Case Information
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA [1] IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
RONALD J. KENT
Appellant No. MDA 2016 Appeal from the Order Dated November 24, 2015
In the Court of Common Pleas Luzerne County Criminal Division at No(s): 2194 of 1995;
CP- 40 -CR- 2194 -1995; FP BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.* FILED NOVEMBER MEMORANDUM BY GANTMAN, P.J.:
Appellant, Ronald J. Kent, appeals from order entered Luzerne County Court of Common Pleas, dismissing "Motion for Clarification Order of Sentence & Credit of Time Issued Upon Department of Corrections as Certified" "Motion to Enter Self as Pro -Se Request for Grazier by Video Conference Needed." We affirm. relevant facts procedural history are follows. December pled guilty four counts of robbery, one count of theft, one count of receiving stolen property.' At the sentencing hearing on
January 1996, the sentenced one count of robbery ' §§ 3701(a)(1)(i); 3921(a); 3925(a), respectively.
*Retired Senior Judge assigned to the Superior Court. twenty -nine (29) to sixty (60) months less one (1) day of incarceration, plus ten (10) years' probation. Appellant served four years, eleven months, and days of his prison sentence before he paroled.
On June 24, 2002, the trial court revoked Appellant's probation. At time, the court reinstated Appellant's probationary sentence, and resentenced Appellant six (6) to twelve (12) months' imprisonment on receiving stolen property conviction. Following Appellant's release, trial court again determined Appellant had violated the terms of his probation, revoked Appellant's probation on October 16, 2003. The court resentenced on his robbery conviction to seven (7) fifteen (15) years' incarceration. court applied Appellant's sentence credit time of four years, eleven months, and 29 days from his previous incarceration, as well days of credit from incarceration before his revocation hearing. timely for modification of sentence October 2003, which the denied October 29, After Appellant's
appellate rights were reinstated nunc pro tunc, Appellant timely notice December August 2004, our Court affirmed the trial court's decision. See Kent, No. MDA 2003, unpublished memorandum (Pa.Super. filed August 2004). Appellant filed timely pro se petition under the Post -Conviction Relief Act ( "PCRA "), at §§ 9541 -9546, March 14, 2005, which the denied
J-S58041-16 on June 30, 2005. Our Court affirmed on April 27, 2006. See Commonwealth v. Kent, No. MDA 2005, unpublished memorandum (Pa.Super. filed April 27, 2006). January 25, 2013, Appellant filed another pro se PCRA petition.
The PCRA court held a hearing on Appellant's petition subsequently denied Appellant relief on June 17, 2013. Appellant timely filed a notice of appeal on July 15, 2013, our Court affirmed on June 25, 2014. See Commonwealth v. Kent, No. MDA 2013, unpublished memorandum (Pa.Super. filed May 7, 2014). subsequently filed an additional pro se petition, styled "Motion for Clarification of Sentence Credit of Time." The PCRA
court held hearing on the motion on December 9, 2014, at which time argued he entitled to more credit time toward sentence. The issued an order on February 12, 2015, setting out Appellant's applicable credit time. Appellant timely filed notice of appeal, under the Prisoner Mailbox Rule,2 February 28, ordered Appellant March file concise statement of errors complained on pursuant Pa.R.A.P. 1925(b). Instead, Appellant quash with our Court April This Court interpreted Appellant's [2] See Chambers, (Pa.Super. 2011), appeal denied, 46 A.3d 715 (2012) (explaining prisoner mailbox rule provides pro se prisoners' documents are deemed date they deliver them prison authorities for mailing).
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motion as a discontinuation of his appeal, which was granted on May 7, Appellant then filed a "notice of appeal reconsideration" on May 8, 2015, which this Court treated as reinstatement appeal and granted it May 22, Eventually, Appellant filed October 28, 2015, withdraw that appeal, which was not granted until December 15, 2015.
While 2015 appeal still pending this Court, however, Appellant "Motion for Clarification Order of Sentence & Credit of Time Issued Upon the Department of Corrections as Certified" "Motion Enter Self Pro -Se Request for Grazier by Video Conference Needed" on November 2015, with the court. November 24, 2015, the entered the order at issue, which denied dismissed Appellant's motions because lacked jurisdiction to address them. timely notice of December Commonwealth Court. Commonwealth Court transferred appeal to this Court February 2016. raises two issues for our review:
WHETHER THE COMMON PLEAS COURT, WHILE GRANTING [APPELLANT] CREDIT FOR TIME TOWARDS HIS SENTENCE, IN THE COURT[']S CALCULATION OF SAID CREDIT ALONG WITH THE CREDIT ALREADY GRANTED TO [APPELLANT] AT RESENTENCING, THE COURT DID NOT INCLUDE A PERIOD OF THAT TIME THAT WAS ALREADY GRANTED TO HIM DURING RESENTENCING; NOW HAS THE [COURT] JURISDICTION OVER SAID MATTER TO CORRECT ITS ERROR AND ORDER THE DEPARTMENT OF CORRECTIONS TO RE- CREDIT 67 DAYS TOWARDS HIS SENTENCE? -4- [TRIAL] COURT ERRED WHEN IT
WHETHER THE DETERMINED THAT THE MATTER HEREIN WAS PREVIOUSLY DETERMINED; WHEN THE ISSUE WAS NOT CREATED UNTIL AFTER THE CREDIT WAS CALCULATED IN THE INITIAL ORDER DATED FEBRUARY 2015? (Appellant's Brief at 3).
Any petition for post- conviction collateral relief generally is considered PCRA petition, regardless of how an appellant captions the petition, if the petition raises issues for which the relief sought is the kind available under PCRA. 42 § 9542 (stating PCRA is sole means of obtaining collateral relief); Commonwealth v. Menezes, 871 A.2d 204 (Pa.Super. 2005) (explaining claim alleging failure award credit for time served involves legality of sentence is cognizable under PCRA). Our standard of review of the denial PCRA petition is limited examining whether evidence of record supports the court's determination whether its decision free of legal error. Commonwealth v. Conway, A.3d 101 (Pa.Super. 2011), denied, 612 Pa. A.3d 795 (2011). This Court grants great deference the findings of the if record contains any support for those findings. Commonwealth v. Boyd, 923 (Pa.Super. 2007), appeal denied, Pa. 754, 932 A.2d 74 (2007). court findings will not be disturbed unless the certified record provides no support for the findings. Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007), appeal denied, A.2d 1163 (2008).
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The timeliness of a petition jurisdictional requisite. is a Commonwealth v. Robinson, 12 477 (Pa.Super. 2011). A may not examine the merits of petition for post- conviction relief is untimely. Commonwealth Abu -Jamal, 574 724, 735, 833 A.2d (2003), cert. denied, U.S. 124 S.Ct. 158 L.Ed.2d (2004). To be eligible for relief under the PCRA, petitioner must plead prove, inter a /ia, allegations of error were not previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). A PCRA petition must be within one year of the date the underlying judgment becomes final. 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 time for seeking review." § 9545(b)(3). three statutory exceptions the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing petition will be excused. To invoke an exception, petition must allege petitioner must prove:
(i) the failure to raise claim previously the result of interference by government officials with the presentation of the claim violation of the Constitution or laws of this or the Constitution or laws of the United States;
(ii) facts upon which the claim predicated were unknown petitioner could not have been ascertained by the exercise of due diligence; or
J-S58041-16 (iii) right asserted is constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after time period provided in this section has been held by that apply retroactively. Pa.C.S.A. § 9545(b)(1)(i)- (iii). A petitioner asserting timeliness
exception must file petition within sixty days of the date the claim could have been presented. § 9545(b)(2).
Instantly, Appellant's 2015 appeal still pending when Appellant filed his latest PCRA petition November 20, 2015. Though Appellant attempted to withdraw his pending appeal motion filed October 28, 2015, this Court did not grant the motion permit him to withdraw his appeal until December 2015. Notwithstanding Appellant's October 28th motion withdraw his appeal, the appeal remained pending at the time he PCRA petition November As result, the PCRA court lacked jurisdiction over Appellant's latest petition properly dismissed it November See Lark, (2000) (holding has no jurisdiction review subsequent petition is while from previous petition is still pending). Accordingly, we affirm.3
Order affirmed. Appellant's open compel denied.
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 11/8/2016
