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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ERIC DEBOOTH

                            Appellant                  No. 798 MDA 2015


                   Appeal from the PCRA Order April 21, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003129-2011


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                              FILED APRIL 07, 2016

        Appellant, Eric DeBooth, appeals from the order entered April 21,

2015, in the Court of Common Pleas of Berks County, which denied his

petition filed pursuant to the Post Conviction Relief Act1 (“PCRA”). We affirm.

        On October 21, 2013, Appellant entered a guilty plea to third degree

murder. That same day the trial court sentenced Appellant to 9½ to 20 years

in prison. Appellant did not file a direct appeal. On April 16, 2014, Appellant

filed a pro se “Motion to Cease and Desist” which sought to enjoin the

Department of Corrections from deducting 20% of his earnings from his



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*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
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inmate account to pay for fines and costs (so called “ACT 84” deductions). 2

The trial court denied Appellant’s motion on May 6, 2014.

        On February 21, 2015, Appellant filed pro se an “Initiation of

Petitioner’s First P.C.R.A. Pursuant to Pa.R.Cri.Pro. 901,” which again

requested that the Department of Corrections be enjoined from deducting

money from his inmate account. On April 17, 2015, the PCRA court denied

Appellant’s petition. Appellant filed a timely pro se appeal. On July 17, 2015,

this Court issued a per curiam order directing the PCRA court to either

appoint counsel for Appellant or permit him to proceed pro se. Following a

hearing,    the   PCRA     court   appointed     counsel   to   represent   Appellant.

Appointed counsel, Lara Glenn Hoffert, Esquire, did not file an amended

PCRA petition and relied upon Appellant’s pro se Concise Statement of Errors

on Appeal in the appellate brief prepared in this matter.

        Appellant raises the following issues for our review.

        A. Whether the PCRA [c]ourt erred in dismissing Appellant’s pro
           se PCRA [p]etition where [Appellant’s] sentence is illegal as
           fines, costs, and restitution were imposed out of court?

        B. Whether the PCRA [c]ourt erred in dismissing Appellant’s pro
           se PCRA [p]etition where the PCRA [c]ourt did not provide
           Appellant with appointed counsel for his first PCRA [p]etition?

        C. Whether Appellant’s plea counsel was ineffective for failing to
           advise Appellant that he would be subjected to the imposition
           of fines, costs, and restitution?

Appellant’s Brief at 4.
____________________________________________


2
    42 Pa.C.S.A. § 9728.



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     “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] scope of review

is limited to the findings of the PCRA court and the evidence of record,

viewed in the light most favorable to the prevailing party at the PCRA court

level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted). “[T]his Court applies a de novo standard of review to the PCRA

court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa.

2011) (citation omitted).

     Before we address the merits of a PCRA petition, however, we must

first consider the petition’s timeliness. “The PCRA timeliness requirements

are jurisdictional in nature and, accordingly, a court cannot hear untimely

PCRA petitions.” Commonwealth v. Flanagan, 854 A.2d 489, 509 (Pa.

2004) (citation omitted). A petitioner must file a PCRA petition within one

year of the date that his judgment becomes final. See 42 Pa.C.S.A. §

9545(b)(1). 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

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

     Instantly, Appellant’s judgment of sentence became final on November

20, 2013, thirty days following the imposition of sentence when the time for

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filing a direct appeal expired. See Pa.R.A.P. 903. Thus, Appellant’s petition

filed February 21, 2015, is patently untimely. Appellant has not asserted

that his petition falls within any of the timeliness exceptions provided in the

PCRA. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). He argues, however, that the

lower court should have treated his “Motion to Cease and Desist” filed April

16, 2014, as a timely first PCRA petition and appointed counsel. We

disagree, as the claims raised in that Motion are not cognizable under the

PCRA.

      In order to be eligible for PCRA relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).

“Pennsylvania Courts have repeatedly held that the PCRA contemplates only

challenges   to   the   propriety   of   a   conviction   or   a   sentence.”   See

Commonwealth v. Masker, 34 A.3d 841, 843 (Pa. Super. 2011) (en banc)

(string citation omitted; emphasis added).

      As discussed previously, Appellant’s “Motion to Cease and Desist”

sought to enjoin the Department of Corrections from making Act 84

deductions from his prison account. In Commonwealth v. Danysh, 833

A.2d 151 (Pa. Super. 2003), a state inmate filed a motion with the court of

common pleas apparently under the caption of his original criminal case to

stop Act 84 deductions from his inmate account, and the motion was denied

on its merits. On appeal, we held that the trial court lacked subject matter

jurisdiction because Danysh’s claim was, in reality, a civil action against an

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agency of the Commonwealth, the DOC. Therefore, the Commonwealth court

enjoyed exclusive original jurisdiction for such a claim, pursuant to 42

Pa.C.S.A. § 761(a).

       Similarly, in Commonwealth v. Jackson, 858 A.2d 627 (Pa. Super.

2004) (en banc), the defendant was sentenced to a term of imprisonment in

a state correctional facility, plus costs and restitution. The DOC began

deducting 20% of his earnings from an inmate account. The defendant filed

a pro se petition to stop the DOC from taking deductions. The trial court

denied the petition, finding it did not have jurisdiction to consider the

defendant’s petition. On appeal, an en banc panel of this court applied the

rationale in Danysh and affirmed the trial court’s determination.

       Applying the principles of Danysh to the instant case, the trial court

did not have subject matter jurisdiction over the Act 84 claims raised in

Appellant’s “Motion to Cease and Desist.”3 Those claims did not challenge

Appellant’s underlying sentence and, therefore, are not cognizable under the

PCRA. See, Masker, supra. Therefore, Appellant’s claim that the trial court

should have treated his “Motion to Cease and Desist” as a timely first PCRA

petition is without merit.



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3
  Appellant should have sought relief to stop the DOC from withdrawing
funds from his inmate account before the Commonwealth Court via a
petition for review of governmental action. See Danysh, supra, at 153-
154.



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       Based on the foregoing, Appellant has failed to establish an applicable

exception to the PCRA time bar. Accordingly, neither the lower court nor this

Court has jurisdiction to consider Appellant’s request for relief.4 See 42

Pa.C.S.A. § 9545(b)(1).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2016




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4
  We note that even had we addressed Appellant’s claims, they would not
have warranted relief. As discussed, Appellant’s challenge to the Act 84
deductions is not cognizable under the PCRA. Appellant’s remaining two
issues were not included in his PCRA petition. It is well settled that the
“[f]ailure to state … a ground [for relief] in the [PCRA] petition shall preclude
the defendant from raising that ground in any proceeding for post-conviction
collateral relief.” Pa.R.Crim.P. 902(B); see also Commonwealth v. Elliott,
80 A.3d 415, 430 (Pa. 2013).



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