Com. v. Rumley, A.

J-S22020-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARIES RUMLEY :
:
Appellant : No. 2464 EDA 2021
Appeal from the Order Entered November 15, 2021
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0008286-2018
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY McCAFFERY, J.: FILED JANUARY 4, 2023
Aries Rumley (Appellant) appeals pro se from the order entered in the
Montgomery County Court of Common Pleas, denying his motion seeking
eligibility for the in-prison State Drug Treatment Program.1 We determine
Appellant’s motion should have been construed as an untimely petition under
the Post Conviction Relief Act2 (PCRA), and furthermore that all of his issues
on appeal are waived for failure to raise them before the trial court.
Accordingly, we affirm.
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1 Effective February 17, 2020, this program replaced the State Intermediate
Punishment (SIP) program. See 61 Pa.C.S. § 4101, note. See also 61
Pa.C.S. § 4104(a)(1) (sentencing court shall employ sentencing guidelines to
identify persons eligible for State Drug Treatment Program), (c) (if the
Department of Corrections, in its discretion, believes an eligible person would
benefit from program, it shall make the placement).
2 42 Pa.C.S. §§ 9541-9545.
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On August 13, 2019, Appellant entered a negotiated guilty plea to
possession with intent to deliver a controlled substance3 and received a
sentence of four to eight years’ imprisonment. He did not take a direct appeal.
On January 29, 2020, Appellant filed a timely pro se PCRA petition. The
trial court appointed counsel, who filed a Turner/Finley no-letter merit and
petition to withdraw,4 addressing Appellant’s allegations of plea counsel’s
ineffective assistance. The trial court granted counsel’s petition to withdraw
and, on October 13th, dismissed the PCRA petition. Appellant did not appeal.
Next, on July 13, 2021, Appellant filed a pro se “Motion for
Reconsideration of Sentence Nunc Pro Tunc,” seeking modification of his
sentence such that he would be eligible for the State Drug Treatment Program.
The trial court denied this motion on July 15th.
Three months later, on November 3, 2021, Appellant filed the underlying
“Motion to Modify Sentence,” which is nearly identical to his July 13th filing.
Appellant explained he was not seeking resentencing, but merely eligibility for
the State Drug Treatment Program. He further stated he had completed, and
benefitted from, a “substance abuse Therap[e]utic Community Program.”
Appellant’s Motion to Modify Sentence, 11/3/21, Exh. Letter.
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3 35 P.S. § 780-113(30).
4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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On November 15, 2021, the trial court denied the motion. It reasoned
that because Appellant requested relief more than 30 days after sentencing,
the court lacked jurisdiction under 42 Pa.C.S. § 5505 to modify the sentence.5
Trial Ct. Op., 3/23/22, at 4-5. Appellant filed a timely pro se appeal and a
court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on
appeal.6
On appeal, Appellant first avers that at his plea and sentencing hearing,
he was not advised on the record of his post-sentence and direct appeal rights,
resulting in a “breakdown” of court procedures. Appellant’s Brief at 3-4. Next,
Appellant contends his plea counsel was ineffective for not informing the trial
court of his substance abuse issues. Appellant reasons this information would
have led to the court to recommend in-prison drug treatment. Id. at 5.
Appellant’s reply brief essentially argues the same. No relief is due.
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5See 42 Pa.C.S. § 5505 (a court may modify or rescind any order within 30
days if no appeal from such order has been taken or allowed).
6 The trial court’s Rule 1925(b) order was issued on November 30, 2021, and
required a statement to be filed within 21 days, or by December 21st.
Appellant, however, did not file a statement until March 10, 2022. He averred
he did not receive the court’s order until March 3, 2022, and provided a copy
of an envelope, from the court to Appellant in prison, with postage showing a
March of 2022 date. In light of our disposition infra, we do not address the
question of whether the Rule 1925(b) statement was filed late. See
Commonwealth v. Burton, 973 A.2d 428, 430 (Pa. Super. 2009) (en banc)
(untimely filing of Rule 1925 concise statement results in waiver of all issues).
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First, we determine Appellant’s November 3, 2021, motion should have
been construed as an untimely petition under the PCRA. See
Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (“[T]he
PCRA provides the sole means for obtaining collateral review, and . . . any
petition filed after the judgment of sentence becomes final will be treated as
a PCRA petition.”). As Appellant was sentenced on August 13, 2019, he had
30 days, or until September 12th, to take a direct appeal. See Pa.R.A.P.
903(a). When he did not, his judgment of sentence became final, for PCRA
purposes, on that day. See 42 Pa.C.S. § 9545(b)(3). Appellant then generally
had one year, or until September 12, 2020, to file a PCRA petition. See 42
Pa.C.S. § 9545(b)(1). Appellant did not file the underlying motion until
November 3, 2021, and he did not invoke any of the PCRA’s timeliness
exceptions. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Accordingly, we conclude
the trial court lacked jurisdiction to hear the motion and it properly denied
relief.7 See Fowler, 930 A.2d at 590-91 (PCRA timeliness requirements are
mandatory and jurisdictional in nature).
In any event, we determine Appellant’s arguments on appeal are waived
for failure to raise them before the trial court. See Pa.R.A.P. 302(a) (“Issues
not raised in the trial court are waived and cannot be raised for the first time
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7 See Commonwealth v. Daniels, 947 A.2d 795, 800 (Pa. Super. 2008)
(this Court may affirm an order denying PCRA relief on any ground).
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on appeal.”). The only claim presented in Appellant’s motion was a request
for the trial court to proclaim him eligible for the State Drug Treatment
Program. Thus, no relief would be due.
For the foregoing reasons, we affirm the order denying relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/04/2023
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