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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ERIC LEVINER :
:
Appellant : No. 102 MDA 2018
Appeal from the PCRA Order December 27, 2017
in the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0000584-2015
BEFORE: OTT, J., MUSMANNO, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 20, 2018
Appellant, Eric Leviner, appeals, pro se, from the order dismissing the
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546, as untimely. Because the petition is untimely without an
applicable exception, we affirm.
The PCRA court set forth the facts and procedural history of this case as
follows:
On March 7, 2016, [Appellant] pled guilty to possession
of firearm prohibited pursuant to 18 Pa.C.S.A. [§]
6105(a)(1) and possession of a controlled substance
pursuant to 35 P.S. [§] 780-113(a)(16). [Appellant’s]
request for immediate sentencing was granted. He had a
prior record score of five so his standard range on the
firearm charge was forty-eight to sixty months and six to
sixteen months on the controlled substance charge.
As part of the plea agreement, the Commonwealth and
[Appellant] agreed to a sentence of four to eight years. This
agreement was honored by the court so that forty-eight to
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* Retired Senior Judge assigned to the Superior Court.
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ninety-six months was imposed on the firearm charge and
three to six months concurrent on the controlled substance
charge. There was no appeal.
[Appellant] filed a pro se motion for post conviction
collateral relief on August 14, 2017. Counsel was appointed
to represent [Appellant] on September 1, 2017 and he
submitted a “no merit” letter and motion to withdraw three
months later. The motion to withdraw was granted.
On December 5, 2017, a notice of intention to dismiss
motion for post conviction collateral relief pursuant to
Pa.R.Crim.P. 907 was filed and served on [Appellant]. In
addition to the fact that [Appellant’s] PCRA motion was
meritless, the notice of intention also indicated that the
motion was not filed within one year of the date his
judgment of sentence became final on April 7, 2016 and
none of the exceptions provided in 42 Pa.C.S.A. [§] 9545(b)
applied.
[Appellant] failed to respond to the notice so his motion
for post conviction collateral relief was dismissed by order
dated December 27, 2017. A timely notice of appeal was
filed by [Appellant] on January 9, 2018. He failed to serve
this court with a copy of the notice of appeal as required by
Pa.R.A.P. 906(a)(2).
As a result of [Appellant’s] appeal, an order was issued
on January 22, 2018 which required that a concise
statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b) be filed by [Appellant] within twenty-one
days. [Appellant] complied with the order by filing his
concise statement on February 2, 2018. [Appellant] alleged
various errors similar to those raised in his untimely PCRA
motion.
(PCRA Court Opinion, 3/18/18, at 1-2).
Appellant raises the following issues for our review:
1. Whether the Lower Court erred in denying Appellant’s
PCRA as untimely when Appellant timely filed a Petition
challenging Act 84 deductions and sentencing issues well
within the One Year Statute of Limitations which by law
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should have been considered a Pro-Se PCRA Petition for
which counsel should have been appointed and permitted to
amend.
2. Whether the Lower Court erred in finding Appellant’s
PCRA to be untimely where Appellant’s counsel was
ineffective and was still active when Appellant attempted to
file said PCRA.
3. Whether the Lower Court erred in finding Appellant’s
PCRA as untimely when Appellant’s challenge to his
sentence under Act 84 was still pending and Appellant raised
issues of an illegal sentence which can never be time barred
when the Court has jurisdiction which the court clearly had.
(Appellant’s Brief, at 3).1
Our standard of review for an order denying PCRA relief is well-settled:
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court's
determination, and whether the PCRA court's determination
is free of legal error. The PCRA court's findings will not be
disturbed unless there is no support for the findings in the
certified record.
Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations
omitted). However, “if a PCRA [p]etition is untimely, a trial court has no
jurisdiction to entertain the petition.” Commonwealth v. Hutchins, 760
A.2d 50, 53 (Pa. Super. 2000) (citations omitted).
We begin by addressing the timeliness of Appellant’s petition.
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1We note that Appellant cites no legal authority in support of issues one and
two. Therefore, even if the PCRA petition were timely, “where an appellate
brief fails to provide any discussion of a claim with citation to relevant
authority . . . that claim is waived.” Commonwealth v. Johnson, 985 A.2d
915, 924 (Pa. 2009).
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. . . [A] PCRA petition, including a second or subsequent
petition, must be filed within one year of the date that
judgment becomes final. A judgment becomes final for
purposes of the PCRA 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.
It is well-settled that the PCRA's time restrictions are
jurisdictional in nature. As such, this statutory time-bar
implicates the court's very power to adjudicate a
controversy and prohibits a court from extending filing
periods except as the statute permits. Accordingly, the
period for filing a PCRA petition is not subject to the doctrine
of equitable tolling; instead, the time for filing a PCRA
petition can be extended only by operation of one of the
statutorily enumerated exceptions to the PCRA time-bar.
The exceptions to the PCRA time-bar are found in Section
9545(b)(1)(i)–(iii) (relating to governmental interference,
newly discovered facts, and newly recognized constitutional
rights), and it is the petitioner's burden to allege and prove
that one of the timeliness exceptions applies. Whether a
petitioner has carried his burden is a threshold inquiry that
must be resolved prior to considering the merits of any
claim.
Commonwealth v. Robinson, 139 A.3d 178, 185–86 (Pa. 2016) (quotation
marks and some citations omitted).
In the instant case, Appellant’s judgment of sentence became final on
April 6, 2016, when his time to file a direct appeal expired. See Pa.R.A.P.
903(a); 42 Pa.C.S.A. § 9545(b)(3). Because Appellant filed the instant PCRA
petition on August 14, 2017, it is untimely on its face, and the PCRA court
lacked jurisdiction to review it unless he pleaded and proved one of the
statutory exceptions to the time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
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Section 9545 of the PCRA provides three exceptions that allow for review
of an untimely PCRA petition:
(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.
Id.
When a petition is filed outside the one-year time limit, a petitioner must
plead and prove the applicability of one of the three exceptions to the PCRA
timeliness requirement. See Commonwealth v. Johnston, 42 A.3d 1120,
1126 (Pa. Super. 2012). Any petition invoking an exception must “be filed
within 60 days of the date the claim could have been presented.” Id. (citing
42 Pa.C.S.A. § 9545(b)(2)). “If the petition is untimely and the petitioner has
not pled and proven an exception, the petition must be dismissed without a
hearing because Pennsylvania courts are without jurisdiction to consider the
merits of the petition.” Commonwealth v. Hudson, 156 A.3d 1194, 1197
(Pa. Super. 2017), appeal denied, 170 A.3d 1007 (Pa. 2017) (citation
omitted).
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Appellant avers that the PCRA court erred in finding his petition untimely
because his Act 842 petition was still pending. (Appellant’s Brief at 10). The
PCRA court noted that Appellant filed a “Petition to Cease and Desist
Deductions Pursuant to Act 84” on July 22, 2016. (PCRA Ct. Op., at 4). The
petition was not addressed by the trial court. Instantly, the PCRA court opined
that the Act 84 petition was not a PCRA petition, citing 42 Pa.C.S.A. §
9543(a)(2).3 (See id. at 4-5).
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242 Pa.C.S.A. § 9728, commonly referred to as Act 84, authorizes the county
correctional facility to which the defendant has been sentenced or the
Department of Corrections to deduct monies from inmate prison accounts as
payment towards outstanding court costs and restitution. Commonwealth
v. Jackson, 858 A.2d 627, 628 n.1 (Pa. Super. 2004).
3 Section 9543(a)(2) provides to be eligible for PCRA relief, a petition must
plead and prove
(2) That the conviction or sentence resulted from one or
more of the following:
(i) A violation of the Constitution of this Commonwealth or
the Constitution or laws of the United States which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the
circumstances make it likely that the inducement caused the
petitioner to plead guilty and the petitioner is innocent.
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Generally, petitions seeking the cessation of Act 84 deductions from
state prison accounts fall within the original jurisdiction of the Commonwealth
Court.4 Jackson, 858 A.2d at 629-30;5 see also 42 Pa.C.S.A. § 761.6 A
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(iv) The improper obstruction by government officials of the
petitioner's right of appeal where a meritorious appealable
issue existed and was properly preserved in the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial of exculpatory
evidence that has subsequently become available and would
have changed the outcome of the trial if it had been
introduced.
(vii) The imposition of a sentence greater than the lawful
maximum.
(viii) A proceeding in a tribunal without jurisdiction.
42 Pa.C.S.A. § 9543(a)(2)(i)-(viii).
4 See 42 Pa.C.S.A. § 9730(b). Subsection 9730(b)(1) allows the court to
“conduct a hearing to determine whether the defendant is financially able to
pay.” Id. However, the Commonwealth Court has instructed that “Section
9730 . . . applies only when the defendant’s sentence prescribes financial
obligations without confinement, which is not the case here.” Dep’t of
Corr. v. Tate, 133 A.3d 350, 356 (Pa. Cmwlth. 2016) (emphasis added).
Thus, section 9730(b) is not applicable in the instant case.
5 This Court in Jackson affirmed the trial court’s conclusion that it lacked
jurisdiction over the defendant’s Act 84 motion without prejudice to seek relief
in the Commonwealth Court. Id. at 630.
6 The Judiciary Code provides:
(a) General rule- The Commonwealth shall have original
jurisdiction of all civil actions or proceedings:
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motion seeking to enjoin Act 84 deductions is a civil action against the
Department of Corrections for which the Commonwealth Court had
jurisdiction. See Commonwealth v. Danysh, 833 A.2d 151, 153-54 (Pa.
Super. 2003).7
Furthermore, Appellant claims that his sentence is illegal because “his
prior record score has been miscalculated” with regard to his prior out-of-state
convictions. (Appellant’s Brief at 10). His claim that his sentence is illegal
does not allow him to circumvent the PCRA’s timeliness requirements.
However, “[a]lthough legality of sentence is always subject to review within
the PCRA, claims must still first satisfy the PCRA’s time limits or one of the
exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)
(citation omitted).
It is well settled that, “in order for this Court to review a
legality of sentence claim, there must be a basis for our
jurisdiction to engage in such review. . . . [T]hough not technically
waivable, a legality [of sentence] claim may nevertheless be lost
should it be raised . . . in an untimely PCRA petition for which no
time-bar exception applies, thus depriving the court of jurisdiction
over the claim.”
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(1) Against the Commonwealth government, including
any officer thereof, acting in his official capacity[.]
42 Pa.C.S.A. § 761(a)(1).
7This Court in Danysh observed that a defendant could seek relief in common
pleas court where the defendant was in a county prison. See id. at 154.
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Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citations
and internal quotation marks omitted). Here, Appellant has not established
the applicability of any exception to the PCRA’s time-bar. (See Appellant’s
Brief, at 6-12).
Because Appellant failed to meet his burden to plead and prove that one
of the timeliness exceptions applies, we conclude that his petition is untimely
and the PCRA court properly found that it lacked jurisdiction to consider the
merits of his claims. See Johnston, supra at 1126. Accordingly, we affirm
the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2018
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