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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                        :
RONALD STOCKTON,                        :          No. 661 EDA 2015
                                        :
                       Appellant        :


               Appeal from the PCRA Order, February 6, 2015,
            in the Court of Common Pleas of Philadelphia County
             Criminal Division at Nos. CP-51-CR-0001236-2007,
                          CP-51-CR-0002597-2007


BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED MARCH 16, 2016

      Ronald Stockton appeals from the order filed in the Court of Common

Pleas of Philadelphia County which dismissed, without a hearing, his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546.    Because we agree with the PCRA court that appellant’s

facially untimely petition failed to establish a statutory exception to the

one-year jurisdictional time limit for filing a petition under the PCRA, we

affirm.

      The PCRA court set forth the relevant procedural history:

                On November 9, 2007, Appellant pled guilty to
           charges set forth in two bills, CP-51-CR-0001236-
           2007 and CP-51-CR-0002597-2007, before the
           Honorable John Poserina and was convicted of
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              robbery,[1] possession of an instrument of crime,[2]
              terroristic threats,[3] and [criminal mischief].[4] On
              December 14, 2007, Appellant was sentenced to five
              to ten years on each of the two bills for the robbery
              charges. The sentences were to run consecutively.
              The order from the sentencing, however, stated that
              Appellant was “[t]o be confined for a Period of 10 to
              20 years. . .” on only CP-51-CR-0001236-2007. It
              did not reference CP-51-CR-0002597-2007.            On
              March 5, 2010, Judge Poserina filed amended
              sentencing orders that reflected his original intent
              that Appellant be sentenced to five to ten years on
              each of the two bills to run consecutively. He did not
              sign these orders.

                     Subsequently, Judge Poserina retired from the
              bench. On July 5, 2012, then-Supervising Judge
              Sheila Woods-Skipper filed signed sentencing orders
              mirroring Judge Poserina’s amended orders and
              reflecting his original intent. After receiving the
              orders signed by Judge Woods-Skipper, Appellant
              filed the instant PCRA Petition[Footnote 1], which
              was denied by this Court.

                   [Footnote 1] The Court noted during the
                   December 1, 2014 PCRA hearing that the
                   proper      mechanism    through    which
                   Appellant likely should have raised these
                   issues was a Writ of Habeas Corpus, not
                   a PCRA Petition. See NT 12/1/2014 at
                   17, 22 (“I may dismiss this and then, of
                   course, you could file a writ and we
                   would be back in the same place . . .
                   [.]”) . . .



1
    18 Pa.C.S.A. § 3702(a).
2
    18 Pa.C.S.A. § 907(a).
3
    18 Pa.C.S.A. § 2706(a)(1).
4
    18 Pa.C.S.A. § 3304(a)(4).


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PCRA court opinion, 8/10/15 at 1-2.

         Appellant raises the following issues for our review:

               1.    Did this PCRA petition fall within one of the
                     exceptions to the statute of limitations?

               2.    Did the Lower Court err in not holding an
                     evidentiary  hearing   to   determine  the
                     chronology of the sentencing orders and to
                     determine the prejudice suffered by the
                     Appellant?

Appellant’s brief at 7.

         All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence becomes

final.    42 Pa.C.S.A. § 9545(b)(1).       “A judgment becomes final at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

The Pennsylvania Supreme Court has held that the PCRA’s time restriction is

constitutionally sound.     Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.

2004). In addition, our supreme court has instructed that the timeliness of

a PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

               The right to an evidentiary hearing on a
               post-conviction petition is not absolute. A hearing
               may be denied if a petitioner’s claim is patently


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            frivolous and is without a trace of support either in
            the record or from other evidence. A post-conviction
            petition may not be summarily dismissed, however,
            as “patently frivolous” when the facts alleged in the
            petition, if proven, would entitle the petitioner to
            relief.

Commonwealth v. Granberry, 644 A.2d 204, 208 (Pa.Super. 1994), citing

Commonwealth v. Box, 451 A.2d 252 (Pa.Super. 1982).

       Here, the trial court sentenced appellant on December 14, 2007.

Appellant failed to file a direct appeal to this court, and, consequently,

appellant’s judgment of sentence became final 30 days after imposition of

sentence and the time for filing a direct appeal expired. See 42 Pa.C.S.A.

§ 9545(b)(3); Pa.R.A.P. 903; Commonwealth v. Cintora, 69 A.3d 759,

763 (Pa.Super. 2013).       Therefore, appellant’s petition, filed pro se on

October 3, 2012 and then amended by appointed counsel and refiled

August 7, 2013, is facially untimely.    As a result, the PCRA court lacked

jurisdiction to review appellant’s petition, unless appellant alleged and

proved one of the statutory exceptions to the time bar, as set forth in

42 Pa.C.S.A. § 9545(b)(1).

       Those three narrow exceptions to the one-year time bar are:       when

the government has interfered with the appellant’s ability to present the

claim, when the appellant has recently discovered facts upon which his PCRA

claim is predicated, or when either the Pennsylvania Supreme Court or the

United States Supreme Court has recognized a new constitutional right and

made     that   right   retroactive.    42   Pa.C.S.A.   §   9545(b)(1)(i-iii);


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Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012).

The appellant bears the burden of pleading and proving the applicability of

any exception. 42 Pa.C.S.A. § 9545(b)(1). If an appellant fails to invoke a

valid exception to the PCRA time bar, this court may not review the petition.

See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

      Here, appellant contends that the July 5, 2012 sentencing order,

signed by Judge Woods-Skipper and received by appellant on August 28,

2012, constitutes recently discovered facts upon which he predicates his

PCRA claim.    Appellant then claims that this implicates the legality of his

sentence.

      Challenges to the      legality of the sentence are never waived.

Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super. 2005) (en banc),

appeal denied, 917 A.2d 844 (Pa. 2007). This means that a court may

entertain a challenge to the legality of the sentence, so long as the court has

jurisdiction to hear the claim. In the PCRA context, jurisdiction is tied to the

filing of a timely PCRA petition. Id.

      In    analyzing   a   claim   of    newly   discovered   evidence   under

Section 9545(b)(1)(ii), our supreme court in Commonwealth v. Bennett,

930 A.2d 1264, 1271 (Pa. 2007), made clear that the exception set forth in

Subsection (b)(1)(ii) does not require any merits analysis of the underlying

claim. Rather, the exception merely requires that the facts upon which the

claim is predicated must not have been known to appellant and could not



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have been ascertained by due diligence. Id. (citation omitted). Therefore,

the plain language of Subsection (b)(1)(ii) is not so narrow as to limit itself

to only claims involving after-discovered evidence.    Id. at 1272.    Rather,

Subsection (b)(1)(ii) has two components, which appellant must allege and

prove:    (1) that the facts upon which the claim was predicated were

unknown and (2) that those facts could not have been ascertained by the

exercise of due diligence. Id. If the petitioner alleges and proves these two

components, then the PCRA court has jurisdiction over the claim under this

subsection. Id. (citation omitted).

      “[A] trial court has the inherent, common-law authority to correct

‘clear clerical errors’ in its orders.”   Commonwealth v. Borrin, 12 A.3d

466, 471 (Pa.Super. 2011) (en banc) (citation omitted), affirmed, 80 A.3d

1219 (Pa. 2013) (opinion announcing judgment). This authority exists even

after the 30-day time limitation for the modification of orders expires. Id.,

citing 42 Pa.C.S.A. § 5505.5 This court has held that a “clear clerical error”

exists on the face of the record “when a trial court’s intentions are clearly

and unambiguously declared during the sentencing hearing[.]” Borrin, 12

A.3d at 473; see also Commonwealth v. Holmes, 933 A.2d 57, 67 (Pa.

2007) (holding that the limited, inherent judicial power of the court to


5
  42 Pa.C.S.A. § 5505 provides that “[e]xcept as otherwise provided or
prescribed by law, a court upon notice to the parties may modify or rescind
any order within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such order has been
taken or allowed.”


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correct patent errors arises in cases “involv[ing] clear errors in the

imposition of sentences that [are] incompatible with the record”). When this

situation arises, “the sentencing order [is] subject to later correction.”

Borrin, 12 A.3d at 473. For example, we have held that, “an oral sentence

which is on the record, written incorrectly by the clerk of courts, and then

corrected by the trial judge, is [] a clerical error.”   Id. at 474, quoting

Commonwealth v. Kubiac, 550 A.2d 219, 231 (Pa.Super. 1988), appeal

denied, 563 A.2d 496 (Pa. 1989).

      Here, the trial court clearly, unambiguously, and repeatedly declared

during the sentencing hearing that appellant was being sentenced to 5 to

10 years’ incarceration on each of two robbery counts and that those two

sentences were to run consecutively for a total term of imprisonment of 10

to 20 years, as follows:

            THE COURT: It all depends on how well you do while
            you’re in prison, because I’m going to sentence you
            to 10 to 20 as imposed by the law that I see it, two
            5 to 10’s and they’re going to be consecutive.
            However, if you don’t behave yourself in prison,
            you’re going to do the 20 years, not going to do the
            10. . . . do you understand that, sir?

            THE DEFENDANT: Yes.

            THE COURT : So my official sentencing today is 60
            to 120 months, 5 to 10 years on each of the two
            robberies.

            [DEFENSE COUNSEL]: Your Honor, if I may -- it’s so
            far outside the sentencing guidelines --




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             THE COURT: It’s mandatory on each one. They are
             two separate sentences that deserve two separate
             sentencing[s].

             [DEFENSE COUNSEL]: And you should give them,
             but you can run them concurrent, Your Honor.

             THE COURT: I am running them consecutive. . . .

             ....

             THE COURT: Sir, now you have been sentenced to
             10 to 20 years totally . . . .

Notes of testimony, 12/14/07 at 24-27.

      Because the trial court clearly and unambiguously declared its

intentions during the sentencing hearing, a clear clerical error existed on the

face of the record that was subject to correction by the trial court.     See

Holmes, 933 A.2d at 67; Borrin, 12 A.3d at 473; Kubiac, 550 A.2d at 231.

Accordingly, Judge Woods-Skipper had inherent authority to correct that

clerical error.

      Finally, we note that contrary to appellant’s assertion, the corrected

sentencing order is not a newly discovered fact because appellant’s sentence

was known to him, as he was present when the trial court sentenced him in

open court, and he acknowledged his understanding of the sentence

imposed. (See notes of testimony, 12/14/07 at 24-27.)

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/16/2016




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