J-S29027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MIKE ANTHONY ZIGLER
Appellant No. 1500 WDA 2015
Appeal from the PCRA Order entered September 2, 2015
in the Court of Common Pleas of Erie County
Criminal Division, at No(s): CP-25-CR-0001472-2000
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MIKE ANTHONY ZIGLER
Appellant No. 1504 WDA 2015
Appeal from the PCRA Order entered September 2, 2015
in the Court of Common Pleas of Erie County
Criminal Division, at No(s): CP-25-CR-0001471-2000
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MIKE ANTHONY ZIGLER
Appellant No. 1506 WDA 2015
Appeal from the PCRA Order entered September 2, 2015
J-S29027-16
in the Court of Common Pleas of Erie County
Criminal Division, at No(s): CP-25-CR-0001469-2000
BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.
MEMORANDUM BY PANELLA, J. FILED JUNE 07, 2016
In these consolidated appeals, Appellant challenges the PCRA court’s
denial of his serial petition, filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
On September 5, 2000, Appellant entered an open guilty plea to seven
counts, including robbery, conspiracy, and related charges at three separate
dockets. In October 2000, the trial court imposed an aggregate term of
twelve to thirty-four years of imprisonment. Each sentence imposed by the
trial court fell within the standard range of the applicable sentencing
guidelines except for count 1 at Docket No. CP-25-CR-0001472-2000, which
fell within the aggravated range.1
Subsequently, Appellant moved to withdraw his guilty plea and modify
his sentence. The trial court denied both motions. Appellant filed a timely
appeal to this Court, in which he raised a challenge to the discretionary
aspects of his sentence. In an unpublished memorandum filed on June 19,
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Former Justice specially assigned to the Superior Court.
1
Due to the use of a firearm, one of Appellant’s convictions required the
imposition of a five-year mandatory minimum sentence. See N.T., 10/9/00,
at 23.
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2001, we rejected Appellant’s claim and, therefore, affirmed his judgment of
sentence. See Commonwealth v. Zigler, 779 A.2d 1225 (Pa. Super. 2001)
(Table). Appellant did not file a petition for allowance of appeal to our
Supreme Court.
Appellant filed a timely pro se PCRA petition on January 22, 2001. The
PCRA court appointed counsel, who ultimately filed a “no-merit letter” and
petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). After issuing notice of intent to dismiss without a hearing,
the PCRA court dismissed the petition by order entered March 7, 2002, and
permitted counsel to withdraw. Appellant filed a timely appeal. In an
unpublished memorandum filed on November 8, 2002, we affirmed the PCRA
court’s order denying post-conviction relief. See Commonwealth v. Zigler,
816 A.2d 337 (Pa. Super. 2002) (Table).
On March 5, 2009, Appellant filed a pro se motion for modification of
sentence, nunc pro tunc, which the PCRA court denied on March 13, 2009.
Appellant filed another pro se PCRA petition on May 11, 2009. After
providing notice, the PCRA court denied this petition on August 10, 2009.
On March 26, 2010, Appellant filed a pro se “Petition to Vacate Illegal
Sentence and Resentence,” which the PCRA court treated a serial PCRA
petition. After providing notice, the PCRA court dismissed Appellant’s petition
July 1, 2010.
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Appellant filed the instant PCRA petition, on January 15, 2015, and the
PCRA court appointed counsel.2 PCRA counsel filed a supplement to
Appellant’s pro se petition and the Commonwealth filed a response. The
PCRA court filed notice of intent to dismiss Appellant’s petition without a
hearing. Appellant did not file a response. By order entered September 2,
2015, the PCRA court denied Appellant’s latest PCRA petition. These timely
appeals follow.
Appellant raises the following issues:
A. Whether the [PCRA] court erred in denying PCRA relief
based upon a finding that the PCRA was untimely filed
and the challenges to the legality of sentence time-
barred as a result?
B. Whether the [PCRA] court erred in denying PCRA relief
on the substantive grounds asserted as to the
[reference] to and consideration of invalid sentencing
factors including that [Appellant] was under supervision
at the time of the offense and that the sentencing court
considered non-existent drug and alcohol evaluations?
Appellant’s Brief at 2 (excess capitalization removed).
We first determine whether the PCRA court correctly concluded that
Appellant’s latest PCRA petition was untimely filed. The timeliness of a post-
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2
“In a second or subsequent petition, the [PCRA] court shall appoint counsel
for an indigent defendant only if an evidentiary hearing is required under
Rule 908. In addition, Rule 904 authorizes the [PCRA] court to appoint
counsel ‘whenever the interests of justice require it.’” Thomas M. Place, The
Post Conviction Relief Act, Practice and Procedure, § 6.03[4][a] (11th ed.
2016) (citing Pa.R.Crim.P. 904(E)).
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conviction petition is jurisdictional. See Commonwealth v. Hernandez, 79
A.3d 649, 651 (Pa. Super. 2013). Because the PCRA’s time limitations
implicate the court’s jurisdiction and may not be altered or disregarded in
order to address the merits of a petition, the court must start by examining
the timeliness of defendant’s petition. See Commonwealth v. Davis, 86
A.3d 883 (Pa. Super. 2014). Generally, a petition for relief under the PCRA,
including a second or subsequent petition, must be filed within one year of
the date the judgment is final unless the petition alleges, and the petitioner
proves, that an exception to the time for filing the petition, set forth at 42
Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met. A PCRA petition invoking one
of these statutory exceptions must “be filed within 60 days of the date the
claims could have been presented.” Hernandez, 79 A.3d 651-52 (citations
omitted). See also 42 Pa.C.S.A. § 9545(b)(2).
Appellant’s judgment of sentence became final on July 19, 2001, when
the thirty day time period for filing a petition for allowance of appeal to our
Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Therefore,
Appellant needed to file the petition at issue by July 19, 2002, in order for it
to be timely. As Appellant filed the instant petition over ten years later, it is
untimely unless he has satisfied his burden of pleading and proving that one
of the enumerated exceptions applies.
Within his brief, Appellant has not attempted to prove any of the PCRA
time bar exceptions. Instead, he asserts that “[t]here exists a sub-set of the
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illegal sentencing non-waiver doctrine, which holds that a Court possesses
inherent power and authority, at anytime [sic], to correct an illegal sentence
where the illegal sentencing error is patent and obvious.” Appellant’s Brief at
5 (citing Commonwealth v. Holmes, 933 A.2d 57, 66-67 (Pa. 2007);
Commonwealth v. Ellsworth, 97 A.3d 1255 (Pa. Super. 2014)). We
disagree.
Unfortunately for Appellant, although illegal sentencing issues cannot
be waived, they still must be presented in a timely PCRA petition. See
Commonwealth v. Taylor, 65 A.3d 426 (Pa. Super. 2013). Moreover,
Appellant’s reliance upon Holmes and Ellsworth is inapt; neither of those
cases involved the PCRA. Under the PCRA, “[w]hen the one-year filing
deadline of section 9545 has expired, and no statutory exception has been
pled or proven, a PCRA court cannot invoke inherent jurisdiction to correct
orders, judgments and decrees, even if the error if patent and obvious.”
Commonwealth v. Jackson, 30 A.3d 516 (Pa. Super. 2011).
The PCRA correctly concluded that it lacked jurisdiction to consider
Appellant’s serial PCRA petition. We therefore affirm the PCRA court’s order
denying Appellant post-conviction relief.
Order affirmed.
President Judge Emeritus Bender joins the memorandum.
Justice Fitzgerald concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2016
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