County
Criminal Division at No(s): CP-58-CR-0000583-2009
CP-58-CR-0000584-2009
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED APRIL 15, 2016
Appellant, Tamara Catherine Santarelli, appeals from the order
entered April 22, 2015, in the Court of Common Pleas of Susquehanna
County, which denied as untimely her petition filed pursuant to the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On January 7, 2011, Appellant entered negotiated nolo contendere
pleas at docket number CP-58-CR-000583-2009 to one count of arson, 18
Pa.C.S.A. § 3301(d)(2) and at number CP-58-CR-0000584-2009 to one
count of Recklessly Endangering Another Person, 18 Pa.C.S.A. § 2705. On
February 25, 2011, the trial court sentenced Appellant at number 583 of
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*
Former Justice specially assigned to the Superior Court.
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2009 to 7 years’ probation. At number 584 of 2009 the court imposed a
concurrent term of two years’ probation. Appellant filed a post-sentence
motion, which the trial court denied. Appellant did not file a direct appeal.
On July 18, 2012, a bench warrant was issued for Appellant in
connection with a violation of her supervised probation. Following a
probation violation hearing on October 30, 2013, the lower court revoked
Appellant’s probation. The court resentenced Appellant at number 583 of
2009 to a term of incarceration of nine months to seven years, to run
consecutive to a federal sentence she is currently serving. At number 584 of
2009, the court resentenced Appellant to a term of three months to two
years of incarceration, to run consecutive to the federal sentence, but
concurrent with the sentence imposed at number 583 of 2009. Appellant did
not file a direct appeal.
On November 4, 2014, Appellant filed a pro se PCRA petition and the
PCRA court appointed counsel. Appointed counsel subsequently filed a
Turner/Finley no-merit letter and requested to withdraw his
representation. The PCRA court subsequently granted counsel permission to
withdraw and dismissed the PCRA petition as untimely. This pro se appeal
followed.
The timeliness of a PCRA petition is a jurisdictional requisite. See
Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008). A PCRA
petition must be filed within one year of the date the underlying judgment
becomes final. See 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final
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at the conclusion of direct review or at the expiration of time for seeking
review. See 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to
the PCRA’s timeliness provisions allow for very limited circumstances under
which the late filing of a petition will be excused. See 42 Pa.C.S.A. §
9545(b)(1). A petitioner asserting a timeliness 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)(2).
Appellant’s judgment of sentence became final on March 28, 2011,1
thirty days following the imposition of sentence when the time for filing a
direct appeal expired. See Pa.R.A.P. 903. Thus, Appellant’s petition filed
November 4, 2014, is patently untimely. Appellant has not asserted that her
petition falls within any of the timeliness exceptions provided in the PCRA. 2
See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
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1
Appellant’s judgment of sentence actually became final on March 27, 2011.
However, that day was a Saturday, so the period would be extended to
Monday, March 28. See 1 Pa.C.S.A. § 1908.
2
Although Appellant raises allegations of governmental interference in her
appellate brief, she does not do so in the context of the PCRA timeliness
exceptions. Moreover, we observe that Appellant did not assert this or any
other timeliness exceptions in her PCRA petition. It is well settled that the
“[f]ailure to state … a ground [for relief] in the [PCRA] petition shall preclude
the defendant from raising that ground in any proceeding for post-conviction
collateral relief.” Pa.R.Crim.P. 902(B). See also Commonwealth v. Elliott,
80 A.3d 415, 430 (Pa. 2013).
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Appellant does not claim that the revocation of her probation “reset
the clock” for the purpose of calculating the timeliness of her petition. Such
a claim would nonetheless not merit relief. “Probation revocation does not
materially alter the underlying conviction such that the period available for
collateral review must be restarted.” Commonwealth v. Anderson, 788
A.2d 1019, 1021 (Pa. Super. 2001). “[T]he time for seeking PCRA relief
following the revocation of probation and the imposition of a new sentence
runs for one year from the conclusion of direct review of that new sentencing
order, but only as to the issues of the validity of the revocation proceedings
and the legality of the new sentence.” Id. at 1022 (emphasis in original;
citation omitted).
Appellant’s November 4, 2014 PCRA petition concerns only counsel’s
effectiveness regarding the January 7, 2011 plea negotiation and the
resulting sentences. Appellant does not raise any issues involving the
October 30, 2013 resentencing.3 Accordingly, to the extent Appellant’s PCRA
petition challenges the February 25, 2011 judgments of sentence, it is
untimely. We therefore affirm the order dismissing Appellant’s petition.
Order affirmed.
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3
Appellant fleetingly asserts in her brief that counsel was ineffective for
failing to file a direct appeal following the revocation of her probation. As
Appellant did not raise this issue in her PCRA petition, however, it is waived.
See Pa.R.Crim.P. 902(B).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2016
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