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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
LANCE TYLER :
: No. 142 EDA 2017
Appellant
Appeal from the PCRA Order December 6, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1204071-2004
BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 15, 2017
Appellant, Lance Tyler, appeals pro se from the order entered in the
Court of Common Pleas of Philadelphia County, which dismissed his document
entitled “Motion to Vacate Judgment of Sentence” under the auspices of the
Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, without an
evidentiary hearing. After a careful review, we affirm.
The relevant facts and procedural history are as follows: Following his
conviction by a jury on two counts of aggravated assault and one count of
possessing an instrument of crime, Appellant was sentenced on December 19,
2006, to an aggregate of 22½ to 45 years in prison. Appellant filed a timely
post-sentence motion, which the trial court denied on January 29, 2007. He
then filed a timely direct appeal, and we affirmed his judgment of sentence
on January 31, 2008. See Commonwealth v. Tyler, 554 EDA 2007
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* Former Justice specially assigned to the Superior Court.
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(Pa.Super. filed 1/31/08) (unpublished memorandum). Appellant did not file
a petition for allowance of appeal with our Supreme Court.
On July 30, 2008, Appellant filed a timely pro se PCRA petition, and the
lower court appointed counsel. PCRA counsel filed a “no-merit letter” and a
petition to withdraw pursuant to Commonwealth v. Turner, 518 Pa. 491,
544 A.2d 927 (1988), and Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988) (en banc). Subsequently, despite being represented by
counsel, Appellant filed a series of three pro se amendments in which he raised
new claims. On April 22, 2010, the PCRA court issued notice of its intent to
dismiss Appellant’s PCRA petition without a hearing, and on May 6, 2010,
Appellant filed a pro se response in which he again raised new claims. Further,
on May 11, 2010, Appellant sent a packet of materials directly to the PCRA
court, which, in turn, forwarded the packet to the Clerk of Courts. On June 2,
2010, the PCRA court denied Appellant’s PCRA petition.
Appellant appealed to this Court, and on April 29, 2011, this Court
vacated the PCRA court’s order denying relief and remanded for a Grazier1
hearing. We further directed that, should the PCRA court grant Appellant
permission to proceed pro se, it should reinstate the order denying relief and
allow Appellant to file a new pro se appeal. If the PCRA court determined that
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1 Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998) (providing for
a hearing to determine if an accused’s request to proceed pro se is voluntarily,
knowingly, and intelligently made).
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Appellant did not wish to proceed pro se, this Court directed the PCRA court
to appoint new counsel to represent Appellant on appeal. See
Commonwealth v. Tyler, No. 1742 EDA 2010 (Pa.Super. filed 4/29/11)
(unpublished memorandum).
On October 7, 2011, the PCRA court held a Grazier hearing and
determined that Appellant wished to proceed pro se. Therefore, the PCRA
court permitted Appellant to proceed pro se, permitted PCRA counsel to
withdraw, and reinstated its order denying PCRA relief. Appellant appealed to
this Court, and we affirmed on August 24, 2012. Commonwealth v. Tyler,
2870 EDA 2011 (Pa.Super. filed 8/24/12) (unpublished memorandum). On
May 13, 2013, our Supreme Court denied his petition for allowance of appeal.
On December 15, 2015, Appellant filed a pro se document entitled
“Motion to Vacate Judgment of Sentence,” which the Clerk of Courts filed as a
PCRA petition. On January 15, 2016, Appellant filed a pro se request for a
correction of the docket entry, indicating that his December 15, 2015, filing
was not a PCRA petition.2 Notwithstanding Appellant’s contention, concluding
Appellant’s pro se document should be treated under the auspices of the PCRA,
on June 2, 2016, the PCRA court filed an order indicating its intent to dismiss
the petition without an evidentiary hearing pursuant to Pa.R.Crim.P. 907. On
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2 On May 26, 2016, Appellant filed a notice of appeal to this Court, indicating
that he was appealing from the “order entered in this matter on the 29 th of
January, 2007.” On November 22, 2016, this Court quashed Appellant’s
appeal.
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June 14, 2016, Appellant filed a pro se response, and on December 6, 2016,
the PCRA court dismissed Appellant’s December 15, 2015, petition. This
timely appeal followed. The PCRA court did not direct Appellant to file a
Pa.R.A.P. 1925(b) statement; however, the PCRA court filed a Pa.R.A.P.
1925(a) opinion indicating it dismissed Appellant’s petition on the basis it was
untimely filed.
At the outset, we address Appellant’s first claim, that the lower court
erred in treating his pro se document entitled “Motion to Vacate Judgment of
Sentence” under the auspices of the PCRA.
The PCRA provides: “The action established in this subchapter shall be
the sole means of obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose that exist when
this subchapter takes effect, including habeas corpus[.]” 42 Pa.C.S.A. § 9542.
Thus, where a petitioner’s claim is cognizable under the PCRA, regardless of
the title given to the petition, the court must analyze the petition under the
PCRA. Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013).
In his pro se document entitled “Motion to Vacate Judgment of
Sentence,” Appellant contended the following: the trial court imposed an
illegal sentence in violation of 18 Pa.C.S.A. § 906, relating to multiple
convictions of inchoate crimes barred; the evidence was insufficient to sustain
his conviction on two counts of aggravated assault; the trial court utilized an
improper offense gravity score in imposing sentence; and the trial court
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abused its discretion in imposing sentences, which deviated from the
Sentencing Guidelines.
Moreover, in his pro se response to the PCRA court’s Pa.R.Crim.P. 907
notice, Appellant argued the following: the lower court should consider the
December 15, 2015, petition under the trial court’s inherent jurisdiction to
correct an illegal sentence; and the Clerk of Courts failed to make a proper
docket entry indicating it had provided Appellant with notice of the trial court’s
January 29, 2007, order denying his post-sentence motions, thus extending
the time period in which he could file a direct appeal.
We conclude Appellant’s claims fall under the auspices of the PCRA. See
generally Commonwealth v. Jackson, 30 A.3d 516 (Pa.Super. 2011).
Accordingly, the lower court properly treated Appellant’s “Motion to Vacate
Judgment of Sentence” as a PCRA petition.
With regard to petitions filed under the PCRA, as this Court has
observed:
The filing mandates of the PCRA are jurisdictional in nature and
are strictly construed. The question of whether a petition is timely
raises a question of law. Where the petitioner raises questions of
law, our standard of review is de novo and our scope of review
plenary. An untimely petition renders this Court without
jurisdiction to afford relief.
Taylor, 65 A.3d at 468 (citations omitted). Thus, at this juncture, we must
determine whether Appellant’s December 15, 2015, petition was timely filed
under the PCRA.
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The most recent amendments to the PCRA, effective January 19, 1996,
provide that a PCRA petition, including a second or subsequent petition, shall
be filed within one year of the date the underlying judgment becomes final.
42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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
the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).
Three statutory exceptions to the timeliness provisions in the PCRA allow
for very limited circumstances under which the late filing of a petition will be
excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition must
allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of
interference by government officials with the
presentation of the claim in violation of the Constitution
or the law of this Commonwealth or the Constitution or
law 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 Pennsylvania after
the time period provided in this section and has been held
by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
“We emphasize that it is the petitioner who bears the burden to allege
and prove that one of the timeliness exceptions applies.” Commonwealth
v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).
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In the case sub judice, Appellant was sentenced on December 19, 2006,
and this Court affirmed his judgment of sentence on January 31, 2008.
Appellant did not file a petition for allowance of appeal with our Supreme
Court. Accordingly, his judgment of sentence became final on Monday, March
3, 2008, when the thirty-day time period for filing a petition for allowance of
appeal with our Supreme Court expired.3 See 42 Pa.C.S.A. § 9545(b);
Pa.R.A.P. 1113. However, Appellant did not file the instant PCRA petition until
December 15, 2015, clearly more than one year from when the underlying
judgment became final, and thus, it is patently untimely. See 42 Pa.C.S.A. §
9545(b)(1).
With regard to the timeliness exceptions, Appellant has not attempted
to invoke any of them. Rather, he argued below, and continues to argue on
appeal, that his pro se “Motion to Vacate Judgment of Sentence” does not fall
under the auspices of the PCRA. As indicated supra, Appellant is mistaken in
this regard.4
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3 The thirtieth day fell on Saturday, March 1, 2008, and thus, Appellant had
until Monday, March 3, 2008, in which to file a petition for allowance of appeal.
See 1 Pa.C.S.A. § 1908 (stating that, for computations of time, whenever the
last day of any such period shall fall on a Saturday or Sunday, or a legal
holiday, such day shall be omitted from the computation).
4 To the extent Appellant suggests his sentence is illegal, and thus not subject
to the PCRA’s time restrictions, we note that our Supreme Court has
specifically held that “[a]lthough legality of sentence is always subject to
review within the PCRA, [legality of sentencing] claims must still first satisfy
the PCRA’s time limits or one of the exceptions thereto.” Commonwealth v.
Fahy, 558 Pa. 313, 737 A.2d 214, 223 (1999).
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For all of the aforementioned reasons, we conclude Appellant’s instant
PCRA petition is untimely and Appellant has not established any of the
timeliness exceptions to the PCRA time-bar. Thus, we affirm the PCRA court’s
dismissal of the petition.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2017
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