Opinion
J. S54031/15 No. 507 EDA 2015
10-21-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. RUDIS MOREIRA, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order January 29, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0804142-1992
BEFORE: BOWES, PANELLA, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Rudis Moreira, appeals pro se from the order entered in the Philadelphia County Court of Common Pleas, dismissing his Post Conviction Relief Act ("PCRA") petition and all supplemental petitions as untimely. Appellant contends the trial court has jurisdiction to correct an illegal sentence at any time. We affirm.
On January 17, 1994, Appellant was convicted of murder in the third degree, recklessly endangering another person ("REAP"), possessing an instrument of crime, and carrying a firearm on a public street. On June 21, 1995, Appellant was sentenced to an aggregate term of fifteen to thirty years' imprisonment. This Court affirmed his judgment of sentence on September 22, 1997. Commonwealth v. Moreira , 704 A.2d 164 (Pa. Super. 1997) (unpublished memorandum). The Supreme Court of Pennsylvania denied Appellant's Petition for Allowance of Appeal on May 28, 1998. Commonwealth v. Moreira , 724 A.2d 349 (Pa. 1998).
On May 2, 2005, Appellant filed his first pro se PCRA petition. Counsel was appointed and filed an amended PCRA petition. The PCRA court dismissed his amended PCRA petition as untimely on July 13, 2006. This Court affirmed the dismissal. Commonwealth v. Moreira , 2012 EDA 2006 (unpublished memorandum) (Pa. Super. Oct. 16, 2007). The Supreme Court denied allocatur on May 14, 2008. Commonwealth v. Moreira , 952 A.2d 676 (Pa. 2008).
On January 22, 2009, Appellant filed a second pro se PCRA petition. On February 16, 2011, he filed a PCRA petition. On June 20, 2014, Appellant filed a "Motion for Modification of Sentence." On August 8, 2014, he filed a "Motion to Vacate Illegal Sentence and to Impose Legal Sentence." On October 6, 2014, Appellant filed a "Motion to Vacate Illegal Sentence and to Impose Legal Sentence." On January 29, 2015, upon consideration of his second pro se PCRA petition and all supplemental petitions and motions, the court dismissed the PCRA petition as untimely. This timely appeal followed. Appellant filed a Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the PCRA court filed a responsive opinion.
We note that Appellant does not address the claim raised in the second pro se PCRA petition, viz., that the petition was timely based upon the after-discovered evidence exception to the time limitation for the filing of a PCRA petition. See 42 Pa.C.S. § 9545(b)(1)(ii). As a threshold matter, we consider the claim because it implicates the jurisdiction of this Court. See Commonwealth v. Callahan , 101 A.3d 118, 121 (Pa. Super. 2014). This claim was raised by Appellant in his first PCRA petition. The PCRA court dismissed the petition as untimely and this Court affirmed on appeal. See Moreira , 2012 EDA 2006 at *6-7 (holding that claims that two witnesses, Robert Harris and Nelson Hernandez, lied at the time of trial would not have changed the outcome of the case). Appellant also does not address the claim raised in his February 16th PCRA petition in which he invoked the after discovered evidence exception. As to this claim, after careful consideration of the record and the decision of the Honorable Jeffrey P. Minehart, we find no relief is due and adopt the PCRA court's well-reasoned opinion. See PCRA Ct. Op., 4/15/15. at 3-4 (unpaginated) (holding two unsigned letters allegedly sent by Mr. John McLaughlin contained broad speculation devoid of any factual basis failed to invoke timeliness exception).
We note that Appellant did not request permission from the PCRA court to amend his second pro se PCRA petition. In Commonwealth v. Roney , 79 A.3d 595 (Pa. 2013), our Supreme Court addressed the issue of subsequent PCRA filings.
Pursuant to our Rules of Criminal Procedure, a PCRA petitioner may amend his or her PCRA petition with leave of the court:
Rule 905. Amendment and Withdrawal of Petition for Post-Conviction Collateral Relief.
(A) The judge may grant leave to amend or withdraw a petition for post-conviction collateral relief at any time. Amendment shall be freely allowed to achieve substantial justice.
Id. at 615. In Roney , the PCRA court
Pa.R.Crim.P. 905(A) . . . .
did not grant [the a]ppellant leave to amend his PCRA petition via his February 26, 2009 filing; did not implicitly or explicitly accept the February 26, 2009 filing as an amendment to [a]ppellant's PCRA petition; and accordingly, did not address the claims raised in the February 26, 2009 filing. Therefore, Appellant's claims in this issue have been waived.Id. at 616. In the case at bar, although Appellant did not request leave to amend his PCRA petition, the PCRA court addressed the claims raised in the subsequent filings. The PCRA court referred to the February 16th petition as an amended petition. See PCRA Ct. Op. at 3. Thus, we conclude the court implicitly accepted the subsequent filings as amendments to the second pro se PCRA petition. See id.; Cf. Commonwealth v. Lark , 746 A.2d 585, 588 (Pa. 2000) (holding that PCRA court cannot entertain new PCRA petition when prior petition is still under review on appeal).
Appellant raises the following issues for our review:
A. Does not a trial court retain jurisdiction to correct an illegal sentence at any time?Appellant's Brief at 8.
B. Does not a sentencing court that imposes an illegal sentence that is patently erroneous on its face retain the jurisdiction to vacate that sentence without regard to the thirty-day rule (42 Pa.C.S. § 5505) and without regard to the Post Conviction Relief Act?
Equal protection of the laws requires that the Appellant receive relief pursuant to 42 Pa.C.S.A. § 5505; Commonwealth v. Holmes , 933 A.2d 57 (2007). A court may correct an illegal sentence.
Appellant argues that the court may correct an obvious and patent error in sentencing at any time. Appellant's Brief at 13. Appellant contends his sentence was illegal because the standard range sentence for third degree murder was 48 to 120 months' imprisonment and the court sentenced him to the maximum of 10 to 20 years' imprisonment. Id. at 16. He avers the court incorrectly sentenced him to six to twelve months' imprisonment on the nine counts of REAP, while it stated that it carried a standard sentence of zero to six months in prison. Id. at 16-17. He avers the deadly weapons enhancement sentence of twelve to twenty-four months' imprisonment was an obvious and patent mistake. Id. at 18.
Before examining the merits of Appellant's claims, we consider whether the PCRA court had jurisdiction to entertain the underlying PCRA petition. On appellate review of a PCRA ruling, "we determine whether the PCRA court's ruling is supported by the record and free of legal error." Commonwealth v. Marshall , 947 A.2d 714, 719 (Pa. 2008).
We . . . turn to the time limits imposed by the PCRA, as they implicate our jurisdiction to address any and all of [an a]ppellant's claims. 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 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).Id. at 719-20 (emphases added) (some citations omitted).
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-day requirement of Section 9545(b) if he or she fails to explain why, with the exercise of due diligence, the claim could not have been filed earlier.
In Commonwealth v. Jackson , 30 A.3d 516 (Pa. Super. 2011), this Court considered "[w]hether a PCRA court has jurisdiction to correct allegedly illegal sentencing orders absent statutory jurisdiction under the PCRA." Id. at 518. This Court opined:
[The defendant's] "motion to correct illegal sentence" is a petition for relief under the PCRA. . . . We have repeatedly held that . . . any petition filed after the judgment of sentence becomes final will be treated as a PCRA petition. Commonwealth v. Johnson , 803 A.2d 1291, 1293 (Pa. Super. 2002). That [the defendant] has attempted to frame his petition as a "motion to correct illegal sentence" does not change the applicability of the PCRA. See Commonwealth v. Guthrie , 749 A.2d 502, 503 (Pa. Super. 2000) (appellant's "motion to correct illegal sentence" must be treated as PCRA petition).
We base this conclusion on the plain language of the PCRA, which states that "[the PCRA] provides for an action by which . . . persons serving illegal sentences may obtain collateral relief." 42 Pa.C.S.A. § 9542; see Commonwealth v. Hockenberry , [ ] 689 A.2d 283, 288 ([Pa. Super.] 1997) (legality of sentence is cognizable issue under PCRA). Further, the Act provides that "[t]he [PCRA] shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose. . . ." 42 Pa.C.S.A. §
9542; see Commonwealth v. Ahlborn , 699 A.2d 718, 721 ([Pa.] 1997) (petition filed under the PCRA cannot be treated as a request for relief under the common law); Commonwealth v. Peterkin , [ ] 722 A.2d 638, 640-41 ([Pa.] 1998) (statutory remedy not available where claim is cognizable under PCRA). Therefore, [the defendant's] "motion to correct illegal sentence" is a PCRA petition and cannot be considered under any other common law remedy.Id. at 521 (emphases added).
Because [the defendant's] claim is cognizable under the PCRA, [he] must comply with the time requirements of section 9545. . . .
Appellant's judgment of sentence became final on August 26, 1998, ninety days after the Pennsylvania Supreme Court denied his petition for allowance of appeal. 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 August 26, 1999, to file his PCRA petition. See 42 Pa.C.S. § 9545(b)(1) (providing PCRA petition must be filed within one year of date judgment becomes final). Therefore, because he filed his second PCRA petition on January 22, 2009, and subsequently filed supplemental petitions beyond this date, they are patently untimely.
Appellant's claim that the trial court has jurisdiction to correct his illegal sentence at any time, thus divesting him of the obligation to comply with the timeliness requirements of the PCRA, is meritless. See Jackson , 30 A.3d at 521-23. Thus, the PCRA court did not err in dismissing his PCRA petition, and all supplemental petitions, as untimely. See Marshall , 947 A.2d at 719-20.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2015
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