J-S22009-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :      IN THE SUPERIOR COURT OF
                                                 :           PENNSYLVANIA
                                                 :
                  v.                             :
                                                 :
                                                 :
    JUSTIN MICHAEL HICKOX                        :
                                                 :
                         Appellant               :      No. 2098 MDA 2019

                Appeal from the Order Entered December 5, 2019
       In the Court of Common Pleas of Centre County Criminal Division at
                        No(s): CP-14-CR-0001270-2010


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.:                                       FILED JUNE 12, 2020

        Appellant, Justin Michael Hickox, appeals from the order entered on

December 5, 2019, which dismissed his petition for collateral relief filed

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

§§ 9541-9546. We affirm.

        On previous appeal, we summarized the facts and procedural history of

this case as follows:

        [In 2010,] Appellant was charged with nine counts of indecent
        assault and one count of corruption of minors. On March 2, 2011,
        Appellant entered a guilty plea to four counts of indecent assault
        and was sentenced on June 28, 2012. On direct appeal, this Court
        vacated Appellant's judgment of sentence and remanded the
        matter. [Commonwealth v. Hickox, 2013 WL 11250814, *1
        (Pa. Super. Nov. 20, 2013)].



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       [On] June 2, 2014, Appellant entered a guilty plea to [] nine
       counts of indecent assault and one count of corruption of minors.
       N.T., 6/2/14, at 2–21. Appellant was sentenced on the same day
       to payment of costs, time served and an aggregate term of [15]
       years [] probation. Id. at 8–13; Written Guilty Plea Colloquy,
       6/23/14 at 2.

       [Appellant did not file a direct appeal. Instead,] Appellant filed a
       PCRA petition on December 17, 2014. Counsel was appointed,
       but was later permitted to withdraw due to Appellant's desire to
       proceed pro se. [Thereafter, Appellant violated his probation and
       the court sentenced him to five to 10 years’ imprisonment in July
       2015.1]

       [On] July 27, 2015, Appellant was granted leave to file an
       amended PCRA petition, and Appellant did so on the same day.
       The PCRA court addressed Appellant's PCRA petition filed
       December 17, 2014, and Appellant's first amended PCRA petition
       filed July 27, 2015, together and issued its notice of intent to
       dismiss both on September 24, 2015. Appellant filed a response.
       Both petitions were dismissed by order entered October 8, 2015.

       Appellant timely appealed, and on June 9, 2016, this Court
       vacated that order and remanded the matter due to the trial
       court's failure to conduct a [] hearing [pursuant to
       Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998). See
       Commonwealth v. Hickox, 2016 WL 3198156, *1 (Pa. Super.
       June 9, 2016.).]

       On remand, the [PCRA] court conducted a Grazier hearing on
       June 21, 2016, grant[ed] Appellant's request to proceed pro se
       and [gave] him [60] days to amend his PCRA petition. Order,
       7/5/16. Appellant filed his second amended PCRA petition on that
       same day[.]

       By order entered November 1, 2016, Appellant's second amended
       petition was dismissed. [This Court subsequently affirmed the
       PCRA court’s dismissal].


____________________________________________


1 We note that the exact date that the trial court determined that Appellant
violated his probation and sentenced him to five to 10 years’ imprisonment is
unclear. The order itself is dated July 17, 2015, but it is time-stamped for
July 24, 2015 and July 27, 2015.

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Commonwealth v. Hickox, 2017 WL 3037516, at *1 (Pa. Super. July 18,

2017) (parallel citations and footnotes omitted) (footnote added).

       On November 12, 2019, Appellant filed a motion to withdraw his guilty

plea nunc pro tunc. Appellant’s Motion to Withdraw Guilty Plea Nunc Pro Tunc,

11/12/19, at 1-4. In his motion, Appellant claimed that his counsel provided

ineffective assistance. Id. Specifically, Appellant asserted that counsel failed

to investigate his alibi defense and was unprepared for trial which, per

Appellant, caused him to plead guilty.           Id.   The court treated Appellant’s

motion as a PCRA petition and, on December 5, 2019, dismissed the petition.2

PCRA Court Order, 12/5/19, at 1-2. This timely appeal followed.3

       Appellant raises the following issues on appeal:4



____________________________________________


2 As discussed infra, the PCRA court correctly treated Appellant’s motion to
withdraw his guilty plea nunc pro tunc as a PCRA petition. The court, however,
simply dismissed Appellant’s petition. It did not issue notice that it intended
to dismiss Appellant’s PCRA petition without holding a hearing pursuant to
Pa.R.Crim.P. 907(1). Nonetheless, “our Supreme Court has held that [when
a] PCRA petition is untimely, the failure to provide such notice is not reversible
error.” Commonwealth v. Lawson, 90 A.3d 1, 5–6 (Pa. Super. 2014), citing
Commonwealth v. Pursell, 749 A.2d 911, 917 n.7 (Pa. 2000). Accordingly,
the PCRA court’s failure to issue a Rule 907 notice prior to dismissing
Appellant’s November 12, 2019 submission does not entitle Appellant to relief.

3 Appellant filed a notice of appeal on December 13, 2019. On January 7,
2020, the trial court entered an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b)(1). Appellant timely complied. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on January 28, 2020.

4 We have altered the order of Appellant’s issues for clarity and ease of
discussion. See Appellant’s Brief at 4.

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       I.   Did the [PCRA] court err in treating [Appellant’s] motion to
            withdraw [his] guilty plea nunc pro tunc as a [PCRA petition?]

      II.   Did the [PCRA] court err when it dismissed [] Appellant’s motion
            to withdraw [his] guilty plea nunc pro tunc when it showed clear
            assertions of manifest injustice?


Appellant’s Brief at 4 (superfluous capitalization omitted).

      Our standard of review is as follows:

      As a general proposition, an appellate court reviews the PCRA
      court's findings to [determine whether] they are supported by the
      record and free from legal error. [This C]ourt's scope of review is
      limited to the findings of the PCRA court and the evidence on the
      record [] viewed in the light most favorable to the prevailing party.

Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super. 2008)

(citations and quotations omitted).

      First, Appellant argues that the court erred in treating his motion to

withdraw his guilty plea nunc pro tunc as a PCRA petition.          Specifically,

Appellant baldly asserts that “[a]ny filing outside of the timeframe for a PCRA

should not be considered a PCRA.” Appellant’s Brief at 19.     Appellant’s claim

is erroneous. As our Supreme Court previously explained:

      By its own language, and by judicial decisions interpreting such
      language, the PCRA provides the sole means for obtaining state
      collateral relief.

Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (internal citations

omitted). Thus, “[w]here, as here, a defendant's post-conviction claim[] [is]

cognizable under the PCRA, the common law and statutory remedies now

subsumed by the PCRA are not separately available to the defendant.” Id.;



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see 42 Pa.C.S.A. § 4593(a)(2)(ii) (explaining that, for a PCRA petitioner to be

entitled to relief, he must demonstrate that “the conviction or sentence

resulted from” . . . “ineffective assistance of counsel”). Because Appellant’s

claim of ineffective assistance is cognizable under the PCRA, the court

correctly treated Appellant’s motion as a PCRA petition. Hence, Appellant’s

first claim is meritless.

      Bearing in mind our conclusion that Appellant’s November 12, 2019

submission is subject to the legal framework and requirements of the PCRA,

we turn to Appellant’s second claim in which he argues that the PCRA court

erred in dismissing his filing because it asserted a manifest injustice. Before

any court considers the merits of a petition for collateral relief, however, the

court “must first determine whether [the petition was] timely filed.”

Commonwealth v. Smith, 35 A.3d 766, 768 (Pa. Super. 2001), appeal

denied 53 A.3d 77 (Pa. 2012). The timeliness requirement for PCRA petitions

“is mandatory and jurisdictional in nature.” Commonwealth v. Taylor, 67

A.3d 1245, 1248 (Pa. 2013) (citation omitted).

      A PCRA petition is timely if it is “filed within one year of the date the

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 time for seeking the

review.” 42 Pa.C.S.A. §§ 9545(b)(3). Here, Appellant’s judgment of sentence

became final on July 2, 2014, 30 days after the entrance of his guilty plea.

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Hence, Appellant’s petition is manifestly untimely because it was filed in

November 2019.     Therefore, unless one of the statutory exceptions to the

time-bar applies, no court possessed jurisdiction to consider the instant

petition.

      Pursuant to 42 Pa.C.S.A. §9545(b), there are three statutory exceptions

to the PCRA’s time-bar that allow for very limited circumstances under which

the late filing of a PCRA petition will be excused. To invoke an exception, a

petitioner must allege and prove one of the following:

      (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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). If an exception applies, a PCRA petition

may be considered if it is filed “within one year of the date the claim could

have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

      In this case, Appellant made no attempt to plead or prove that one of

the above-mentioned exceptions to the PCRA time-bar applies. Indeed,

Appellant does not even mention one of the exceptions listed in 42 Pa.C.S.A.




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§9545(b).    As such, the PCRA court properly dismissed Appellant’s PCRA

petition as it lacked jurisdiction.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/12/2020




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