J-S10022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

STEVEN L. ROMANSKY,

                            Appellant                No. 1872 EDA 2015


               Appeal from the PCRA Order Entered May 28, 2015
                In the Court of Common Pleas of Wayne County
                     Criminal Division at No(s): 42-CR-1986


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED FEBRUARY 10, 2016

        Appellant, Steven L. Romansky, appeals pro se from the post-

conviction court’s May 28, 2015 order denying his third petition for relief

filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

We affirm.

        In a prior decision, this Court set forth the procedural history of

Appellant’s case, as follows:

              On September 17, 1986, [Appellant] was convicted by a
        jury of arson, reckless burning or exploding, causing or risking
        catastrophe, and tampering with evidence.            The court
        subsequently granted [Appellant’s] motion in arrest of judgment
        as to the arson conviction.     [Appellant] was sentenced on
        February 10, 1987, to an aggregate term of 4 to 10 years’
        imprisonment.1

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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           1
              [Appellant] was later sentenced, on unrelated
           convictions, in Monroe County and Pike County.

     This Court affirmed the judgment of sentence on November 24,
     1987. Commonwealth v. Romansky, 536 A.2d 828 (Pa.
     Super. 1987) (unpublished memorandum).          No petition for
     allowance of appeal was filed with the Pennsylvania Supreme
     Court. Thereafter, [Appellant] filed his first PCRA petition on
     September 18, 1995, which was dismissed by the court on April
     28, 1999. This Court affirmed the denial on December 17, 1999,
     and the Pennsylvania Supreme Court denied allowance of appeal
     on July 25, 2000. Commonwealth v. Romansky, 750 A.2d
     374 [Pa. Super. 1999) (unpublished memorandum),] appeal
     denied, … 795 A.2d 974 ([Pa.] 2000).

Commonwealth       v.   Romansky,     No.   2478   EDA    2002,   unpublished

memorandum at 1-2 (Pa. Super. filed March 24, 2003).

     Appellant filed a second, pro se PCRA petition on April 17, 2002. The

PCRA court denied that petition on July 10, 2002, reasoning that Appellant

was not eligible for PCRA relief because he had completed serving his

sentence on the underlying conviction in this case. See id. at 2. Appellant

timely appealed, and this Court agreed that Appellant was not eligible for

PCRA relief. We explained:

            As the PCRA court noted, although [Appellant] is currently
     serving a sentence in the state penitentiary, his sentence on the
     Wayne County conviction expired in 1997. [Appellant] argues
     that the case of Garlotte v. Fordice, 515 U.S. 39 (1995),
     renders him eligible for relief, as he is currently serving an
     aggregate sentence imposed by Wayne County, Monroe County,
     and Pike County, of 16 to 34 years’ imprisonment. However[,]
     as the PCRA court observed, the petitioner in Garlotte was
     serving consecutive sentences imposed by the same court. In
     the present matter, [Appellant] was serving three sentences
     imposed by three different trial courts. Therefore, Garlotte is
     not applicable to the present case, and [Appellant] remains
     ineligible for relief, as he is not currently serving a sentence for
     the underlying Wayne County conviction.

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Id. at 3-4. We also pointed out that Appellant’s 2002 petition appeared to

be untimely filed. Id. at 2 n.2. For these reasons, we affirmed the PCRA

court’s order denying Appellant’s second petition.

      On May 23, 2012, Appellant filed the pro se PCRA petition underlying

the present appeal.       On May 28, 2015, the PCRA court issued an order

dismissing Appellant’s petition, again concluding that he is not eligible for

post-conviction relief because “he is not currently serving a sentence for the

underlying Wayne County conviction.”          PCRA Court Order, 5/28/15.

Appellant filed a timely, pro se notice of appeal. Herein, he raises two issues

for our review:

      1. Did the PCRA court abuse its discretion, commit an error of
      law and deny [A]ppellant his state and federal equal protection
      and due process rights when the court (1) failed to issue the
      mandatory notice of intent to dismiss; (2) failed to consider
      aggregate sentences on the issue of custody; and (3) failed to
      abide by the law of the case doctrine on the issue of custody?

      2. Does this Court … have the authority to grant relief when the
      issue of innocence is true, undeniable and supported by the
      record without further delay?

Appellant’s Brief at 4.

      We cannot address Appellant’s claims for several reasons.       First, as

this Court concluded in our 2003 decision, quoted supra, Appellant is

ineligible for PCRA relief because he is no longer serving a term of

incarceration based on the underlying conviction in Wayne County.        While

Appellant reiterates his argument that under Garlotte, his ‘aggregate

sentences’ make him eligible for relief, this Court rejected that claim in


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2003. See Romansky, No. 2478 EDA 2002, unpublished memorandum at

3-4. Additionally, Appellant’s newest contention that he is eligible for relief

pursuant to 42 Pa.C.S. § 9757 is meritless. That section simply directs that,

      [w]henever the court determines that a sentence should be
      served consecutively to one being then imposed by the court, or
      to one previously imposed, the court shall indicate the minimum
      sentence to be served for the total of all offenses with respect to
      which sentence is imposed. Such minimum sentence shall not
      exceed one-half of the maximum sentence imposed.”

42 Pa.C.S. § 9757. This provision has no bearing on whether Appellant is

currently incarcerated for his underlying conviction in Wayne County.

Because this Court has previously determined that he is not (which the

record supports), we likewise conclude that Appellant is ineligible for post-

conviction relief.

      Nevertheless, we also point out that even if Appellant were still

incarcerated on his Wayne County conviction, his 2012 petition is patently

untimely. Under the PCRA, any petition for post-conviction relief, including a

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

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (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, unless the petition
         alleges and the petitioner proves that:

             (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

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              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. § 9545(b)(1)(i)-(iii).        Any petition attempting to invoke one of

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

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

       Here, Appellant’s judgment of sentence became final on December 24,

1987, at the expiration of the thirty-day time-period for seeking review with

the Pennsylvania Supreme Court from this Court’s decision affirming his

judgment of sentence.          See 42 Pa.C.S. § 9545(b)(3) (directing that a

judgment of sentence becomes final at the conclusion of direct review or the

expiration of the time for seeking the review); Pa.R.A.P. 1113(a) (stating, “a

petition for allowance of appeal shall be filed with the Prothonotary of the

Supreme Court within 30 days of the entry of the order of the Superior Court

sought to be reviewed”).         Accordingly, Appellant’s current petition, filed in

2012, is patently untimely.1 Appellant does not plead, let alone prove, the

____________________________________________


1
  We note that the PCRA was amended in 1995 to add the timeliness
provisions of section 9545(b). A proviso to the 1995 amendments provides a
grace period for petitioners, such as Appellant, whose judgments of sentence
became final on or before the January 16, 1996 effective date of the
(Footnote Continued Next Page)


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applicability of any of the above-stated exceptions. Therefore, we would be

without jurisdiction to assess Appellant’s claims, even if he were eligible for

PCRA relief.2 See Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007) (stating PCRA time limitations implicate our jurisdiction and may not

be altered or disregarded to address the merits of the petition).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2016


                       _______________________
(Footnote Continued)

amendments. However, the proviso applies only to first petitions filed by
January 16, 1997. See Commonwealth v. Thomas, 718 A.2d 326, 329-
330 (Pa. Super. 1998) (en banc). Because this is Appellant’s third petition,
and it was filed in 2012, the proviso does not apply.
2
  We note that the untimeliness of Appellant’s petition defeats his challenge
to the PCRA court’s failure to issue a Pa.R.Crim.P. 907 notice of its intent to
dismiss Appellant’s petition without a hearing. “[O]ur Supreme Court has
held that where the PCRA petition is untimely, the failure to provide such
notice is not reversible error.” Commonwealth v. Lawson, 90 A.3d 1, 5
(Pa. Super. 2014) (quoting Commonwealth v. Davis, 916 A.2d 1206, 1208
(Pa. Super 2007) (citing Commonwealth v. Pursell, 749 A.2d 911, 917
n.7 (Pa. 2000)).




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