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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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*
Retired Senior Judge assigned to the Superior Court.
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[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Super. 1987) (unpublished memorandum).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 Super. 1999) (unpublished memorandum),] appeal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Commonwealth v. Romansky, No. 2478 EDA 2002, unpublished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
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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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