J-S13040-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA A. GREENAWALT, :
:
Appellant : No. 1489 WDA 2017
Appeal from the Order September 28, 2017
in the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000380-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA A. GREENAWALT, :
:
Appellant : No. 1490 WDA 2017
Appeal from the Order August 29, 2017
in the Court of Common Pleas of Clarion County,
Criminal Division at No(s): CP-16-CR-0000014-2014,
CP-16-CR-0000380-2013, CP-16-CR-0000381-2013
BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 15, 2018
Joshua A. Greenawalt (“Greenawalt”), pro se, appeals from the Order
denying his Motion for Reconsideration of Sentence Nunc Pro Tunc.
Greenawalt also appeals the Order denying the “Motion to Stop 20%
Deduction and Return of Money pursuant to 24 Pa.C.S.A. [§] 8127” (“Act 84
J-S13040-18
Motion”).1 We affirm the denial of Greenawalt’s Motion for Reconsideration
of Sentence at 1489 WDA 2017, and quash the appeal from the Order denying
Greenawalt’s Act 84 Motion.
At 380-2013, Greenawalt pled guilty to possession of a firearm
prohibited. At 381-2013, Greenawalt pled guilty to burglary. On December
18, 2013, the trial court sentenced Greenawalt to an aggregate term of seven
to fourteen years in prison. Greenawalt did not file a direct appeal.
Thereafter, at 14-2014, Greenawalt pled guilty to weapons or implements for
escape. On January 17, 2014, the trial court imposed a prison sentence of
thirty to sixty months, to run concurrent to the sentences at 380-2013 and
381-2013. Greenawalt did not file a direct appeal.
On April 17, 2014, at 380-2013 and 381-2013, Greenawalt, pro se, filed
his first Petition pursuant to the Post Conviction Relief Act (“PCRA”).2 The
PCRA court appointed Greenawalt counsel, who subsequently filed a
Turner/Finley3 “no-merit” letter and a Motion to Withdraw as Counsel. The
PCRA court permitted counsel to withdraw and entered a Pa.R.Crim.P. 907
Notice. Thereafter, the PCRA court dismissed Greenawalt’s PCRA Petition.
____________________________________________
1 This Court consolidated Greenawalt’s appeals.
2 See 42 Pa.C.S.A. §§ 9541-9546.
3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
-2-
J-S13040-18
On August 29, 2017, at 380-2013, 381-2013, and 14-2014, Greenawalt
filed the Act 84 Motion, arguing that the Pennsylvania Department of
Corrections (“DOC”) has been unlawfully deducting money from his personal
account.4 The Motion was denied that same day. Greenawalt filed a Motion
for Reconsideration, which was denied on September 28, 2017. On October
12, 2017, Greenawalt filed a Notice of Appeal.
On September 25, 2017, at 380-2013, Greenawalt filed a Motion for
Reconsideration of Sentence Nunc Pro Tunc, arguing that his sentence should
have merged with his sentence arising out of a theft by unlawful taking
conviction in Butler County. On September 28, 2017, the Motion was denied.
Greenawalt filed a Notice of Appeal.
On appeal, Greenawalt raises the following questions for our review:
1) Has the [DOC] and Clarion County courts deducted Act 84 [sic]
from [Greenawalt’s] friends and family unconstitutionally?
2) Has [Greenawalt] been denied due process by the Clarion
County courts and [DOC] for not having a hearing to establish
[Greenawalt’s] ability to pay these fines at this time?
3) Was [Greenawalt] unlawfully charged with the firearms
recovered in Clarion County, but stolen in Butler County?
____________________________________________
4 The statute authorizing deductions from an inmate’s personal accounts,
which is commonly referred to as “Act 84,” provides, inter alia, that “[t]he
county correctional facility to which the offender has been sentenced or the
Department of Corrections shall be authorized to make monetary deductions
from inmate personal accounts for the purpose of collecting restitution or any
other court-ordered obligation or costs imposed under section 9721(c.1).” 42
Pa.C.S.A. § 9728(b)(5).
-3-
J-S13040-18
4) Was [Greenawalt] prejudice[d] by counsel[,] who refused to
accept the original plea of 5 to 10 years in Clarion County for
all charges, including the guns from Butler County?
5) In the Exhibits A, B, and C, was [Greenawalt] prejudiced by
police in Clarion County for charging [Greenawalt] in Clarion
County with guns knowingly stolen from Butler County?
Brief for Appellant at 4 (unnumbered).
Initially, we must determine whether Greenawalt’s appeal from the
denial of his Act 84 Motion was timely filed. See Commonwealth v.
Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011) (noting that the timeliness
of an appeal implicates this Court’s jurisdiction and may be raised sua sponte).
It is well-settled that an appeal must be “filed within 30 days after the entry
of the order from which the appeal is taken.” Pa.R.A.P. 903(a). This period
may be tolled if the trial court expressly grants a motion for reconsideration
within the 30-day period. Pa.R.A.P. 1701(b)(3). However, the mere filing of
a motion for reconsideration does not toll the appeal period. Commonwealth
v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000); see also Pa.R.A.P. 1701,
cmt. (noting that the proper procedure for a party seeking reconsideration
would be to file simultaneous notice of appeal to preserve appellate rights in
case the trial court fails to grant reconsideration). Moreover, “an appeal from
an order denying reconsideration is improper and untimely.” Moir, 766 A.2d
at 1254 (citation omitted).
Here, the Order denying the Act 84 Motion was entered on August 29,
2017. Greenawalt filed a Motion for Reconsideration, but did not file a
-4-
J-S13040-18
protective notice of appeal simultaneously. After the trial court denied
reconsideration, Greenawalt filed a Notice of Appeal, which was patently
untimely. See id. Thus, we are constrained to quash Greenawalt’s appeal on
these grounds.5
With regard to Greenawalt’s Motion for Reconsideration of Sentence
Nunc Pro Tunc, we note that this Motion should have been treated as a PCRA
Petition. It is well-settled that any petition or motion filed after the judgment
of sentence becomes final will be treated as a petition filed pursuant to the
PCRA. See Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super.
2011). Indeed, the PCRA is the sole means of obtaining collateral relief, and
subsumes all other remedies where the PCRA provides a remedy for the claim.
See 42 Pa.C.S.A. § 9542 (providing that a PCRA petition is the “sole means
____________________________________________
5 In any event, we note that the trial court did not have jurisdiction over
Greenawalt’s Act 84 Motion. See Commonwealth v. Danysh, 833 A.2d 151,
152 (Pa. Super. 2003) (raising, sua sponte, the question of subject matter
jurisdiction of an Act 84 claim ruled upon by the court of common pleas).
Greenawalt filed an Act 84 Motion to enjoin the DOC from deducting money
from his prison account, which is effectively a civil action against the DOC.
See Danysh, 833 A.2d at 153 (explaining that a motion seeking to enjoin Act
84 deductions is a civil action instituted against the DOC, as part of the
Commonwealth government). Therefore, Greenawalt’s Act 84 Motion falls
within the exclusive original jurisdiction of the Commonwealth Court. See 42
Pa.C.S.A. § 761(a)(1) (providing that “[t]he Commonwealth Court shall have
original jurisdiction of all civil actions and proceedings [a]gainst the
Commonwealth government….”); see also Danysh, 833 A.2d at 152-54.
Because the Commonwealth Court has exclusive original jurisdiction over
Greenawalt’s claim, the trial court lacked subject matter jurisdiction to
consider the Act 84 Motion, and its Order should be considered void. See
Danysh, 833 A.2d at 154. Accordingly, Greenawalt has the right to seek relief
in the Commonwealth Court without prejudice.
-5-
J-S13040-18
of obtaining collateral relief and encompasses all other common law and
statutory remedies for the same purpose that exist when it takes effect,
including habeas corpus and coram nobis.”). In his Motion, Greenawalt
challenges the legality of his sentence, arguing that his sentences should have
merged. See Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004)
(stating that “[i]ssues concerning the legality of sentence are cognizable under
the PCRA.”); see also Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa.
Super. 2000) (noting that “since a motion to modify sentence must be filed
within ten days of the imposition of sentence, and a direct appeal from
judgment of sentence must be filed within thirty days, the PCRA is the only
vehicle for addressing legality of sentence beyond those time limits.”).
Because Greenawalt filed his Motion after his judgment of sentence became
final, and the PCRA provides a remedy for his claims, the Motion should have
been treated as a PCRA Petition.
Under the PCRA, any PCRA petition, “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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.” Id. § 9545(b)(3). The
PCRA’s timeliness requirements are jurisdictional in nature and a court may
-6-
J-S13040-18
not address the merits of the issues raised if the PCRA petition was not timely
filed. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Greenawalt’s sentence at 380-2013 became final in January 2014, after
the time to file a direct appeal expired. See Pa.R.A.P. 903(a). Because
Greenawalt filed the instant PCRA Petition in September 2017, his Petition is
patently untimely.
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of three exceptions set forth under
42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any petition invoking one of these exceptions
“shall be filed within 60 days of the date the claim could have been presented.”
Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.
Here, Greenawalt did not plead or prove any exception to the PCRA’s
timeliness requirement in his Petition. Thus, because Greenawalt did not
invoke any of the three exceptions necessary to circumvent the PCRA’s
timeliness requirement, we lack jurisdiction to address the merits of his claims
on appeal.6
At 1489 WDA 2017, Order affirmed. At 1490 WDA 2017, Appeal
quashed.
____________________________________________
6 It is well-noted that this Court may affirm on any basis. See
Commonwealth v. Wilcox, 174 A.3d 670, 674 n.4 (Pa. Super. 2017).
-7-
J-S13040-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2018
-8-