J-S56036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

COLLEEN HARTMAN,

                            Appellant                 No. 343 EDA 2017


                Appeal from the PCRA Order December 27, 2016
               in the Court of Common Pleas of Delaware County
               Criminal Division at No.: CP-23-CR-0008202-2014


BEFORE: BOWES, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 26, 2017

        Appellant, Colleen Hartman, appeals from the denial of her first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546, as untimely. Specifically, she contends that she is entitled to

relief because the United States Supreme Court decision in Birchfield v.

North Dakota, 136 S.Ct. 2160 (2016),1 rendered her sentence illegal. We

affirm.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  In Birchfield, the United States Supreme Court held that the Fourth
Amendment of the United States Constitution does not permit warrantless
blood tests incident to arrest for driving under the influence, and a state
may not criminalize a refusal to comply with a demand for blood testing.
See Birchfield, supra at 2185-86.
J-S56036-17



        We glean the relevant factual and procedural history in this matter

from the PCRA court’s March 21, 2017 opinion, and our review of the

certified record. On December 16, 2014, Appellant was arrested for driving

under the influence.2 The crime was graded as a misdemeanor of the first

degree because it was Appellant’s third offense and she refused blood

testing.3   On March 31, 2015, she entered into an open guilty plea before

the trial court.    The court sentenced Appellant to twenty-three months of

intermediate punishment.           (See PCRA Court Opinion, 3/21/17, at 1).

Appellant did not file a direct appeal.

        On November 4, 2015, after a Gagnon[4] II hearing, the court found

Appellant in violation of the terms of her original sentence. After granting

Appellant’s motion for reconsideration of sentence, the court sentenced her

to not less than one nor more than twelve months of incarceration at the

Delaware County prison, followed by two years of consecutive probation, and

ordered that Appellant be immediately paroled. (See Order, 12/15/15).

        On March 16, 2016, after another Gagnon II hearing, the court found

Appellant in violation of her probation. At a sentencing hearing on June 14,

2016, the court revoked Appellant’s probation and sentenced her to “a split


____________________________________________


2
    See 75 Pa.C.S.A. § 3802(a)(1).
3
    See 75 Pa.C.S.A. § 3803(b)(4).
4
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).



                                           -2-
J-S56036-17



sentence of (1) full back time of 220 days in Delaware County prison

effective March 16, 2016 with release on the max date, and (2) [not less

than twelve nor more than twenty-four] months[’] SCI to run concurrent to

parole, effective March 16, 2016.” (PCRA Ct. Op., at 2).

       On August 17, 2016, Appellant, acting pro se, filed her first PCRA

petition, arguing that she was entitled to relief from her original sentence

because Birchfield, supra rendered her sentence for driving under the

influence, with refusal, illegal.        (See Pro Se Motion for Post Conviction

Collateral Relief, 8/17/16, at 3). The trial court appointed counsel on August

19, 2016.5     On December 5, 2016, Appellant pro se filed a PCRA petition,

wherein she argued that she was entitled to relief both because she was

serving an illegal sentence and because counsel was ineffective for failing to

file a motion for reconsideration of her violation of probation sentence. (See

[Supplemental] Motion for Post Conviction Collateral Relief, 12/05/16).6

       The PCRA court conducted a hearing on Appellant’s petition on

December 22, 2016.          At the hearing, counsel for Appellant argued that

____________________________________________


5
  Although counsel stated that he submitted a memorandum in support of
Appellant’s pro se PCRA petition to the PCRA court on November 17, 2015,
the certified record does not contain a copy of it. (See N.T. Hearing,
12/22/16, at 4).
6
 “[T]here is no constitutional right to hybrid representation either at trial or
on appeal[,]” therefore, Appellant’s petition is a nullity. Commonwealth v.
Ellis, 626 A.2d 1137, 1139 (Pa. 1993) (citation omitted).




                                           -3-
J-S56036-17



subsequent to her June 14, 2016 sentencing, Appellant asked her revocation

attorney to file a motion to reconsider based on the Birchfield decision and

her attorney failed to do so.         (See N.T. Hearing, 12/22/16, at 5-6).   On

December 27, 2016, the PCRA court dismissed Appellant’s PCRA petition as

untimely. This timely appeal followed.7

       Appellant raises one issue on appeal: “Was the [PCRA] court in error

for dismissing [Appellant’s] petition for post conviction relief in that the

sentence she received as to a conviction for driving under the influence was

unconstitutional pursuant to Birchfield[, supra]?” (Appellant’s Brief, at 4)

(most capitalization omitted).8

             Our standard of review regarding a PCRA court’s order is
       whether the determination of the PCRA court is supported by the
       evidence of record and is free of legal error. The PCRA court’s
       findings will not be disturbed unless there is no support for the
       findings in the certified record.

             Before addressing the issues presented on appeal, we
       must determine whether Appellant’s instant PCRA petition was
       timely filed. Our Supreme Court has stressed that [t]he PCRA’s
       timeliness requirements are jurisdictional in nature and must be
____________________________________________


7
  Pursuant to the PCRA court’s order, Appellant filed her concise statement
of errors complained of on appeal on February 14, 2017. The trial court
entered its opinion on March 21, 2017. See Pa.R.A.P. 1925.
8
  To the extent that Appellant claims she is entitled to relief based on
ineffective assistance of counsel at the revocation hearing, such argument is
waived for failure to include it in her 1925(b) statement of errors complained
of on appeal. (See Rule 1925(b) Concise Statement of Errors Complained of
on Appeal, 2/14/17); Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”).



                                           -4-
J-S56036-17


      strictly construed; courts may not address the merits of the
      issues raised in a petition if it is not timely filed. It is well settled
      that [a]ny and all PCRA petitions must be filed within one year of
      the date on which the petitioner’s judgment became final, unless
      one of three statutory exceptions applies. “A judgment becomes
      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 the review.” 42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Garcia, 23 A.3d 1059, 1061–62 (Pa. Super. 2011),

appeal denied, 38 A.3d 823 (Pa. 2012) (case citations, some quotation

marks, and footnote omitted).

      Here, Appellant was originally sentenced for her DUI conviction on

March 31, 2015, and she did not file post-sentence motions or a direct

appeal.   Thus, her judgment of sentence became final on April 30, 2015.

See Pa.R.A.P. 903(a). Accordingly, Appellant had until April 30, 2016, to file

a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1).

      We recognize that, on June 14, 2016, Appellant’s probation was

revoked and a sentence imposed for her violation of probation.                    Both

Appellant and the Commonwealth contend that this revocation should reset

the clock and the June 14, 2016 date should be considered the sentencing

date for PCRA purposes.        (See Appellant’s Brief, at 8; Commonwealth’s

Brief, at 4-5). We disagree.

      A probation revocation and resentencing “reset[s] the clock for

purposes of determining the timeliness” of a petition only “where the issues

presented in the PCRA petition relate to the validity of the probation

revocation hearing or the legality of the new sentence[.]” Garcia, supra


                                        -5-
J-S56036-17



at 1062 n.3 (emphasis added) (internal quotation marks and citations

omitted).

      Here, Appellant has challenged the legality of her original sentence

arguing that pursuant to Birchfield, supra, her sentence exceeds the lawful

maximum.      (See Pro Se Motion for Post Conviction Collateral Relief,

8/17/16, at 1).   Thus, the revocation of her probation does not affect the

timeliness of her petition. See Garcia, supra at 1062 n.3. Appellant did

not file the instant PCRA until August 17, 2016, thus it is patently untimely.

             This does not end our review, however. As suggested
      supra, this Court will review an untimely PCRA petition if the
      petitioner has alleged and can prove that one of the following
      three exceptions in Section 9545 applies:

                  (i) the failure to raise the claim previously was
            the result of interference of government officials with
            the presentation of the claim in violation of the
            Constitution or law 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)(1)(i), (ii), and (iii). The petitioner bears
      the burden to allege and prove [that] one of the timeliness
      exceptions applies.   A PCRA petition invoking one of these
      statutory exceptions must be filed within [sixty] days of the date
      the claims could have been presented. [See] 42 Pa.C.S.A. §
      9545(b)(2). This Court has provided that [w]ith regard to an
      after-recognized constitutional right, . . . the sixty-day period
      begins to run upon the date of the underlying judicial decision.

                                      -6-
J-S56036-17



Id. at 1062-63 (case citations, some quotation marks, and footnote

omitted).

         Here, Appellant asserts that her petition is timely and does not

attempt to prove that one of the timeliness exceptions applies.         (See

Appellant’s Brief, at 8-11). Therefore, she has not met her burden under the

PCRA.      See Garcia, supra at 1062-63.     Moreover, we note that, even if

Appellant had so argued, the newly recognized and retroactively applied

constitutional right exception at 42 Pa.C.S.A. § 9545(b)(1)(iii), would not

apply in this case.        Neither our Supreme Court nor the United States

Supreme Court has held that Birchfield is to be applied retroactively to

cases in which the judgment of sentence has become final.

         In sum, we conclude Appellant has not met her burden of proving that

her untimely PCRA petition fits within one of the three exceptions to the

PCRA’s time-bar.      See id.   Accordingly, we affirm the order of the PCRA

court.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2017




                                      -7-
