J-S33041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 HAROLD J. FITZGERALD, JR.               :
                                         :
                    Appellant            :   No. 2120 EDA 2017

                    Appeal from the Order May 30, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0005467-1993


BEFORE:    OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JUNE 29, 2018

      Appellant, Harold J. Fitzgerald, Jr., appeals from the May 30, 2017,

order entered in the Court of Common Pleas of Delaware County, which denied

his counseled “Petition for Extraordinary Relief.” After a careful review, we

affirm.

      The relevant facts and procedural history have been previously set forth

by this Court, in part, as follows:

            On April 7, 1994, [Appellant] was charged by criminal
      information with criminal conspiracy, simple assault, aggravated
      assault, recklessly endangering another person, terroristic
      threats, harassment, robbery, theft by unlawful taking, receiving
      stolen property, retail theft, and disorderly conduct. The charges
      stemmed from an incident that occurred on December 22, 1993.
      On August 22, 1994, [Appellant] pled guilty to conspiracy and
      robbery, and the Commonwealth nol prossed the remaining
      charges. On October 12, 1994, [the trial court] sentenced him to
      eight [months] to twenty-three months of incarceration.
      [Appellant] filed a motion for reconsideration of his sentence,
      which [the trial court] denied on November 6, 1994. [Appellant]
____________________________________
* Former Justice specially assigned to the Superior Court.
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        did not file an appeal from his judgment of sentence or seek relief
        pursuant to the Post Conviction Relief Act (“PCRA”).[1]
              On August 1, 2014, [Appellant] filed a counseled petition for
        expungement of his criminal record. The Commonwealth filed an
        objection to [Appellant’s] petition on August 20, 2014, asserting
        that [Appellant] did not meet the legal criteria for an expungement
        of his convictions. Following a hearing on the petition and the
        Commonwealth’s objection thereto, [the trial court] denied
        [Appellant’s] request for expungement.
               On October 17, 2014, [Appellant] filed a pro se [] petition
        asserting that the “record [] show[s] the incorrect disposition of
        my charges. I appealed and the court overturned my plea and
        struck it. [The trial court] struck my plea [s]o records are wrong.”
        [Appellant] attached to his [] petition a document purportedly
        from the United States Department of Justice indicating on one
        page that [Appellant’s] robbery conviction was nol prossed or
        withdrawn and on another page indicating that he was sentenced
        on the same robbery charge to eight to twenty-three months of
        incarceration. [The trial court] denied relief on October 24, 2014,
        treating the [] petition as another motion for expungement.
              On November 21, 2014, [Appellant] filed a pro se notice of
        appeal, and after receiving an extension of time from the trial
        court, timely filed a concise statement of errors complained of on
        appeal pursuant to Pa.R.A.P. 1925(b) on January 15, 2015.
        [Appellant] appended to his [Rule] 1925(b) statement the “entire
        printout” he received from the United States Department of
        Justice, which indicated on page two that he was sentenced for
        conspiracy and robbery to eight [months] to twenty-three months
        of incarceration, with the remaining charges nol prossed, but
        stated on page three that the robbery charge was nol prossed.
        This Court dismissed this appeal on May 19, 2015[,] because of
        [Appellant’s] failure to file an appellate brief.
              Meanwhile, on March 17, 2015, [Appellant] reportedly sent
        to [the trial court] a pro se motion to add to the record a Delaware
        County Community College transcript, which [Appellant] averred
        was proof that he did not serve the sentence of incarceration for
        his robbery and conspiracy convictions. He did not file this motion
        of record. Nonetheless, [the trial court] issued an order on March
        26, 2015[,] dismissing the motion.

____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.

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            On April 7, 2015, [Appellant] filed a pro se motion
     requesting that [the trial court judge] “strike the proceedings in
     which he sat on and to remove himself from said matter.” He
     based his request upon the fact that [the trial court judge] was a
     member of the Delaware County District Attorney’s Office at the
     time [Appellant] committed the underlying robbery. [The trial
     court] denied this motion on April 10, 2015. In his order, [the
     trial court judge] stated that although he was a member of the
     Delaware County District Attorney’s Office at the time of
     [Appellant’s] arrest, his assigned duties at that time did not
     involve him in [Appellant’s] case, nor did he recall any information
     concerning [Appellant’s] convictions.
           On April 24, 2015, [Appellant] sent [the trial court] a
     request to “expand” the record in this matter, seeking to include
     printouts from a New York Repository Inquiry, FBI Criminal Record
     Inquiry, and his criminal record sent to FCI Fort Dix. The trial
     court denied this motion on April 27, 2015, and ordered that the
     Delaware County Office of Judicial Support file the motion of
     record, which it did on May 5, 2015.
            On April 27, 2015, [Appellant] sent to [the trial court] a pro
     se notice of appeal of the trial court’s denial of [Appellant’s]
     motion to strike and recuse, which [the trial court] had docketed
     and filed of record on May 5, 2015. The trial court issued an order
     for [Appellant] to file a [Rule] 1925(b) statement on May 5, 2015.
     On June 8, 2015, having not received a response to its [Rule]
     1925(b) order, the trial court issued a written opinion pursuant to
     Pa.R.A.P. 1925(a) finding waiver of all issues because of
     [Appellant’s] failure to file his [Rule] 1925(b) statement. On June
     12, 2015, [Appellant] filed his [Rule] 1925(b) statement, dated
     May 30, 2015.

Commonwealth v. Fitzgerald, No. 1352 EDA 2015, at 1-3 (Pa.Super. filed

11/30/15) (unpublished memorandum) (footnote added) (citations to record

and footnotes omitted).

     Concluding Appellant waived his issues by failing to file a timely pro se

Rule 1925(b) statement, this Court quashed the appeal on November 30,

2015. See id.


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      On April 24, 2017, Appellant filed a counseled “Petition for Extraordinary

Relief.” Therein, Appellant relevantly averred the following:

      3. On August 22, 1994, it appears from [Appellant’s] state and
      federal criminal record that he entered ‘a guilty plea’ to the
      charges of criminal conspiracy and robbery, before the [] Court of
      Common Pleas of Delaware County, all other charges were Nolle
      Prossed.
                                  ***
      8. It is [Appellant’s] contention that his convictions on robbery
      and criminal conspiracy charges were subsequently Nolle Prossed
      by the Commonwealth and the Court.
      9. A review of [Appellant’s] federal record indicates that the
      criminal conspiracy and robbery charges were “non-
      conviction/nolle prossed/withdrawn,” as were the other eight (8)
      charges on [Appellant’s] record in the United States Department
      of Justice.
      10. The prison records from the George W. Hill Correctional
      Facility indicate that [Appellant] never served a sentence of eight
      (8) to twenty-three (23) months on a conviction for conspiracy or
      robbery arising out of the guilty pleas which [Appellant] contents
      [sic] had been withdrawn and nolled prossed.
      11. Subsequent to the within case, [Appellant] was arrested by
      agents of the United States Department of Justice and charged
      with Conspiracy to distribute more than five kilograms of cocaine,
      and possession with the intent to distribute more than five
      kilograms of cocaine, violations of 21 U.S.C. § 841(a)(1), Class A
      felonies; The maximum term of imprisonment is life, with 10 years
      minimum mandatory; There is a maximum fine of $4 million, and
      a special assessment of $100, each; The minimum term of
      supervised release is of four years; Possession with intent to
      distribute more than five hundred grams of cocaine, a violation of
      21 U.S.C. § 841(a)(1), a Class B felony.
      12. As a result of the charges in paragraph eleven and above,
      [Appellant] was found guilty and sentence[d] on December 2,
      2010, to a term of imprisonment of 240 months in a federal
      correctional facility.
      13. [Appellant] underwent a presentence investigation and as a
      result of his Delaware County record showing that he was
      convicted of criminal conspiracy and robbery, his federal

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       sentencing guidelines were a level III, where he received thirty-
       four (34) points on the sentencing grid, instead of a level II where
       his points would have been less.

Appellant’s Counseled Petition for Extraordinary Relief, filed 4/24/17, at 1-4.

       Ultimately, Appellant requested that the lower court vacate his

convictions and judgment of sentence of record for the case sub judice and

enter an order nolle prossing all charges.

       On May 25, 2017, Appellant proceeded to a hearing on the matter at

which Appellant specifically indicated that he was not seeking expungement

of his criminal record;2 but rather, he was seeking a lower court order

correcting the record to indicate that all charges against Appellant, including

the conspiracy and robbery charges, were nolle prossed. N.T., 5/25/17, at 7-

9.    In support of his argument, Appellant testified that, after discovering

Appellant had enrolled in college and had several letters indicating he was of

“good character,” the Commonwealth nolle prossed all charges in open court.


____________________________________________


2The Crimes Code defines “expunge” as follows:
     (1) To remove information so that there is no trace or indication
     that such information existed;
     (2) to eliminate all identifiers which may be used to trace the
     identity of an individual, allowing remaining data to be used for
     statistical purposes; or
     (3) maintenance of certain information required or authorized
     under the provisions of section 9122(c) (relating to
     expungement), when an individual has successfully completed the
     conditions of any pretrial or posttrial diversion or probation
     program.
18 Pa.C.S.A. § 9102.


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Id. at 37-39. Appellant contends that, when the trial court filed an order on

October 12, 1994, which indicated Appellant pled guilty to the two charges

(conspiracy and robbery) and was sentenced to eight months to twenty-three

months in prison, the trial court erred. Thus, Appellant requested the court

correct the certified record to reflect that all charges had been nolle prossed

by the Commonwealth.

      Concluding it lacked jurisdiction to address Appellant’s petition and/or

the petition was meritless, the lower court denied Appellant’s petition for

extraordinary relief on May 30, 2017, and this timely, counseled appeal

followed. All Pa.R.A.P. 1925 requirements have been met.

      On appeal, Appellant presents the following issues (verbatim):

      I.     Whether the Post Conviction Court erred when it determined
             that the motion for extraordinary relief was without merit[?]
      II.    Whether the Post Conviction Court erred when it refused to
             admit records supporting [Appellant’s] testimony that the
             robbery and conspiracy charges were nolle prossed on the
             theory that the records were not authenticated and were
             hearsay[?]
      III.   Whether the Post Conviction Court erred when it determined
             it lacked [] jurisdiction[?]

Appellant’s Brief at 2.

      Initially, we address Appellant’s third issue first. It is well-settled that,

under established Pennsylvania precedent, “the PCRA is intended to be the

sole means of achieving post-conviction relief.” Commonwealth v. Taylor,

65 A.3d 462, 465 (Pa.Super. 2013) (citations omitted).          Accordingly, any

petition for post-conviction collateral relief will generally be considered under

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the auspices of the PCRA, notwithstanding the title given to the petition, if the

petition raises issues cognizable under the PCRA. See Commonwealth v.

Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); 42 Pa.C.S.A. § 9542.

        A claim is cognizable under the PCRA if it challenges the petitioner’s

conviction, sentence, or the effectiveness of counsel during the plea process,

trial, appeal, or PCRA review. 42 Pa.C.S.A. § 9543. In the case sub judice,

Appellant attacks the validity of his convictions by virtue of the process that

led to the trial court’s entry of his guilty plea to two charges, which in turn

resulted     in   his   judgment     of   sentence.   Specifically,   he   avers   the

Commonwealth announced in open court that it nolle prossed all charges, and

thus, the trial court had no authority to enter guilty pleas and impose a

sentence on two of the charges. We conclude this issue presents a challenge

to the validity of Appellant’s convictions and the legality of his sentence such

that it is cognizable under the PCRA. See Commonwealth v. Jackson, 30

A.3d 516 (Pa.Super. 2011).

        With this in mind, we note that this is Appellant’s first PCRA petition 3

and, with regard to the filing of petitions under the PCRA, this Court has

observed:

        The filing mandates of the PCRA are jurisdictional in nature and
        are strictly construed. The question of whether a petition is timely
        raises a question of law. Where the petitioner raises questions of
        law, our standard of review is de novo and our scope of review
____________________________________________


3   As indicated supra, Appellant filed his petition with the assistance of counsel.


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       plenary.     An untimely petition renders this Court without
       jurisdiction to afford relief.

Taylor, 65 A.3d at 468 (citations omitted). Thus, at this juncture, we must

determine whether Appellant’s April 24, 2017, petition was timely filed under

the PCRA.

       The most recent amendments to the PCRA, effective January 19, 1996,

provide that a PCRA petition, including a second or subsequent petition, shall

be filed within one year of the date the underlying judgment becomes final.

42 Pa.C.S.A. § 9545(b)(1).4 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

the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

       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. 42 Pa.C.S.A. § 9545(b)(1). 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
____________________________________________


4 The PCRA provides that where a petitioner’s judgment of sentence became
final on or before the effective date of the amendments (January 16, 1996),
a special grace proviso allows first PCRA petitions to be filed by January 16,
1997. See Commonwealth v. Alcorn, 703 A.2d 1054, 1056–57 (Pa.Super.
1997) (explaining application of PCRA timeliness proviso). Here, as discussed
infra, Appellant’s judgment of sentence became final before the effective date
of the amendments; however, Appellant did not file his instant petition by
January 16, 1997.

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               or the law of this Commonwealth or the Constitution or
               law 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 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).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation omitted).

      Here, Appellant’s judgment of sentence became final on or about

November 12, 1994, upon expiration of the time to file a direct appeal to this

Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Appellant’s current

petition, filed on April 24, 2017, was clearly filed more than one year of the

date the underlying judgment became final.       Thus, the petition is facially

untimely.

      Appellant does not raise or contend that any of the PCRA timeliness

exceptions are applicable to his petition.   However, this does not end our

inquiry as he avers that, notwithstanding the PCRA, the lower court had the

inherent power to “correct” the obvious mistakes in the record pursuant to 42




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Pa.C.S.A. § 5505.5         Specifically, Appellant suggests that, although our

Supreme Court has held that courts are without jurisdiction to consider an

untimely PCRA petition, it has also upheld the inherent authority of trial courts

to correct patent mistakes in the record despite the absence of statutory

jurisdiction.    Thus, Appellant contends the trial court retained the inherent

authority to correct the patent and obvious mistakes in this case, i.e., the

orders indicating Appellant pled guilty on two charges and was sentenced to

eight months to twenty-three months in prison as opposed to the fact the

Commonwealth actually nolle prossed all charges. He contends that, because

of the obviousness of the mistakes, his record is amendable to correction even

outside of the PCRA context through application of Section 5505. We disagree.

       Pursuant to Section 5505, inherent jurisdiction has been recognized in

cases where the trial court lacked statutory authority to correct orders. See

Commonwealth v. Holmes, 593 Pa. 601, 933 A.2d 57 (2007). However, as

this Court noted in Jackson, supra, there is “no authority wherein the

appellate courts of this Commonwealth have recognized a PCRA court’s

inherent jurisdiction to consider a claim filed after the expiration of the PCRA

filing period.” Id. at 519




____________________________________________


5  Section 5505 provides: “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.A. § 5505.

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      In Holmes, our Supreme Court upheld the trial court’s sentence

modifications, recognizing that there is a “limited class of cases amendable to

the exercise by a trial court of the inherent power to correct patent errors

despite the absence of traditional jurisdiction.” Holmes, 593 Pa. at 615, 933

A.2d at 65. The Supreme Court reasoned that this inherent jurisdiction would

apply in the absence of jurisdiction under Section 5505 because the statute

“was never intended to eliminate the inherent power of a court to correct

obvious and patent mistakes in its orders, judgments and decrees.”            Id.

(quotation omitted).     Since the cases under consideration in Holmes

“involve[d] clear errors in the imposition of sentences that were incompatible

with the record. . .or black letter law,” the Court held that the trial court

possessed inherent jurisdiction to amend the sentences despite the absence

of statutory jurisdiction under Section 5505. Holmes, 593 Pa. at 618, 933

A.2d at 67.

      Nevertheless, the Supreme Court cautioned:

             Although. . .[courts have] the inherent power. . .to correct
      patent errors, we must also emphasize the limits of this power.
      This exception to the general rule of Section 5505 cannot expand
      to swallow the rule. In applying the exception to the cases at bar,
      we note that it is the obviousness of the illegality, rather than the
      legality itself, that triggers the court’s inherent power. Not all
      illegal sentences will be amendable to correction as patent errors.

Id. at 617-18, 933 A.2d at 66-67.

      In the case sub judice, Appellant’s claim of jurisdiction under Section

5505 fails for two reasons. First, unlike the situation in Holmes, there was


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no patent and obvious error in the entry of Appellant’s convictions and

corresponding judgment of sentence.           In fact, the “mistake” alleged by

Appellant in this case was created by Appellant’s self-serving testimony that

the Commonwealth nolle prossed the charges, despite no evidence of such in

the record.

      Second, even if there was an obvious mistake or illegality in Appellant’s

case, the PCRA court would not have had jurisdiction to consider Appellant’s

claims.   As this Court held in Jackson, “Holmes[] recognized the limited

authority of a trial court to correct patent errors in sentences absent statutory

jurisdiction under [S]ection 5505; it did not establish an alternate remedy for

collateral relief that sidesteps the jurisdictional requirements of the PCRA.”

Jackson, 30 A.3d at 521. To this end, we noted in Jackson that:

      [T]he cases. . .upholding inherent jurisdiction only consider this
      right in the context of jurisdiction to amend orders pursuant to
      Section 5505. Jurisdiction under Section 9545 [of the PCRA] was
      not at issue because the sentences were corrected within one year
      of the judgment of sentence becoming final.

Id. at 522 (footnote omitted).

      In the case sub judice, Appellant filed his current petition years after the

PCRA filing deadline had expired.       Thus, the PCRA court would have to

overcome two jurisdictional hurdles to “correct” the entry of his convictions

and sentence: Section 5505 and Section 9545. See id.

            We have not found any decision in which our appellate
      courts have upheld, or in which a PCRA court has invoked,
      inherent jurisdiction absent statutory authority under [Section]


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       9545. Nor do we believe that a PCRA court could invoke its
       inherent jurisdiction after this deadline.
              Inherent jurisdiction has been upheld as an exception to
       Section 5505 because Section 5505 was never intended to create
       a strict jurisdictional deadline for correcting orders where there is
       an obvious [mistake]. This intent is evident from the plain
       language of the statute. Section 5505 confers on the trial court
       an affirmative right to modify orders within 30 days after its entry
       if there is no appeal, and does not expressly limit this authority
       after the 30-day period has expired. Because Section 5505 does
       not directly prohibit a court from correcting an order after the
       deadline, our courts have recognized a limited equitable exception
       to the statute that permits a trial court to correct obvious
       illegalities in its sentences that are not discovered within the 30-
       day statutory period.
                                           ***
             Further, our courts have interpreted jurisdiction under
       Section 9545 differently than Section 5505. Unlike Section 5505,
       Section 9545 does not merely grant a court authority to consider
       a PCRA petition for a limited period of time; it acts to divest a
       court of jurisdiction once the filing period has passed. Therefore,
       when the one-year filing deadline of Section 9545 has expired,
       and no statutory exception has been pled or proven, a PCRA court
       cannot invoke inherent jurisdiction to correct orders, judgments
       and decrees, even if the error is patent and obvious.

Id. at 522-23 (citation omitted).

       Based on the aforementioned, we conclude Appellant’s April 24, 2017,

“Petition for Extraordinary Relief” was an untimely PCRA petition, and we

reject his assertion that the lower court had inherent jurisdiction to vacate the

entry of his convictions and corresponding judgment of sentence. Thus, we

affirm the lower court’s denial of the petition.6

____________________________________________


6 On May 11, 2018, Appellant filed in this Court a motion for extension of time
to file a reply brief, and on May 16, 2018, he filed the reply brief. We grant
Appellant’s motion and note that we considered the reply brief.

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     Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/18




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