J-S35017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

ROBERT L. MONTGOMERY

                            Appellant                 No. 1560 WDA 2016


                 Appeal from the PCRA Order October 4, 2016
               In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0000169-2007


BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                               FILED JULY 19, 2017

        Appellant, Robert Montgomery, pro se appeals from the order entered

October 4, 2016, denying his untimely serial petition for relief filed under the

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

        On June 6, 2007, Appellant pleaded guilty to theft by unlawful taking. 1

The same day, Appellant was sentenced to sixty months of state probation.

Appellant did not file a direct appeal. Accordingly, his sentence became final

thirty days later, on July 6, 2007. See Commonwealth v. Baldwin, 789

A.2d 728, 730 (Pa. Super. 2001) (noting that judgement of sentence

becomes final in thirty days where no appeal is filed); see also Pa.R.A.P.

903.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    See 18 Pa.C.S. § 3921.
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        In June 2011, Appellant violated his probation. A bench warrant was

issued. Following a revocation hearing in January 2012, the court sentenced

Appellant to six months of incarceration.        In April 2012, Appellant again

violated his probation.     Following a hearing on April 30, 2012, the court

sentenced Appellant to four to fifty months of incarceration.

        In May 2012, Appellant pro se filed a first petition seeking PCRA relief.

The petition was dismissed.        Appellant timely appealed, and this Court

reversed     and   remanded     the   matter    for   a    hearing   pursuant   to

Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998), to determine

whether Appellant waived his right to counsel.            See Commonwealth v.

Montgomery, 87 A.3d 383 (Pa. Super. 2013) (unpublished memorandum).

On remand, Appellant chose to be represented by counsel.             See Notes of

Testimony (N.T.), 1/16/14, at 1. Following the hearing, the court vacated

its prior sentence of four to fifty months and imposed a sentence of

probation. Id. at 3. The court noted it wished to release Appellant once an

appropriate home plan was put in place. Id.; see also Order, 1/16/14, at

1. As Appellant did not appeal, this sentence became final on February 20,

2014.
        On February 19, 2014, the court amended its previous sentencing

order, explaining that it had neglected to grant Appellant automatic parole

from prison. See Order, 2/19/14, at 1 (citing in support Commonwealth

v. Cole, 263 A.2d 336 (Pa. 1970) (discussing inherent power of court to

correct obvious and patent mistakes)).         The amended order clarified that


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Appellant would be immediately released from incarceration and would serve

his remaining term of approximately twenty-eight months under supervised

probation. Id.

      Between July 2014 and April 2016, several bench warrants were

issued for Appellant as a result of his failure to comply with the terms of his

probation.    Following a revocation hearing on May 10, 2016, the court

revoked Appellant’s probation and ordered that he spend the four month

remainder of his sentence in jail. In May 2016, Appellant filed a motion to

modify his sentence, which the court denied. On June 14, 2016, Appellant

pro se filed a petition seeking PCRA relief. Counsel was appointed and filed

an amended petition on Appellant’s behalf.

      Following a hearing, the court dismissed Appellant’s PCRA petition.

Appellant did not appeal this denial, but instead, on September 22, 2016,

filed a second pro se petition seeking PCRA relief and raising substantially

the same arguments. The court sent Appellant notice of intent to dismiss his

petition as untimely pursuant to Pa.R.Crim.P. 907 and, on October 4, 2016,

dismissed Appellant’s petition. Appellant timely appealed.

      On October 24, 2016, the court ordered Appellant to file a concise

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

within twenty-one days. The court’s opinion pursuant to Pa.R.A.P. 1925(a)

indicates a statement was filed; however, such a statement does not appear

in the record. Nevertheless, we accept the court’s finding.


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       On appeal, Appellant presents a single issue for our review,

which we have restated for clarity:2

           Appellant contends his sentence is illegal because the
           February 2014 order modified his sentence after the thirty
           day period for altering or amending an order had expired,
           making all subsequent sentences unlawful.[3]

See Appellant’s Brief.4

       This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by evidence of record and is free of legal error.            See Commonwealth v.

Ragan, 923, A.2d 1169, 1170 (Pa. 2007).

       It is unclear from the record whether Appellant is still serving a

sentence for this charge. To be eligible for PCRA relief, an Appellant must,

at   the   time   relief   is   granted,   be    currently   serving   a   sentence   of

imprisonment, probation or parole for the crime.             See 42 Pa.C.S. § 9543

(a)(1)(i) (emphasis added); see also Commonwealth v. Ahlborn, 699

A.2d 718, 720 (Pa. 1997); see also Commonwealth v. Turner, 80 A.3d

754 (2013). Accordingly, Appellant is not eligible for PCRA relief if he is not

currently serving a sentence for this crime.          However, even if Appellant is

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2
  Appellant also attempts to raise numerous other issues in the arguments
section of this brief. See, e.g., Appellant’s Brief at 3-4. As most of these
issues do not implicate a time bar exception to the PCRA, per 42 Pa.C.S. §
9545(b)(1)(i)-(iii), we decline to address them.
3
  42 Pa.C.S. § 5505.
4
  Appellant’s brief does not include page numbers, as required by Pa.R.A.P.
2173. For ease of reference, we have added page numbers to the brief.



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still serving a sentence for this crime, he is ineligible for relief for the

reasons stated below.

     We begin by addressing the timeliness of Appellant’s petition, as the

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded   in   order   to   address   the   merits   of   his   claims.   See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for relief, including second and subsequent petitions,

must be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three 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
        law 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. § 9545(b)(i)-(iii).      Any petition attempting to invoke these

exceptions, “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).




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       Appellant’s petition is patently untimely.5   Accordingly, in order to

reach the merit of his issues, he must plead and prove one of the exceptions

to the time bar. See Bennett, 930 A.2d at 1267. Rather than pleading one

of the exceptions, Appellant attempts to establish the timeliness of his

petition by arguing that his sentence is illegal due to a modification made to

a preceding sentence outside of the thirty day period. 42 Pa.C.S. § 5505.

See Appellant’s Brief at 5. However, the order did not modify but instead

clarified the terms of his sentence. Regardless, this does not establish an

exception to the time bar.

       Furthermore, where a new sentence is imposed at a probation

revocation hearing, the revocation hearing date must be employed when

assessing finality under § 9545(b)(3) to any issues directly appealable from

that hearing.     Commonwealth v. Anderson, 788 A.2d 1019, 1021 (Pa.

2001).     The time for seeking PCRA relief following the revocation of

probation and the imposition of a new sentence runs for one year from the

conclusion of direct review of that new sentencing order, but only as to the

issues of the validity of the revocation proceedings and the legality of the

new sentence.         Id.     Therefore, the court may only consider claims
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5
   Appellant’s judgement of sentence became final on February 20, 2014, at
the expiration of his thirty days to file an appeal. See 42 Pa.C.S. §
9545(b)(3) (a judgement of sentence becomes final at the conclusion of
direct review or the expiration of the time for seeking the review). Thus,
Appellant had until February 20, 2015, to timely file a petition. Appellant
filed his current petition on September 20, 2016.



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concerning Appellant’s most recent revocation sentence, which became final

June 10, 2016.6         Here, Appellant does not challenge his most recent

sentence directly, but instead, he raises an issue from his February 2014

sentencing. His challenge is thus doubly untimely.

       Consequently, the PCRA court was without jurisdiction to review the

merits of Appellant’s claims and properly dismissed his petition.       See

Ragan, 932 A.2d at 1170.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2017




____________________________________________


6
  On May 10, 2016 Appellant’s probation was revoked. Appellant did not file
a direct appeal and this sentence became final on June 10, 2016, at the
expiration of his thirty days to file an appeal. See 42 Pa.C.S. § 9545(b)(3)
(a judgement of sentence becomes final at the conclusion of direct review or
the expiration of the time for seeking the review).



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