J-S04040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARK W. LYNCH                              :
                                               :
                       Appellant               :   No. 1071 MDA 2018

               Appeal from the PCRA Order Entered May 29, 2018
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0002237-1999


BEFORE:      SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                      FILED FEBRUARY 05, 2019

        Appellant Mark W. Lynch appeals from the Order entered in the Court of

Common Pleas of Dauphin County on May 29, 2018, denying as untimely his

petition filed pursuant to the Post Conviction Relief Act (PCRA).1 We affirm.

        In a published Opinion filed on March 19, 2003, a panel of this Court set

forth the relevant factual and procedural history herein as follows:

              On May 17, 1999, while highly intoxicated, [Appellant]
        drove north in the south-bound lanes of Interstate 83 in
        Harrisburg and collided head-on with James E. Dorothy. Dorothy
        did not survive the accident. [Appellant] was charged with and
        pled guilty to homicide by vehicle while driving under the
        influence, homicide by vehicle, involuntary manslaughter, and
        driving under the influence of alcohol or controlled substance,4 as
        well as Motor Vehicle Code violations.5
              The trial court sentenced [Appellant] to five to ten years of
        imprisonment on the homicide by vehicle while DUI charge, a
        consecutive term of two to five years of imprisonment on
        involuntary manslaughter, and no further penalty on the other
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Former Justice specially assigned to the Superior Court.
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     counts.6 The trial court sua sponte vacated the sentence as an
     illegal sentence, holding that the involuntary manslaughter charge
     merged for purposes of sentencing. However, the Commonwealth
     moved for reconsideration arguing that involuntary manslaughter
     did not merge. The trial court granted the motion and reinstated
     the original sentence.
            Eleven months later, [Appellant] filed a pro se motion to
     enforce a plea agreement, which the trial court treated as a PCRA
     petition. Counsel was appointed, who filed a supplemental PCRA
     petition. That petition raised the following issues: whether he
     should have been allowed to withdraw his guilty plea because trial
     counsel unlawfully induced him to plead guilty when the plea
     agreement was illusory, or in the alternative, that counsel
     unlawfully induced his guilty plea when no plea agreement
     existed. In addition, assuming arguendo a plea agreement
     existed, [Appellant] asserted that the Commonwealth's attorney
     had violated the agreement by having the victim's family testify
     and make sentencing recommendations.
            After a hearing, the PCRA court denied the petition, finding
     as facts that no plea agreement existed, that trial counsel did not
     rely on an illusory promise, and that trial counsel made no
     unwarranted statements to Lynch. Agreeing with the
     Commonwealth that the guilty plea subsection controlled, the
     court found no ineffectiveness because [Appellant] admitted that
     he never intended to conceal his guilt. The trial court further held
     that the Commonwealth did not breach the purported agreement
     in any way; it merely informed the trial court of the means to
     impose the intended sentence. . . .
     ___
     4 These offenses are codified respectively at 75 Pa.C.S.A. §

     3735(a), 75 Pa.C.S.A. § 3732, 18 Pa.C.S.A. § 2504(a), 75
     Pa.C.S.A. § 3731(a)(1), (4)(i).
     5 Specifically, he was charged with careless driving, 75 Pa.C.S.A.

     § 3714, reckless driving, 75 Pa.C.S.A. § 3736(a), one-way
     roadways and rotary traffic islands, driving on one-way roadway,
     75 Pa.C.S.A. § 3308(b), driving on roadways laned for traffic,
     driving within single lane, 75 Pa.C.S.A. § 3309(1), and driving on
     divided highways, 75 Pa.C.S.A. § 3311(a).
     6 The trial court also suspended [Appellant’s] driving privileges for

     life and imposed over $19,000 in restitution.




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Commonwealth v. Lynch, 820 A.2d 728, 730–31 (Pa.Super. 2003), appeal

denied, 575 Pa. 692, 835 A.2d 709 (2003).             Appellant did not seek

discretionary review in the Supreme Court of the United States.

       On March 14, 2016, Appellant filed a Petition for Court Review

requesting that the trial court remove the lifetime suspension of his driver’s

license, which the trial court denied on July 1, 2016. On November 9, 2017,

Appellant filed a Motion to Modify Sentencing Order wherein he challenged the

legality of his sentence and again sought to address the trial court’s imposition

of the lifetime license suspension in 2009.      The trial court construed this

motion as a request for relief under the PCRA.2 The trial court filed a notice

of intent to dismiss the PCRA petition pursuant to Pa.R.Crim.P. 907, and

Appellant filed a response thereto on March 20, 2018.           The trial court

ultimately dismissed Appellant’s petition as untimely on May 29, 2018, and

Appellant filed a timely notice of Appeal on June 25, 2018.

       Appellant presents three issues for our review:

       A. Whether or not the Honorable Trial Court erred or abused its
       discretion when it failed to use its inherent powers to correct its
       own Order that was obviously and patently in error after
       [Appellant] brought this issue to the Trial Court's attention?

       B. Whether or not the Honorable Trial Court erred or abused its
       discretion when it treated [Appellant’s] Motion to Modify Illegal
       Sentence as an untimely PCRA Petition?

____________________________________________


2As we shall discuss in more detail, infra, we likewise will treat Appellant’s
motion as a PCRA petition.



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      C. Whether or not the Superior Court should modify the Trial
      Court's Original Order sua sponte because the Original Order is
      illegal on its face?

Appellant’s Brief at 4.

      We first must analyze Appellant’s second issue wherein he challenges

the judicial determination of whether a post-conviction filing should be

considered a PCRA petition. In doing, so we are mindful that any petition filed

after the judgment of sentence becomes final will be treated as a PCRA petition

if it raises any sort of claim that is cognizable under the PCRA. See 42 Pa.C.S.

§ 9543(a)(2); Commonwealth v. Jackson, 30 A.3d 516 (Pa.Super. 2011)

appeal denied, 616 Pa. 634, 47 A.3d 845 (2012).          More specifically, the

Jackson Court held that an appellant’s “‘motion to correct illegal sentence’ is

a petition for relief under the PCRA.” Id. at 521 (citation omitted). As this

Court has explained:

      It is well settled that any collateral petition raising issues with
      respect to remedies offered under the PCRA will be considered a
      PCRA petition. However, a petition raising a claim for which the
      PCRA does not offer a remedy will not be considered a PCRA
      petition. Thus, the question then becomes whether petitioner had
      an available remedy under the PCRA.


Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa.Super. 2001) (citations

omitted).

      The cases in which this Court has construed a post-conviction petition

or motion to be a PCRA petition for which the PCRA could provide redress

involved the types of issues Appellant presents herein. See Commonwealth


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v. Guthrie, 749 A.2d 502, 503 (Pa.Super. 2000) (holding appellant’s “motion

to correct illegal sentence” must be treated as PCRA petition) see also

Commonwealth v. Evans, 866 A.2d 442, 444 (Pa. Super. 2005) (motion for

reconsideration or modification of sentence should be treated as PCRA

petition); Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa.Super.

2002) (motion to vacate sentence qualified as a PCRA petition).          Thus,

Appellant’s “Motion to Modify Sentencing Order” is a petition for relief under

the PCRA and the fact that Appellant has attempted to frame his petition as a

“Motion to Modify Sentencing Order” does not change the applicability of the

PCRA. Guthrie, supra.

      Before we may address the merits of Appellant’s remaining issues, we

must begin by examining the timeliness of Appellant's petition, because the

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded in order to address the merits of a petition. Commonwealth v.

Bennett, 593 Pa. 382, 388, 930 A.2d 1264, 1267 (2007). “The question of

whether a petition is timely raises a question of law, and where a petitioner

raises questions of law, our standard of review is de novo and our scope of

review is plenary.” Commonwealth v. Pew, 189 A.3d 486, 488 (Pa.Super.

2018) (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 [of sentence] becomes final at the conclusion of direct review,


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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). Herein, Appellant’s judgment of

sentence became final on or about February 14, 2004, when the period of time

to seek certiorari in the United States Supreme Court expired.            See 42

Pa.C.S.A. § 9545(b)(3); see also U.S.Sup.Ct.R. 13.1. Thus, Appellant had

until February 14, 2005, to file a timely PCRA petition. The instant PCRA

petition filed over a decade later on November 6, 2017, is facially untimely

under the PCRA.

      An untimely PCRA petition may be considered if one of the following

three exceptions applies:

      (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). If an exception applies, a PCRA petition may be

considered if it is filed “within 60 days of the date the claim could have been

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




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      Without reference to any authority, Appellant maintains that the trial

court’s lifetime suspension of his driver’s license for life, which he was aware

of in 2009, was illegal. He further posits that an appellant never relinquishes

his right to cure an illegal sentence and a trial court never loses its ability from

exercising its “inherent power” to correct an illegal sentence, even where the

time-period for filing a timely appeal has expired.          Appellant’s Brief at 8.

Notwithstanding, Appellant also admits that:

             . . . the [PCRA] fails to provide [Appellant] with any avenue
      for redress of his illegal sentence. At no point has [Appellant]
      attempted to address the illegality of his sentence because he
      cannot meet the requirements of the Act to provide the trial court
      with jurisdiction over his case. [Appellant] cannot meet any of the
      exceptions to the timeliness of his Motion.
             As a consequence, [Appellant] did not attempt to obtain
      relief from the Trial Court through the Post-Conviction Relief Act.
      Instead, he sought to utilize the inherent powers of the trial court
      to modify its obviously and patently illegal Order. As discussed in
      the foregoing section of this brief, the trial court has the power to
      correct its obviously and patently illegal order and [Appellant]
      sought to utilize this power to fix its error.

Appellant’s Brief at 18.

      Appellant’s claims are premised on the mistaken belief that the trial

court’s “inherent powers” to consider issues on appeal are separate and apart

from the timeliness requirements of the PCRA. While it is true that a challenge

to   the    legality   of   one’s   sentence   cannot   be    waived,   see,   e.g.,

Commonwealth v. Dickson, 591 Pa. 364, 371, 918 A.2d 95, 99 (2007), it

is axiomatic that such claims still must be presented in a timely-filed PCRA

petition.   See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.Super.


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2014) (explaining that “[t]hough not technically waivable, a legality [of

sentence] claim may nevertheless be lost should it be raised ... in an untimely

PCRA petition for which no time-bar exception applies, thus depriving the court

of jurisdiction over the claim.”) (citation and quotation marks omitted);

Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.Super. 2013) (“[A]lthough

illegal sentencing issues cannot be waived, they still must be presented in a

timely[-filed] PCRA petition.”) (citation omitted).       As the Pennsylvania

Supreme Court recently clarified:

              We are cognizant that Section 9543 specifically delineates
      the availability of relief and includes relief from “[t]he imposition
      of a sentence greater than the lawful maximum[;]” or “[a]
      proceeding in a tribunal without jurisdiction.” Id. § 9543(vii),
      (viii). However, the traditional view of sentence illegality claims
      was limited to either a sentence that exceeded that statutory
      maximum or one imposed by a court lacking jurisdiction. See
      Foster, 17 A.3d at 349 (Castille, C.J. concurring); id. at 356
      (Eakin, J. concurring). In Barnes, this Court adopted a test to
      determine whether a sentencing claim is illegal, thereby
      expanding the concept of illegal sentencing. See Barnes, 151
      A.3d at 127.
              That the PCRA speaks to addressing illegal sentences and
      specifically sentences exceeding the lawful maximum or imposed
      by a court without jurisdiction, does not preclude [appellant] from
      obtaining relief from his unquestionably illegal sentence, as the
      “legality of the sentence is always subject to review within
      the PCRA” where, as here, the petition is timely. Fahy, 737
      A.2d at 223 (Pa. 1999); accord 42 Pa.C.S. § 9542. Because
      [appellant’s] sentence was rendered illegal before his judgment of
      sentence became final and he presented his claim in a timely
      petition for post conviction relief, he is entitled to have his
      illegal sentence remedied.

Commonwealth v. DiMatteo, ___ Pa. ____, 177 A.3d 182, 192 (2018)

(emphasis added).


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In light of the foregoing, the trial court properly concluded Appellant was not

entitled to relief under the PCRA on his illegality of sentence claim presented

in his untimely-filed PCRA petition. Since Appellant makes no attempt to plead

and prove any other timeliness exception to the PCRA time-bar, we discern no

error in the PCRA court’s decision to deny his untimely petition and conclude

that we are without jurisdiction to offer Appellant any form of relief. See

Jackson, 30 A.3d at 523.3

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/05/2019

____________________________________________


3 In his brief, Appellant relates that on October 16, 2009, he received
correspondence from the Pennsylvania Department of Transportation
indicating that his driving privileges were suspended for an indefinite period
of time and that prior to February of 2015, he attempted to reinstate his
driver’s license. Brief for Appellant at 7. The Department of Transportation
responded by correspondence dated February 20, 2015, that Appellant would
be ineligible to have his license reinstated until the Dauphin County Court of
Common Pleas removes his lifetime suspension. Id. Even if Appellant were to
have asserted that his issues fall under the after-discovered evidence
exception to the PCRA time bar in light of these allegations, 42 Pa.C.S.A. §
9545(b)(1)(ii), Appellant would have had sixty days thereafter to invoke that
exception, which he did not do, for the instant Petition was not filed until
November 9, 2017. Thus, we would still find his petition to be untimely.



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