J-S11005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOHN P. ST. VINCENT,

                            Appellant               No. 2012 WDA 2015


              Appeal from the PCRA Order of November 30, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0009578-2012


BEFORE: OLSON and RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                           FILED MARCH 31, 2017

        Appellant, John P. St. Vincent, appeals pro se from the order entered

on November 30, 2015, which dismissed his petition filed pursuant to the

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

        On March 13, 2013, Appellant pleaded guilty to two counts of robbery

(threatens another with or intentionally puts him in fear of immediate

serious bodily injury)1 and the trial court sentenced him to serve an

aggregate term of seven to 14 years in prison, followed by five years of

probation. Appellant did not file a post-sentence motion or a direct appeal

from his judgment of sentence.



____________________________________________


1
    18 Pa.C.S.A. § 3701(a)(1)(ii).



*Former Justice specially assigned to the Superior Court.
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      On June 26, 2013, Appellant filed a PCRA petition and the PCRA court

appointed counsel to represent Appellant.            Within the amended PCRA

petition, Appellant claimed that the “trial court imposed an illegal sentence

[] when it failed to state [Appellant’s] eligibility for the RRRI program on the

record during [Appellant’s] sentencing hearing.” Appellant’s Amended PCRA

Petition, 3/18/14, at 3.       The Commonwealth answered the petition and

“agree[d] that a resentencing hearing is necessary in order to address the

sole issue of RRRI eligibility.”    Commonwealth’s Answer to PCRA Petition,

4/11/14, at 1.

      Therefore, on May 28, 2014, the trial court held a resentencing

hearing   and    explicitly   addressed    Appellant’s   non-eligibility   for    RRRI.

Certainly, by virtue of the fact that Appellant pleaded guilty to two counts of

robbery (threatens another with or intentionally puts him in fear of

immediate serious bodily injury), Appellant was not RRRI eligible.               See 61

Pa.C.S.A. §§ 4505(c) and 4503; 18 P.S. § 11.103. As such, that day, the

trial court resentenced Appellant to the same term of imprisonment that it

originally sentenced Appellant: an aggregate term of seven to 14 years in

prison, followed by five years of probation. Resentencing Hearing, 5/28/14,

at 2-3; see also Modified Order of Sentence, 5/28/14, at 1.

      On February 26, 2015, Appellant filed the current PCRA petition, pro

se. Within this PCRA petition, Appellant claimed that his trial counsel was

ineffective for coercing his guilty plea and that his appellate counsel was

ineffective for failing to claim that Appellant’s plea was coerced. Appellant’s

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Memorandum to Second PCRA Petition, 2/26/15, at 1.             Appellant neither

acknowledged that his petition was untimely nor pleaded a statutory

exception to the PCRA’s one-year time-bar. See Appellant’s Second PCRA

Petition, 2/26/15, at 1-9; Appellant’s Memorandum to Second PCRA Petition,

2/26/15, at 1-3.

      The PCRA court viewed Appellant’s PCRA petition as a second petition

under the PCRA and, thus, did not appoint counsel to represent Appellant

during the proceedings.

      On August 14, 2015, the PCRA court issued Appellant notice that it

intended to dismiss Appellant’s second PCRA petition in 20 days, without

holding a hearing, as the petition was untimely. PCRA Court Order, 8/14/15,

at 1; Pa.R.Crim.P. 907.    Appellant did not file a meaningful response to the

PCRA court’s Rule 907 notice and, on November 29, 2015, the PCRA court

finally dismissed Appellant’s petition.   PCRA Court Order, 11/29/15, at 1.

Appellant filed a notice of appeal to this Court. We affirm.

      The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.     This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b).            Further,

since the time-bar implicates the subject matter jurisdiction of our courts,

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we are required to first determine the timeliness of a petition before we are

able to consider any of the underlying claims. Commonwealth v. Yarris,

731 A.2d 581, 586 (Pa. 1999). Our Supreme Court has explained:

        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions.               See, e.g.,
        Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
        (stating that “given the fact that the PCRA's timeliness
        requirements are mandatory and jurisdictional in nature, no
        court may properly disregard or alter them in order to reach
        the merits of the claims raised in a PCRA petition that is
        filed in an untimely manner”); Commonwealth v. Fahy,
        737 A.2d 214, 220 (Pa. 1999) (holding that where a
        petitioner fails to satisfy the PCRA time requirements, this
        Court has no jurisdiction to entertain the petition). [The
        Pennsylvania Supreme Court has] also held that even where
        the PCRA court does not address the applicability of the
        PCRA timing mandate, th[e court would] consider the issue
        sua sponte, as it is a threshold question implicating our
        subject matter jurisdiction and ability to grant the requested
        relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).

      In this case, Appellant was originally sentenced on March 13, 2013 and

Appellant did not file a direct appeal from his judgment of sentence.

Instead, on June 26, 2013, Appellant filed a PCRA petition and claimed that

his sentence was illegal because the trial court failed to explicitly state

Appellant’s   “eligibility   for   the   RRRI   program   on   the   record   during

[Appellant’s] sentencing hearing.”          Appellant’s Amended PCRA Petition,

3/18/14, at 3. The PCRA court partially granted Appellant relief, remanded

the case for resentencing, and, during the May 28, 2014 resentencing



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hearing, the trial court reimposed Appellant’s original sentence.      Appellant

then filed the current PCRA petition on February 26, 2015.

      As this Court has held:     “a successful first PCRA petition does not

‘reset the clock’ for the calculation of the finality of the judgment of sentence

for purposes of the PCRA where the relief granted in the first petition neither

restored a petitioner’s direct appeal rights nor disturbed his conviction, but,

rather, affected his sentence only.”     Commonwealth v. McKeever, 947

A.2d 782, 785 (Pa. Super. 2008); Commonwealth v. DeHart, 730 A.2d

991 (Pa. Super. 1999) (same); see also Commonwealth v. Johnson, ___

A.3d ___, 2016 WL 687291 (Pa. Super. 2016) (unpublished memorandum)

(the petitioner was sentenced and filed a PCRA petition, claiming that

counsel was ineffective for failing to “move for a reduction in [the

petitioner’s] sentence pursuant to the [RRRI] Act;” the PCRA court granted

the petitioner relief on the RRRI claim, vacated the sentence, and the trial

court later resentenced the petitioner to the same sentence as was originally

imposed; when the petitioner filed a PCRA petition after resentencing, this

Court held that the petitioner’s PCRA petition was an untimely, second PCRA

petition because, pursuant to McKeever and DeHart, “a successful first

PCRA petition does not ‘reset the clock’ for the calculation of the finality of

the judgment of sentence for purposes of the PCRA where the relief granted

in the first petition neither restored a petitioner's direct appeal rights nor

disturbed his conviction, but, rather, affected his sentence only.         Here,


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the PCRA court's ministerial task of indicating that [the petitioner] was not

RRRI eligible did not reset the clock for purposes of a subsequent PCRA

petition”) (internal citations and some quotations omitted) (emphasis in

original); see also Commonwealth v. Lesko, 15 A.3d 345, 366 (Pa. 2011)

(“Lesko's ‘right’ to first petition PCRA review is necessarily confined to that

part of the final Pennsylvania judgment that was disturbed by the federal

habeas proceedings.    All other aspects of the original judgment remain as

before – final”) (emphasis in original).

      This Court is bound by McKeever and DeHart. Therefore, we must

conclude that, since “the relief granted in the first petition neither restored

[Appellant’s] direct appeal rights nor disturbed his conviction, but, rather,

affected his sentence only,” Appellant’s “successful first PCRA petition [did]

not ‘reset the clock’ for the calculation of the finality of [Appellant’s]

judgment of sentence for purposes of the PCRA.” See McKeever, 947 A.2d

at 785.    Hence, in accordance with McKeever and DeHart, we must

conclude that, since Appellant does not raise any claim related to his

resentencing, Appellant’s current PCRA petition constitutes his second

petition under the PCRA and that, since Appellant did not file a direct appeal

from his judgment of sentence, his judgment of sentence became final at the

end of the day on April 12, 2013, which was 30 days after Appellant was

originally sentenced in open court and the time for filing a direct appeal to

this Court expired. 42 Pa.C.S.A. § 9545(b)(3) (“A judgment becomes final


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at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States . . . , or at the expiration of time for

seeking the review”); see also Pa.R.A.P. 903(a).

      The PCRA explicitly requires that a petition be filed “within one year of

the date the judgment becomes final[.]”            42 Pa.C.S.A. § 9545(b)(1).

Therefore, Appellant had until April 12, 2014 to file a timely PCRA petition.

42 Pa.C.S.A. § 9545(b)(1). As Appellant did not file his current petition until

February 26, 2015, the current petition is manifestly untimely and the

burden thus fell upon Appellant to plead and prove that one of the

enumerated exceptions to the one-year time-bar applied to his case. See

42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284,

1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the one-

year time-bar, the PCRA demands that the petitioner properly plead and

prove all required elements of the relied-upon exception).

      Appellant did not attempt to plead any exception to the PCRA’s one-

year time-bar. Thus, Appellant’s petition is time-barred and our “courts are

without jurisdiction to offer [Appellant] any form of relief.” Commonwealth

v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). Therefore, we affirm the

PCRA court’s order dismissing Appellant’s second PCRA petition.

      Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/31/2017




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