J-S58041-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                      1     IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

RONALD J. KENT

                            Appellant                        No. 236 MDA 2016


               Appeal from the Order Dated November 24, 2015
               In the Court of Common Pleas of Luzerne County
                   Criminal Division at No(s): 2194 of 1995;
                        CP- 40 -CR- 2194 -1995; FP -0107


BEFORE:     GANTMAN, P.J., BOWES, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                            FILED NOVEMBER 08, 2016

        Appellant, Ronald    J.   Kent, appeals from the order entered in the

Luzerne    County Court of Common              Pleas,   dismissing   his   "Motion for

Clarification Order of Sentence & Credit of Time Issued Upon the Department

of Corrections as Certified" and "Motion to Enter Self as Pro -Se Request for

Grazier by Video Conference       is   Needed." We affirm.

        The relevant facts and procedural history are as follows. On December

5, 1995, Appellant pled     guilty to four counts of robbery, one count of theft,

and one count of receiving stolen         property.' At the sentencing hearing on

January 31, 1996, the court sentenced Appellant on one count of robbery to


'   18 Pa.C.S.A. §§   3701(a)(1)(i); 3921(a); 3925(a), respectively.



*Retired Senior Judge assigned to the Superior Court.
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twenty -nine (29) to sixty (60) months less one (1) day of incarceration, plus

ten (10) years' probation. Appellant served four years, eleven months, and

29 days of his prison sentence before he was paroled.

        On June 24, 2002, the        trial court revoked Appellant's probation.     At

that time, the court reinstated Appellant's probationary sentence, and

resentenced Appellant to six (6) to twelve (12) months' imprisonment on the

receiving stolen property conviction.        Following Appellant's release, the trial

court again determined Appellant had violated the terms of his probation,

and    revoked Appellant's probation on October 16,             2003.      The   court

resentenced Appellant on his robbery conviction to seven (7) to fifteen (15)

years' incarceration. The court applied to Appellant's sentence credit time of

four years, eleven months, and 29 days from his previous incarceration, as

well as 83 days of credit from his incarceration before his revocation

hearing.

        Appellant timely filed   a   motion for modification of sentence on October

24, 2003, which the court denied on October 29, 2003.              After Appellant's

appellate rights were reinstated nunc pro tunc, Appellant filed      a   timely notice

of appeal on December 9, 2003. On August 2, 2004, our Court affirmed the

trial court's decision. See Commonwealth v. Kent, No. 1960 MDA 2003,

unpublished memorandum (Pa.Super. filed August 2, 2004). Appellant filed

a   timely pro se petition under the Post -Conviction Relief Act ( "PCRA "), at 42

Pa.C.S.A. §§ 9541 -9546, on March 14, 2005, which the PCRA court denied


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on    June   30, 2005.           Our Court affirmed       on    April 27, 2006.       See

Commonwealth v. Kent,              No. 1301 MDA 2005, unpublished memorandum

(Pa.Super. filed April 27, 2006).

       On January 25, 2013, Appellant filed another pro se PCRA petition.

The PCRA court held          a   hearing on Appellant's petition and subsequently

denied Appellant PCRA relief on June 17, 2013.                  Appellant timely filed   a


notice of appeal on July 15, 2013, and our Court affirmed on June 25, 2014.

See    Commonwealth v. Kent,                No.   1338         MDA   2013,   unpublished

memorandum (Pa.Super. filed May 7, 2014).

       Appellant subsequently filed an additional pro se PCRA petition, styled

as a "Motion for Clarification of Sentence and Credit of              Time." The     PCRA

court held   a   hearing on the motion on December 9, 2014, at which time

Appellant argued he was entitled to more credit time toward his sentence.

The court issued an order on February 12, 2015, setting out Appellant's

applicable credit time. Appellant timely filed        a   notice of appeal, under the

Prisoner Mailbox    Rule,2   on February 28, 2015.        The court ordered Appellant

on March 31, 2015, to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).          Instead, Appellant filed      a   motion to

quash with our Court on April 9, 2015.            This Court interpreted Appellant's


2See Commonwealth v. Chambers, 35 A.3d 34 (Pa.Super. 2011), appeal
denied, 616 Pa. 625, 46 A.3d 715 (2012) (explaining prisoner mailbox rule
provides that pro se prisoners' documents are deemed filed on date they
deliver them to prison authorities for mailing).


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motion as   a   discontinuation of his appeal, which was granted on May 7,

2015. Appellant then filed        a   "notice of appeal and reconsideration" on May

8, 2015, which this Court treated as              a   reinstatement of his appeal and

granted it on May 22, 2015. Eventually, Appellant filed           a   motion on October

28, 2015, to withdraw that appeal, which was not granted until December

15, 2015.

       While that 2015 appeal was still pending in this Court, however,

Appellant filed   a   "Motion for Clarification Order of Sentence & Credit of Time

Issued Upon the Department of Corrections as Certified" and                a   "Motion to

Enter Self as Pro -Se Request for Grazier by Video Conference is Needed" on

November 20, 2015, with the PCRA court.                  On November 24, 2015, the

PCRA    court entered the order at issue, which denied and dismissed

Appellant's motions because the court lacked jurisdiction to address them.

Appellant filed       a   timely notice of appeal on December 23, 2015, to the

Commonwealth Court. The Commonwealth Court transferred the appeal to

this Court on February 9, 2016.

       Appellant raises two issues for our review:

          WHETHER THE COMMON PLEAS COURT, WHILE GRANTING
          [APPELLANT] CREDIT FOR TIME TOWARDS HIS SENTENCE,
          IN THE COURT[']S CALCULATION OF SAID CREDIT ALONG
          WITH THE CREDIT ALREADY GRANTED TO [APPELLANT] AT
          RESENTENCING, THE COURT DID NOT INCLUDE A PERIOD
          OF THAT TIME THAT WAS ALREADY GRANTED TO HIM
          DURING RESENTENCING;      NOW HAS THE     [COURT]
          JURISDICTION OVER SAID MATTER TO CORRECT ITS
          ERROR AND ORDER THE DEPARTMENT OF CORRECTIONS
          TO RE- CREDIT 67 DAYS TOWARDS HIS SENTENCE?

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          WHETHER THE      [TRIAL] COURT ERRED WHEN IT
          DETERMINED     THAT   THE  MATTER    HEREIN WAS
          PREVIOUSLY DETERMINED; WHEN THE ISSUE WAS NOT
          CREATED UNTIL AFTER THE CREDIT WAS CALCULATED IN
          THE INITIAL ORDER DATED FEBRUARY 12, 2015?

(Appellant's Brief at 3).

      Any petition for post- conviction collateral relief generally is considered

a PCRA    petition, regardless of how an appellant captions the petition, if the

petition raises issues for which the relief sought         is   the kind available under

the PCRA.     42 Pa.C.S.A.   §   9542 (stating PCRA        is sole   means of obtaining

collateral relief); Commonwealth v. Menezes, 871 A.2d 204 (Pa.Super.

2005) (explaining claim alleging failure to award credit for time served

involves legality of sentence and is cognizable under PCRA). Our standard of

review of the denial of     a PCRA   petition   is   limited to examining whether the

evidence of record supports the court's determination and whether its

decision is free of legal error.     Commonwealth v. Conway,               14 A.3d 101

(Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011).                   This

Court grants great deference to the findings of the PCRA court if the record

contains any support for those findings.              Commonwealth v. Boyd, 923
A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74

(2007).    The PCRA court findings will not be disturbed unless the certified

record provides no support for the findings.             Commonwealth v. Taylor,
933 A.2d 1035, 1040 (Pa.Super. 2007), appeal denied, 597 Pa. 715, 951

A.2d 1163 (2008).

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     The     timeliness of       a   PCRA    petition    is   a    jurisdictional requisite.

Commonwealth v. Robinson,                12 A.3d 477 (Pa.Super. 2011). A court may

not examine the merits of            a   petition for post- conviction relief that           is

untimely.     Commonwealth v. Abu-Jamal, 574                      Pa.   724, 735, 833 A.2d

719, 726 (2003), cert. denied, 541 U.S. 1048, 124 S.Ct. 2173, 158 L.Ed.2d

742 (2004). To be eligible for relief under the PCRA,              a    petitioner must plead

and prove,   inter a /ia, his allegations of error were not previously litigated or

waived.     42 Pa.C.S.A.   §   9543(a)(3).        A PCRA petition must be filed         within

one year of the date the underlying judgment becomes final. 42 Pa.C.S.A.                     §


9545(b)(1). A judgment          is deemed    final "at the conclusion of direct review,

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

review." 42 Pa.C.S.A.      §   9545(b)(3).

     The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of                a   petition

will be excused.    To invoke an exception, a petition must allege and the

petitioner must prove:

          (i) the failure to raise a 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


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           (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)(i)- (iii).          A   petitioner asserting   a     timeliness

exception must file     a    petition within sixty days of the date the claim could

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

        Instantly, Appellant's 2015 appeal was still pending when Appellant

filed his latest PCRA petition on November 20, 2015.                      Though Appellant

attempted to withdraw his pending appeal in                  a   motion filed on October 28,

2015, this Court did not grant the motion and permit him to withdraw his

appeal until December 15, 2015.              Notwithstanding Appellant's October           28th


motion to withdraw his appeal, the appeal remained pending at the time he

filed his PCRA petition on November 20, 2015.                    As a result, the PCRA court

lacked jurisdiction over Appellant's latest petition and properly dismissed it

on November 24, 2015.            See Commonwealth v. Lark, 560                 Pa.   487, 746

A.2d 585 (2000) (holding court has no jurisdiction to review subsequent

PCRA    petition that   is   filed while appeal from previous PCRA petition is still

pending). Accordingly, we         affirm.3


        Order affirmed.




3   Appellant's open motion to compel         is   denied.


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Judgment Entered.




J   seph D. Seletyn,
Prothonotary


Date: 11/8/2016




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