J-S78031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA
V.
LA|V|ONT LANE

Appellant No. 417 WDA 2016

Appeal from the PCRA Order February 24, 2016
in the Court of Common Pleas of A||egheny County Criminal Division
at No(s): CP-O2-CR-0016893-2007
BEFORE: BENDER, P.J.E., O`l_l', J., and FITZGERALD,>k J.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 08, 2016

Appellant, Lamont Lane, appeals from the order entered in the
A||egheny County Court of Common Pleas dismissing his petition for relief
filed pursuant to the Post Conviction Relief Act1 (“PCRA”). We affirm.

On November 9, 2010, Appellant pleaded guilty to two counts of
possession with intent to deliver a controlled substance, and one count of
possession of a controlled sentence. On August 18, 2011, he was sentenced
to a mandatory minimum sentence of three to six years' imprisonment for

possession with intent to deliver, with 122 days credit for time served.

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

 

* Former Justice specially assigned to the Superior Court.

1 42 Pa.c.s. §§ 9541-9546.

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On July 17, 2015, Appellant filed a pro se PCRA petition. Counsel was
appointed and directed to file an amended PCRA petition. On August 24,
2015, counsel filed an amended PCRA petition.

In his amended PCRA Petition, [Appellant] asserted that
at the time of sentencing the sentencing order failed to
give him appropriate credit for time served from July 12,
2007 to July 27, 2007 (16 days) and from June 24, 2008
to December 9, 2008 (169 days). [Appellant] alleged . . .
the failure to award the appropriate credit for time served
is a patent error subject to correction at any time. The
Commonwealth, in its answer to the petition, agreed that
there was patent error in the sentencing order and further
agreed that [Appellant] was not properly given the time
credit as alleged and consented to an order granting the
credit as requested.

PCRA Ct. Op., 7/12/16, at 2 (citation omitted).

On January 19, 2016, the court entered an order that provided: “An
appropriate amended sentencing order will be entered so that [Appellant]
will receive additional time credit for time served." On the same date, the
court filed a “notice of intent to dismiss claim of resentencing without
application of or regard for the mandatory minimum sentence." On February
24, 2016, the court entered the following order:

[I]t appearing an amended resentencing order having been
entered giving [Appellant] time credit for 185 days[z] and a

Notice of Intent to Dismiss in part [Appellant's] PCRA
Petition having been given by an Order entered January

 

2 Appellant notes that “[t]he grant of additional credit did not accelerate the
expiration date of [Appellant's] maximum sentence of incarceration in this
matter because he had been recommitted as a convicted parole violator clue
to his convictions at CP-20-CR-0015164-2014." Appellant's Brief at 5 n.1.

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15, 2016[3] and no response having been filed by
[Appellant] and after a review of the entire record and the
[c]ourt having determined there are no meritorious issues
or claims, it is ORDERED that [Appellant's] PCRA Petition

be and hereby is DISMISSED.

Order, 2/24/16.

Appellant timely appealed and filed a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. The PCRA court filed a

responsive opinion. The PCRA court held:

the exercise of the authority to correct a patent error in
the sentencing order by giving additional time credit does
not render the judgment of sentence unfinal and confer
jurisdiction to entertain the Alleyne claim raised by
[Appellant].

Therefore, although the sentencing order was correctly
amended to grant the additional time credit as requested,
[Appellant's] PCRA petition was appropriately dismissed as
untimely.

PCRA Ct. Op., 7/12/16, at 5-6.

Appellant raises the following issue for our review:

1. Whether [Appellant] must be re-sentenced at count 1 at
CP-02-CR-0016893-2007 without an application of or
regard for the mandatory minimum sentence at 18 Pa.C.S.
§ 7508(a)(7)(i) as said statutory provision is
unconstitutional_as violating his right to trial by jury under
Article I, Section 9 of the Pennsylvania Constitution and/or
Sixth and Fourteenth Amendments to the United States
Constitution_in its entirety?

 

3 The order was docketed on January 19, 2016.

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Appellant's Brief at 3. Appellant avers “[t]his claim is based on the decision
in Alleyne v. United States, [ ] 133 S. Ct. 2151 (2013) . . . Id. at 7.
Appellant contends that
[i]n the instant PCRA proceeding, [he] sought, inter alia,
additional credit for time served. Such an error is patent
and subject to correction at any time.[4] Once additional
credit was awarded in January 2016, [Appellant's]
sentence was rendered unfinal. While Alleyne does not
apply retroactively to cases where direct review has
concluded prior to the June 17, 2013 decision in

Alleyne,[S] because the sentence in the instant matter was
rendered unfinal, Alleyne is directly applicable here.

Id. at 7-8 (citations to the record and footnotes omitted).

When analyzing the dismissal of a PCRA petition, “an appellate court's
scope of review is limited by the PCRA's parameters; since most PCRA
appeals involve mixed questions of fact and law, the standard of review is

whether the PCRA court's findings are supported by the record and free of

 

4 Appellant cites Commonwealth v. Martz, 926 A.2d 514 (Pa. Super.
2007). In Martz, this Court opined the trial court had jurisdiction to amend
the defendant's sentence within 30 days after its entry. Id. at 525.

Once this 30-day period has expired or once a defendant
files a notice of appeal, however, the trial court is without
jurisdiction to alter or modify its order. The trial court can
correct a mistake that is patent or obvious, such as the
trial court's correction of credit for time served.

Id. (citations omitted).
5 see commonwealth v. washington, 142 A.3d 810, 820 (Pa. 2016)

(holding Alleyne does not apply retroactively to cases pending on collateral
review).

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legal error." Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009)
(citation omitted).

As a prefatory matter, we consider whether the PCRA petition is
timely. The timeliness of a PCRA petition is a threshold question that
implicates the jurisdiction of a court to consider the merits of the relief
requested. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014).

To be timely, a PCRA petition must be filed within one year
of the date that the petitioner's judgment of sentence
became final, unless the petition alleges and the petitioner
proves one or more of the following statutory 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 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 clue 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).

We emphasize that it is the petitioner who bears the
burden to allege and prove that one of the timeliness
exceptions applies. In addition, a petition invoking any of
the timeliness exceptions must be filed within 60 days of
the date the claim first could have been presented. 42
Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy the 60-
clay requirement of Section 9545(b) if he or she fails to
explain why, with the exercise of clue diligence, the claim
could not have been filed earlier.

_5_

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Commonwealth v. Marshall, 947 A.2d 714, 719-20 (Pa. 2008) (some
citations omitted). “[A]n untimely petition may be received when the
petition alleges, and the petitioner proves, that any of the three limited
exceptions to the time for filing the petition, set forth at [42 Pa.C.S. § 9545]
are met.” Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014)
(footnote omitted).

In Commonwealth v. McKeever, 947 A.2d 782 (Pa. Super. 2008),
this Court addressed the issue of when the clock is reset for finality of the
judgment of sentence. The McKeever court opined:

The Eastern District Court's grant of federal habeas
corpus relief as to [the a]ppellant's corrupt organizations
convictions does not “reset the clock” for the finality of
[the a]ppellant's judgment of sentence so as to make the
present PCRA petition [the a]ppellant's “first" for timeliness
purposes. To explicate, as we held in Commonwealth v.
Dehart, 730 A.2d 991, 994 n. 2 (Pa. Super. 1999), 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 on|y. We reached this
conclusion because the purpose of the PCRA is to prevent
an unfair conviction. Id.

Id. at 785 (emphasis added).
Appellant was sentenced on August 18, 2011. Appellant did not file

an appeal to this Court. Thus, his judgment of sentence became final on

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September 19, 2011.6 See 42 Pa.C.S. § 9545(b)(3) (providing “a judgment
becomes final at the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review[ ]").
Appellant generally had until September 19, 2012, to file his PCRA petition.
See 42 Pa.C.S. § 9545(b)(1). Therefore, because Appellant filed the instant
PCRA petition on July 17, 2015, his petition is patently untimely.7

The relief granted neither restored Appellant's direct appeal rights nor
disturbed his conviction. See McKeever, 947 A.2d at 785. The grant of
additional credit for time served only affected his sentence. It did not reset
the clock for the calculation of the finality of his judgment of sentence. See
id. Thus, his PCRA petition, filed on July 17, 2015, remains untimely.
Alleyne does not apply retroactively to an untimely PCRA. See
Washington, 142 A.3d at 820. Appellant did not plead and prove any
exception to the PCRA's timeliness requirement. See Marshall, 947 A.2d at
719-20; Lawson, 90 A.3d at 5. Therefore, the PCRA court lacked

jurisdiction to consider the legality of Appellant's sentence. See Davis, 86

 

6 Thirty days from August 18th fell on a Saturday. See 1 Pa.C.S. § 1908
(providing that when last clay of any period of time referred to in any statute
falls on Saturday, Sunday, or legal holiday, such clay shall be omitted from
computation).

7 We note that Appellant does not argue that any of the timeliness
exceptions apply in the instant case. See Marshall, 947 A.2d at 719-20.

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A.3d at 887. The PCRA court did not err in dismissing his PCRA petition as
untimely. See Pitts, 981 A.2d at 878; Marshall, 947 A.2d at 719-20.
Order affirmed.

Judgment Entered.

 

J seph D. Seletyn, Es .
Prothonotary

Date: 11/8/2016

