Citation Numbers: 928 A.2d 1112
Judges: Bender, Klein, McCaffery
Filed Date: 7/13/2007
Status: Precedential
Modified Date: 1/12/2023
OPINION BY
111 This is an appeal from an order denying/dismissing Appellant’s motion to modify sentence under extraordinary circumstances. Appellant raises one issue for our review, did the trial court err in failing to advise Appellant at sentencing of his right to file post-sentence motions, and the time period for filing the same, which would excuse any late filing of the present motion? After consideration, we affirm.
¶ 2 On January 9, 1996, Appellant entered a plea of guilty to six counts of involuntary deviate sexual intercourse (IDSI) and one count of corrupting the morals of a minor. Appellant was sentenced for these offenses on February 21, 1996. As Appellant filed no direct appeal, his judgment of sentence became final for purposes of the Post Conviction Relief Act (PCRA) on March, 22, 1996.
113 On January 31, 2000, Appellant filed a second PCRA petition, which was dismissed on April 10, 2000, for untimeliness. Similar to Appellant’s first PCRA petition, that dismissal was appealed to this Court, and we affirmed on July 25, 2006.
If 4 Prior to the disposition of the appeal on Appellant’s second PCRA, on September 24, 2004, Appellant filed a petition for collateral/post-conviction relief in the form of a petition for writ of habeas corpus, asserting that his sentence was illegal as the sentence for corrupting the morals of a minor should have merged with his sentence(s) for IDSI. On October 5, 2004, Appellant’s petition for writ of habeas corpus was denied. Appellant appealed that
¶ 5 Despite the previous futile efforts to secure post-conviction relief, Appellant apparently remained undaunted. Thus, on November 22, 2005, Appellant filed a motion for modification of sentence under extraordinary circumstances. In this motion, Appellant' alleged that he was never apprised of his post-sentence rights when sentenced. As such, Appellant contended, he was entitled to file a motion to modify sentence although the time for filing such a motion had expired several years earlier. The Commonwealth filed a response to Appellant’s motion contending that the motion was untimely. The court agreed and, on July 31, 2006, denied Appellant’s motion for that exact reason. The present appeal followed.
¶ 6 The purpose behind the passage of the PCRA was to bring finality to criminal judgments while allowing criminal defendants a fair opportunity to address, and seek redress for, errors that occurred during trial and/or sentencing. Commonwealth v. Morris, 573 Pa. 157, 822 A.2d 684 (2003). Appellant here, and below, contends that he was not apprised of his post-sentence rights at the time of sentencing. The Commonwealth contests this assertion, stating that all defendants that were sentenced that day were read their rights as a group before proceeding to individualized sentencing.
¶ 7 In the present case, more than 10 years has passed since the alleged omission occurred. Moreover, in the time since sentencing to the filing of the current motion for post-sentence relief, Appellant has filed several petitions for post-conviction relief, either under the PCRA or habeas corpus petitions. It is well established
¶ 8 Given the above, we must view Appellant’s motion to modify sentence under extraordinary circumstances as a PCRA petition, an untimely one at that. As such, the motion was properly denied for untimeliness. Lastly, although Appellant has not specifically contended that the court’s failure to apprise him of his post-sentence rights would constitute an exception to the PCRA’s timeliness requirements,
¶ 9 Order affirmed.
. As falling in a "leap year,” February 1996 contained 29 days.
. Although the trial court dismissed Appellant’s petition due to counsel’s failure to file a PCRA brief, our court affirmed the dismissal on the basis that the petition was untimely filed. Commonwealth v. Grafton, 739 A.2d 586 (Pa.Super.1999). (unpublished memorandum).
.The disposition of Appellant’s appeal relating to his second PCRA petition was delayed due to procedural defects. Commonwealth v. Grafton, 907 A.2d 1133 (Pa.Super.2006).
. Commonwealth v. Grafton, 889 A.2d 112 (Pa.Super.2005).
. In support of this position, the Commonwealth has appended a copy of the notes of testimony from the sentencing of Kevin Lee Hamilton, CP-17-CR959-1995, dated February 20, 1996. The date does correspond with the date Appellant was sentenced. Appellant contests the Commonwealth’s appending these notes of testimony, asserting that they are not part of the certified record. We note, as well, that the notes of testimony from Appellant's sentencing are not contained in the certified record, either, although Appellant has similarly appended a copy of the notes of his sentencing to his brief. As our ultimate decision does not require us to review the notes of testimony, we will disregard the fact that the notes of testimony are not contained in the certified record.
. In Wright we stated:
The PCRA court did not restore Appellant's right to file a post-sentence motion nunc pro tunc. The PCRA court only reinstated Appellant’s direct appeal rights nunc pro tunc. Indeed, in his PCRA petition Appellant did not seek the restoration of his right to file a post-sentence motion nunc pro tunc. Since Appellant’s right to file a post-sentence motion was not restored nunc pro tunc, the trial court should not have entertained Appellant’s post-sentence motion which was clearly untimely.
Wright, 846 A.2d at 733-34.
. 42 Pa.C.S. § 9545 provides:
§ 9545. Jurisdiction and proceedings
(a) Original jurisdiction. — Original jurisdiction over a proceeding under this sub-chapter shall be in the court of common pleas. No court shall have authority to entertain a request for any form of relief in anticipation of the filing of a petition under this subchapter.
(b) Time for filing petition.—
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) 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.