J-S48042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

RONNY J. WESTERFIELD

                         Appellant                  No. 497 WDA 2015


              Appeal from the PCRA Order of February 20, 2015
               In the Court of Common Pleas of Fayette County
              Criminal Division at No.: CP-26-CR-0001990-2007


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                      FILED SEPTEMBER 18, 2015

     Ronny Westerfield appeals the February 20, 2015 order that denied

Westerfield’s motion to correct an illegal sentence.       For the reasons

contained herein, we construe Westerfield’s motion as a petition for relief

pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46,

and we deem it untimely pursuant to the strict time constraints set forth in

the PCRA. Consequently, no court has jurisdiction to afford Westerfield any

form of relief, including claims implicating the legality of a particular

sentence. We affirm.

     In May 2008, following a jury trial, Westerfield was convicted of, inter

alia, involuntary deviate sexual intercourse (“IDSI”) with a person less than

sixteen years of age. See 18 Pa.C.S. § 3123(a)(7). In an early opinion in
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this case, the trial court summarized the facts set forth at trial in support of

Westerfield’s convictions as follows:

      In August of 2006, [the victim] engaged in a conversation with
      her aunt, [C.C. (“the Aunt”)]. At that time, [the victim] was a
      child of nine, having been born [in 1997]. In that conversation,
      [the victim] told [the Aunt] that her father, [Westerfield], had
      been touching her with his fingers, and that he licked her on her
      private part.

      The following year, on June 17, 2007, [the Aunt] had another
      conversation with [the victim], in which [the victim] told her that
      [Westerfield] had been touching her again. [The victim] related
      to [the Aunt] that [Westerfield] used his fingers to fondle her,
      and to touch her private parts, and made her perform oral sex
      on him. Additionally, he licked her private part and tried to put
      his private part inside her but it hurt too much.

      [The victim], a child now eleven years of age . . . testified that
      [in] 2005, when her mother passed away, she [began] living
      with [Westerfield].     Some time prior to July 4, 2006,
      [Westerfield] asked her to come to his room, where he
      “separated” her clothes and put his tongue, and then his finger,
      in her “private part.”

      Several months later, after they had moved to another
      residence, [Westerfield] was again licking [the victim’s] private
      part and put his penis in her mouth. [Westerfield] also tried to
      put his “private part” in [the victim’s] “butt” as well as her front
      private part. Full penetration did not occur because the penis of
      [Westerfield] was too big.

      [The victim] was next sexually assaulted by [Westerfield] on July
      4, 2006. On that evening, [Westerfield] tried to put his penis in
      both her anus and her vagina. He then had the child suck on his
      penis and he licked her private part. During this assault on [the
      victim], there was an emission by [Westerfield].

      The following year, on Father’s Day, [Westerfield] once more
      preyed upon his daughter, trying to put his penis in her vagina
      as well as her anus. Again he penetrated her vagina with his
      finger, and again he licked her vaginal area.




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Trial Court Opinion, 12/23/2008, at 2-4 (citations to the notes of testimony

omitted).

         On November 4, 2008, the trial court sentenced Westerfield to an

aggregate term of sixteen to thirty-two years’ incarceration on the IDSI and

related charges.       On June 16, 2009, a panel of this Court affirmed the

judgment of sentence.        See Commonwealth v. Westerfield, No. 1989

WDA 2008, slip op. at 1, 5 (Pa. Super. June 17, 2009). Westerfield filed a

petition for allowance of appeal with the Pennsylvania Supreme Court, which

the Court subsequently denied.

         On September 20, 2010, Westerfield filed a pro se PCRA petition.

Following the appointment of counsel, the PCRA court dismissed the petition

without an evidentiary hearing. On March 9, 2012, this Court affirmed the

denial     in   an   unpublished   memorandum.    See   Commonwealth       v.

Westerfield, No. 987 WDA 2011, slip op. at 1, 6 (Pa. Super. March 9,

2012).      Westerfield did not petition the Pennsylvania Supreme Court for

further review.

         On November 7, 2012, Westerfield file a second pro se PCRA petition.

Once again, the PCRA court dismissed the petition without an evidentiary

hearing.        On March 3, 2015, this Court affirmed the dismissal.     See

Commonwealth v. Westerfield, No. 1719 WDA 2014, slip op. at 1, 8 (Pa.

Super. March 5, 2015).

         On August 4, 2014, while the appeal was pending on Westerfield’s

second PCRA petition, Westerfield filed a “Pro Se Motion to Correct Illegal

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Sentence.” Therein, Westerfield alleged that the IDSI count was withdrawn

at the preliminary hearing, rendering his conviction and sentence on that

count illegal. Initially, the PCRA court took no action on the motion, which,

according to the PCRA court, was due to the fact that the motion was never

served upon that court. Westerfield filed a petition for a writ of mandamus

with the Pennsylvania Supreme Court, seeking to have the Court compel the

PCRA court to act upon the motion to correct the illegal sentence. Once the

PCRA court learned of the mandamus action, the court issued a rule to show

cause on the Commonwealth as to why the relief sought by Westerfield

should not be granted. The PCRA court subsequently set aside the rule to

show cause, and, on February 20, 2015, denied the motion on the merits.

       On March 25, 2015, Westerfield filed a notice of appeal.1    On March

31, 2015, the PCRA court issued an order directing Westerfield to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Westerfield timely complied. On April 21, 2015, the PCRA court

____________________________________________


1
       On May 18, 2015, this Court issued a rule to show cause on
Westerfield concerning the timeliness of the instant appeal. In his response
to the rule to show cause, Westerfield explained that he was appealing the
February 20, 2015 order, and that he deposited his notice of appeal with the
prison authorities within the thirty-day time period to do so. For this reason,
the prisoner mailbox rule applies, and the appeal is timely.               See
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (holding that an
appeal by a pro se prisoner is deemed to be filed on the date that the
prisoner deposits the appeal with prison authorities or places it in the prison
mailbox, even though the appeal is not received by the lower court until
after the deadline to file an appeal has lapsed).



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filed a statement in lieu of an opinion pursuant to Pa.R.A.P. 1925(a), in

which the court referred this Court to the rationale for denying the motion

that the court set forth in its February 20, 2015 order.

      Westerfield presents three questions for our consideration:

      I.     Whether or not the lower court lacked judicial authority
             over the withdrawn charge?

      II.    Whether or not the filing of a bill of information for the
             withdrawn charge violates [Westerfield’s] constitutional
             right to due process?

      III.   Whether or not the sentence imposed on the withdrawn
             charge is illegal?

Brief for Westerfield at 4.

      We first must determine whether the PCRA court had jurisdiction to

rule on Westerfield’s motion. As noted, Westerfield filed a motion to correct

what he contends is an illegal sentence.        Generally speaking, all post-

conviction petitions for collateral relief must be brought pursuant to the

dictates of the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.

Indeed, the PCRA is the sole means of collateral relief in Pennsylvania, so

long as the PCRA provides a potential remedy for the claim that is raised by

the litigant. See Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super.

2013); 42 Pa.C.S. § 9542 (The PCRA “shall be the sole means of obtaining

collateral relief and encompasses all other common law and statutory

remedies for the same purpose that exist when this subchapter takes effect,

including habeas corpus and coram nobis.”).



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      Notably, Westerfield’s challenge to the legality of his sentence is an

action cognizable under the PCRA.      42 Pa.C.S.A. § 9543(a)(2)(vii); see

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (determining that

claims challenging legality of sentence are reviewable within the PCRA);

Commonwealth v. Vega, 754 A.2d 714, 719 (Pa. Super. 2000) (finding

that, within the PCRA, legality of sentence claims are always reviewable). In

this circumstance, the PCRA provides a remedy for an illegal sentence. Id.

Thus, because the PCRA provides a remedy for such a claim, and because

the PCRA is the exclusive mechanism to pursue such relief, we must

construe Westerfield’s motion as a petition for relief under the PCRA. Having

so concluded, we next must determine whether the petition was timely filed.

      Our scope and standard of review are well-settled. A review of a PCRA

petition by an appellate court is confined by the restraints set forth in the

PCRA. Commonwealth v. Strong, 761 A.2d 1167, 1170 n.3 (Pa. 2000).

The “standard of review for an order denying post-conviction relief is limited

to whether the trial court’s determination is supported by evidence of record

and whether it is free of legal error.” Commonwealth v. Allen, 732 A.2d

582, 586 (Pa. 1999) (citing Commonwealth v. Jermyn, 709 A.2d 849, 856

(Pa. 1998)).

      In Commonwealth v. Jackson, we articulated the timeliness

standards under the PCRA as follows:

      The PCRA “provides for an action by which persons convicted of
      crimes they did not commit and persons serving illegal sentences
      may obtain collateral relief.” 42 Pa.C.S.A. § 9545. When an

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     action is cognizable under the PCRA, the PCRA is the “sole
     means of obtaining collateral relief and encompasses all other
     common law and statutory remedies for the same purpose[.]”
     42 Pa.C.S.A. § 9542.

     In order for a court to entertain a PCRA petition, a petitioner
     must comply with the PCRA filing deadline.                   See
     Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.
     2003). The time for filing a petition is set forth in 42 Pa.C.S.A
     § 9545(b), which provides in relevant part:

     (b)   Time for filing petition.—

     (1) Any petition under this subchapter, including a second or
     subsequent petition, shall be filed within one year of the date the
     judgment becomes final, unless the petition alleges and the
     petitioner proves that:

        (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).

     “[T]he time limitations pursuant to . . . the PCRA are
     jurisdictional.” Commonwealth v. Fahy, 737 A.2d 214, 222
     (Pa. 1999). “[Jurisdictional time] limitations are mandatory and
     interpreted literally; thus, a court has no authority to extend
     filing periods except as the statute permits.” Id. “If the petition
     is determined to be untimely, and no exception has been pled
     and proven, the petition must be dismissed without a hearing
     because Pennsylvania courts are without jurisdiction to consider


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        the merits of the petition.” Commonwealth v. Perrin, 947
        A.2d 1284, 1285 (Pa. Super. 2008).

Commonwealth v. Jackson, 30 A.3d 516, 518-19 (Pa. Super. 2011).

        As we noted in an earlier memorandum, Westerfield’s judgment of

sentence became final on or about May 26, 2010.         See Westerfield, No.

1719 WDA 2014, slip op. at 6. To be timely, any petition for relief had to be

filed on or before May 26, 2011. Westerfield filed his motion on August 4,

2014.    The motion patently was untimely.     Westerfield presently does not

contend that any of the exceptions to the PCRA’s time limits apply to his

otherwise untimely motion.

        For these reasons, no court in Pennsylvania has jurisdiction to rule

upon Westerfield’s motion.      This is true even though a challenge to the

legality of a sentence typically is an issue incapable of being waived.

However, waiver and jurisdiction are separate matters entirely.       Although

“not technically waivable, a legality [of sentence] claim may nevertheless be

lost should it be raised for the first time in an untimely PCRA petition for

which no time-bar exception applies, thus depriving the court of jurisdiction

over the claim.” Commonwealth v. Slotcavage, 939 A.2d 901, 903 (Pa.

Super. 2007) (citing Fahy, 737 A.2d at 223 (“Although legality of sentence

is always subject to review within the PCRA, claims must still first satisfy the

PCRA’s time limits or one of the exceptions thereto.”)).

        In sum, we construe Westerfield’s motion as a petition for relief under

the PCRA.      Because the motion was untimely filed, with no applicable



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exceptions, neither the PCRA court nor this Court have jurisdiction to afford

Westerfield relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2015




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