J-S29011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DOUGLAS GIBBONEY,                          :
                                               :
                       Appellant               :   No. 3414 EDA 2017

                  Appeal from the PCRA Order October 6, 2017
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0001391-2013


BEFORE:      PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY PANELLA, J.                          FILED SEPTEMBER 21, 2018

        Douglas Gibboney appeals pro se from the order entered October 6,

2017, denying his second petition1 filed pursuant to the Post Conviction Relief

Act (“PCRA”). We affirm.

        As we assume the parties’ familiarity with this matter, we include only

the factual and procedural history necessary to resolve this appeal. On March

2, 2015, Appellant filed a pro se petition pursuant to the PCRA. The court

appointed counsel who later filed an amended petition. In the amended

petition, Appellant asserted that the trial court’s failure to order a drug and

alcohol assessment pursuant to the dictates of 75 Pa.C.S.A. § 3814 rendered

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*   Former Justice specially assigned to the Superior Court.

1As discussed in more detail below, Appellant’s motion to withdraw guilty plea
and for appointment of counsel should have been considered, and treated as,
a second PCRA petition.
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his sentence for driving under the influence (“DUI”) illegal, relying on a case

decided after his sentencing. See Commonwealth v. Taylor, 104 A.3d 479,

490 (Pa. 2014) (holding the “plain language of Section 3814(2) indicates that

an Assessment is a mandatory presentence requirement[])”. Following a

hearing on this issue, the PCRA court granted Appellant PCRA relief, in part,

by directing Appellant to undergo a drug and alcohol assessment, but denied

all other claims. Importantly, this grant of PCRA relief did not vacate

Appellant’s DUI sentence. Appellant did not appeal this order.

       On September 1, 2017, after undergoing a drug and alcohol

assessment, Appellant filed a motion to withdraw his guilty plea and for

appointment of counsel.2 The court held a hearing on these matters, at which

Appellant expressed his belief that he was entitled to the liberal pre-sentence

standard for withdrawing his guilty plea because the PCRA order should have

vacated his DUI sentence. On October 6, 2017, the court denied his motion

as untimely. Further, the court noted that after reviewing the negative drug

and alcohol assessment, the court did not find the need to vacate Appellant’s

sentence and re-sentence him. This timely appeal follows.

       On appeal, Appellant raises the following issues for our review:

       1. Whether the PCRA court committed reversible error when it
          failed to vacate the illegal sentence.



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2PCRA counsel had withdrawn, with Appellant’s consent, on December 14,
2016.

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      2. Whether the PCRA court committed reversible error when it
         failed to grant the motion to withdraw guilty plea and for
         appointment of counsel.

      3. The PCRA court committed reversible error when it heard the
         Commonwealth on the motion to withdraw guilty plea and for
         appointment of counsel despite Appellant’s objection based on
         waiver.

Appellant’s Brief, at 3 (unnecessary capitalization omitted).

      Initially, we note Appellant’s first claim is not properly before this court.

Appellant claims that the PCRA court erred by failing to vacate his illegal

sentence. Specifically, Appellant contends that the court erred by ordering a

drug and alcohol assessment without first vacating his sentence.

      Our review of the record reveals that this claim of error stems solely

from the PCRA court’s final order of August 1, 2017. Appellant, however, did

not appeal that order. The only order before this court is the PCRA court’s

October 6, 2017 order. As Appellant’s first claim of error arose in an order not

before us, we cannot consider it. See Commonwealth v. Williams, 106 A.3d

583, 587 (Pa. 2014) (“[A]n appellant’s failure to appeal timely an order

generally divests the appellate court of its jurisdiction to hear the appeal.”)

      Moving to Appellant’s next issue, he claims the court erred by failing to

grant his requests to withdraw his guilty plea and for appointment of counsel.

Before we can address this issue, we must address the court’s jurisdiction to

entertain these requests.

      As noted, the PCRA court’s order of August 1, 2017 did not vacate

Appellant’s sentence or alter its finality. Although in filing his motion Appellant



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believed that his sentence no longer stood, we have repeatedly held that a

filing by a defendant seeking relief, after his judgment of sentence is final,

should be considered a petition for PCRA relief. See, e.g., Commonwealth

v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011); Commonwealth v.

Hutchins, 760 A.2d 50, 52 n.1 (Pa. Super. 2000). As such, the court should

have treated Appellant’s motion as his second PCRA petition. However, while

the court erred by failing to consider Appellant’s motion a PCRA petition, we

conclude that the court was correct to dismiss the motion.3

       “Our standard of review of a trial court order granting or denying relief

under the PCRA requires us to determine whether the decision of the PCRA

court is supported by the evidence of record and is free of legal error.”

Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014) (citation

omitted).

       The timing of a PCRA petition “is a threshold question implicating our

subject matter jurisdiction and the ability to grant the requested relief.”

Commonwealth v. Whitney, 817 A.2d 473, 478 (Pa. 2003) (citation

omitted). A second petition must be filed within one year of the date the

judgment is final unless the petition alleges, and the petitioner proves, an
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3 Because the court did not consider Appellant’s motions as a PCRA petition,
it did not issue a notice of intent to dismiss as required by Pa.R.Crim.P. 907.
However, because Appellant has not challenged this failure, any issue
concerning lack of notice has been waived. See Commonwealth v. Boyd,
923 A.2d 513, 514 n.1 (Pa. Super. 2007). Further, even if Appellant had
challenged the court’s failure to provide Rule 907 notice, we are not obligated
to remand for notice if the petition itself is untimely. See id.


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exception to the timeliness requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i)-

(iii). A petition invoking one of these statutory exceptions “shall be filed within

60 days of the date the claim could have been presented[,]” 42 Pa.C.S.A. §

9545(b)(2), and exceptions to the PCRA’s time bar must be pled in the

petition. See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.

2007).

       Here, Appellant's judgment of sentence became final on May 19, 2014.4

See Pa.R.A.P. 903; see also 42 Pa.C.S.A. § 9545(b)(3). Accordingly,

Appellant had until May 19, 2015 to file a timely PCRA petition. See 42

Pa.C.S.A. § 9545(b)(1). Appellant’s motion, filed September 1, 2017, was

patently untimely and Appellant had the burden of pleading and proving at

least one of the enumerated statutory exceptions to the PCRA’s one-year time

bar.

       Appellant did not allege any of those exceptions. Therefore, Appellant’s

motion constitutes an untimely second PCRA petition. The court lacked




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4  We recognize that the Commonwealth disputes the PCRA court’s
determination of when Appellant’s judgment of sentence became final. See
Commonwealth’s Brief, at 7-13 (arguing that Appellant’s judgment of
sentence became final on February 8, 2014). However, the Commonwealth
did not challenge the PCRA court’s calculation during the pendency of
Appellant’s first PCRA petition. We will utilize the final sentence date as
contemplated by the court in the first PCRA proceeding. Regardless, the
second petition is patently untimely.




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jurisdiction to address it on the merits. Therefore, albeit for different reasons

than those set forth by the lower court, we affirm.5

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/18




____________________________________________


5 As we have concluded that the court should not have even considered
Appellant’s motion, his claim that the court erred by considering the argument
of the Commonwealth opposing his motion is moot.

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