J-S46032-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    Appellee              :
                                          :
                    v.                    :
                                          :
ROBERT R. WOOTTERS,                       :
                                          :
                     Appellant            :    No. 3682 EDA 2015

                Appeal from the PCRA Order October 26, 2015
               in the Court of Common Pleas of Bucks County,
            Criminal Division, at No(s): CP-09-CR-0005189-2008

BEFORE:     BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED JULY 26, 2016

      Robert R. Wootters (Appellant) appeals pro se from the October 26,

2015 order which denied his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The PCRA court summarized the procedural history underlying this

case as follows.

             Appellant was charged with three counts of manufacturing,
      delivery, or possession with intent to manufacture or deliver a
      controlled substance, and one count of criminal use of
      communication facility. On October 1, 2008, Appellant pled
      guilty to all four counts and sentencing was deferred. On June
      7, 2010, Appellant was sentenced to ten years’ county probation.
      No post[-]sentence motions or direct appeal [was] filed. On
      June [10], 2013, Appellant[, who was represented by privately-
      retained counsel, Attorney Louis Busico,] was found in violation
      of his probation, and [the trial court] revoked his probation, and
      resentenced him to a period of not less than three nor more than
      six years’ incarceration. Appellant[, through counsel,] filed a
      motion for reconsideration; on June 26, 2013, a hearing on the



*Retired Senior Judge assigned to the Superior Court.
J-S46032-16


      motion was held, and the motion was denied. No direct appeal
      was filed.

PCRA Court Opinion, 1/12/2016, at 1 (unnecessary capitalization omitted).

      On January 7, 2014, Appellant pro se filed a document entitled “Motion

for Modification of Sentence Nunc Pro Tunc.”        In that motion, Appellant

stated that the trial court erred by failing to make him Reduced Risk

Reduction   Incentive   (RRRI)   eligible.   See   61   Pa.C.S.    §§ 4501-4512.

Specifically, Appellant requested the trial court “grant requested relief in the

form of a[n] RRRI minimum sentence.” Motion for Modification of Sentence

Nunc Pro Tunc, 1/7/2014.

      The clerk of courts received this motion and wrote a letter to Appellant

stating that its “records indicate that [Appellant] is represented by Louis

Busico.” Letter, 1/7/2014. Thus, the clerk of courts forwarded the motion to

Attorney Busico pursuant to Pa.R.Crim.P. 576(A)(4). 1             Nothing further

occurred until November 6, 2014, when Appellant pro se filed a motion for

leave to proceed in forma pauperis (IFP). On the same day, Appellant pro se

filed a notice of appeal to this Court from his June 10, 2013 judgment of

sentence.   Appellant also filed a motion requesting the appointment of

counsel.

      The   trial court granted Appellant      IFP status and ordered the

transcription of notes of testimony. The trial court also ordered Appellant to

1
  Appellant had retained Attorney Busico privately, and Attorney Busico
never withdrew his appearance.


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comply with Pa.R.A.P. 1925(b), and Appellant filed a statement accordingly.

On February 10, 2015, this Court quashed the appeal as being untimely

filed.

                On February 27, 2015, Appellant filed a petition for [PCRA]
         relief and PCRA counsel was appointed. PCRA counsel filed a
         motion to withdraw appearance [pursuant to Commonwealth
         v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v.
         Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)] on July 6,
         2015. On August 19, 2015, the Commonwealth filed a response
         to [the] request for [PCRA] relief and requested Appellant’s
         motion be dismissed. A hearing was held on August 20, 2015,
         and Appellant was given until September 13, 2015 to respond to
         counsel’s motion to withdraw and the Commonwealth’s motion
         to dismiss. After receiving Appellant’s rebuttal response to
         Commonwealth’s objections for [PCRA relief] on September 10,
         2015, the [PCRA] court denied Appellant’s petition on October
         26, 2015. [The PCRA court also permitted counsel to withdraw.]
         Appellant then filed [pro se] a notice of appeal with the Superior
         Court on November 9, 2015.

PCRA Court Opinion, 1/12/2016, at 2 (unnecessary capitalization omitted).

Both Appellant and the PCRA court complied with the mandates of Pa.R.A.P.

1925.

         Our standard of review of the denial of a PCRA petition is limited to

examining whether the court’s rulings are supported by the evidence of

record and free of legal error.      Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa. Super. 2010). Under the PCRA, all petitions must be filed

within one year of the date that the petitioner’s judgment of sentence

became final, unless one of three statutory exceptions applies. 42 Pa.C.S.

§ 9545(b)(1); Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006).




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For purposes of the PCRA, a judgment of sentence becomes final at the

conclusion of direct review.       42 Pa.C.S. § 9545(b)(3).     “The PCRA’s time

restrictions are jurisdictional in nature.” Chester, 895 A.2d at 522. “Thus,

‘[i]f a PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition. Without jurisdiction, we simply do not have the

legal   authority   to   address    the   substantive   claims.’”   Id.   (quoting

Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa. 2005)).

        Instantly, Appellant was sentenced following his probation violation

hearing on June 10, 2013.      Appellant timely filed a post-sentence motion,

which was denied on June 26, 2013. Appellant did not file timely a notice of

appeal to this Court. Thus, for purposes of the PCRA, Appellant’s judgment

of sentence became final 30 days later, on July 26, 2013. He therefore had

until July 26, 2014, in order to file timely a PCRA petition.

        Appellant filed the PCRA petition at issue in this case on February 27,

2015. Because Appellant untimely filed his PCRA petition, he had the burden

of pleading and offering to prove one of the following exceptions:

        (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



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      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).       Moreover, he was required to show that the

petition was “filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

      In counsel’s Turner/Finley letter, he argues that the February 27,

2015 PCRA petition is timely because the PCRA court should have treated

the January 7, 2014 motion as a PCRA petition and appointed counsel.

Motion for Leave to Withdraw as Counsel, 7/6/2015, Exhibit A, at 2. Thus,

counsel suggested the “erroneous denial of [Appellant’s] rights to a lawyer

on his first PCRA” petition create an exception. Id.          Moreover, counsel

contends that Appellant filed the February 27, 2015 petition within 60 days

of this Court’s order quashing the first untimely appeal. Accordingly, counsel

argued that the petition be deemed timely-filed.2

      Generally, a filing that raises issues with respect to remedies
      offered under the PCRA will be considered a PCRA petition. A
      prayer for relief, however, which does not fall within the
      remedies afforded by the PCRA will not constitute a PCRA
      petition. Thus, the initial question in a collateral filing is whether
      the petitioner has an available remedy under the PCRA.




2
   The PCRA court agreed with this argument and deemed the petition timely
filed. See PCRA Court Opinion, 1/12/2016, at 4 (“Appellant’s [m]otion for
[r]econsideration filed on January 7, 2014 should have been treated as a
PCRA petition. Therefore, the [c]ourt finds that his PCRA petition would
have been timely under 42 Pa.C.S.A. § 9545.”).


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Commonwealth v. Lutz, 788 A.2d 993, 996 n. 7 (Pa. Super. 2001)

(citations omitted). In his January 7, 2014 motion, Appellant claimed that

the trial court erred by not making a determination as to his RRRI eligibility.

“[W]here the trial court fails to make a statutorily required determination

regarding a defendant’s eligibility for an RRRI minimum sentence as

required, the sentence is illegal.” Commonwealth v. Robinson, 7 A.3d

868, 871 (Pa. Super. 2010). Moreover, a claim challenging the legality of a

sentence    is   cognizable   under   the   PCRA.   See   Commonwealth v.

Hockenberry, 689 A.2d 283, 288 (Pa. Super. 1997) (untimely motion to

modify illegal sentence treated as PCRA petition, since issues relating to

legality of sentence are cognizable under PCRA). Thus, we agree with

counsel that the trial court should have treated Appellant’s January 7, 2014

motion as his first PCRA petition and appointed PCRA counsel. We further

observe that Appellant asked for new counsel and received in forma pauperis

status on December 1, 2014.           See Pa. R. Crim. P. 904(C) (“[W]hen an

unrepresented defendant satisfies the judge that the defendant is unable to

afford or otherwise procure counsel, the judge shall appoint counsel to

represent the defendant on the defendant’s first petition for post-conviction

collateral relief.”).   Accordingly, the trial court’s failure to appoint PCRA

counsel at that juncture was clear error.

      However, “the period for filing a PCRA petition is not subject to the

doctrine of equitable tolling; instead, the time for filing a PCRA petition can



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be extended only if the PCRA permits it to be extended, i.e., by operation of

one of the statutorily enumerated exceptions to the PCRA time-bar.”

Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014) (quotation marks

omitted).     Because    Appellant    has   not pled or    proven one   of the

aforementioned exceptions, we disagree with the PCRA court’s conclusion

that Appellant’s February 27, 2015 petition is timely. Thus, we conclude the

PCRA court lacked jurisdiction to consider the merits and issue an order

dismissing Appellant’s PCRA petition on that basis.        However, even if we

agreed with the PCRA court and concluded that Appellant’s February 27,

2015 petition was timely filed, Appellant is not entitled to relief.

      Appellant first contends the revocation court erred by sentencing him

to a mandatory minimum sentence in violation of Alleyne v. United States,

133 S.Ct. 2151 (2013). In Alleyne, “the United States Supreme Court []

held that any facts leading to an increase in a mandatory minimum sentence

are elements of the crime and must be presented to a jury and proven

beyond a reasonable doubt.” Commonwealth v. Valentine, 101 A.3d 801,

809 (Pa. Super. 2014). Appellant claims that his three-to-six-year sentence

was a “de facto mandatory [which] still violates Alleyne and should not be

permitted.” Appellant’s Brief at 5.

      The PCRA court concluded that the revocation court “was not

administering the mandatory minimum” and instead sentenced Appellant

based upon the recommendation of the probation officer, “Appellant’s



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extensive criminal record, the fact that Appellant had different forms of

supervision over the years, and that ‘even while he cooperated with

authorities over the years, he has failed to remain free of criminal conduct.’”

PCRA Court Opinion, 1/12/2016, at 7 (quoting N.T., 6/10/2013, at 27).

      The record supports the conclusion of the PCRA court. Although the

Commonwealth filed its notice of intent to seek a mandatory minimum

sentence in 2008 prior to Appellant’s initial guilty plea, there is no evidence

in the record that the Commonwealth even suggested the mandatory after

the revocation of Appellant’s probation.

      The revocation court explained the following to Appellant in fashioning

his sentence.

             [On June 7, 2010,] the sentencing guidelines would have
      required me to articulate at length why I would impose a
      sentence of below 29 months [of] incarceration…. And you got
      probation, knowing full well that if you did anything wrong, not
      only would you suffer the consequences for a new criminal act,
      but you would stand again to be resentenced for your violation
      of possessing a controlled substance with intent to deliver it
      within the community.

N.T., 6/10/2013, at 24.

      Based on the foregoing, the PCRA court’s conclusion is supported by

the record, and Appellant is not entitled to relief.

      Appellant next argues that Attorney Busico was ineffective for failing to

file a direct appeal to challenge the discretionary aspects of Appellant’s

sentence. Appellant’s Brief at 6. The PCRA court concluded that Appellant




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waived this issue because he has raised it for the first time on appeal. PCRA

Court Opinion, 1/12/2016, at 7.

      A review of the record reveals that this issue was not included in

Appellant’s pro se PCRA petition, counsel’s Turner/Finley letter, or

Appellant’s pro se amendment. Appellant suggests it was included in his pro

se “Rebuttal Response to Commonwealth Objection for Post Conviction

Collateral Relief,” which he filed after the hearing was held.           In that

response, Appellant argues that he has raised a substantial question that the

revocation court erred with respect to the discretionary aspects of his

sentence. Rebuttal Response, 9/10/15, at 3-8.          In Appellant’s concise

statement, he raises for the first time the claim that “counsel was ineffective

for failing to appeal the discretionary aspects of [Appellant’s] sentence.”

Concise Statement, 11/5/2015, at ¶ 2.

      Thus, we agree with the PCRA court that Appellant has waived his

claim challenging trial counsel’s effectiveness. Even if Appellant’s “Rebuttal

Response” would have preserved a claim, he did not couch it in terms of

ineffective assistance of counsel until he filed his concise statement. See

Commonwealth v. Reid, 99 A.3d 470 (Pa. 2014) (holding claim waived

where it was raised for the first time in a supplemental amended PCRA

petition that was not authorized); Commonwealth v. Rigg, 84 A.3d 1080,

1085 (Pa. Super. 2014) (holding claim of ineffective assistance of counsel

waived where it was raised for the first time in a 1925(b) statement).



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      Based on the foregoing, we affirm the order of the PCRA court

dismissing Appellant’s PCRA petition.3

      Order affirmed.4




3
  We are cognizant that Appellant’s original claim in his January 7, 2014
motion was that his sentence is illegal because the revocation court did not
determine whether he was eligible for an RRRI minimum sentence. Even
though Appellant does not raise this issue in his brief on appeal, “[a]
challenge to the legality of a sentence may be raised as a matter of right, is
not subject to waiver, and may be entertained as long as the reviewing court
has jurisdiction.” Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n. 8
(Pa. Super. 2011). Assuming we have jurisdiction to entertain such a claim,
the PCRA court concluded that Appellant was “ineligible for RRRI minimum
sentencing since he has prior convictions that preclude him from receiving
the benefit of the RRRI statute.” PCRA Court Opinion, 1/12/2016, at 8. The
record reveals that Appellant pled guilty to simple assault on April 18, 2013.
N.T., 6/10/2013, at 5. Thus, the PCRA court’s conclusion that Appellant’s
prior convictions for, inter alia, simple assault, render him ineligible for an
RRRI minimum sentence was not error. See 61 Pa.C.S. § 4503 (stating that
an individual is RRRI eligible where he “[h]as not been found guilty of or
previously convicted of or adjudicated delinquent for or an attempt or
conspiracy to commit a personal injury crime). Accordingly, Appellant is not
serving an illegal sentence on this basis.

4
  We recognize that we are affirming the order of the PCRA court on a
different basis. However, “if the court’s decision is correct, we can affirm on
any ground.” Commonwealth v. Miller, 787 A.2d 1036, 1038 (Pa. Super.
2001).


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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 7/26/2016




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