J-S11019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

GARY LEAFORD CODNER

                            Appellant                No. 1350 MDA 2014


                      Appeal from the Order July 28, 2014
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0002308-2010


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                               FILED APRIL 08, 2015

        Gary Leaford Codner appeals pro se from the order entered July 28,

2014, in the Berks County Court of Common Pleas, denying his request to

appeal nunc pro tunc from the dismissal of his first petition filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.       Codner

seeks relief from the judgment of sentence of three to five years’

imprisonment imposed on June 29, 2011, following his jury conviction of

possession with intent to deliver (“PWID”) marijuana and possession of

marijuana.1     On appeal, Codner argues (1) the trial court did not have

subject matter jurisdiction over his offenses, and (2) the PCRA court erred in

dismissing his amended petition. For the reasons that follow, we affirm.
____________________________________________


1
    35 P.S. §§ 780-113(a)(30) and (a)(16).
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       The relevant facts underlying Codner’s convictions are summarized in

the decision of this Court affirming his sentence on direct appeal, and we

need not recite them herein.          See Commonwealth v. Codner, 47 A.3d

1248 [1344 MDA 2011] (Pa. Super. 2012) (unpublished memorandum at 2-

5). The complex procedural history of this case is as follows. Prior to trial,

Codner filed a motion to suppress the narcotics evidence recovered during

the incident.     The trial court denied the suppression motion following a

hearing. Thereafter, on June 16, 2011, a jury convicted Codner of PWID and

possession of marijuana. On June 29, 2011, the trial court sentenced him to

a term of three to five years’ incarceration for the charge of PWID, 2 and

found the possession charge merged for sentencing purposes. Codner filed

a direct appeal contending the testimony of two Commonwealth witnesses


____________________________________________


2
 The court imposed a mandatory minimum three-year sentence pursuant to
18 Pa.C.S. § 7508, because Codner possessed, with the intent to distribute,
25 pounds of marijuana. See 18 Pa.C.S. § 7508(a)(1)(ii) (mandatory three
year sentence when the amount of marijuana involved is at least 10 pounds
but less than 50 pounds).

       We recognize that Section 7508 has been found to be constitutionally
invalid under Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013). See
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc);
Commonwealth v. Vargas, ___ A.3d ___, 2014 PA Super. 289 (filed
December 31, 2014) (en banc) (applying Newman to Section 7508).
However, to date, “neither our Supreme Court, nor the United States
Supreme Court has held that Alleyne is to be applied retroactively to cases
in which the judgment of sentence had become final.” Commonwealth v.
Miller, 102 A.3d 988, 995 (Pa. Super. 2014).




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warranted a mistrial.        This Court affirmed the judgment of sentence on

March 19, 2012. See Codner, supra.

       On May 17, 2012, Codner filed a timely, pro se PCRA petition, and on

May 21, 2012, J. Allen Daringer, Esq., was appointed as PCRA counsel.

However, on January 3, 2013, Codner filed a motion requesting to proceed

pro se.      Thereafter, on March 14, 2013, the PCRA court conducted a

“counsel status hearing” via videoconference.3 After the hearing, on March

26, 2013, the PCRA court entered the following order:

             AND NOW, this 26th Day of March, 2013, after hearing
       held by video conference, [Codner’s] request to proceed pro se
       in pursuing relief under the Post-Conviciton Relief Act (PCRA) is
       hereby GRANTED. Attorney J. Allen Daringer’s appearance is
       withdraw (sic) as appointed counsel in this matter.

             Further, [Codner] is ORDERED to file an Amended Petition
       that properly sets forth all relevant claims for relief under the
       PCRA, 42 Pa.C.S.A. § 9541 et. seq., no later than April 30,
       2013.

Order, 3/26/2013.         Thereafter, Codner filed an amended pro se PCRA

petition on April 3, 2013.4
____________________________________________


3
   Upon our request, the PCRA court informed us that there exists no
transcript from the videoconference. The court did not explain whether the
court reporter’s notes have simply not been transcribed, or whether there
was no court reporter present.
4
  Although Codner designated the document a “Writ of Error Coram Nobis,”
the PCRA court properly considered the filing to be an amended PCRA
petition. See Writ of Error Coram Nobis, 4/3/2013. The writ of coram nobis
“provides a way to collaterally attack a criminal conviction for a person ...
who is no longer ‘in custody’ and therefore cannot seek habeas relief....”
Commonwealth v. Descardes, 101 A.3d 105, 109 (2014) (en banc),
(Footnote Continued Next Page)


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      On March 5, 2014, the PCRA court provided Codner with notice,

pursuant to Pa.R.Crim.P. 907, of its intent to dismiss the petition without

conducting an evidentiary hearing.               Codner filed a timely response to the

court’s Rule 907 notice, and, on March 24, 2014, the PCRA court entered an

order dismissing Codner’s petition.

      Thereafter, on April 7, 2014, Codner filed a “Request for Transcripts”

and a “Certification of Service.”          The record does not include a notice of

appeal from the PCRA court’s March 24, 2014, order, nor does the lower

court docket reflect that Codner filed a notice of appeal. On July 3, 2014,

Codner filed in this Court an application for relief, asserting that his notice of

appeal, purportedly filed in the lower court on April 7, 2014, was not

docketed, and requesting that the appeal be docketed so he could proceed.

In response, this Court directed the PCRA court, within 10 days of the order,

to “forward [Codner’s] notice of appeal to the Prothonotary of this Court or

notify this Court that the notice of appeal was not filed as [Codner] claims.”

Order, 7/2/2014 (62 MDM 2014). On July 15, 2014, the PCRA court entered

an order stating that it had reviewed all “docket filings” and found “no record

                       _______________________
(Footnote Continued)

quoting Chaidez v. United States, 133 S.Ct. 1103, 1106 n.1 (U.S. 2013).
Here, Codner lists his address on his pro se brief as the York County Prison.
Accordingly, his only avenue for relief is through the PCRA.              See
Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001)
(“[T]he PCRA is the exclusive vehicle for obtaining post-conviction collateral
relief.”).




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of the alleged filing of a Notice of Appeal in this matter.” Order, 7/15/2014.

Accordingly, this Court entered an order on July 18, 2014, denying Codner’s

application for relief “to the extent that he has no notice of appeal docketed

in this Court,” but permitting him to seek “appropriate relief with the Berks

County Court of Common Pleas.” Order, 7/18/2014.

       Thereafter, on July 23, 2014, Codner filed a “Notice of Appeal Nunc Pro

Tunc” in the PCRA court.           The PCRA court considered Codner’s filing a

request to appeal nunc pro tunc, and in response, entered an order on July

28, 2014, stating (1) Codner’s PCRA petition was dismissed on March 24,

2014, (2) Codner failed to file a notice of appeal within 30 days of that

order, and (3) Codner’s present request for an appeal is untimely.           See

Order, 7/28/2014. Codner’s July 23, 2014, notice of appeal nunc pro tunc

was docketed in this Court at 1247 MDA 2014.

       Thereafter, on August 8, 2014, Codner filed a notice of appeal from

the PCRA court’s July 28, 2014, order.           That appeal was docketed in this

Court at 1350 MDA 2014.5

       On August 19, 2014, at Docket No. 1247 EDA 2014, this Court issued

Codner a Rule to Show Cause why his appeal filed on July 23, 2014, should

not be quashed as untimely.           Codner filed a timely response arguing this
____________________________________________


5
  On August 18, 2014, the PCRA court directed Codner to file a concise
statement or errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Codner complied with the court’s directive, and filed a concise statement on
August 27, 2014.



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Court should take judicial notice of the fact that he had filed a timely notice

of appeal on April 7, 2014.    This Court then discharged the Show Cause

Order, referred the matter to the panel for disposition, and directed the

appeal be listed consecutively with Codner’s appeal at Docket No. 1350 MDA

2014. Subsequently, on December 4, 2014, the appeal at Docket No. 1247

MDA 2014, was dismissed when Codner failed to file a brief. Therefore, the

only appeal before us is the appeal, docketed at No. 1350 MDA 2014, from

the PCRA court’s order denying Codner’s request to appeal nunc pro tunc.

      Before we may address Codner’s substantive claims on appeal, we

must determine whether the appeal is properly before us. Upon review of

the record, the parties’ briefs, and the relevant statutory and caselaw, we

conclude Codner had no authority to seek nunc pro tunc relief from the PCRA

court outside the construct of the PCRA. Accordingly, the PCRA court should

have considered Codner’s request a second PCRA petition, and dismissed it

as untimely filed.

      This Court’s decision in Commonwealth v. Fairiror, 809 A.2d 396,

(Pa. Super. 2002), appeal denied, 827 A.2d 429 (Pa. 2003), is instructive.

In Fairiror, the appellant filed a timely pro se PCRA petition. Counsel was

appointed, but later withdrew when the appellant retained private counsel.

Private counsel was granted two extensions of time to file an amended

petition, but failed to do so. Subsequently, the PCRA court issued an order,

dismissing appellant’s petition. No appeal was filed within 30 days. Rather,



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six months later, private counsel filed an amended PCRA petition, and six

months after   that, counsel filed a     petition in   the   PCRA court for

reinstatement of the appellant’s PCRA rights nunc pro tunc. The PCRA court

granted the petition. Id. at 396-397.

     However, a panel of this Court concluded that PCRA court had no

jurisdiction to consider the appellant’s request for nunc pro tunc relief.

Rather, the panel held:

            Appellant’s … petition for reinstatement of PCRA appellate
     rights    nunc pro tunc must be considered a second (and
     untimely) PCRA petition. In Commonwealth v. Lantzy, 558
     Pa. 214, 736 A.2d 564, 572 (1999), our Supreme Court held
     that a petitioner has no right to a nunc pro tunc appeal outside
     the PCRA to restore direct appeal rights lost due to
     ineffectiveness of counsel. More recently, our Supreme Court
     held that the PCRA provides the sole means for restoration of
     direct appeal rights. Commonwealth v. Hall, 565 Pa. 92, 771
     A.2d 1232, 1235 (2001) (“by its own language, and by judicial
     decisions interpreting such language, the PCRA provides the sole
     means for obtaining state collateral relief”).

            Although Hall and Lantzy dealt with the restoration of
     direct appeal rights, these cases teach that all requests for
     reinstatement of appellate rights, including PCRA
     appellate rights, must meet the timeliness requirements
     of the PCRA.       We recognize that this Court, on several
     occasions, has held to the contrary.     In Commonwealth v.
     Ross, 763 A.2d 853, 856-857 (Pa.Super.2000), this Court
     reasoned that reinstatement of PCRA appellate rights nunc pro
     tunc was a viable remedy outside the strictures of the PCRA for
     petitions pre-dating our Supreme Court’s decision in Lantzy.
     Id., citing, Commonwealth v. Garcia, 749 A.2d 928, 931
     (Pa.Super.2000) (en banc), and Commonwealth v. Hitchcock,
     749 A.2d 935 (Pa.Super.2000) (en banc).                 Ross is
     distinguishable because Appellant’s nunc pro tunc petition in the
     instant case post-dated Lantzy. Moreover, in Commonwealth
     v. Rivera, 802 A.2d 629, 2002 PA Super 193, ¶¶ 14-15, this


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          Court held that Hall effectively overruled Garcia and Hitchcock
          by applying Lantzy retroactively.

Id. at 397-398.

          Accordingly, because the Fairiror Court determined (1) the second

PCRA petition (styled as a petition for nunc pro tunc relief) was untimely

filed, and (2) the appellant failed to plead or prove one of the time-for-filing

exceptions, the PCRA court had no jurisdiction to grant reinstatement of the

appellant’s PCRA appellate rights. Therefore, this Court affirmed the order

denying PCRA relief.

          The case at issue presents a similar factual scenario. When the PCRA

court determined Codner had not filed a timely notice of appeal from the

March 28, 2014, order dismissing his PCRA petition, Codner’s only avenue

for relief was to file a second PCRA petition, seeking reinstatement of his

PCRA appellate rights. Accordingly, the PCRA court should have considered

Codner’s July 23, 2014, notice of appeal nunc pro tunc as a petition for PCRA

relief.

          However, even if the court had properly considered Codner’s filing to

be a PCRA petition, Codner would, nevertheless, be entitled to no relief,

since the petition was untimely filed.

          The PCRA mandates that any petition for relief, “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final[.]” 42 Pa.C.S. §9545(b)(1).

          The PCRA’s timeliness requirements are jurisdictional; therefore,
          a court may not address the merits of the issues raised if the

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       petition was not timely filed. The timeliness requirements apply
       to all PCRA petitions, regardless of the nature of the individual
       claims raised therein.

Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (internal citations

omitted).

       Codner’s judgment of sentence became final on April 18, 2012, thirty

days after this Court affirmed the judgment of sentence on direct appeal,

and Codner failed to petition the Pennsylvania Supreme Court for allowance

of appeal. See 42 Pa.C.S. § 9545(b)(3). Accordingly, Codner had until April

18, 2013, to file a timely PCRA petition.        The present petition, filed 15

months later on July 23, 2014, was patently untimely.        Moreover, Codner

failed to plead or prove one of the time-for-filing exceptions set forth in

Section 9545(b)(1).        Accordingly, we conclude the PCRA court properly

denied Codner relief.6 See Commonwealth v. Reed, 107 A.3d 137, 144

(Pa. Super. 2014) (“[W]e may affirm the PCRA court's order on any basis.”).


____________________________________________


6
  We would be remiss if we did not comment on Codner’s pro se status.
While the record reflects Codner filed a motion to proceed pro se on January
3, 2013, and the trial court, following a “counsel status hearing,” granted
Codner’s request on March 26, 2013, there is no indication, in either the
court’s order or the record, that the PCRA court conducted a full waiver-of-
counsel hearing in accordance with Commonwealth v. Grazier, 713 A.2d
81 (Pa. 1998). See Commonwealth v. Stossel, 17 A.3d 1286 (Pa. Super.
2011) (holding appellate court is required to consider, sua sponte, whether
indigent first-time PCRA petitioner failed to properly waive his right to
counsel). Moreover, as noted in footnote 3, there is no transcript from the
March 14, 2013, “counsel status hearing” so we are unable to determine
whether the hearing complied with the dictates of Grazier. Nevertheless,
because of the procedural posture of this appeal, we have no jurisdiction to
(Footnote Continued Next Page)


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      Order affirmed.         All outstanding pro se applications for relief are

hereby DENIED.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2015




                       _______________________
(Footnote Continued)

take any action to determine whether Codner voluntarily waived his right to
PCRA counsel.



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