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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOHN P. ST. VINCENT,
Appellant No. 2012 WDA 2015
Appeal from the PCRA Order of November 30, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009578-2012
BEFORE: OLSON and RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED MARCH 31, 2017
Appellant, John P. St. Vincent, appeals pro se from the order entered
on November 30, 2015, which dismissed his petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On March 13, 2013, Appellant pleaded guilty to two counts of robbery
(threatens another with or intentionally puts him in fear of immediate
serious bodily injury)1 and the trial court sentenced him to serve an
aggregate term of seven to 14 years in prison, followed by five years of
probation. Appellant did not file a post-sentence motion or a direct appeal
from his judgment of sentence.
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1
18 Pa.C.S.A. § 3701(a)(1)(ii).
*Former Justice specially assigned to the Superior Court.
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On June 26, 2013, Appellant filed a PCRA petition and the PCRA court
appointed counsel to represent Appellant. Within the amended PCRA
petition, Appellant claimed that the “trial court imposed an illegal sentence
[] when it failed to state [Appellant’s] eligibility for the RRRI program on the
record during [Appellant’s] sentencing hearing.” Appellant’s Amended PCRA
Petition, 3/18/14, at 3. The Commonwealth answered the petition and
“agree[d] that a resentencing hearing is necessary in order to address the
sole issue of RRRI eligibility.” Commonwealth’s Answer to PCRA Petition,
4/11/14, at 1.
Therefore, on May 28, 2014, the trial court held a resentencing
hearing and explicitly addressed Appellant’s non-eligibility for RRRI.
Certainly, by virtue of the fact that Appellant pleaded guilty to two counts of
robbery (threatens another with or intentionally puts him in fear of
immediate serious bodily injury), Appellant was not RRRI eligible. See 61
Pa.C.S.A. §§ 4505(c) and 4503; 18 P.S. § 11.103. As such, that day, the
trial court resentenced Appellant to the same term of imprisonment that it
originally sentenced Appellant: an aggregate term of seven to 14 years in
prison, followed by five years of probation. Resentencing Hearing, 5/28/14,
at 2-3; see also Modified Order of Sentence, 5/28/14, at 1.
On February 26, 2015, Appellant filed the current PCRA petition, pro
se. Within this PCRA petition, Appellant claimed that his trial counsel was
ineffective for coercing his guilty plea and that his appellate counsel was
ineffective for failing to claim that Appellant’s plea was coerced. Appellant’s
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Memorandum to Second PCRA Petition, 2/26/15, at 1. Appellant neither
acknowledged that his petition was untimely nor pleaded a statutory
exception to the PCRA’s one-year time-bar. See Appellant’s Second PCRA
Petition, 2/26/15, at 1-9; Appellant’s Memorandum to Second PCRA Petition,
2/26/15, at 1-3.
The PCRA court viewed Appellant’s PCRA petition as a second petition
under the PCRA and, thus, did not appoint counsel to represent Appellant
during the proceedings.
On August 14, 2015, the PCRA court issued Appellant notice that it
intended to dismiss Appellant’s second PCRA petition in 20 days, without
holding a hearing, as the petition was untimely. PCRA Court Order, 8/14/15,
at 1; Pa.R.Crim.P. 907. Appellant did not file a meaningful response to the
PCRA court’s Rule 907 notice and, on November 29, 2015, the PCRA court
finally dismissed Appellant’s petition. PCRA Court Order, 11/29/15, at 1.
Appellant filed a notice of appeal to this Court. We affirm.
The PCRA contains a jurisdictional time-bar, which is subject to limited
statutory exceptions. This time-bar demands that “any PCRA petition,
including a second or subsequent petition, [] be filed within one year of the
date that the petitioner’s judgment of sentence becomes final, unless [the]
petitioner pleads [and] proves that one of the [three] exceptions to the
timeliness requirement . . . is applicable.” Commonwealth v. McKeever,
947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further,
since the time-bar implicates the subject matter jurisdiction of our courts,
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we are required to first determine the timeliness of a petition before we are
able to consider any of the underlying claims. Commonwealth v. Yarris,
731 A.2d 581, 586 (Pa. 1999). Our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. See, e.g.,
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
(stating that “given the fact that the PCRA's timeliness
requirements are mandatory and jurisdictional in nature, no
court may properly disregard or alter them in order to reach
the merits of the claims raised in a PCRA petition that is
filed in an untimely manner”); Commonwealth v. Fahy,
737 A.2d 214, 220 (Pa. 1999) (holding that where a
petitioner fails to satisfy the PCRA time requirements, this
Court has no jurisdiction to entertain the petition). [The
Pennsylvania Supreme Court has] also held that even where
the PCRA court does not address the applicability of the
PCRA timing mandate, th[e court would] consider the issue
sua sponte, as it is a threshold question implicating our
subject matter jurisdiction and ability to grant the requested
relief.
Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).
In this case, Appellant was originally sentenced on March 13, 2013 and
Appellant did not file a direct appeal from his judgment of sentence.
Instead, on June 26, 2013, Appellant filed a PCRA petition and claimed that
his sentence was illegal because the trial court failed to explicitly state
Appellant’s “eligibility for the RRRI program on the record during
[Appellant’s] sentencing hearing.” Appellant’s Amended PCRA Petition,
3/18/14, at 3. The PCRA court partially granted Appellant relief, remanded
the case for resentencing, and, during the May 28, 2014 resentencing
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hearing, the trial court reimposed Appellant’s original sentence. Appellant
then filed the current PCRA petition on February 26, 2015.
As this Court has held: “a successful first PCRA petition does not
‘reset the clock’ for the calculation of the finality of the judgment of sentence
for purposes of the PCRA where the relief granted in the first petition neither
restored a petitioner’s direct appeal rights nor disturbed his conviction, but,
rather, affected his sentence only.” Commonwealth v. McKeever, 947
A.2d 782, 785 (Pa. Super. 2008); Commonwealth v. DeHart, 730 A.2d
991 (Pa. Super. 1999) (same); see also Commonwealth v. Johnson, ___
A.3d ___, 2016 WL 687291 (Pa. Super. 2016) (unpublished memorandum)
(the petitioner was sentenced and filed a PCRA petition, claiming that
counsel was ineffective for failing to “move for a reduction in [the
petitioner’s] sentence pursuant to the [RRRI] Act;” the PCRA court granted
the petitioner relief on the RRRI claim, vacated the sentence, and the trial
court later resentenced the petitioner to the same sentence as was originally
imposed; when the petitioner filed a PCRA petition after resentencing, this
Court held that the petitioner’s PCRA petition was an untimely, second PCRA
petition because, pursuant to McKeever and DeHart, “a successful first
PCRA petition does not ‘reset the clock’ for the calculation of the finality of
the judgment of sentence for purposes of the PCRA where the relief granted
in the first petition neither restored a petitioner's direct appeal rights nor
disturbed his conviction, but, rather, affected his sentence only. Here,
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the PCRA court's ministerial task of indicating that [the petitioner] was not
RRRI eligible did not reset the clock for purposes of a subsequent PCRA
petition”) (internal citations and some quotations omitted) (emphasis in
original); see also Commonwealth v. Lesko, 15 A.3d 345, 366 (Pa. 2011)
(“Lesko's ‘right’ to first petition PCRA review is necessarily confined to that
part of the final Pennsylvania judgment that was disturbed by the federal
habeas proceedings. All other aspects of the original judgment remain as
before – final”) (emphasis in original).
This Court is bound by McKeever and DeHart. Therefore, we must
conclude that, since “the relief granted in the first petition neither restored
[Appellant’s] direct appeal rights nor disturbed his conviction, but, rather,
affected his sentence only,” Appellant’s “successful first PCRA petition [did]
not ‘reset the clock’ for the calculation of the finality of [Appellant’s]
judgment of sentence for purposes of the PCRA.” See McKeever, 947 A.2d
at 785. Hence, in accordance with McKeever and DeHart, we must
conclude that, since Appellant does not raise any claim related to his
resentencing, Appellant’s current PCRA petition constitutes his second
petition under the PCRA and that, since Appellant did not file a direct appeal
from his judgment of sentence, his judgment of sentence became final at the
end of the day on April 12, 2013, which was 30 days after Appellant was
originally sentenced in open court and the time for filing a direct appeal to
this Court expired. 42 Pa.C.S.A. § 9545(b)(3) (“A judgment becomes final
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at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States . . . , or at the expiration of time for
seeking the review”); see also Pa.R.A.P. 903(a).
The PCRA explicitly requires that a petition be filed “within one year of
the date the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1).
Therefore, Appellant had until April 12, 2014 to file a timely PCRA petition.
42 Pa.C.S.A. § 9545(b)(1). As Appellant did not file his current petition until
February 26, 2015, the current petition is manifestly untimely and the
burden thus fell upon Appellant to plead and prove that one of the
enumerated exceptions to the one-year time-bar applied to his case. See
42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284,
1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the one-
year time-bar, the PCRA demands that the petitioner properly plead and
prove all required elements of the relied-upon exception).
Appellant did not attempt to plead any exception to the PCRA’s one-
year time-bar. Thus, Appellant’s petition is time-barred and our “courts are
without jurisdiction to offer [Appellant] any form of relief.” Commonwealth
v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). Therefore, we affirm the
PCRA court’s order dismissing Appellant’s second PCRA petition.
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2017
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