J

- S68040

- 17

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee

v. ERIC S. RUTH , Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 641 M DA 201 7 Appeal from the PCRA Order March 15 , 2017 in the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP

- 22

- CR

- 000 2591

- 20 10 BEFORE: LAZARUS , DUBOW , and STRASSBURGER , * JJ. MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 30, 2017 Eric S. Ruth (Appellant) appeals from the order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541

- 9546. We affirm. The PCRA court described the procedural history as follows. On November 12, 2009, the Office of Attorney General filed a criminal complaint charging [Appellant] with eight counts each of c onflict of i nterest, t heft by u nlawful t aking, t heft of s ervices, t heft by d eception, t heft by f ailure to m ake r equired d isposition of f unds, and c riminal c onspiracy (to commit conflict of interest). On August 31, 2011 , [Appellant] entered a plea of guilty to c ount 1 ( c onflict of i nterest) and c ount 41 ( c riminal c onspiracy/ c onfl ict of i nterest). On March 21, 2012, [Appellant] was sentenced to [60] months of probation, fines totaling $7, 500, payment of the costs of prosecution, and restit ution in the amount of $50,000. No direct appeal was filed.

* Retired Senior Judge assigned to the Superior Court.J

- S6804 0

- 17

- 2

-

PCRA Court Opinion, 3/15/2017, at 1 (unnecessary capitalization and footnotes omitted). Appellant, through counsel, filed the instant PCRA petition, his first, on January 19, 2017. After receiving an answer from the Commonwealth, the PCRA court conducted an evidentiary hearing and subsequently dismissed Appellant’s petition as untimely filed on March 15, 2017. Shortly thereafter, Appellant’s term of probation ended on March 21, 2017. PCRA Court Opinion, 6/15/2017, at 1. Appellant timely filed a notice of appeal. 1
B efore w e may consider the merits of Appellant’s issues, we must determine whether his PCRA petition was timely filed, as the timeliness of a post
- conviction petition is jurisdictional. Commonwealth v. Leggett , 16 A.3d 1144, 1145 (Pa. Super. 2011) (quoting Common wealth v. Abu – Jamal , 941 A.2d 1263, 1267

– 68 (Pa. 2008) (“[O]ur Supreme Court has stressed that ‘[t]he PCRA's timeliness requirements are jurisdictional in nature and must be strictly construed; courts may not address the merits of the issues raised in a pe tition if it is not timely filed.’”)). Generally, a petition for relief under the PCRA must be filed within one year of the date the judgment of sentence is final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition is met, and that the claim was raised within 60 days of the date on which it became available. 42 Pa.C.S. § 9545(b) and (c).

1 Both Appellant and the PCRA c ourt complied with Pa.R.A.P. 1925.J

- S6804 0

- 17

- 3

-

Appellant filed his petition almost five years after his judgment of sentence became final. Thus, the petition is facially untimely, and the PCRA court had no jurisdiction to entertain Appellant’s petition unless he pled and offered proof of one or more of the three statutory exceptions to the time

- bar. 42 Pa.C.S. § 9545(b)(1). Appellant averred his petition was filed timely because he filed it within 60 days of our Supreme Court’s decision in Commonwealth v. Veon , 150 A.3d 435 (Pa. 2016) ( holding that restitution order directing payment to Commonwealth agency as crime victim constitute d illegal sentence ). PCRA Petition, 1/19/2017, at 2 n.1. Appellant claims he has satisfied the timeliness exception set forth in 42 Pa.C.S. § 9545(b)(2). Appellant’s Brief at 11. Subsection 9545(b)(2), however, does not constitute an exception. It simp ly requires petitions attempting to invoke the exceptions set forth in subsection 9545(b)(1) to “be filed within 60 days of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). To the extent that Appellant is attempting to rely upon t he newly

recognized and retroactively

- applicable constitutional right exception set forth in subsection 9545(b)(1) (iii) , his attempt fails. See 42 Pa.C.S. § 9545(b)(1)(iii) ( providing “ the right asserted is a constitutio nal 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 retroactive ly”). In Veon , our Supreme CourtJ

- S6804 0

- 17

- 4

-

analyzed 18 Pa .C.S. § 1106 to determine whether the Pennsylvania Department of Community and Economic Development could be a victim eligible for restitution under that statute. Veon , 150 A.3d at 448

- 55. The Court did not announce a new constitutional right in Veon , le t alone a constitutional right that is retroactively applicable

. “A lthough illegal sentencing issues cannot be waived, they still must be presented in a timely [

- filed] PCRA petition. ” 2 Commonwealth v. Taylor , 65 A.3d 462, 465 (Pa. Super. 2013)

. Thus, while Appellant argues that his sentence is illegal pursuant to Veon , and illegality of sentence issues cannot be waived, we do not have jurisdiction to consider the legality of his sentence. 3 In the alternative, Appellant argues that notwithstanding the lack of jurisdiction under the PCRA, this Court may vacate his sentence of restitution sua sponte based upon its inherent equitable power to correct an illegal
sentence pursuant to Commonwealth v. Holmes , 933 A.2d 57 (Pa. 2007) ,

2 Appellant claims that the PCRA court had jurisdiction to correct his illegal sentence because this Court vacated the sent ence for his co

- defendant, Perzel, based upon Veon . Appellant’s Brief at 9

- 10. However, unlike Appellant, Appellant’s co

- defendant timely filed his PCRA petition.

3 Even if the PCRA court and this Court had jurisdiction to entertain Appellant’s petiti on pursuant to the PCRA, he would still not be entitled to relief. To be eligible for relief pursuant to the PCRA, inter alia , at the time relief is granted, a petitioner must “ currently [be] serving a sentence of imprisonment, probation, or parole for the crime[

. ]” 42 Pa.C.S. § 9543(a)(1)(i); Commonwealth v. Ahlborn , 699 A.2d 718, 720 (Pa. 1997). As noted supra , Appellant’s term of probation ended on March 21, 2017. Because Appellant is not currently serving a sentence of imprisonment, probation, or parole , he is not entitled to PCRA relief.J

- S6804 0

- 17

- 5

-

or its power to modify restitution orders set forth in 18 Pa.C.S. § 1106(c)(3)

. Appellant’s Brief at 1 5

- 18.
In Holmes , our Supreme Court reaffirmed the very limited ability of
courts to correct patent sentencing errors outside of the PCRA process or the modification period provided by 42 Pa.C.S. § 5505

. However, this Court later held that Holmes does “not establish an alternate remedy for collateral relief that sidesteps the jurisdictional requirements of the PCRA.” Commonwealth v. Jackson , 30 A.3d 516, 521 (Pa. Super. 2011). The PCRA “ provides for an action by which ... persons serving illegal sentences may obtain collateral relief” and is the “sole means of obtaining collateral relief.” I d. (citing 42 Pa.C.S. § 9542 )

. Because Appellant’s claim is cog nizable under the PCRA and his claim is time

- barred, he cannot rely on Holmes for relief. Id. at 522. Turning to Appellant’s attempt to invoke s ubsection 1106(c)(3) , that subsection p rovides the following. The court may, at any time or upon the recommend ation of the district attorney

... alter or amend any order of restitution made pursuant to paragraph (2), provided, however, that the court states its reasons and conclusions as a matter of record for any change or amendment to any previous order. 18 Pa.C. S. § 1106(c)(3). This Court has interpreted subsection 1106(c)(3) as creating an independent cause of action, which permits “a defendant to seek a modification or amendment of the restitution order at any time directly from the trial court.” Commonwealth v. Gentry , 101 A.3d 813, 816 (Pa. Super. 2014) (citing Commonwealth v. Stradley , 50 A.3d 769, 772 (Pa. Super.J

- S6804 0

- 17

- 6

-

2012) ) . This Court will not grant relief pursuant to subsection 1106(c)(3) if the issue has not been raised directly with the trial court. See Commonwealth v. Mitsdarfer , 837 A.2d 1203, 1204 (Pa. Super. 2003) (declining to address Mitsdarfer’s request for modification of restitution because he did not raise subsection 1106(c)(3) modification request with the trial court and Superior Court is not a fact

- finder ; since statute afforded trial court authority to amend or alter restitution order at any time, defendant was
not time

- barred from filing an appropriate motion with the trial court ). In the instant case, t he record reveals that the first time Appellant sought relief pursuant to subsection 1106(c)(3) was in his brief. Therefore, subsection 1106(c)(3) cannot provide the relief Appellant currently seeks on appeal. Id. Based on the foregoing, the PCRA court properly dismissed Appellant’s petition. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary
Date: 11/30/2017