J-S52012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STACEY CULBERT                             :
                                               :
                       Appellant               :   No. 3392 EDA 2018

             Appeal from the PCRA Order Entered October 18, 2018
              In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0500381-1998,
                            MC-51-CR-0447551-1998


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

MEMORANDUM BY OTT, J.:                                FILED DECEMBER 2, 2019

        Stacey Culbert appeals from the order entered October 18, 2018, in the

Philadelphia County Court of Common Pleas, dismissing his petition to correct

a patent error in sentencing, which the trial court construed to be an untimely

PCRA1 petition. Culbert seeks relief from the judgment of sentence of 20 to

40 years’ imprisonment imposed on May 20, 1998, following his entry of a

negotiated guilty plea to a charge of, inter alia, third degree murder.2 On

appeal, Culbert argues the PCRA court erred when it determined it had no

jurisdiction to correct his illegal sentence. We affirm.


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1   Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.

2   See 18 Pa.C.S. § 2502(c).
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        The relevant facts and procedural history underlying this appeal are as

follows. On May 20, 1998, Culbert entered a negotiated guilty plea to charges

of third degree murder, carrying a firearm without a license, and criminal

conspiracy,3 for his participation in a homicide that occurred on April 2, 1994.4

In exchange for the plea, the Commonwealth agreed to a sentence of 20 to

40 years’ imprisonment on the count of third degree murder, to run

concurrently to a federal life sentence Culbert was then serving.            The

sentences on the other two charges were suspended. Culbert did not file a

direct appeal.

        On May 15, 2018, Culbert filed a counseled motion seeking to correct a

“patent error” in his sentence. Unopposed Petition of Defendant Stacy Culbert

to Correct Patent Error in Sentence, 5/15/2018, at 1. Specifically, he asserted

the sentence of 20 to 40 years’ imprisonment he received for his conviction of

third degree murder was illegal because the maximum sentence he could have

received on the date he committed the offense (April 2, 1994), was 20 years’

imprisonment. See id. at 2. Accordingly, he insisted the PCRA court had the

“inherent power” to correct this “patent error of sentencing.” Id. at 3. On


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3   See 18 Pa.C.S. §§ 2502(c), 6106, and 903, respectively.

4 Culbert entered into a Memorandum of Agreement with the Commonwealth
in which he agreed to provide information regarding other crimes and testify
for the Commonwealth in subsequent proceedings. See Memorandum of
Agreement, 5/20/1998.




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September 18, 2018, the court issued notice of its intent to dismiss Culbert’s

motion as an untimely PCRA petition pursuant to Pa.R.Crim.P. 907. Culbert

did not respond to the court’s Rule 907 notice, and on October 18, 2018, the

PCRA court entered a final order dismissing Culbert’s petition as untimely filed.

This timely appeal follows.5

        Culbert’s sole claim on appeal is that the PCRA court erred in refusing

to correct his illegal sentence. Relying on Commonwealth v. Holmes, 933

A.2d 57 (Pa 2007), he insists “the trial court has inherent authority to correct

patent errors in sentencing” at any time. Culbert’s Brief at 5.

        Preliminarily, we note both the Commonwealth and the PCRA court

agree that, at the time Culbert committed the crime, the maximum sentence

he could have received for third degree murder was 20 years’ imprisonment.6

See 18 Pa.C.S. § 1103(1) (maximum sentence for first degree felony is 20

years’ incarceration).     Although the Crimes Code was amended in 1995 to

allow for a 40-year maximum sentence upon a conviction of third degree

murder,7 the relevant sentencing statute is the one which was in effect at the

time Culbert committed his crime.          See Commonwealth v. Rose, 127 A.3d

794, 796 (Pa. 2015) (holding “imposition of a sentence in excess of that
____________________________________________


5 On October 26, 2018, Culbert filed both a notice of appeal and concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

6   See Commonwealth’s Brief at 5-6; PCRA Court Opinion, 2/15/2019, at 5-6.

7See 18 Pa.C.S. 1102(d), 1995, March 15, P.L. 970, No. 5 (Spec. Sess. No.
1), § 1, effective in 60 days.


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prescribed by statute at the time the defendant committed the deadly

assault violates and is prohibited by the Ex Post Facto Clause of the United

States Constitution”) (emphasis supplied), cert. denied, 136 S.Ct. 2379 (U.S.

2016). Accordingly, Culbert should not have received a maximum sentence

in excess of 20 years’ imprisonment for his conviction of third degree murder.

        Nevertheless, we conclude the PCRA court properly determined Culbert

was entitled to no relief. First, we agree with the court’s decision to treat

Culbert’s petition to correct a sentencing error as a PCRA petition. It is well-

settled the PCRA is “the sole means of obtaining collateral relief,”8 and “if the

underlying substantive claim is one that could potentially be remedied under

the PCRA, that claim is exclusive to the PCRA.” Commonwealth v. Pagan,

864 A.2d 1231, 1233 (Pa. Super. 2004), cert. denied, 546 U.S. 909 (2005)

(emphasis in original).

        Relying on Holmes, supra, Culbert insists a court “may correct obvious

and patent errors in a sentence, such as an illegal sentence, at any time[,]”

outside the purview of the PCRA.               Culbert’s Brief at 5.   In Holmes, the

Pennsylvania Supreme Court considered two cases in which trial courts

attempted to “exercise their inherent power to correct orders by vacating

illegal sentences despite the expiration of the modification period provided by

42 Pa.C.S. § 5505.” Holmes, supra, 933 A.2d at 58. In both cases, the trial

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8   42 Pa.C.S. § 9542.




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court vacated a sentencing error after the 30-day period set forth in Section

5505.9 See id. at 59-60, 63. The Supreme Court concluded that the trial

courts had the “inherent power” to correct the patent sentencing errors. Id.

at 66. However, the Court noted, “this is a limited judicial power,” which the

courts could invoke because of “the obviousness of the illegality” of the those

errors. Id. at 66-67. However, the Holmes Court emphasized, “[n]ot all

illegal sentences will be amenable to correction as patent error.” Id. at 67.

In the present case, Culbert argues the “imposition of a sentence 20 years

beyond the statutory maximum is a patent error of sentencing that is subject

to the [trial c]ourt’s inherent power to correct.” Culbert’s Brief at 5.

       While the sentencing court’s error herein may be the type of obvious,

patent error subject to correction in Holmes, nevertheless, we find Culbert is

entitled to no relief. In Commonwealth v. Jackson, 30 A.3d 516 (Pa. Super.

2011), appeal denied, 47 A.3d 845 (Pa. 2012), a panel of this Court held the

Holmes decision does not apply to a defendant seeking PCRA relief:

       Holmes [] recognized the limited authority of a trial court to
       correct patent errors in sentences absent statutory jurisdiction
       under section 5505; it did not establish an alternate remedy for
       collateral relief that sidesteps the jurisdictional requirements of
       the PCRA.


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9 In one case, the trial court improperly imposed a new sentence following the
revocation of parole, and, in the other case, the court revoked probation and
imposed a new sentence on dockets in which no term of probation had been
imposed. Holmes, supra, 933 A.2d 59-60, 63.



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Id. at 521. The Jackson Court explained:

     [T]he PCRA court did not have inherent authority to consider
     Jackson’s petition absent statutory jurisdiction under section
     9545.     Jackson contends that in recognizing the “inherent”
     jurisdiction of a trial court to correct obvious errors in its
     sentences, our Supreme Court established an open-ended right
     that could be invoked by any trial court, including a PCRA court,
     at any time. However, the cases Jackson cites upholding inherent
     jurisdiction only consider this right in the context of jurisdiction to
     amend orders pursuant to section 5505. Jurisdiction under
     section 9545 was not at issue because the sentences were
     corrected within one year of the judgment of sentence becoming
     final.13
     __________
      13 Whitfield[, the other defendant in Holmes,] filed his appeal 7
     months after the sentence order, thus the PCRA court had
     jurisdiction to consider his claim under section 9545. Holmes was
     sentenced on May 21, 2001, and did not appeal. The court
     corrected the sentencing error sua sponte less than one year later
     on April 9, 2002. Thus, the section 9545 time bar was not in
     effect.
     __________

     Unlike [the defendants in Holmes,] Jackson filed his petition
     years after the PCRA filing deadline had expired. Thus, a PCRA
     court would have to overcome two jurisdictional hurdles to correct
     his sentence: section 5505 and section 9545. We have not found
     any decision in which our appellate courts have upheld, or in which
     a PCRA court has invoked, inherent jurisdiction absent statutory
     authority under [Section] 9545. Nor do we believe that a PCRA
     court could invoke its inherent jurisdiction after this deadline.

     Inherent jurisdiction has been upheld as an exception to section
     5505 because section 5505 was never intended to create a strict
     jurisdictional deadline for correcting orders where there is an
     obvious illegality in the sentence. This intent is evident from the
     plain language of the statute. Section 5505 confers on the trial
     court an affirmative right to modify orders within 30 days after its
     entry if there is no appeal, and does not expressly limit this
     authority after the 30–day period has expired. Because section
     5505 does not directly prohibit a court from correcting an order
     after the deadline, our courts have recognized a limited equitable

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       exception to the statute that permits a trial court to correct
       obvious illegalities in its sentences that are not discovered within
       the 30–day statutory period.

       Section 9545 of the PCRA is not amenable to such equitable
       exceptions.

Id. at 522 (internal citations omitted).         See also Commonwealth v.

Whiteman, 204 A.3d 448 (Pa. Super. 2019) (relying on Jackson to deny

relief to petitioner who filed untimely PCRA petition), appeal denied, ___ A.3d

___ [163 MAL 2019] (Pa. July 24, 2019). Accordingly, we agree the trial court

properly treated Culbert’s request for relief as a PCRA petition.10

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted).       Here, the court determined

Culbert’s petition was untimely filed. Again, we agree.

       The requirement that a PCRA petition must be filed within one year of

the date the underlying judgment becomes final “is mandatory and

jurisdictional in nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248

(Pa. 2013), cert. denied, 134 S.Ct. 2695 (U.S. 2014). See also 42 Pa.C.S. §

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10 In its brief, the Commonwealth agrees the trial court properly considered
Culbert’s claim as a request for PCRA relief under the authority of Jackson.
See Commonwealth’s Brief at 5-6. Nevertheless, the Commonwealth also
states it “concurs with” Culbert’s argument that a trial court should have the
inherent authority to correct an illegal sentence at any time, and notes this
issue is “currently pending on allocator before the Pennsylvania Supreme
Court” in Commonwealth v. Sierra, 347 EAL 2019. Id. at 5, 7. We note
that, however, on October 30, 2019, the Supreme Court denied the petition
for allowance of appeal. See Order, 10/30/2019.

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9545(b)(1). “The court cannot ignore a petition’s untimeliness and reach the

merits of the petition.” Id.

      In the present case, Culbert’s judgment of sentence was final on June

19, 1998, 30 days after sentence was imposed and Culbert failed to file a

direct appeal. Therefore, Culbert had until June 19, 1999, to file a timely

PCRA petition, and the one before us was not filed until nearly 19 years later.

Therefore, his petition is manifestly untimely.

      Nevertheless, an untimely petition may still be considered if “the petition

alleges and the petitioner proves” one of the time-for-filing exceptions set

forth in Section 9545(b)(1). See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Culbert did

not address the applicability of a timing exception in either his petition or his

appellate brief. Therefore, we agree with the PCRA court’s assessment that

Culbert’s petition is manifestly untimely, and Culbert has failed to prove the

applicability of one of the time-for-filing exceptions. Accordingly, he is entitled

to no relief.

      Order affirmed.

      Judge McLaughlin joins the memorandum.

      Judge Kunselman joins the memorandum and files a concurring

memorandum in which Judge McLaughlin joins.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/02/2019




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