J-S62037-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                 :    IN THE SUPERIOR COURT OF
                                              :          PENNSYLVANIA
                   Appellee                   :
                                              :
                     v.                       :
                                              :
RICHARD ANDREW DADDARIO,                      :
                                              :
                   Appellant                  :        No. 383 MDA 2017

                Appeal from the PCRA Order February 7, 2017
               in the Court of Common Pleas of Snyder County
             Criminal Division at No(s): CP-55-CR-0000245-2005

BEFORE:     STABILE, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED OCTOBER 23, 2017

      Richard Andrew Daddario (Appellant) appeals from the order entered

on February 7, 2017, denying his “Motion to Amend Costs/Fees/Fines and

Restitution,” which the court treated as a petition filed pursuant to the Post

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

      On September 1, 2006, a jury convicted Appellant of multiple counts

of   involuntary   deviate     sexual   intercourse,    statutory   sexual   assault,

aggravated indecent assault, corruption of minors, and indecent assault,

stemming from then 39-year-old Appellant’s abuse of a 15-year-old victim.

On December 5, 2006, the trial court sentenced Appellant to an aggregate

term of 25 to 90 years of incarceration. Additionally, Appellant was ordered

to pay certain costs, fees, fines, and restitution.        Appellant timely filed a

post-sentence motion, which was denied by the trial court.             On June 26,



*Retired Senior Judge assigned to the Superior Court.
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2008, a panel of this Court affirmed Appellant’s judgment of sentence, and

on December 16, 2008, his petition for allowance of appeal was denied by

our Supreme Court. Commonwealth v. Daddario, 959 A.2d 459 (Pa.

Super. 2008) (unpublished memorandum), appeal denied, 962 A.2d 1195

(Pa. 2008).

      On June 17, 2009, Appellant pro se timely filed a PCRA petition.

Counsel was appointed, and several amended petitions were filed by

counsel.    On July 2, 2010, the Commonwealth and Appellant agreed to a

modified sentence, reducing Appellant’s aggregate sentence to 16½ to 33

years of incarceration.   Once again, that sentence included provisions for

fines, costs, fees, and restitution.   An itemized accounting of those costs,

with a balance totaling $4,436.89, was attached to that order.1 As part of

the agreed-upon sentence, Appellant waived his right to file either a direct

appeal or a PCRA petition alleging ineffective assistance of counsel, as well

as the right to pursue habeas corpus relief in the federal courts. See Order,

7/2/2010.

      On July 14, 2014, Appellant filed pro se a combined PCRA and habeas

corpus petition.   The PCRA court filed a notice of its intent to dismiss the

petition pursuant to Pa.R.Crim.P. 907. Appellant responded, and on August

25, 2014, the PCRA court dismissed Appellant’s petition.     Appellant filed a


1The original amount owed was $5,595.21; however, Appellant had already
paid $1,158.32 by this time, so Appellant owed only the balance of
$4,436.89.

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notice of appeal, and on October 17, 2014, this Court issued an order

remanding to the PCRA court for the appointment of counsel. Counsel was

appointed.

      While Appellant’s July 2014 petition was pending, in November 2014,

Appellant filed pro se a motion for relief claiming the fines and court costs

associated with his case are illegal. On December 3, 2014, the PCRA court

entered an order deferring consideration of the November 2014 motion until

the conclusion of his appeal from the denial of relief for his July 2014 PCRA

petition. On June 16, 2015, a panel of this Court affirmed the order of the

PCRA court dismissing the July 2014 PCRA petition as untimely filed.

Commonwealth        v.    Daddario,   122   A.3d   1134   (Pa.   Super.   2015)

(unpublished memorandum).

      Subsequently, on October 28, 2015, the PCRA court entered a Rule

907 notice of its intent to dismiss the November 2014 motion. Appellant did

not respond, and on November 24, 2015, the motion was dismissed.            No

appeal was filed.

      On March 4, 2016, Appellant filed pro se another PCRA petition. Once

again, the PCRA court issued a Rule 907 notice of its intention to dismiss

Appellant’s petition.    Appellant did not respond, and on May 3, 2016, the

petition was dismissed. Appellant filed a notice of appeal. On November 14,

2016, a panel of this Court affirmed the order dismissing Appellant’s March




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4, 2016 PCRA petition. Commonwealth v. Daddario, 159 A.3d 584 (Pa.

Super. 2016) (unpublished memorandum).

      Meanwhile, on July 28, 2016, a praecipe to enter judgment was filed

against Appellant for the amount of $6,045.02, related to fines, costs, and

fees for his sentence.2 Consequently, on December 22, 2016, Appellant filed

the motion at issue in this case, entitled “Motion to Amend Costs/Fees/Fines

and Restitution” (December 2016 motion).        Specifically, Appellant argued

that the July 28, 2016 judgment “altered the sentencing scheme and his

sentence must be vacated in its entirety.” Motion, 12/22/2016, at ¶ 16. The

PCRA court, treating the December 2016 motion as a PCRA petition, issued a

Rule 907 notice of its intent to dismiss the motion.     Appellant responded,

and on February 7, 2017, the PCRA court dismissed the December 2016

motion. Appellant timely filed a notice of appeal, and both Appellant and the

PCRA court complied with Pa.R.A.P. 1925.




2The procedure to collect fines, fees, costs, and restitution is set forth in 42
Pa.C.S. § 9728, and provides the following:

      The county clerk of courts shall, upon sentencing, pretrial
      disposition or other order, transmit to the prothonotary certified
      copies of all judgments for restitution, reparation, fees, costs,
      fines and penalties which, in the aggregate, exceed $1,000, and
      it shall be the duty of each prothonotary to enter and docket the
      same of record in his office and to index the same as judgments
      are indexed, without requiring the payment of costs as a
      condition precedent to the entry thereof.

42 Pa.C.S. § 9728(b)(1).

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     Appellant contends that the PCRA court erred in dismissing the

December 2016 motion for two reasons: 1) because the December 2016

motion was a timely-filed PCRA petition, see Appellant’s Brief at 9-11; and

2) because the Prothonotary lacked jurisdiction to enter the judgment in July

2016 pursuant to 42 Pa.C.S. § 5505, see Appellant’s Brief at 12-13.

     We consider Appellant’s arguments mindful of the following.          In

Commonwealth v. Lyons, 830 A.2d 663 (Pa. Cmwlth. 2003),3 the

Commonwealth Court outlined the methods available to an offender seeking

“to remove payment of costs, fines, and restitution” associated with a

sentence. Id. at 665.

            An offender may request modification of a sentence in one
     of several ways: 1) a motion for modification of the sentence
     under Pa. R.Crim. P. 720, which must be made within 10 days of
     the imposition of sentence; 2) a direct appeal of the sentence
     under Pa. R.A.P. Rules 901-911, notice of which must be given
     within 30 days of the imposition of sentence; 3) a petition for
     postconviction relief under the Post Conviction Relief Act, 42
     Pa.C.S. §§ 9541 9546, which must be filed within one year of
     the date the judgment of sentence becomes final; or 4) a
     petition to amend an order of mandatory restitution made during
     a sentencing hearing, which may be filed at any time. 18 Pa.C.S.
     § 1106(c)(2)(iii).

Lyons, 830 A.2d at 665.4



3“Although the decisions of the Commonwealth Court are not binding on this
Court, we may look to them for their persuasive value.” Commonwealth v.
Heredia, 97 A.3d 392, 395 n.5 (Pa. Super. 2014).

4 Although Appellant’s December 2016 motion refers to restitution, his
judgment of sentence does not include any amount for restitution; therefore,
section 1106 is not applicable in this case.

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      Based on the foregoing, to the extent that Appellant is claiming that

the July 2016 civil judgment seeking payment of costs, fees, and fines

associated with his July 2, 2010 sentence renders his sentence illegal, such a

claim is cognizable exclusively under the PCRA. See, e.g., Commonwealth

v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011) (“[T]he plain language of

the PCRA… states that ‘[the PCRA] provides for an action by which … persons

serving illegal sentences may obtain collateral relief.’ … Therefore, Jackson’s

‘motion to correct illegal sentence’ is a PCRA petition and cannot be

considered under any other common law remedy.”).

      Accordingly, the PCRA court only had jurisdiction to entertain the

December 2016 motion if Appellant has pled and proven one of the

timeliness   exceptions   set   forth   in   42   Pa.C.S.   §   9545(b)(1).   See

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (“The

timeliness of a PCRA petition is a jurisdictional threshold and may not be

disregarded in order to reach the merits of the claims raised in a PCRA

petition that is untimely.”); Commonwealth v. Taylor, 65 A.3d 462, 465

(Pa. Super. 2013) (“[A]lthough illegal sentencing issues cannot be waived,

they still must be presented in a timely PCRA petition.”).

      Appellant was sentenced for a second time on July 2, 2010, and no

direct appeal was filed. Thus, there is no dispute that Appellant’s judgment

of sentence became final 30 days later, and, therefore, Appellant had until

August 2011 to file timely a PCRA petition. See 42 Pa.C.S. § 9545(b)(3).


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Accordingly, the December 2016 motion was filed five years late, and the

PCRA court lacked jurisdiction to entertain it unless Appellant has pled and

proven a timeliness exception.      Moreover, the PCRA requires that “[a]ny

petition invoking an exception … shall be filed within 60 days of the date the

claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

       Appellant argues that the July 2016 judgment entered by the

Prothonotary satisfies the newly-discovered fact exception set forth in 42

Pa.C.S. § 9545(b)(1)(ii), which provides an exception where “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.” See Appellant’s

Brief at 9.   Appellant contends that he filed the December 2016 motion

within 60 days of the resolution of his prior PCRA petition thereby satisfying

the section 9545(b)(2) requirement. See id.

       Despite the fact that the judgment was entered by the Prothonotary in

July 2016, Appellant’s July 2, 2010 sentence included a provision for the

payment of fines, costs, and fees.           Moreover, the record shows that

Appellant has been paying down his balance on this amount while

incarcerated. Thus, it is disingenuous for Appellant to claim that he did not

know he owed these amounts prior to July 2016. Accordingly, we conclude

that   Appellant   has   not   established   an   exception   to   the   timeliness

requirements, and the PCRA court lacked jurisdiction to entertain Appellant’s




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PCRA petition.5 Accordingly, Appellant has not set forth a claim that can be

addressed pursuant to the PCRA.

        Appellant next claims that the July 2016 judgment violates 42 Pa.C.S.

§ 5505, which provides that “[e]xcept as otherwise provided or prescribed

by law, a court upon notice to the parties may modify or rescind any order

within 30 days after its entry, notwithstanding the prior termination of any

term of court, if no appeal from such order has been taken or allowed.”

Appellant’s Brief at 12. Appellant is claiming that the July 2016 judgment is

an unlawful modification of his judgment of sentence occurring more than 30

days after its entry.       However, the court has not modified Appellant’s

sentence in any way; rather, the Prothonotary, pursuant to 42 Pa.C.S.

§ 9728, has entered a judgment to collect the fines and costs associated

with Appellant’s sentence.         Thus, section 5505 does not apply, and

Appellant’s second argument fails.

        Finally, Appellant claims that the trial court should have treated the

December 2016 motion as a writ of mandamus “seeking to challenge the

actions of the county clerk imposing additional court costs,” see Appellant’s

Brief    at   10,   based   upon   the    Commonwealth   Court’s   decision   in

Commonwealth v. Williams, 909 A.2d 419 (Pa. Cmwlth. 2006). However,



5 We recognize that the PCRA court concluded that Appellant’s PCRA petition
was filed timely; however, “[i]t is well-settled that this Court may affirm a
trial court’s ruling on any basis.” Commonwealth v. Kennedy, 151 A.3d
1117, 1127 n.14 (Pa. Super. 2016).

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Appellant did not raise this issue in the December 2016 motion or in his

objection to notice of intent to dismiss filed on February 7, 2017.

Accordingly, Appellant has waived this issue. See Pa.R.A.P. 302(a) (“Issues

not raised in the lower court are waived and cannot be raised for the first

time on appeal.”).

     For the foregoing reasons, Appellant is not entitled to relief from this

Court, and we affirm the PCRA court’s order denying Appellant relief.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 10/23/2017




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