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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
RICHARD ANDREW DADDARIO, :
:
Appellant : No. 383 MDA 2017
Appeal from the PCRA Order February 7, 2017
in the Court of Common Pleas of Snyder County
Criminal Division at No(s): CP-55-CR-0000245-2005
BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 23, 2017
Richard Andrew Daddario (Appellant) appeals from the order entered
on February 7, 2017, denying his “Motion to Amend Costs/Fees/Fines and
Restitution,” which the court treated as a petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On September 1, 2006, a jury convicted Appellant of multiple counts
of involuntary deviate sexual intercourse, statutory sexual assault,
aggravated indecent assault, corruption of minors, and indecent assault,
stemming from then 39-year-old Appellant’s abuse of a 15-year-old victim.
On December 5, 2006, the trial court sentenced Appellant to an aggregate
term of 25 to 90 years of incarceration. Additionally, Appellant was ordered
to pay certain costs, fees, fines, and restitution. Appellant timely filed a
post-sentence motion, which was denied by the trial court. On June 26,
*Retired Senior Judge assigned to the Superior Court.
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2008, a panel of this Court affirmed Appellant’s judgment of sentence, and
on December 16, 2008, his petition for allowance of appeal was denied by
our Supreme Court. Commonwealth v. Daddario, 959 A.2d 459 (Pa.
Super. 2008) (unpublished memorandum), appeal denied, 962 A.2d 1195
(Pa. 2008).
On June 17, 2009, Appellant pro se timely filed a PCRA petition.
Counsel was appointed, and several amended petitions were filed by
counsel. On July 2, 2010, the Commonwealth and Appellant agreed to a
modified sentence, reducing Appellant’s aggregate sentence to 16½ to 33
years of incarceration. Once again, that sentence included provisions for
fines, costs, fees, and restitution. An itemized accounting of those costs,
with a balance totaling $4,436.89, was attached to that order.1 As part of
the agreed-upon sentence, Appellant waived his right to file either a direct
appeal or a PCRA petition alleging ineffective assistance of counsel, as well
as the right to pursue habeas corpus relief in the federal courts. See Order,
7/2/2010.
On July 14, 2014, Appellant filed pro se a combined PCRA and habeas
corpus petition. The PCRA court filed a notice of its intent to dismiss the
petition pursuant to Pa.R.Crim.P. 907. Appellant responded, and on August
25, 2014, the PCRA court dismissed Appellant’s petition. Appellant filed a
1The original amount owed was $5,595.21; however, Appellant had already
paid $1,158.32 by this time, so Appellant owed only the balance of
$4,436.89.
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notice of appeal, and on October 17, 2014, this Court issued an order
remanding to the PCRA court for the appointment of counsel. Counsel was
appointed.
While Appellant’s July 2014 petition was pending, in November 2014,
Appellant filed pro se a motion for relief claiming the fines and court costs
associated with his case are illegal. On December 3, 2014, the PCRA court
entered an order deferring consideration of the November 2014 motion until
the conclusion of his appeal from the denial of relief for his July 2014 PCRA
petition. On June 16, 2015, a panel of this Court affirmed the order of the
PCRA court dismissing the July 2014 PCRA petition as untimely filed.
Commonwealth v. Daddario, 122 A.3d 1134 (Pa. Super. 2015)
(unpublished memorandum).
Subsequently, on October 28, 2015, the PCRA court entered a Rule
907 notice of its intent to dismiss the November 2014 motion. Appellant did
not respond, and on November 24, 2015, the motion was dismissed. No
appeal was filed.
On March 4, 2016, Appellant filed pro se another PCRA petition. Once
again, the PCRA court issued a Rule 907 notice of its intention to dismiss
Appellant’s petition. Appellant did not respond, and on May 3, 2016, the
petition was dismissed. Appellant filed a notice of appeal. On November 14,
2016, a panel of this Court affirmed the order dismissing Appellant’s March
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4, 2016 PCRA petition. Commonwealth v. Daddario, 159 A.3d 584 (Pa.
Super. 2016) (unpublished memorandum).
Meanwhile, on July 28, 2016, a praecipe to enter judgment was filed
against Appellant for the amount of $6,045.02, related to fines, costs, and
fees for his sentence.2 Consequently, on December 22, 2016, Appellant filed
the motion at issue in this case, entitled “Motion to Amend Costs/Fees/Fines
and Restitution” (December 2016 motion). Specifically, Appellant argued
that the July 28, 2016 judgment “altered the sentencing scheme and his
sentence must be vacated in its entirety.” Motion, 12/22/2016, at ¶ 16. The
PCRA court, treating the December 2016 motion as a PCRA petition, issued a
Rule 907 notice of its intent to dismiss the motion. Appellant responded,
and on February 7, 2017, the PCRA court dismissed the December 2016
motion. Appellant timely filed a notice of appeal, and both Appellant and the
PCRA court complied with Pa.R.A.P. 1925.
2The procedure to collect fines, fees, costs, and restitution is set forth in 42
Pa.C.S. § 9728, and provides the following:
The county clerk of courts shall, upon sentencing, pretrial
disposition or other order, transmit to the prothonotary certified
copies of all judgments for restitution, reparation, fees, costs,
fines and penalties which, in the aggregate, exceed $1,000, and
it shall be the duty of each prothonotary to enter and docket the
same of record in his office and to index the same as judgments
are indexed, without requiring the payment of costs as a
condition precedent to the entry thereof.
42 Pa.C.S. § 9728(b)(1).
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Appellant contends that the PCRA court erred in dismissing the
December 2016 motion for two reasons: 1) because the December 2016
motion was a timely-filed PCRA petition, see Appellant’s Brief at 9-11; and
2) because the Prothonotary lacked jurisdiction to enter the judgment in July
2016 pursuant to 42 Pa.C.S. § 5505, see Appellant’s Brief at 12-13.
We consider Appellant’s arguments mindful of the following. In
Commonwealth v. Lyons, 830 A.2d 663 (Pa. Cmwlth. 2003),3 the
Commonwealth Court outlined the methods available to an offender seeking
“to remove payment of costs, fines, and restitution” associated with a
sentence. Id. at 665.
An offender may request modification of a sentence in one
of several ways: 1) a motion for modification of the sentence
under Pa. R.Crim. P. 720, which must be made within 10 days of
the imposition of sentence; 2) a direct appeal of the sentence
under Pa. R.A.P. Rules 901-911, notice of which must be given
within 30 days of the imposition of sentence; 3) a petition for
postconviction relief under the Post Conviction Relief Act, 42
Pa.C.S. §§ 9541 9546, which must be filed within one year of
the date the judgment of sentence becomes final; or 4) a
petition to amend an order of mandatory restitution made during
a sentencing hearing, which may be filed at any time. 18 Pa.C.S.
§ 1106(c)(2)(iii).
Lyons, 830 A.2d at 665.4
3“Although the decisions of the Commonwealth Court are not binding on this
Court, we may look to them for their persuasive value.” Commonwealth v.
Heredia, 97 A.3d 392, 395 n.5 (Pa. Super. 2014).
4 Although Appellant’s December 2016 motion refers to restitution, his
judgment of sentence does not include any amount for restitution; therefore,
section 1106 is not applicable in this case.
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Based on the foregoing, to the extent that Appellant is claiming that
the July 2016 civil judgment seeking payment of costs, fees, and fines
associated with his July 2, 2010 sentence renders his sentence illegal, such a
claim is cognizable exclusively under the PCRA. See, e.g., Commonwealth
v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011) (“[T]he plain language of
the PCRA… states that ‘[the PCRA] provides for an action by which … persons
serving illegal sentences may obtain collateral relief.’ … Therefore, Jackson’s
‘motion to correct illegal sentence’ is a PCRA petition and cannot be
considered under any other common law remedy.”).
Accordingly, the PCRA court only had jurisdiction to entertain the
December 2016 motion if Appellant has pled and proven one of the
timeliness exceptions set forth in 42 Pa.C.S. § 9545(b)(1). See
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (“The
timeliness of a PCRA petition is a jurisdictional threshold and may not be
disregarded in order to reach the merits of the claims raised in a PCRA
petition that is untimely.”); Commonwealth v. Taylor, 65 A.3d 462, 465
(Pa. Super. 2013) (“[A]lthough illegal sentencing issues cannot be waived,
they still must be presented in a timely PCRA petition.”).
Appellant was sentenced for a second time on July 2, 2010, and no
direct appeal was filed. Thus, there is no dispute that Appellant’s judgment
of sentence became final 30 days later, and, therefore, Appellant had until
August 2011 to file timely a PCRA petition. See 42 Pa.C.S. § 9545(b)(3).
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Accordingly, the December 2016 motion was filed five years late, and the
PCRA court lacked jurisdiction to entertain it unless Appellant has pled and
proven a timeliness exception. Moreover, the PCRA requires that “[a]ny
petition invoking an exception … shall be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant argues that the July 2016 judgment entered by the
Prothonotary satisfies the newly-discovered fact exception set forth in 42
Pa.C.S. § 9545(b)(1)(ii), which provides an exception where “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.” See Appellant’s
Brief at 9. Appellant contends that he filed the December 2016 motion
within 60 days of the resolution of his prior PCRA petition thereby satisfying
the section 9545(b)(2) requirement. See id.
Despite the fact that the judgment was entered by the Prothonotary in
July 2016, Appellant’s July 2, 2010 sentence included a provision for the
payment of fines, costs, and fees. Moreover, the record shows that
Appellant has been paying down his balance on this amount while
incarcerated. Thus, it is disingenuous for Appellant to claim that he did not
know he owed these amounts prior to July 2016. Accordingly, we conclude
that Appellant has not established an exception to the timeliness
requirements, and the PCRA court lacked jurisdiction to entertain Appellant’s
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PCRA petition.5 Accordingly, Appellant has not set forth a claim that can be
addressed pursuant to the PCRA.
Appellant next claims that the July 2016 judgment violates 42 Pa.C.S.
§ 5505, which provides that “[e]xcept as otherwise provided or prescribed
by law, a court upon notice to the parties may modify or rescind any order
within 30 days after its entry, notwithstanding the prior termination of any
term of court, if no appeal from such order has been taken or allowed.”
Appellant’s Brief at 12. Appellant is claiming that the July 2016 judgment is
an unlawful modification of his judgment of sentence occurring more than 30
days after its entry. However, the court has not modified Appellant’s
sentence in any way; rather, the Prothonotary, pursuant to 42 Pa.C.S.
§ 9728, has entered a judgment to collect the fines and costs associated
with Appellant’s sentence. Thus, section 5505 does not apply, and
Appellant’s second argument fails.
Finally, Appellant claims that the trial court should have treated the
December 2016 motion as a writ of mandamus “seeking to challenge the
actions of the county clerk imposing additional court costs,” see Appellant’s
Brief at 10, based upon the Commonwealth Court’s decision in
Commonwealth v. Williams, 909 A.2d 419 (Pa. Cmwlth. 2006). However,
5 We recognize that the PCRA court concluded that Appellant’s PCRA petition
was filed timely; however, “[i]t is well-settled that this Court may affirm a
trial court’s ruling on any basis.” Commonwealth v. Kennedy, 151 A.3d
1117, 1127 n.14 (Pa. Super. 2016).
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Appellant did not raise this issue in the December 2016 motion or in his
objection to notice of intent to dismiss filed on February 7, 2017.
Accordingly, Appellant has waived this issue. See Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.”).
For the foregoing reasons, Appellant is not entitled to relief from this
Court, and we affirm the PCRA court’s order denying Appellant relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/23/2017
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