J-S11019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GARY LEAFORD CODNER

Appellant No. 1350 MDA 2014

Appeal from the Order July 28, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0002308-2010

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED APRIL 08, 2015

Gary Leaford Codner appeals pro se from the order entered July 28, 

2014, in the Berks County Court of Common Pleas, denying his request to 

appeal nunc pro tunc from the dismissal of his first petition filed pursuant to 

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Codner 

seeks relief from the judgment of sentence of three to five years’ 

imprisonment imposed on June 29, 2011, following his jury conviction of 

possession with intent to deliver (“PWID”) marijuana and possession of 

marijuana.1 On appeal, Codner argues (1) the trial court did not have 

subject matter jurisdiction over his offenses, and (2) the PCRA court erred in 

dismissing his amended petition. For the reasons that follow, we affirm.

____________________________________________

1 35 P.S. §§ 780-113(a)(30) and (a)(16).
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The relevant facts underlying Codner’s convictions are summarized in 

the decision of this Court affirming his sentence on direct appeal, and we 

need not recite them herein. See Commonwealth v. Codner, 47 A.3d 

1248 [1344 MDA 2011] (Pa. Super. 2012) (unpublished memorandum at 2-

5). The complex procedural history of this case is as follows. Prior to trial, 

Codner filed a motion to suppress the narcotics evidence recovered during 

the incident. The trial court denied the suppression motion following a 

hearing. Thereafter, on June 16, 2011, a jury convicted Codner of PWID and 

possession of marijuana. On June 29, 2011, the trial court sentenced him to 

a term of three to five years’ incarceration for the charge of PWID,2and 

found the possession charge merged for sentencing purposes. Codner filed 

a direct appeal contending the testimony of two Commonwealth witnesses 

____________________________________________

2 The court imposed a mandatory minimum three-year sentence pursuant to 

18 Pa.C.S. § 7508, because Codner possessed, with the intent to distribute, 

25 pounds of marijuana. See 18 Pa.C.S. § 7508(a)(1)(ii) (mandatory three 

year sentence when the amount of marijuana involved is at least 10 pounds 

but less than 50 pounds). 

We recognize that Section 7508 has been found to be constitutionally 

invalid under Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013). See 

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc); 

Commonwealth v. Vargas, ___ A.3d ___, 2014 PA Super. 289 (filed 

December 31, 2014) (en banc) (applying Newman to Section 7508). 

However, to date, “neither our Supreme Court, nor the United States 

Supreme Court has held that Alleyne is to be applied retroactively to cases 

in which the judgment of sentence had become final.” Commonwealth v. 

Miller, 102 A.3d 988, 995 (Pa. Super. 2014). 
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warranted a mistrial. This Court affirmed the judgment of sentence on 

March 19, 2012. See Codner, supra. 

On May 17, 2012, Codner filed a timely, pro se PCRA petition, and on 

May 21, 2012, J. Allen Daringer, Esq., was appointed as PCRA counsel. 

However, on January 3, 2013, Codner filed a motion requesting to proceed 

pro se. Thereafter, on March 14, 2013, the PCRA court conducted a 

“counsel status hearing” via videoconference.3 After the hearing, on March 

26, 2013, the PCRA court entered the following order:

AND NOW, this 26th Day of March, 2013, after hearing 

held by video conference, [Codner’s] request to proceed pro se 

in pursuing relief under the Post-Conviciton Relief Act (PCRA) is 

hereby GRANTED. Attorney J. Allen Daringer’s appearance is 

withdraw (sic) as appointed counsel in this matter.

Further, [Codner] is ORDERED to file an Amended Petition 

that properly sets forth all relevant claims for relief under the 

PCRA, 42 Pa.C.S.A. § 9541 et. seq., no later than April 30, 

2013. 

Order, 3/26/2013. Thereafter, Codner filed an amended pro se PCRA 

petition on April 3, 2013.4

____________________________________________

3 Upon our request, the PCRA court informed us that there exists no 

transcript from the videoconference. The court did not explain whether the 

court reporter’s notes have simply not been transcribed, or whether there 

was no court reporter present.

4 Although Codner designated the document a “Writ of Error Coram Nobis,” 

the PCRA court properly considered the filing to be an amended PCRA 

petition. See Writ of Error Coram Nobis, 4/3/2013. The writ of coram nobis

“provides a way to collaterally attack a criminal conviction for a person ... 

who is no longer ‘in custody’ and therefore cannot seek habeas relief....” 

Commonwealth v. Descardes, 101 A.3d 105, 109 (2014) (en banc), 

(Footnote Continued Next Page)
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On March 5, 2014, the PCRA court provided Codner with notice, 

pursuant to Pa.R.Crim.P. 907, of its intent to dismiss the petition without 

conducting an evidentiary hearing. Codner filed a timely response to the 

court’s Rule 907 notice, and, on March 24, 2014, the PCRA court entered an 

order dismissing Codner’s petition. 

Thereafter, on April 7, 2014, Codner filed a “Request for Transcripts” 

and a “Certification of Service.” The record does not include a notice of 

appeal from the PCRA court’s March 24, 2014, order, nor does the lower 

court docket reflect that Codner filed a notice of appeal. On July 3, 2014, 

Codner filed in this Court an application for relief, asserting that his notice of 

appeal, purportedly filed in the lower court on April 7, 2014, was not 

docketed, and requesting that the appeal be docketed so he could proceed. 

In response, this Court directed the PCRA court, within 10 days of the order, 

to “forward [Codner’s] notice of appeal to the Prothonotary of this Court or 

notify this Court that the notice of appeal was not filed as [Codner] claims.” 

Order, 7/2/2014 (62 MDM 2014). On July 15, 2014, the PCRA court entered 

an order stating that it had reviewed all “docket filings” and found “no record 

(Footnote Continued) _______________________

quoting Chaidez v. United States, 133 S.Ct. 1103, 1106 n.1 (U.S. 2013). 

Here, Codner lists his address on his pro se brief as the York County Prison. 

Accordingly, his only avenue for relief is through the PCRA. See 

Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001) 

(“[T]he PCRA is the exclusive vehicle for obtaining post-conviction collateral 

relief.”). 
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of the alleged filing of a Notice of Appeal in this matter.” Order, 7/15/2014. 

Accordingly, this Court entered an order on July 18, 2014, denying Codner’s 

application for relief “to the extent that he has no notice of appeal docketed 

in this Court,” but permitting him to seek “appropriate relief with the Berks 

County Court of Common Pleas.” Order, 7/18/2014. 

Thereafter, on July 23, 2014, Codner filed a “Notice of Appeal Nunc Pro 

Tunc” in the PCRA court. The PCRA court considered Codner’s filing a 

request to appeal nunc pro tunc, and in response, entered an order on July 

28, 2014, stating (1) Codner’s PCRA petition was dismissed on March 24, 

2014, (2) Codner failed to file a notice of appeal within 30 days of that 

order, and (3) Codner’s present request for an appeal is untimely. See

Order, 7/28/2014. Codner’s July 23, 2014, notice of appeal nunc pro tunc

was docketed in this Court at 1247 MDA 2014. 

Thereafter, on August 8, 2014, Codner filed a notice of appeal from 

the PCRA court’s July 28, 2014, order. That appeal was docketed in this 

Court at 1350 MDA 2014.5 

On August 19, 2014, at Docket No. 1247 EDA 2014, this Court issued 

Codner a Rule to Show Cause why his appeal filed on July 23, 2014, should 

not be quashed as untimely. Codner filed a timely response arguing this 

____________________________________________

5 On August 18, 2014, the PCRA court directed Codner to file a concise 

statement or errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Codner complied with the court’s directive, and filed a concise statement on 

August 27, 2014.
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Court should take judicial notice of the fact that he had filed a timely notice 

of appeal on April 7, 2014. This Court then discharged the Show Cause 

Order, referred the matter to the panel for disposition, and directed the 

appeal be listed consecutively with Codner’s appeal at Docket No. 1350 MDA 

2014. Subsequently, on December 4, 2014, the appeal at Docket No. 1247 

MDA 2014, was dismissed when Codner failed to file a brief. Therefore, the 

only appeal before us is the appeal, docketed at No. 1350 MDA 2014, from 

the PCRA court’s order denying Codner’s request to appeal nunc pro tunc.

Before we may address Codner’s substantive claims on appeal, we 

must determine whether the appeal is properly before us. Upon review of 

the record, the parties’ briefs, and the relevant statutory and caselaw, we 

conclude Codner had no authority to seek nunc pro tunc relief from the PCRA 

court outside the construct of the PCRA. Accordingly, the PCRA court should 

have considered Codner’s request a second PCRA petition, and dismissed it 

as untimely filed.

This Court’s decision in Commonwealth v. Fairiror, 809 A.2d 396, 

(Pa. Super. 2002), appeal denied, 827 A.2d 429 (Pa. 2003), is instructive. 

In Fairiror, the appellant filed a timely pro se PCRA petition. Counsel was 

appointed, but later withdrew when the appellant retained private counsel. 

Private counsel was granted two extensions of time to file an amended 

petition, but failed to do so. Subsequently, the PCRA court issued an order, 

dismissing appellant’s petition. No appeal was filed within 30 days. Rather, 
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six months later, private counsel filed an amended PCRA petition, and six 

months after that, counsel filed a petition in the PCRA court for 

reinstatement of the appellant’s PCRA rights nunc pro tunc. The PCRA court 

granted the petition. Id. at 396-397.

However, a panel of this Court concluded that PCRA court had no 

jurisdiction to consider the appellant’s request for nunc pro tunc relief. 

Rather, the panel held:

Appellant’s ... petition for reinstatement of PCRA appellate 

rights nunc pro tunc must be considered a second (and 

untimely) PCRA petition. In Commonwealth v. Lantzy, 558 

Pa. 214, 736 A.2d 564, 572 (1999), our Supreme Court held 

that a petitioner has no right to a nunc pro tunc appeal outside 

the PCRA to restore direct appeal rights lost due to 

ineffectiveness of counsel. More recently, our Supreme Court 

held that the PCRA provides the sole means for restoration of 

direct appeal rights. Commonwealth v. Hall, 565 Pa. 92, 771 

A.2d 1232, 1235 (2001) (“by its own language, and by judicial 

decisions interpreting such language, the PCRA provides the sole 

means for obtaining state collateral relief”). 

Although Hall and Lantzy dealt with the restoration of 

direct appeal rights, these cases teach that all requests for 

reinstatement of appellate rights, including PCRA 

appellate rights, must meet the timeliness requirements 

of the PCRA. We recognize that this Court, on several 

occasions, has held to the contrary. In Commonwealth v. 

Ross, 763 A.2d 853, 856-857 (Pa.Super.2000), this Court 

reasoned that reinstatement of PCRA appellate rights nunc pro 

tunc was a viable remedy outside the strictures of the PCRA for 

petitions pre-dating our Supreme Court’s decision in Lantzy. 

Id., citing, Commonwealth v. Garcia, 749 A.2d 928, 931 

(Pa.Super.2000) (en banc), and Commonwealth v. Hitchcock, 

749 A.2d 935 (Pa.Super.2000) (en banc). Ross is 

distinguishable because Appellant’s nunc pro tunc petition in the 

instant case post-dated Lantzy. Moreover, in Commonwealth 

v. Rivera, 802 A.2d 629, 2002 PA Super 193, ¶¶ 14-15, this 
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Court held that Hall effectively overruled Garcia and Hitchcock

by applying Lantzy retroactively.

Id. at 397-398. 

Accordingly, because the Fairiror Court determined (1) the second 

PCRA petition (styled as a petition for nunc pro tunc relief) was untimely 

filed, and (2) the appellant failed to plead or prove one of the time-for-filing 

exceptions, the PCRA court had no jurisdiction to grant reinstatement of the 

appellant’s PCRA appellate rights. Therefore, this Court affirmed the order

denying PCRA relief.

The case at issue presents a similar factual scenario. When the PCRA 

court determined Codner had not filed a timely notice of appeal from the 

March 28, 2014, order dismissing his PCRA petition, Codner’s only avenue 

for relief was to file a second PCRA petition, seeking reinstatement of his 

PCRA appellate rights. Accordingly, the PCRA court should have considered 

Codner’s July 23, 2014, notice of appeal nunc pro tunc as a petition for PCRA 

relief. 

However, even if the court had properly considered Codner’s filing to 

be a PCRA petition, Codner would, nevertheless, be entitled to no relief, 

since the petition was untimely filed. 

The PCRA mandates that any petition for relief, “including a second or 

subsequent petition, shall be filed within one year of the date the judgment 

becomes final[.]” 42 Pa.C.S. §9545(b)(1). 

The PCRA’s timeliness requirements are jurisdictional; therefore, 

a court may not address the merits of the issues raised if the 
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petition was not timely filed. The timeliness requirements apply 

to all PCRA petitions, regardless of the nature of the individual 

claims raised therein.

Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (internal citations 

omitted). 

Codner’s judgment of sentence became final on April 18, 2012, thirty 

days after this Court affirmed the judgment of sentence on direct appeal, 

and Codner failed to petition the Pennsylvania Supreme Court for allowance 

of appeal. See 42 Pa.C.S. § 9545(b)(3). Accordingly, Codner had until April 

18, 2013, to file a timely PCRA petition. The present petition, filed 15 

months later on July 23, 2014, was patently untimely. Moreover, Codner 

failed to plead or prove one of the time-for-filing exceptions set forth in 

Section 9545(b)(1). Accordingly, we conclude the PCRA court properly 

denied Codner relief.6 See Commonwealth v. Reed, 107 A.3d 137, 144 

(Pa. Super. 2014) (“[W]e may affirm the PCRA court's order on any basis.”). 

____________________________________________

6 We would be remiss if we did not comment on Codner’s pro se status. 

While the record reflects Codner filed a motion to proceed pro se on January 

3, 2013, and the trial court, following a “counsel status hearing,” granted 

Codner’s request on March 26, 2013, there is no indication, in either the 

court’s order or the record, that the PCRA court conducted a full waiver-ofcounsel hearing in accordance with Commonwealth v. Grazier, 713 A.2d 

81 (Pa. 1998). See Commonwealth v. Stossel, 17 A.3d 1286 (Pa. Super. 

2011) (holding appellate court is required to consider, sua sponte, whether 

indigent first-time PCRA petitioner failed to properly waive his right to 

counsel). Moreover, as noted in footnote 3, there is no transcript from the 

March 14, 2013, “counsel status hearing” so we are unable to determine 

whether the hearing complied with the dictates of Grazier. Nevertheless, 

because of the procedural posture of this appeal, we have no jurisdiction to 

(Footnote Continued Next Page)
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Order affirmed. All outstanding pro se applications for relief are 

hereby DENIED.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/8/2015

(Footnote Continued) _______________________

take any action to determine whether Codner voluntarily waived his right to 

PCRA counsel.