J-S52020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JOEL GANT,

                            Appellant                    No. 2027 WDA 2014


                 Appeal from the PCRA Order August 27, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0003593-2011
                            CP-02-CR-0004540-2009
                            CP-02-CR-0016675-2009


BEFORE: SHOGAN, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                            FILED NOVEMBER 16, 2015

       Appellant, Joel Gant, appeals pro se from the order entered on August

27, 2014, dismissing his petition filed under the Post-Conviction Relief Act

(PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm.

       On May 24, 2011, Appellant entered a negotiated guilty plea at docket

numbers that included CP-02-CR-0003593-2011, CP-02-CR-0004540-2009,

and CP-02-CR-0016675-2009.1              Appellant pleaded guilty to a variety of

crimes, including multiple charges of possession of a controlled substance

with the intent to deliver. See 35 P.S. § 780-113(a)(30). During the guilty


____________________________________________


1
  On May 24, 2011, Appellant also pleaded guilty to the charges filed at
docket numbers CP-02-CR-0017482-2009 and CP-02-CR-0002251-2010.
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plea hearing, the trial court explained the contours of the negotiated plea to

Appellant:

        [Trial Court:] If you plead generally on all five of these
        cases, sentencing will be deferred to determine whether or
        not you’re accepted into state [intermediate punishment
        (hereinafter “state IP”)]. I cannot promise you that you’ll
        be accepted. You understand that?

        [Appellant:] Yes, ma’am.

        [Trial Court:] You understand that if you’re not accepted
        into state IP, that is not a basis to withdraw your plea on
        any of these cases. You understand that?

        [Appellant:] Yes, ma’am.

        [Trial Court:] You understand that if you’re not accepted,
        then the alternate sentence would be three to six years[’]
        incarceration total with a recommendation for boot camp.
        And again a recommendation is just that. It’s not a promise
        that you’ll be permitted to serve any part of your sentence
        in the boot camp program. Do you understand that?

        [Appellant:] Yes, ma’am.

N.T. Guilty Plea, 5/24/11, at 4-5.

      On October 6, 2011, the trial court sentenced Appellant to serve an

aggregate term of “two years of state IP[,] with a consecutive five-year

period of probation.” N.T. Sentencing, 10/6/11, at 8. Appellant did not file

a direct appeal from this judgment of sentence.

      On June 12, 2013, Appellant appeared before the trial court for

resentencing   on   docket   numbers   CP-02-CR-0003593-2011,      CP-02-CR-

0004540-2009, and CP-02-CR-0016675-2009. As the trial court explained

during the resentencing hearing:

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         This court was notified by letter dated May 15, 2013 that
         [Appellant] had been expelled from state IP, because while
         serving his state IP sentence he was arrested on new
         possession with intent to deliver and driving under
         suspension charges.

         Those charges are currently pending formal arraignment;
         were held for trial.

         Consequently, . . . today we will be resentencing [Appellant]
         on [three] earlier sentences, those three being possession
         with intent to deliver, where I gave him concurrent [state
         IP] sentence[s].

N.T. Resentencing, 6/12/13, at 2.

       That day, the trial court revoked Appellant’s intermediate punishment

at the three affected docket numbers and resentenced Appellant to serve an

aggregate term of three years (plus one day) to six years (plus two days) in

prison, with a consecutive term of four years (less two days) of probation.

Id. at 11-13.2
____________________________________________


2
 In Commonwealth v. Philipp, 709 A.2d 920, 921 (Pa. Super. 1998), we
explained:

         An intermediate punishment sentence imposed pursuant to
         42 Pa.C.S.A. § 9763, Sentence of Intermediate Punishment,
         may be revoked where the specific conditions of the
         sentence have been violated.          “Upon revocation, the
         sentencing alternatives available to the court shall be the
         same as the alternatives available at the time of initial
         sentencing.”       42 Pa.C.S.A. § 9773, Modification or
         revocation of intermediate punishment sentence, (b)
         Revocation. This rule of re-sentencing is analogous to that
         set forth for re-sentencing following revocation of probation.
         “Upon revocation of probation a sentencing court possesses
         the same sentencing alternatives that it had at the time of
(Footnote Continued Next Page)


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      A little less than one year later – on May 6, 2014 – Appellant filed a

pro se petition entitled, “Motion to Reinstate Rights for PCRA.” The petition

claimed:

         [Appellant] respectfully ask[s] [the PCRA court] to reinstate
         [his] rights based on the following[:]

         1. [Appellant] was not of understanding he was giving up
         his right to appeal.

         2. [Appellant] was instructed to [plead] guilty by his
         attorney, instead of going to trial to prove his innocence.
         [Appellant] needs his appeal rights to pursue justice.

         3. A defendant deserves a right to justice no matter how
         naïve or ignorant to the law he or she is.

         4. In the event the motion is accepted[, Appellant] is
         requesting a [90] day extension from the date [Appellant]
         received the acceptance. . . .

Appellant’s “Motion to Reinstate Rights for PCRA,” 5/6/14, at 1.

      On May 8, 2014, the PCRA court entered an order, which: appointed

counsel to represent Appellant; stated that the PCRA petition had been


                       _______________________
(Footnote Continued)

         initial sentencing.” Commonwealth v. Byrd, 663 A.2d
         229, 231 (Pa. Super. 1995), citing 42 Pa.C.S.A. § 9771,
         Modification or revocation of order of probation, (b)
         Revocation. Moreover, revocation of probation occurs, as
         does revocation of an intermediate punishment sentence,
         where it has been found the defendant has violated the
         terms of his sentence. Similar provisions exist for the
         revocation of parole and accelerated rehabilitative
         disposition.

Philipp, 709 A.2d at 921.



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served upon Appellant’s counsel; and, declared that Appellant’s PCRA

petition was “returned to [Appellant] for amendment[] as necessary, such

amendment[] to be made on or before June 23, 2014[,] or court-appointed

counsel to advise that no amendment is necessary.”        PCRA Court Order,

5/8/14, at 1.

      Following the appointment of counsel, Appellant filed two additional

pro se petitions. First, on May 13, 2014, Appellant filed a pro se “Motion for

Time Credit and Corrected Commitment,” wherein Appellant claimed that the

trial court erred when it credited him with 881 days of time served at only

one of the three docket numbers. As Appellant contended, he was entitled

to “881 days [of time served] . . . on all [three] cases.” Appellant’s “Motion

for Time Served,” 5/13/14, at 2. Second, on May 22, 2014, Appellant filed a

pro se PCRA petition, declaring: “[t]he only reason [Appellant] accepted the

[original] plea was because [sic] the counsel’s ineffective assistance.   The

counsel told [Appellant] he has more then [sic] one mandatory case. The

counsel misapplied the guidelines which I believe is a violation of the

constitutional or amendment rights and some sentences received by

[Appellant] are greater then [sic] lawful max ([Appellant] may amend in

court if necessary).” Appellant’s Amended PCRA Petition, 5/22/14, at 8.

      On July 14, 2014, Appellant’s counsel filed a “no merit” letter and a

petition to withdraw as counsel, pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.




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Super. 1988) (en banc).           The PCRA court granted counsel’s request to

withdraw by order entered July 16, 2014.

        On August 7, 2014, the PCRA court provided Appellant with notice that

it intended to dismiss Appellant’s PCRA petition in 20 days, without holding a

hearing.     PCRA Court Order, 8/7/14, at 1; see also Pa.R.Crim.P. 907(1).

The PCRA court finally dismissed Appellant’s PCRA petition on August 27,

2014.

        Appellant   filed   a    timely   notice   of   appeal   to   this   Court   and

independently filed a concise statement of errors complained of on appeal,

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).                 Appellant

listed the following claim in his Rule 1925(b) statement:

           [Appellant] raises the claim there was an error made in his
           sentencing on June 12, 2013. In June 2013 [Appellant] was
           sentenced to three concurrent terms of [three] years plus
           [one] day to [six] years plus [two] days with 881 days[’]
           time credit. [Appellant] was arrested and detained on all
           case numbers as of January 13[,] 2011.           [Appellant]
           accepted a guilty plea for all case numbers on the same day
           [in front] of one judge. The error being complained of is
           881 days went to only one case [number,] and not all three,
           which the judge specified it would go to all three.
           [Appellant] was incarcerated at the same time for the same
           amount of days for all [case] numbers. . . . [Appellant] is
           asking the judge to correct his sentence and specify that his
           controlling minimum should be January 2014.

Appellant’s Rule 1925(b) Statement, 1/23/15, at 1-2.[3]

____________________________________________


3
    Within the PCRA court’s opinion, the PCRA court noted:

(Footnote Continued Next Page)


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      Now on appeal, Appellant claims that his plea counsel was

ineffective during Appellant’s May 24, 2011 guilty plea hearing.

According to Appellant:

         [Appellant] avers that on May 24[,] 2011[, trial counsel]
         miscarried justice, misapplied the guidelines, coerced, and
         did not provide [Appellant] with equal protection of the law.

Appellant’s Brief at 1.

      This Court does not have jurisdiction to decide Appellant’s claim.

      The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.         This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b).             Further,

                       _______________________
(Footnote Continued)

         Appellant contends that [the trial court] erred in failing to
         award [] time credit.     Upon review of the issue . . .
         Appellant correctly states [that the trial] court’s intention
         was to award him a time credit at each petition. Therefore,
         [the PCRA] court has corrected the scrivener’s error by
         amending the June 12, 2013 resentencing order to reflect
         the proper time credit and has attached copies of the
         amended orders to this opinion. As the time credit issue
         was the only error alleged, Appellant’s appeal is now moot.

PCRA Court Opinion, 3/16/15, at 3 (some internal capitalization omitted).




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since the time-bar implicates the subject matter jurisdiction of our courts,

we are required to first determine the timeliness of a petition before we are

able to consider any of the underlying claims. Commonwealth v. Yarris,

731 A.2d 581, 586 (Pa. 1999). Our Supreme Court has explained:

        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions.               See, e.g.,
        Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
        (stating that “given the fact that the PCRA's timeliness
        requirements are mandatory and jurisdictional in nature, no
        court may properly disregard or alter them in order to reach
        the merits of the claims raised in a PCRA petition that is
        filed in an untimely manner”); Commonwealth v. Fahy,
        737 A.2d 214, 220 (Pa. 1999) (holding that where a
        petitioner fails to satisfy the PCRA time requirements, this
        Court has no jurisdiction to entertain the petition). [The
        Pennsylvania Supreme Court has] also held that even where
        the PCRA court does not address the applicability of the
        PCRA timing mandate, th[e court would] consider the issue
        sua sponte, as it is a threshold question implicating our
        subject matter jurisdiction and ability to grant the requested
        relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).

     On appeal, Appellant claims that counsel was ineffective during

Appellant’s original, May 24, 2011 guilty plea hearing.             However,

Appellant did not file a direct appeal from his October 6, 2011 judgment of

sentence. Thus, Appellant’s original judgment of sentence became final on

Monday, November 7, 2011 – which was 31 computable days after the time

for filing a notice of appeal to this Court expired. See Pa.R.A.P. 903(a); 42




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Pa.C.S.A.    § 9545(b)(3);      1   Pa.C.S.A.    § 1908   (computation   of   time).

Appellant then had until November 7, 2011 to file a timely PCRA petition. 4

42 Pa.C.S.A. § 9545(b).        As Appellant did not file his current petition until

May 6, 2014, the current petition is manifestly untimely and the burden thus

fell upon Appellant to plead and prove that one of the enumerated

exceptions to the one-year time-bar applied to his case. See 42 Pa.C.S.A. §

9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super.

2008) (to properly invoke a statutory exception to the one-year time-bar,

the PCRA demands that the petitioner properly plead all required elements of

the relied-upon exception).

       Here, Appellant did not attempt to plead a valid statutory exception to

the PCRA’s one-year time-bar.            Thus, since Appellant’s PCRA petition is

manifestly untimely and Appellant did not plead any of the statutory

exceptions to the one-year time-bar, our “courts are without jurisdiction to

offer [Appellant] any form of relief.” Commonwealth v. Jackson, 30 A.3d

516, 523 (Pa. Super. 2011). We, therefore, affirm the PCRA court’s August

27, 2014 order, dismissing Appellant’s PCRA petition without a hearing.

____________________________________________


4
  The trial court’s actions on June 12, 2013 – wherein the trial court revoked
Appellant’s intermediate punishment and resentenced Appellant – did not
extend the time for Appellant to file a PCRA petition challenging his counsel’s
effectiveness during the May 24, 2011 guilty plea hearing. See, e.g.,
Commonwealth v. Anderson, 788 A.2d 1019, 1021 (Pa. Super. 2001)
(“[p]robation revocation does not materially alter the underlying conviction
such that the period available for collateral review must be restarted”).



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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2015




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