J-S29003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DANIEL EICHELBERGER,

                            Appellant                  No. 46 WDA 2015


                Appeal from the Order Entered December 2, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0001968-2013


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED MAY 19, 2016

        Appellant, Daniel Eichelberger, appeals from the December 2, 2014

order denying his “Petition for Relief Pursuant to 42 Pa.C.S.A. §5505.” We

affirm.

        On February 12, 2013, Appellant pled guilty to one count of possession

with intent to deliver a controlled substance.        That same day, he was

sentenced to a term of 6 months’ probation, in accordance with the

negotiated plea agreement. Appellant did not file a post-sentence motion or

direct appeal.

        On October 25, 2013, Appellant filed a counseled petition under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, raising claims

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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of the ineffective assistance of trial counsel.   The Commonwealth filed an

answer to Appellant’s PCRA petition on October 30, 2013, and Appellant filed

a response thereto on November 1, 2013.

      Before the trial court could rule on Appellant’s PCRA petition, however,

he filed a counseled “Petition for Relief Pursuant to 42 Pa.C.S.A. §5505”

(hereinafter, “section 5505 petition”).    On December 2, 2014, the court

issued an order denying Appellant’s section 5505 petition. The court’s order

simply stated, “This court does not have jurisdiction to grant the relief

requested.”    Order, 12/2/14.     On December 30, 2014, Appellant filed a

timely notice of appeal from that order. He also timely complied with the

trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.         In that Rule 1925(b) statement, Appellant

presented the following single issue, which mirrors the issue he presents in

this appeal:

      Did the trial court err and/or abuse its discretion when it denied
      [Appellant’s] Motion for Extraordinary Relief where the facts and
      circumstances surrounding [Appellant’s] guilty plea amount to
      such “extraordinary circumstances” as to warrant relief pursuant
      to 42 Pa.C.S.A. §5505?

Rule 1925(b) Statement, 4/27/15; see also Appellant’s Brief at 1. The trial

court issued a Rule 1925(a) opinion on September 18, 2015.

      To fully understand Appellant’s claim, we must begin by discussing, in

more detail, the factual and procedural background underlying his argument.

As discussed, supra, Appellant was sentenced to six months’ probation;

when he filed his PCRA petition on October 25, 2013, over eight months had

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passed since Appellant’s sentence was imposed.             Consequently, in the

Commonwealth Answer to Appellant’s petition, it contended that the court

did not have jurisdiction to grant Appellant PCRA relief because his 6-month

sentence of probation had expired. See Commonwealth’s Answer to PCRA

Petition, 10/30/13, at 5 (citing 42 Pa.C.S. § 9543(a)(1)(i) (requiring that the

petitioner be “currently serving a sentence of imprisonment, probation or

parole    for   the    crime”   when     the   requested   relief   is   granted);

Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997) (“To be eligible

for [PCRA] relief a petitioner must be currently serving a sentence of

imprisonment, probation or parole.        To grant relief at a time when [the

petitioner] is not currently serving such a sentence would be to ignore the

language of the statute.”) (emphasis in original). In Appellant’s Response to

the Commonwealth’s Answer, however, he maintained that he was still

serving   his   term   of   probation.     See   Appellant’s   Response    to   the

Commonwealth’s Answer, 11/1/13, at 1 ¶ 1 (unpaginated).

      Before the court ruled on Appellant’s PCRA petition, he filed his section

5505 petition. Therein, Appellant conceded that he “is no longer serving a

sentence and, in fact, had completed his sentence when his counseled PCRA

Petition was filed….” Section 5505 Petition, 8/14/14, at 1 ¶ 2 (unpaginated).

Appellant further acknowledged that he “is not entitled to PCRA relief

pursuant to Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013).”                    Id.

Nevertheless, Appellant requested that the trial court “exercise its authority

pursuant to 42 Pa.C.S.A. §5505 and permit [Appellant] to withdraw his plea

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of guilty” because his trial counsel acted ineffectively. Specifically, Appellant

asserted:

         As set forth in the Petitioner’s counseled PCRA Petition,
         trial counsel’s inexplicable decision to advise a first time
         offender to plead guilty to a felony drug offense six days
         after his being charged is so far below the standard for
         zealous representation as to constitute “extraordinary
         circumstances.”

Id. at 1 ¶ 4 (unpaginated).      The trial court ultimately denied Appellant’s

section 5505 petition, concluding that he was simply attempting to raise an

ineffectiveness claim under the guise of section 5505 because he was no

longer eligible for relief under the PCRA.    See Trial Court Opinion (TCO),

9/18/15, at 2.

      Now, on appeal, Appellant contends that the trial court erred by

denying his section 5505 petition. Section 5505 states:

      Except as otherwise provided or prescribed by law, a court upon
      notice to the parties may modify or rescind any order within 30
      days after its entry, notwithstanding the prior termination of any
      term of court, if no appeal from such order has been taken or
      allowed.

42 Pa.C.S. § 5505. This Court has further explained:

      Generally, once the thirty-day period is over, the trial court loses
      the power to alter its orders.” Commonwealth v. Walters, 814
      A.2d 253, 255-56 (Pa. Super. 2002) (some citations omitted). A
      trial court may, however, act outside its thirty-day window to
      correct a patent or obvious mistake in a sentence, or in case of
      fraud “or another circumstance so grave or compelling as
      to constitute extraordinary cause[ ].” Id. at 256 (internal
      quotation marks omitted).




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Commonwealth v. LeBar, 860 A.2d 1105, 1111 (Pa. Super. 2004)

(emphasis added).

       Citing the above-emphasized language, Appellant argues that the

ineffectiveness     of    his    trial   counsel   constitutes   an   “extraordinary

circumstance” permitting the trial court to vacate his judgment of sentence

and permit him to withdraw his plea over 1½ years after that plea was

entered and his sentence was imposed.1             Appellant’s argument is clearly

meritless. “The PCRA provides eligibility for relief for cognizable claims, see

42 Pa.C.S. § 9543(a)(2), including claims of ineffective assistance of trial

counsel, and is the sole means of obtaining collateral relief in Pennsylvania.”

Turner, 80 A.3d at 767 (emphasis added). Appellant may not circumvent

the PCRA by raising his ineffectiveness claim under the ‘extraordinary

circumstances’ exception to section 5505.2           Accordingly, we ascertain no

error in the trial court’s denial of Appellant’s section 5505 petition.
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1
  Appellant also devotes a large majority of his argument to contending that
the “currently serving a sentence” requirement of 42 Pa.C.S. § 9543(a)(1)(i)
violates his substantive due process rights. See Appellant’s Brief at 7-11.
However, Appellant did not present this claim in either his section 5505
petition, or in his Rule 1925(b) statement. Consequently, it is waived. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”); 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.”).
2
  This is true despite the fact that Appellant is no longer eligible for PCRA
relief because he is not ‘currently serving’ his sentence of probation. Our
Supreme Court has held that,

(Footnote Continued Next Page)


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      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2016




                       _______________________
(Footnote Continued)

      the constitutional nature of the claims asserted by [the]
      [p]etitioner does not overcome the statutory restrictions on [his]
      eligibility for relief, subject, of course, to due process. Such due
      process, however, does not require infinite opportunity to attack
      a conviction under any and all circumstances; rather, it permits
      our legislature through the PCRA statute to place limitations on
      claims of trial error and strikes a reasonable balance between
      society’s need for finality in criminal cases and the convicted
      person’s need to demonstrate that there has been an error in the
      proceedings that resulted in [] conviction.

Turner, 80 A.3d at 767 (citation and internal quotation marks omitted).
Our Supreme Court concluded in Turner “that due process does not require
the legislature to continue to provide collateral review when the offender is
no longer serving a sentence.” Id. at 766.



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