J-S42017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JUSTIN BERNARD BEGANDY

                            Appellant                 No. 1210 WDA 2015


            Appeal from the Judgment of Sentence August 12, 2009
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0000271-2007


BEFORE: SHOGAN, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                              FILED AUGUST 31, 2016

        Justin Bernard Begandy appears to appeal from the judgment of

sentence entered on August 12, 2009, and modified by the trial judge, the

Honorable Donald E. Machen, Ret., on February 22, 2010, in the Court of

Common Pleas of Allegheny County, following Begandy’s entry into an open

plea of nolo contendere to a variety of charges, including attempted

kidnapping.     After a thorough review of the submissions by the parties,

relevant law, and the certified record, we hold the lower court had no

jurisdiction, approximately six years late, to grant Begandy nunc pro tunc

permission to file a direct appeal. Accordingly, we quash this appeal.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      The procedural posture is somewhat confusing in that the trial court,

on July 18, 2015, purportedly granted Begandy nunc pro tunc relief to file a

direct appeal of his judgment of sentence, but subsequently opined Begandy

was not entitled to direct appeal relief on the basis of the October 1, 2014

decision of this Court which affirmed the denial relief to Begandy on his first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §

9541 et seq, as untimely. See Trial Court Opinion, 11/5/2015, at 2.

      We direct the parties to the October 1, 2014 decision of our Court for

the thorough recitation of the factual and procedural history of this matter.

See Commonwealth v. Begandy, 108 A.3d 100, at *1-3, (Pa. Super.

2014) (unpublished memorandum),         We note for ease of reference, that

Begandy has, in the past and is currently, attempting to convert a clerical

error in sentencing into a determination he was illegally sentenced for a

crime he was not charged with. Specifically, Begandy entered into the nolo

contendere plea to attempted kidnapping. He was sentenced in open court

on that charge. However, when transcribed, it appeared he was sentenced

on a charge of kidnapping.     On February 22, 2010, the trial judge, the

Honorable Donald E. Machen, corrected the written order to reflect the fact

Begandy was sentenced on attempted kidnapping.




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       Begandy attempted to raise his claim of an illegal sentence in an

untimely PCRA petition, filed in April, 2013.1 Neither the PCRA court nor our

Court addressed the merits of his claim because the petition was patently

untimely and Begandy failed to demonstrate his entitlement to any of the

exceptions to the one-year PCRA filing requirement.       Begandy apparently

sought to circumvent this failing by filing a petition for nunc pro tunc relief

on July 16, 2015. The lower court purportedly granted that petition without

considering that Begandy’s request should have been treated as a PCRA

petition seeking nunc pro tunc relief.

       The Commonwealth has argued, and we agree, that Begandy’s claim is

essentially one of being subject to an illegal sentence.      Such claims are

generally cognizable under the PCRA.

       In Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007),
       the learned Judge, now Justice, McCaffery, collected cases and
       reiterated that all motions filed after a judgment of sentence is
       final are to be construed as PCRA petitions. Id. at 591 (citing
       Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super.
       2002)); Commonwealth v. Evans, 866 A.2d 442 (Pa. Super.
       2005); Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.
       Super. 2004); Commonwealth v. Guthrie, 749 A.2d 502, 503
       (Pa. Super. 2000). More recently, in Commonwealth v.
       Jackson, 30 A.3d 516 (Pa. Super. 2011), this Court held that a
       defendant's motion to correct his illegal sentence was properly
       addressed as a PCRA petition, stating broadly, “any petition filed
       after the judgment of sentence becomes final will be treated as a
       PCRA petition.” Id. at 521 (quoting Johnson, supra).
____________________________________________


1
  If we interpret his argument correctly, Begandy believes Judge Machen did
not have the jurisdiction to correct the sentence. Therefore, the original,
“illegal” sentence remained.



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     We are, however, cognizant that in a one-page decision, a panel
     of this Court recently opined that a trial court may elect to treat
     a motion challenging a defendant's sentence, filed after the time
     for seeking direct review or the conclusion of a direct appeal, as
     an untimely post-sentence motion and not a PCRA petition.
     Commonwealth v. Glunt, 2012 PA Super 269, 61 A.3d 228.
     The defendant in Glunt framed the question as an illegal
     sentence and entitled his motion as a motion to vacate/correct
     illegal sentence. The Glunt panel referenced no case law in the
     body of the opinion and, insofar as it suggests a court may
     choose to treat a post-conviction sentencing motion as not
     falling within the strictures of the PCRA where the defendant's
     claim is that his sentence is illegal, it is contradicted by the
     numerous precedents mentioned supra and the language of the
     PCRA statute itself. See 42 Pa.C.S. § 9542.

Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013).

     Accordingly, Begandy’s petition for nunc pro tunc relief was not an

untimely post-sentence motion, it was his second PCRA petition. As noted,

“any petition filed under this subchapter, including a second or subsequent

petition. Shall be filed within one year of the date the judgment of sentence

became final[.]” 42 Pa.C.S. § 9545(b)(1). Further, “Pennsylvania law makes

clear that when a PCRA petition is untimely, neither this Court nor the trial

court has jurisdiction over the petition.” Commonwealth v. Miller, 102

A.3d 988, 992 (Pa. Super. 2014) (citation omitted).

     Here, as in his prior PCRA petition, Begandy had filed a facially

untimely   petition.   Although   in   his   prior   petition   he   attempted   to

demonstrate entitlement to the timeliness exceptions, instantly he has failed

to claim any such entitlement. The petition is, therefore, untimely and the

lower court had no jurisdiction to grant Begandy nunc pro tunc relief.



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Actions taken by a court without jurisdiction are void. See Commonwealth

v. Walters, 814 A.2d 253, 256 (Pa. 2002). Because the underlying order

purporting to grant Begandy relief was void, there is no order to appeal.

Accordingly, we quash this appeal.

     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2016




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