J-A10015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 RICHARD H. HAVERSTOCK, JR.              :
                                         :
                     Appellant           :   No. 3343 EDA 2018

              Appeal from the Order Dated October 18, 2018
  In the Court of Common Pleas of Northampton County Criminal Division
                    at No(s): CP-48-CR-0003895-2011


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                          FILED APRIL 30, 2019

      Richard H. Haverstock, Jr., appeals, pro se, from the order, entered in

the Court of Common Pleas of Northampton County, dismissing his “Motion

for Reconsideration of Sentence and also Filed to Rule 1410, PA.R.Crim.P.

[sic].” Upon review, we affirm.

      On May 7, 2012, Haverstock entered a plea of nolo contendere to

charges of aggravated assault of a person less than 13 years old, indecent

assault of a person less than 13 years old, and endangering the welfare of

children. The charges related to Haverstock’s sexual abuse of his fiancee’s

then-11-year-old daughter. The court sentenced Haverstock to an aggregate

term of 5 to 14 years’ incarceration and found him to be a sexually violent

predator (“SVP”). Haverstock’s post-sentence motions were denied and he

did not file a direct appeal.
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        Haverstock subsequently filed three petitions pursuant to the Post

Conviction Relief Act (“PCRA”),1 all of which were denied. On October 17,

2018, Haverstock filed the instant motion, in which he claimed his sentence

was “manifestly harsh and excessive” and sought modification of his sentence

based on his good behavior in prison.            Haverstock also claimed that his

sentence was illegal because it included a mandatory minimum in violation of

Alleyne.2 He also referenced an unspecified violation of his plea bargain by

the Commonwealth. By order dated October 18, 2018, the trial court denied

Haverstock’s motion. Haverstock filed a timely notice of appeal, followed by

a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Thereafter, the trial court issued a Rule 1925(a) memorandum in which it

stated it denied Haverstock’s “odd filing” because it was “procedurally

defective” and the court lacked jurisdiction to entertain it.         Trial Court

Memorandum, 11/20/18, at 3.

        Haverstock raises the following claim, verbatim, on appeal:

        Whether there was abuse of discretion for the common pleas court
        to reconsider or modify the appellant sentence, under Rule 1410
        Pa.R.P.,[3] seeks to modify and reduce the sentence and also
        section 972(b) pursuant, Pa.R.Crim. 907(1) and 908(A)(2) also
        Pa.S.Sec. 9718.

____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.

2   Alleyne v. United States, 570 U.S. 99 (2013).

3It appears Haverstock is referring to former Rule of Criminal Procedure 1410,
governing post-sentence procedures. Rule 1410 was renumbered as Rule
720, effective April 1, 2001.

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Brief of Appellant, at [4] (unnecessary italics, bolding, and capitalization

omitted).

      Prior to reaching the merits of Haverstock’s claim, we must determine

whether the trial court possessed jurisdiction to entertain his motion.       The

primary complaint raised in the motion was that Haverstock’s sentence was

excessive and harsh and that the court failed to consider mitigating

circumstances. Such a claim raises a challenge to the discretionary aspects

of Haverstock’s sentence.

      It is well-settled in this Commonwealth that a Court of Common
      Pleas retains jurisdiction over a case, in the absence of an appeal
      being taken, for a period of thirty days after the order in question
      has been entered. See 42 Pa.C.S. § 5505. This has been
      interpreted to mean that a sentencing court has only thirty days
      from the imposition of sentence within which to act to modify the
      sentence. The failure of the sentencing court to act within the
      thirty-day appeal period will normally result in the loss of
      jurisdiction to modify sentence

Commonwealth v. Bogden, 528 A.2d 168, 169–70 (Pa. Super. 1987) (some

citations omitted).

      Here, Haverstock filed his motion for reconsideration of sentence more

than six years after his sentence was imposed. Accordingly, the trial court

was without jurisdiction to consider Haverstock’s patently untimely motion.

      Even if Haverstock’s petition were treated as a PCRA petition, he would

be entitled to no relief. A petition for relief under the PCRA, including a second

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

of sentence became final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed


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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.” 42 Pa.C.S.A. § 9545(b)(3);

see also Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super.

2006).    In Haverstock’s case, his judgment of sentence became final on or

about September 17, 2012, at the expiration of time to file a direct appeal to

this Court. Thus, he had one year from that date, or until September 17,

2013, to file a timely PCRA petition.    Johnson filed the instant motion on

October 17, 2018, more than six years after his judgment of sentence became

final.   Accordingly, the court had no jurisdiction under the PCRA unless

Haverstock pleaded and proved one of the three statutory exceptions to the




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time bar.4      See 42 Pa.C.S.A. § 9545(b).          Haverstock did not do so.5

Accordingly, the trial court had no jurisdiction to entertain his claims and

properly denied relief.

        Order affirmed.




____________________________________________


4   The statutory exceptions are as follows:

        (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.A. § 9545(b)(1).

5 We note that claims regarding the discretionary aspects of a sentence, such
as that raised by Haverstock in his motion, are not cognizable under the PCRA.
See Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa. Super. 2007).
Thus, even if Haverstock’s motion were timely filed under the PCRA, he would
be entitled to no relief. Haverstock also raised a challenge to the legality of
his sentence. While legality claims are cognizable under the PCRA and are not
subject to waiver, a petitioner must still satisfy the PCRA’s jurisdictional time-
bar to be afforded relief. See Commonwealth v. Jones, 932 A.2d 179, 182
(Pa. Super. 2007) (when petitioner files untimely PCRA petition raising
legality-of-sentence claim, claim not waived, but jurisdictional limits of PCRA
itself render claim incapable of review). Because Haverstock’s petition was
patently untimely and he did not plead and prove any exception to the time
bar, he is not entitled to relief.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/19




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