J-S68040-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                    Appellee               :
                                           :
                    v.                     :
                                           :
ERIC S. RUTH,                              :
                                           :
                     Appellant             :     No. 641 MDA 2017

                Appeal from the PCRA Order March 15, 2017
             in the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0002591-2010

BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED NOVEMBER 30, 2017

     Eric S. Ruth (Appellant) appeals from the order dismissing his petition

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

9546. We affirm.

     The PCRA court described the procedural history as follows.

            On November 12, 2009, the Office of Attorney General filed
     a criminal complaint charging [Appellant] with eight counts each
     of conflict of interest, theft by unlawful taking, theft of services,
     theft by deception, theft by failure to make required disposition of
     funds, and criminal conspiracy (to commit conflict of interest). On
     August 31, 2011, [Appellant] entered a plea of guilty to count 1
     (conflict of interest) and count 41 (criminal conspiracy/conflict of
     interest). On March 21, 2012, [Appellant] was sentenced to [60]
     months of probation, fines totaling $7,500, payment of the costs
     of prosecution, and restitution in the amount of $50,000. No
     direct appeal was filed.




* Retired Senior Judge assigned to the Superior Court.
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PCRA Court Opinion, 3/15/2017, at 1 (unnecessary capitalization and

footnotes omitted).

        Appellant, through counsel, filed the instant PCRA petition, his first, on

January 19, 2017. After receiving an answer from the Commonwealth, the

PCRA court conducted an evidentiary hearing and subsequently dismissed

Appellant’s petition as untimely filed on March 15, 2017. Shortly thereafter,

Appellant’s term of probation ended on March 21, 2017. PCRA Court Opinion,

6/15/2017, at 1. Appellant timely filed a notice of appeal.1

        Before we may consider the merits of Appellant’s issues, we must

determine whether his PCRA petition was timely filed, as the timeliness of a

post-conviction petition is jurisdictional.     Commonwealth v. Leggett, 16

A.3d 1144, 1145 (Pa. Super. 2011) (quoting Commonwealth v. Abu–

Jamal, 941 A.2d 1263, 1267–68 (Pa. 2008) (“[O]ur Supreme Court has

stressed that ‘[t]he PCRA's timeliness requirements are jurisdictional in nature

and must be strictly construed; courts may not address the merits of the

issues raised in a petition if it is not timely filed.’”)).

        Generally, a petition for relief under the PCRA must be filed within one

year of the date the judgment of sentence is final unless the petition alleges,

and the petitioner proves, that an exception to the time for filing the petition

is met, and that the claim was raised within 60 days of the date on which it

became available. 42 Pa.C.S. § 9545(b) and (c).


1   Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
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      Appellant filed his petition almost five years after his judgment of

sentence became final. Thus, the petition is facially untimely, and the PCRA

court had no jurisdiction to entertain Appellant’s petition unless he pled and

offered proof of one or more of the three statutory exceptions to the time-bar.

42 Pa.C.S. § 9545(b)(1).

      Appellant averred his petition was filed timely because he filed it within

60 days of our Supreme Court’s decision in Commonwealth v. Veon, 150

A.3d 435 (Pa. 2016) (holding that restitution order directing payment to

Commonwealth agency as crime victim constituted illegal sentence). PCRA

Petition, 1/19/2017, at 2 n.1. Appellant claims he has satisfied the timeliness

exception set forth in 42 Pa.C.S. § 9545(b)(2).          Appellant’s Brief at 11.

Subsection 9545(b)(2), however, does not constitute an exception. It simply

requires petitions attempting to invoke the exceptions set forth in subsection

9545(b)(1) to “be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

      To the extent that Appellant is attempting to rely upon the newly-

recognized and retroactively-applicable constitutional right exception set forth

in   subsection   9545(b)(1)(iii),   his   attempt   fails.   See    42   Pa.C.S.

§ 9545(b)(1)(iii) (providing “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”). In Veon, our Supreme Court


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analyzed 18 Pa.C.S. § 1106 to determine whether the Pennsylvania

Department of Community and Economic Development could be a victim

eligible for restitution under that statute. Veon, 150 A.3d at 448-55. The

Court did not announce a new constitutional right in Veon, let alone a

constitutional right that is retroactively applicable.

      “Although illegal sentencing issues cannot be waived, they still must be

presented in a timely[-filed] PCRA petition.”2 Commonwealth v. Taylor, 65

A.3d 462, 465 (Pa. Super. 2013).         Thus, while Appellant argues that his

sentence is illegal pursuant to Veon, and illegality of sentence issues cannot

be waived, we do not have jurisdiction to consider the legality of his sentence.3

       In the alternative, Appellant argues that notwithstanding the lack of

jurisdiction under the PCRA, this Court may vacate his sentence of restitution

sua sponte based upon its inherent equitable power to correct an illegal

sentence pursuant to Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007),




2 Appellant claims that the PCRA court had jurisdiction to correct his illegal
sentence because this Court vacated the sentence for his co-defendant,
Perzel, based upon Veon. Appellant’s Brief at 9-10. However, unlike
Appellant, Appellant’s co-defendant timely filed his PCRA petition.

3Even if the PCRA court and this Court had jurisdiction to entertain Appellant’s
petition pursuant to the PCRA, he would still not be entitled to relief. To be
eligible for relief pursuant to the PCRA, inter alia, at the time relief is granted,
a petitioner must “currently [be] serving a sentence of imprisonment,
probation, or parole for the crime[.]” 42 Pa.C.S. § 9543(a)(1)(i);
Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997). As noted supra,
Appellant’s term of probation ended on March 21, 2017. Because Appellant is
not currently serving a sentence of imprisonment, probation, or parole, he is
not entitled to PCRA relief.
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or its power to modify restitution orders set forth in 18 Pa.C.S. § 1106(c)(3).

Appellant’s Brief at 15-18.

      In Holmes, our Supreme Court reaffirmed the very limited ability of

courts to correct patent sentencing errors outside of the PCRA process or the

modification period provided by 42 Pa.C.S. § 5505. However, this Court later

held that Holmes does “not establish an alternate remedy for collateral relief

that sidesteps the jurisdictional requirements of the PCRA.” Commonwealth

v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011). The PCRA “provides for an

action by which ... persons serving illegal sentences may obtain collateral

relief” and is the “sole means of obtaining collateral relief.” Id. (citing 42

Pa.C.S. § 9542). Because Appellant’s claim is cognizable under the PCRA and

his claim is time-barred, he cannot rely on Holmes for relief. Id. at 522.

      Turning to Appellant’s attempt to invoke subsection 1106(c)(3), that

subsection provides the following.

      The court may, at any time or upon the recommendation of the
      district attorney … alter or amend any order of restitution made
      pursuant to paragraph (2), provided, however, that the court
      states its reasons and conclusions as a matter of record for any
      change or amendment to any previous order.

18 Pa.C.S. § 1106(c)(3). This Court has interpreted subsection 1106(c)(3) as

creating an independent cause of action, which permits “a defendant to seek

a modification or amendment of the restitution order at any time directly from

the trial court.” Commonwealth v. Gentry, 101 A.3d 813, 816 (Pa. Super.

2014) (citing Commonwealth v. Stradley, 50 A.3d 769, 772 (Pa. Super.


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2012)). This Court will not grant relief pursuant to subsection 1106(c)(3) if

the issue has not been raised directly with the trial court.                See

Commonwealth v. Mitsdarfer, 837 A.2d 1203, 1204 (Pa. Super. 2003)

(declining to address Mitsdarfer’s request for modification of restitution

because he did not raise subsection 1106(c)(3) modification request with the

trial court and Superior Court is not a fact-finder; since statute afforded trial

court authority to amend or alter restitution order at any time, defendant was

not time-barred from filing an appropriate motion with the trial court).

      In the instant case, the record reveals that the first time Appellant

sought relief pursuant to subsection 1106(c)(3) was in his brief. Therefore,

subsection 1106(c)(3) cannot provide the relief Appellant currently seeks on

appeal. Id.

      Based on the foregoing, the PCRA court properly dismissed Appellant’s

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/30/2017




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