J-E02001-15

                                 2015 PA Super 230

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                     Appellee              :
                                           :
            v.                             :
                                           :
ROBERT DA-JUAN GAINES,                     :
                                           :
                     Appellant             :   No. 1497 MDA 2013

                    Appeal from the PCRA Order July 15, 2013,
                     Court of Common Pleas, Franklin County,
                 Criminal Division at No. CP-28-CR-0001303-2009

BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, DONOHUE, SHOGAN,
        ALLEN, LAZARUS, MUNDY and STABILE, JJ.

CONCURRING OPINION BY DONOHUE, J.:               FILED NOVEMBER 05, 2015

      I agree that this appeal is untimely and concur with the decision to

quash, but for different reasons. The Majority conducts its review from the

premise that the petition Gaines filed on May 21, 2013 was an amended

PCRA petition.     In my view, Gaines’ May 21, 2013 filing was an untimely

second PCRA petition rather than an amendment to his first PCRA petition.

Thus, the issue of whether a PCRA order is final when entered or following

the completion of further action ordered by the PCRA court is not properly

before this Court.

      The relevant timeline is as follows. Gaines’ judgment of sentence

became final on September 15, 2011. On September 14, 2012, Gaines filed

his first PCRA petition. A hearing on the PCRA claims was scheduled for April

11, 2013, and after convening on that date, the PCRA court entered an order
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granting   resentencing.      On   May   1,   2013,   as   the   parties   awaited

resentencing, Gaines filed a petition seeking permission to amend his PCRA

petition. The trial court granted this petition and on May 21, 2013, Gaines

filed what he called an “amended PCRA petition,” raising claims of ineffective

assistance of counsel.     The PCRA court denied this “amended petition” on

July 15, 2013.   On July 17, 2013, the trial court resentenced Gaines.         On

August 19, 2013, Gaines filed his appeal from the July 15, 2013 order

denying his “amended” PCRA petition.

      As stated above, my departure from the Majority’s view stems from its

characterization of the petition Gaines filed on May 21, 2013 as an amended

PCRA petition. When the parties convened for the hearing on Gaines’ first

PCRA petition, no hearing occurred; rather, the parties entered into a

stipulation that Gaines’ prior record score was incorrectly calculated at the

time of his sentencing. PCRA Court Order, 4/11/13, ¶ 2. Based upon this

stipulation, the PCRA court ordered that Gaines be resentenced and set the

resentencing for May 22, 2013. Id. ¶ 7. The PCRA court took no further

action on Gaines’ remaining claims (all of which asserted ineffective

assistance of counsel) based upon Gaines’ stated intention to withdraw these

claims in light of the Commonwealth’s agreement regarding his prior record

score. Id. ¶ 4. Accordingly, I conclude that the PCRA court granted relief as

to one of Gaines’ claims and Gaines withdrew the remaining claims, thereby

fully disposing of his PCRA petition. This conclusion is buttressed by the fact



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that the PCRA court ordered and scheduled Gaines’ resentencing during this

proceeding even though, in his PCRA petition, Gaines sought a new trial

based upon his allegations of ineffective assistance of counsel.        PCRA

Petition, 9/14/12, ¶ 9.   Why would the PCRA court grant resentencing if

claims were still pending that could result in the grant of a new trial? The

only logical interpretation of the events that transpired and the order

memorializing those events is that all claims were disposed of at the

conclusion of this proceeding: the requested resentencing was granted and

the remaining claims were withdrawn. While the PCRA court recognized that

Gaines might seek to raise additional claims based on new information,

PCRA Court Order, 4/11/13, ¶ 5, when Gaines subsequently filed a petition

seeking permission to amend his PCRA petition, there was no pending PCRA

petition to amend.

      The Majority takes the position that the PCRA court granted Gaines

permission to amend his PCRA petition in its April 12, 2013 order. Maj. Op.

at 3 n.3. With due respect, the record does support this conclusion. The

PCRA court stated merely that Gaines’ counsel “has alerted [it] to additional

information that he has recently learned which may require him to amend

[Gaines’] PCRA petition” and then ordered that Gaines remain in the local jail

so that they could confer.    PCRA Court Order, 4/11/13, ¶ 5 (emphasis

added).    This statement memorializes Gaines’ counsel’s intention to

investigate whether a new source of information could give rise to additional



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claims, not an affirmative intention to raise additional claims or the grant of

permission to raise such claims. Obviously, Gaines did not understand that

he was granted permission to amend the PCRA petition since he affirmatively

sought that precise relief when he filed a petition seeking permission to

amend on May 21, 2013.

      Critically, at the time of the hearing on his first PCRA petition, the

period for Gaines to file a timely PCRA petition had run. 1         The PCRA

expressly provides a mechanism for raising additional claims based upon

new information discovered after the expiration of the one year time limit.

See 42 Pa.C.S.A. § 9545(b)(1). Holding open a timely PCRA petition that

has been fully adjudicated for the belated assertion of new claims runs afoul

of the PCRA’s jurisdictional time bar, which must be strictly construed. E.g.

Commonwealth v. Fahy, 589, 959 A.2d 312, 315 (Pa. 2008) (holding

PCRA time limits are jurisdictional in nature and must be strictly construed).

While the PCRA court failed to recognize the timeliness issue (as evidenced

by its reference to the potential filing of an “amended PCRA petition”, PCRA

Court Order, 4/12/13, ¶5), the record on appeal illuminates the defect.


1
   Gaines’ judgment of sentence became final on September 15, 2011.
Accordingly, he had until September 15, 2012 to file a timely PCRA petition.
See 42 Pa.C.S.A. § 9545(b)(1) (“Any petition under this subchapter,
including a second or subsequent petition, shall be filed within one year of
the date the judgment becomes final … .”). This second PCRA petition was
filed on May 21, 2013, more than eight months late. While there are
exceptions to the PCRA’s statutory time bar, see id., Gaines did not plead,
much less prove, any of these exceptions in his second PCRA petition. See
PCRA Petition, 5/21/13.


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        For these reasons, I conclude that the petition that Gaines filed on May

21, 2013 was a second, untimely PCRA petition rather than an amendment

to his first PCRA petition.   As a separate, second PCRA petition, the PCRA

court’s disposition of it was completely unrelated to its disposition of Gaines’

first PCRA petition (which awarded the resentencing) and the subsequent

resentencing.     In order words, the order denying Gaines’ second PCRA

petition, which is the order under review in this appeal, is entirely

unconnected to Gaines’ resentencing. There is no need to consider, as the

Majority does, whether resentencing must occur before the PCRA order

granting resentencing is deemed final and appealable. See Maj. Op. at 5-

10. The issue simply is not implicated under the facts of this case.

        Nonetheless, I conclude, as does the Majority, that Gaines failed to

timely file his notice of appeal. The PCRA court entered the order denying

Gaines’ second PCRA petition on July 15, 2013 and mailed it to Gaines on

July 17, 2013.     As the Majority correctly explains, the period of time for

Gaines to file an appeal began on the date the order was mailed, July 17,

2013.       Pa.R.A.P.   108(a)(1);   see   also   In   re   Fourth   Statewide

Investigating Grand Jury, 509 A.2d 1260, 1261 (Pa. 1986) (noting that

generally that the entry date of an order is the day “the office of the

government unit mails or delivers copies of the order to the parties”).

Gaines was therefore required to file his appeal by August 16, 2013, but he




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did not.     Accordingly, I agree that this appeal should be quashed as

untimely.2

      Stabile, J. joins this Concurring Opinion.




2
   I note that because the second petition was untimely, even if Gaines had
filed his appeal within thirty days of the order denying it, this Court would be
without jurisdiction to decide the merits thereof.         Commonwealth v.
Hernandez, 79 A.3d 649, 654-55 (Pa. Super. 2013). Likewise, the PCRA
court was without jurisdiction to decide the merits of the untimely second
PCRA petition. Id. at 654.


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