J-S73039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellee

                 v.

MICHAEL LEE RICHTER

                      Appellant                No. 543 WDA 2016


                 Appeal from the Order March 29, 2016
            In the Court of Common Pleas of Fayette County
          Criminal Division at No(s): CP-26-CR-0000375-2010
                                      CP-26-CR-0000466-2010
                                      CP-26-CR-0000467-2010
                                      CP-26-CR-0000549-2010




COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellee

                 v.

MICHAEL LEE RICHTER

                      Appellant                No. 544 WDA 2016


                 Appeal from the Order March 29, 2016
            In the Court of Common Pleas of Fayette County
          Criminal Division at No(s): CP-26-CR-0000375-2010
                                      CP-26-CR-0000466-2010
                                      CP-26-CR-0000467-2010
                                      CP-26-CR-0000549-2010
J-S73039-16




COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                       Appellee

                  v.

MICHAEL LEE RICHTER

                       Appellant                No. 545 WDA 2016


                  Appeal from the Order March 29, 2016
             In the Court of Common Pleas of Fayette County
           Criminal Division at No(s): CP-26-CR-0000375-2010
                                       CP-26-CR-0000466-2010
                                       CP-26-CR-0000467-2010
                                       CP-26-CR-0000549-2010




COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                       Appellee

                  v.

MICHAEL LEE RICHTER

                       Appellant                No. 546 WDA 2016


                  Appeal from the Order March 29, 2016
             In the Court of Common Pleas of Fayette County
           Criminal Division at No(s): CP-26-CR-0000375-2010
                                       CP-26-CR-0000466-2010
                                       CP-26-CR-0000467-2010
                                       CP-26-CR-0000549-2010


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                   FILED OCTOBER 04, 2016


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J-S73039-16



        Michael Richter appeals at the above caption numbers from an order

dismissing his petition for return of monies from his inmate account.       We

consolidate these appeals and affirm.

        Richter was charged with crimes in four cases in the Court of Common

Pleas of Fayette County (“common pleas court”) at Nos. 375-, 466-, 467-

and 549-2010.            Three of the four cases have identical procedural

backgrounds.        In    Numbers     466-, 467-, and 549-2010, following    a

consolidated trial, a jury found Richter guilty of two counts of theft by

unlawful taking or disposition, three counts of receiving stolen property and

three counts of criminal conspiracy.1          On September 21, 2010, the court

sentenced Richter to an aggregate term of 4½ - 9 years’ imprisonment. On

December 20, 2011, this Court affirmed Richter’s judgment of sentence on

direct appeal at 1633, 1634 and 1635 WDA 2010. He did not seek allowance

of appeal with our Supreme Court.

        In 2012, Richter filed a PCRA petition in the common pleas court at

numbers 466-, 467- and 549-2010. On October 23, 2013, the court denied

the petition. Richter did not appeal. In 2014, Richter filed a second PCRA

petition alleging that prior counsel was ineffective for failing to appeal the

October 23, 2013 order denying his first PCRA petition.          On February 9,

2015, the court granted Richter leave to appeal the October 23, 2013 order


____________________________________________


1
    18 Pa.C.S. §§ 3921(a), 3925, and 903, respectively.



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J-S73039-16



nunc pro tunc.       Richter filed an appeal to this Court, which quashed the

appeal on August 12, 2015.

        In Richter’s fourth case, No. 375-2010, a jury found him guilty of

robbery.2 On February 14, 2011, the common pleas court sentenced Richter

to 15 - 48 months’ imprisonment.               On November 17, 2011, this Court

affirmed Richter’s judgment of sentence on direct appeal. He did not seek

allowance of appeal with our Supreme Court.

        The matter presently at issue began on March 24, 2016, when Richter

filed a pro se motion in the common pleas court at Nos. 375-, 466-, 467-

and 549-2010 entitled “Motion To Stop Deductions And Return Of Monies

From Inmate Account Pursuant to 42 Pa.C.S. § 8127 and [42] Pa.C.S. [§]

9726” (“Motion To Stop Deductions”). Richter alleged that at sentencing in

these cases, the court failed to determine whether Richter was capable of

paying his fines or costs and thus imposed an illegal sentence.          Richter

requested that the court “enter an order that would cause the deductions

from his prison account to cease” and direct the Fayette County Clerk of

Courts to reimburse him for monies “that were deducted wrongfully”.

        On March 29, 2016, the court denied Richter’s motion, reasoning that

        Pennsylvania Act 84, 42 Pa.C.S. § 9728, vested in the
        Pennsylvania Department of Corrections the authority to draft
        guidelines for the collections of fines, costs and restitution from
        state incarcerated inmates, those guidelines being implemented
____________________________________________


2
    18 Pa.C.S. § 3701(a)(1)(v).



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J-S73039-16


       at DC-ADM 005, Collection of Inmate Debts Procedures Manual
       and provid[ing] for ‘payments of 20% of the inmate’s account
       balance and monthly income for restitution, reparation, fees,
       costs, fines and/or penalties associated with the criminal
       proceedings.’

Brief For Appellant, at 4. On April 14, 2016, Richter filed a notice of appeal

to this Court.3      On the same date, the court ordered Richter to file a

Pa.R.A.P. 1925(b) statement within 21 days. On May 19, 2016, Richter filed

an untimely Pa.R.A.P. 1925(b) statement, claiming that he did not learn

about the April 14, 2016 order until May 10, 2016. On May 20, 2016, in lieu

of a Pa.R.A.P. 1925 opinion, the court filed a statement relying on its March

29, 2016 order denying Richter’s motion to stop further deductions from his

inmate account.

       Richter raises one issue in this appeal:

       Did the trial court error by denying [the] relief requested to stop
       20% deductions from [Richter’s] inmate account[,] where the
       trial court failed to hold a hearing to determine whether or not
       [Richter] could afford to pay the costs and fines prior to
       sentencing[,] thus violating 42 P.A.C.S. § 9726 (b), (c), (d); and
       Pa.R.Crim.P. 706?

We affirm the order denying Richter’s petition, but for different reasons than

those given by the common pleas court.

       Richter’s petition below and brief in this Court challenge the legality of

his   sentence.      Commonwealth              v.   Boyd,   73   A.3d   1269,   1270
____________________________________________


3
  We docketed Richter’s appeal at four caption numbers to correspond to his
four cases in the Court of Common Pleas of Fayette County. As stated
above, we have consolidated these appeals for purposes of disposition.



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J-S73039-16


(Pa.Super.2013) (en banc) (claim that sentencing court failed to consider

defendant’s ability to pay before imposing fines implicates legality of

sentence).      Because the PCRA encompasses challenges to the legality of

sentence, 42 Pa.C.S. § 9543(a)(2)(vii), we will treat Richter’s Motion To Stop

Deductions as a PCRA petition. Cf. Ingram v. Newman, 830 A.2d 1099,

1103 (Pa.Cmwlth.2003) (Commonwealth Court lacked jurisdiction over

inmate’s challenge to deduction of funds from his inmate account; “[the]

alleged failure of the sentencing court to inquire into Ingram’s ability to pay

could be the basis for relief on direct appeal from the sentence or in a

postconviction application … But [the] alleged illegality of the underlying

sentence does not entitle Ingram to the remedies he seeks against [the

Department of Corrections] in this Court”).4

____________________________________________


4
   Had Richter raised a different objection to the deductions from his inmate
account other than a challenge to the legality of his sentence, the
Commonwealth Court might have been the appropriate forum for this
litigation. 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 the defendant’s claim was in reality a civil action against a
Commonwealth agency, the DOC. Therefore, the Commonwealth court
enjoyed exclusive original jurisdiction for the defendant’s claim under 42
Pa.C.S. § 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
(Footnote Continued Next Page)


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J-S73039-16


      Before we address the merits of Richter’s claim, we must determine

whether the common pleas court had jurisdiction to review Richter’s petition.

We conclude that the court lacked jurisdiction to review Richter’s petition

under the PCRA’s one-year statute of limitations, 42 Pa.C.S. § 9545(b).

      Section 9545         provides that a petition “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Commonwealth v.

Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). No court has jurisdiction to

hear an untimely PCRA petition.            Commonwealth v. Monaco, 996 A.2d

1076, 1079 (Pa.Super.2010) (citing Commonwealth v. Robinson, 837

A.2d 1157, 1161 (Pa.2003)). A judgment is 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. § 9545(b)(3).

      Three exceptions to the PCRA’s time-bar provide for very limited

circumstances under which a court may excuse the late filing of a PCRA
                       _______________________
(Footnote Continued)

consider the defendant's petition. On appeal, this Court affirmed based on
the reasoning in Danysh.

It does not appear that Danysh or Jackson involved a challenge to the
legality of sentence, because there is no mention that either defendant
claimed inability to pay fines, costs or restitution. This detail distinguishes
Danysh and Jackson from the present case, in which Richter claimed that
the trial court failed to assess whether he could pay his fines and costs, thus
raising a challenge to the legality of his sentence and bringing this matter
within the purview of the PCRA.



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petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079.               The late

filing of a petition will be excused if a petitioner alleges and proves:

              (i) the failure to raise the claim previously was the
              result of interference by government officials with
              the presentation of the claim in violation of the
              Constitution or laws 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. § 9545(b)(1)(i)-(iii).         A petition invoking an exception to the

PCRA time bar must “be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).

       Richter’s judgment of sentence in Nos. 466-, 467- and 549-2010

became final on January 19, 2012, his final day for seeking allowance of

appeal with our Supreme Court on direct appeal. The statute of limitations

for filing a PCRA petition expired on Monday, January 21, 2013.5               The

present PCRA petition, filed on March 24, 2016, is untimely on its face.



____________________________________________


5
  January 19, 2013, one year after January 19, 2012, fell on a Saturday.
Therefore, Richter had until Monday, January 21, 2013 to file his PCRA
petition. See 1 Pa.C.S. § 1908.




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      Richter’s judgment of sentence in No. 375-2010 became final on

Monday, December 19, 2011, his final day for seeking allowance of appeal

with our Supreme Court on direct appeal. The statute of limitations for filing

a PCRA petition expired on December 19, 2012. The present PCRA petition,

filed on March 24, 2016, is untimely on its face.

      None of the exceptions in section 9545(b)(i-iii) apply to this case.

Richter does not allege that the government interference or newly acquired

evidence exceptions in section 9545(b)(i-ii) apply to his case. Nor does he

invoke section 9545(b)(iii), which affords relief when the right in question is

a constitutional right that the United States Supreme Court or Pennsylvania

Supreme Court has held to apply retroactively to cases on collateral review.

      For these reasons, both the common pleas court and this Court lack

jurisdiction over Richter’s petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/2016




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