J-S50023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEFF SCHIRONE WILLIAMS                     :
                                               :
                       Appellant               :   No. 64 WDA 2018

                Appeal from the PCRA Order December 18, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0014658-2004


BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.:                             FILED SEPTEMBER 24, 2018

        Jeff Schirone Williams appeals pro se from the order entered December

18, 2017, in the Court of Common Pleas of Allegheny County, dismissing,

without a hearing, his serial petition filed pursuant to the Post Conviction Relief

Act (“PCRA”).1 Williams claims (1) the PCRA court erred in denying him the

appointment of counsel, (2) his sentence is illegal under Alleyne,2 and (3) he

is entitled to credit for time served. Based upon the following, we affirm.

        The history of this case was summarized by this Court in Williams’

previous appeal:

        On June 25, 2007, the trial court sentenced Williams to an
        aggregate term of 15 to 30 years’ incarceration following his
        convictions for kidnapping, corruption of minors, possession with
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1   42 Pa.C.S. §§ 9541-9546.

2   Alleyne v. United States, 570 U.S. 99 (2013).
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      intent to deliver, possession of a controlled substance, and
      possession of drug paraphernalia. Williams filed a post-sentence
      motion, which the trial court denied on July 11, 2007. Williams
      appealed to this Court and on May 3, 2010, we affirmed his
      judgment of sentence. [Commonwealth v. Williams, 4 A.3d 181
      (Pa. Super. 2010) (unpublished memorandum)].

      On June 20, 2011, Williams filed his first PCRA petition, which he
      later amended. The PCRA court dismissed Williams’ petition and
      Williams appealed. On March 12, 2013, this Court vacated the
      PCRA court’s order dismissing Williams’ petition and remanded for
      a hearing to determine whether Williams should receive credit for
      time served. [Commonwealth v. Williams, 69 A.3d 1290 (Pa.
      Super. 2013) (unpublished memorandum)]. On June 26, 2013,
      the trial court held a hearing at which Williams was present and
      modified Williams’ sentence to reflect credit for time served. That
      same day, the trial court entered a judgment of sentence. Williams
      appealed, and we affirmed on February 20, 2014. Thereafter,
      Williams filed a second PCRA petition, which the PCRA court denied
      on March 26, 2015. He appealed and, on January 29, 2016, we
      affirmed the portion of the PCRA court’s order denying relief on
      Williams’ Alleyne/Hopkins and offense gravity score (“OGS”)
      claims and vacated the order to the extent it purportedly imposed
      fees and costs as part of the 2013 judgment of sentence. See
      Commonwealth v. Williams, 136 A.3d 1041, 2016 Pa. Super
      Unpub. LEXIS 254, at *17 (Pa. Super. filed 2016). We remanded
      for a determination of whether Williams was responsible for fees
      and costs. Id.

      Following remand, the trial court held a hearing on April 12, 2016,
      at which Williams was present, and the court determined that the
      imposition of fees and costs was a clerical error. That same day,
      the trial court entered a judgment of sentence. Williams timely
      filed his notice of appeal.

Commonwealth v. Williams, 175 A.3d 1100 (Pa. Super. Ct. 2017)

(unpublished memorandum) (footnotes omitted). On August 21, 2017, this

Court affirmed the 2016 judgment of sentence. Id. Williams did not seek

further review.




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       On November 9, 2017, Williams filed the present PCRA petition, seeking

PCRA relief and appointment of counsel. On December 19, 2017, the PCRA

court denied the petition and the request for appointed counsel.3 This appeal

followed.4

       Williams contends the PCRA court erred by failing to appoint counsel for

his current PCRA petition that challenges the judgment of sentence entered

on April 12, 2016, and affirmed by this Court on August 21, 2017. Williams

asserts the current petition is a timely, first PCRA petition under the 2016

judgment of sentence, and he is therefore entitled to appointment of counsel.

See Williams’ Brief at 10, citing Commonwealth v. Guthrie, 749 A.2d 502,

504 (Pa. Super. 2000) (“[W]here an indigent PCRA petitioner requests the

appointment of counsel for assistance in the preparation of a first petition

pursuant to the PCRA, counsel must be appointed ….”) We conclude Williams’

argument is unavailing.




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3The PCRA court did not issue Pa.R.Crim.P. 907 notice of intent to dismiss the
petition. However, Williams does not challenge the absence of the Rule 907
notice and, therefore, the issue is waived. Commonwealth v. Taylor, 65
A.3d 462, 468 (Pa. Super. 2013).

4 Although the PCRA court did not direct Williams to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, Williams filed a Rule 1925(b)
statement of his own accord, claiming the “PCRA court erred by dismissing
PCRA petition without appointing counsel pursuant to [Pa.R.Crim.P.] 904.”
Williams’ Concise Statement, 1/9/2018.



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       As a result of Williams’ prior, successful PCRA petition, this Court

vacated his 2013 sentence to the extent it imposed fees and costs, and

remanded to the trial court for a determination whether Williams was

responsible for fees and costs. Williams, 136 A.3d 141 (Pa. Super. 2016)

(unpublished memorandum).            On April 12, 2016, the trial court issued an

amended sentencing order without fees and costs, and Williams appealed to

this Court, which affirmed the judgment of sentence. In his current pro se

PCRA petition, Williams claims his sentence is illegal under Alleyne.5

Furthermore, in this appeal, Williams claims he is entitled to credit for time

served.

       The 2016 sentencing order, however, does not reset the date upon

which Williams’ judgment of sentence became final for purposes of the PCRA.

In Commonwealth v. McKeever, 947 A.2d 782 (Pa. Super. 2008), this Court

explained that a successful first PCRA petition “does not ‘reset the clock’ for

the calculation of the finality of the judgment of sentence for purposes of the

PCRA where the relief granted in the first petition neither restored a

petitioner’s direct appeal rights nor disturbed his conviction, but, rather,

affected his sentence only.” Id. at 785. See also Commonwealth v. Lesko,

15 A.3d 345, 366 (Pa. 2011) (“Lesko’s ‘right’ to first petition PCRA review is



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5In his petition, Williams asserts this Court, in his prior PCRA appeal, “did not
address the correct [Alleyne] argument presented by Petitioner challenging
[42 Pa.C.S. §] 9714.” Williams’ PCRA Petition, 11/9/2017, at 1 n.2.

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necessarily confined to that part of the final Pennsylvania judgment that was

disturbed by the federal habeas proceedings. All other aspects of the original

judgment remain as before – final”). Therefore, in this case, the trial court’s

act of correcting a clerical error did not reset the clock for the calculation of

Williams’ finality of judgment for purposes of a subsequent PCRA petition.

       Accordingly, because Williams’ PCRA petition sets forth an Alleyne

claim, which is a claim unrelated to his 2016 resentencing, his petition

constitutes a second, untimely petition.6        Consequently, the PCRA judge

properly dismissed Williams’ petition without appointing counsel. See

Pa.R.Crim.P. 904 (“[T]he judge shall appoint counsel to represent the




____________________________________________



6 For a court to entertain any PCRA petition, the petition must be filed no later
than one year after petitioner’s judgment of sentence becomes final, unless
he establishes one of the enumerated exceptions to the timebar. 42 Pa.C.S. §
9545(b)(1)(i-iii). In Williams’ prior PCRA appeal, this Court determined
Williams’ 2013 sentence became final on March 22, 2014. Williams, 136
A.3d 1041 (Pa. Super. 2016) (unpublished memorandum). Furthermore, in
that prior appeal, this Court addressed Williams’ claim that his 2013 sentence
was illegal under Alleyne. See Williams, id. Here, the current petition, filed
on November 9, 2017, is facially untimely and Williams has not attempted to
establish any enumerated exception.

       To the extent Williams contends in this appeal that his sentence is illegal
under Alleyne and that he is entitled to credit for time served, neither this
Court nor the PCRA court has jurisdiction to review these legality of sentence
claims due to the untimeliness of the petition. See Commonwealth v. Fahy,
737 A.2d 214, 223 (Pa. 1999) (claims challenging the legality of sentence are
subject to review under the PCRA, but must first satisfy the PCRA’s time
limits).


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defendant on the defendant’s first petition for post-conviction collateral

relief.”) (emphasis added).

     Accordingly, we affirm.

     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2018




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