J-S04025-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EDWARD J. ZIMMER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1362 MDA 2018

Appeal from the PCRA Order Entered July 18, 2018

In the Court of Common Pleas of Cumberland County 

Criminal Division at No(s): CP-21-CR-0001301-2009

BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.: FILED APRIL 26, 2019

Edward J. Zimmer appeals from the order entered July 18, 2018, in the 

Cumberland County Court of Common Pleas dismissing, as untimely filed, his 

first petition for collateral relief filed Pursuant to the Post Conviction Relief Act 

(“PCRA”).

1

 Zimmer seeks relief from the judgment of sentence of an 

aggregate term of five to 10 years’ imprisonment, imposed on May 4, 2010, 

following his guilty plea to five counts of possession with intent to deliver 

controlled substances (“PWID”), two counts of criminal conspiracy, and one 

count of corrupt organizations.2 On appeal, he argues the PCRA court erred 

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 Former Justice specially assigned to the Superior Court.

1 See 42 Pa.C.S. §§ 9541-9546. 

2 See 35 P.S. § 780-113(a)(30), and 18 Pa.C.S. §§ 903 and 911(b)(3), 

respectively.
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in denying his petition without a hearing, and refusing to modify his illegal 

sentence. For the reasons below, we affirm.

The facts underlying Zimmer’s arrest and conviction are well-known to 

the parties, and need not be recited herein. In summary, Zimmer and his 

cohorts ran a drug trafficking ring, which transported large quantities of 

marijuana and cocaine from California to Cumberland and Dauphin Counties 

for distribution. See N.T., 2/23/2010, at 5-6. On February 23, 2010, Zimmer 

entered a guilty plea to the above-stated charges. In exchange for the plea, 

the Commonwealth agreed to nolle pros one additional count of corrupt 

organizations, and seek a mandatory sentence on only two offenses. See id.

at 3-4. Moreover, the parties agreed Zimmer would be sentenced to an 

aggregate term five to 10 years’ imprisonment, with credit for time-served 

beginning from the date of his arrest, April 20, 2009. See id. at 4. The court 

ordered a presentence investigation report, and Zimmer returned for 

sentencing on May 4, 2010. At that time, the trial court imposed the sentence 

provided for in the plea agreement. Zimmer did not file a direct appeal.

Thereafter, on March 12, 2018, Zimmer filed a pro se PCRA petition, 

claiming his sentence is illegal, and plea counsel was ineffective for advising 

him to enter a guilty plea. New counsel was appointed, and filed an amended 

petition on May 14, 2018. On June 21, 2018, the PCRA court sent Zimmer 

notice of its intent to dismiss the petition as untimely filed, pursuant to 

Pa.R.Crim.P. 907, without first conducting an evidentiary hearing. Zimmer 
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did not file a response. Accordingly, on July 18, 2018, the court dismissed 

Zimmer’s petition as untimely. This appeal follows.3 

“In reviewing the denial of PCRA relief, we examine whether the PCRA 

court’s determination is supported by the record and free of legal error.” 

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016) 

(internal punctuation and citation omitted). Further, “a PCRA court may 

decline to hold a hearing on the petition if petitioner’s claim is patently 

frivolous or lacks support from either the record or other evidence.” 

Commonwealth v. duPont, 860 A.2d 525, 530 (Pa. Super. 2004) (citation 

omitted), appeal denied, 889 A.2d 87 (Pa. 2005), cert. denied, 547 U.S. 1129 

(2006).

Here, the PCRA court concluded Zimmer’s petition was untimely filed. 

See PCRA Court Opinion, 10/25/2018, at 2. We agree. 

The PCRA timeliness requirement ... is mandatory and 

jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d 

1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951 

A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1, 

753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s 

untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied, 

134 S.Ct. 2695 (U.S. 2014).

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3 On August 20, 2018, the PCRA court ordered Zimmer to file a Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. Zimmer 

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

September 10, 2018.
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A PCRA petition must be filed within one year of the date the underlying 

judgment becomes final. See 42 Pa.C.S. § 9545(b)(1). Zimmer’s judgment 

of sentence was final on June 3, 2010, 30 days after sentence was imposed 

and Zimmer failed to file a direct appeal. See Pa.R.Crim.P. 720(A)(3). 

Therefore, he had until June 3, 2011, to file a timely PCRA petition. The one 

before us, filed on March 12, 2018, is manifestly untimely. Moreover, Zimmer 

did not plead or prove that his petition met one of the time-for-filing 

exceptions set forth at 42 Pa.C.S. § 9454(b)(1).

Nevertheless, Zimmer insists:

[A]lthough his claim was not raised within the timeliness 

requirements of the Post Conviction Relief Act, the PCRA Court 

could still consider his claim pursuant to the court’s inherent 

jurisdiction to modify or rescind an illegal order absent statutory 

jurisdiction where the case involves clear errors in the imposition 

of a sentence that was incompatible with the record or black letter 

law.

Zimmer’s Brief at 9. Relying upon the Pennsylvania Supreme Court’s decision 

in Commonwealth v. Holmes, 933 A.2d 57 (Pa. 2007), Zimmer argues a 

trial court retains the power to correct obviously illegal sentencing orders 

outside the appeal period. See Zimmer’s Brief at 10. He further contends 

this Court’s ruling in Commonwealth v. Kelley, 136 A.3d 1007 (Pa. Super. 

2016), where a panel granted relief to a defendant under facts “nearly 

identical” to those herein, is dispositive. Zimmer’s Brief at 11. 

Conversely, the Commonwealth insists “Zimmer’s case is 

distinguishable from both Holmes and Kelley.” Commonwealth’s Brief at 10. 

We agree.
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In Holmes, the Pennsylvania Supreme Court considered whether the

trial courts, in two consolidated appeals, properly exercised their authority to 

correct “allegedly illegal sentencing orders absent jurisdiction pursuant to 42 

Pa.C.S. § 5505[4] or the PCRA[.]” Holmes, supra, 933 A.2d at 65. See id.

at 58 (“We granted review in these two cases to consider the interaction 

between a statute limiting the period of time during which a trial court may 

modify or rescind an order and the long-standing, inherent power of courts to 

correct patent errors in orders.”) (footnote omitted). In one case, the 

defendant’s sentencing order “contained a patent mistake.” Id. at 66. 

Although the order indicated the defendant’s “parole was revoked,” the court

imposed a new term of incarceration, rather than simply recommitting the 

defendant for the remainder of his original sentence. Id. at 66. See 

Commonwealth v. Kalichak, 943 A.2d 285, 290 (Pa. Super. 2008) (“[T]he 

only option for a court that decides to revoke parole is to recommit the 

defendant to serve the already-imposed, original sentence.”). Nearly one year 

later, the trial court vacated the sentencing order sua sponte. See id. In the 

second case, the trial court imposed a new sentence for the defendant’s 

violation of probation, despite the fact that probation had never been imposed. 

See id. Again, a year later, the trial court recognized the error and vacated 

the sentencing order.

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4 Section 5505 permits a trial court to modify or rescind an order within 30 

days after its entry, provided no appeal is filed. See 42 Pa.C.S. § 5505.
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The Supreme Court found both trial court’s properly exercised their 

inherent power to correct their own mistakes. In the first case, “the error of 

the sentence was clear from the order and the docket sheet,” since a court 

may not impose a new sentence upon the revocation of parole. Id. Although 

the Court found the mistake in the second case was not apparent on the face 

of the order, it was obvious upon a review of the Quarter Session notes. See 

id. The Supreme Court, however, recognized that while trial courts possess 

inherent power to correct patent errors, that power is not unlimited:

This exception to the general rule of Section 5505 cannot expand 

to swallow the rule. In applying the exception to the cases at bar, 

we note that it is the obviousness of the illegality, rather than 

the illegality itself, that triggers the court’s inherent power. Not 

all illegal sentences will be amenable to correction as patent 

errors. Moreover, the inherent power to correct errors does not 

extend to reconsideration of a court’s exercise of sentencing 

discretion. ... These cases involve clear errors in the imposition of 

sentences that were incompatible with the record, ... or black letter 

law[.] As we have in the past, we emphasize that this is a limited 

judicial power. 

Id. at 66–67 (emphasis supplied).

The facts in the present case do not fall under the limited exception set 

forth in Holmes. Zimmer’s claim - that the sentence imposed by the trial 

court was illegal because he was statutorily required to serve his backtime on 

his state parole sentence before the sentence on his new charges - is not the 

type of patent error discussed in Holmes. In fact, his sentencing order does 

not even mention the parole violation, and states only he “is to be given credit 

from April 21st, 2009[.]” Order, 5/4/2010. Accordingly, we conclude this case
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is distinguishable from Holmes. Rather than an illegal sentencing claim, 

Zimmer’s issue is better characterized as a challenge to the voluntariness of 

his plea, that is, he agreed to the plea agreement not knowing he had to serve 

his state parole backtime before the sentence imposed in this case could begin 

to run.

Nonetheless, Zimmer insists this Court’s decision in Kelley is 

dispositive. In Kelley, the defendant entered a guilty plea with an agreedupon aggregate sentence of 21 to 60 months’ imprisonment. See Kelley, 

supra, 136 A.3d at 1010. Pursuant to the plea agreement, the trial court also 

“designated the effective date of the sentence as June 12, 2013[,]” the date 

of the defendant’s arrest. Id. (quotation omitted). However, while he was 

incarcerated, the defendant learned the start date of his sentence was actually 

two years later, because he was recommitted to serve backtime for a state 

parole violation. See id. at 1011. The defendant filed a timely PCRA petition 

asserting he was “enticed to enter a guilty plea based on the promise of a 

sentence that, while imposed, was illegal per statute and incapable of 

implementation.” Id. Although the PCRA court denied relief, a panel of this 

Court reversed on appeal. 

The panel first explained that, pursuant to Section 6138 of the Parole 

Act, “where a state parolee gets a new state sentence, he must serve his 

backtime first before commencement of the new state sentence.” Id. at 1013, 

citing 61 Pa.C.S. § 6138(a)(5)(i). Therefore, the agreement, which formed 

part of the plea deal, that the defendant’s new sentence would start on the 
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date of his arrest could not be honored. See id. at 1014. The Kelley panel 

opined:

Instantly, Appellant entered into an agreement with the 

Commonwealth to plead guilty in exchange for a definite sentence 

with a specific start date. At the time of the plea bargain, the 

state had already decided to recommit Appellant to serve the 

backtime he owed on his original state parole sentence. 

Nevertheless, counsel negotiated the plea bargain on Appellant’s 

behalf with an effective start date of June 12, 2013, the date he 

was arrested for his new offenses. Nothing in the record indicates 

counsel advised Appellant of the statutory sequence for serving 

his old and new sentences. Moreover, neither the Commonwealth 

nor the court advised Appellant that his negotiated sentence could 

not be honored as stated or imposed. Appellant entered his plea 

on the advice of plea counsel whose knowledge of the Parole Act 

was deficient and fell below the range of competence demanded 

of attorneys in criminal cases. Therefore, we are compelled to 

conclude that Appellant’s decision to plead guilty was not knowing, 

voluntary and intelligent. The sentence imposed was illegal 

because it violated the Parole Act. Thus, plea counsel was 

ineffective for advising Appellant to accept a plea bargain that 

called for an illegal sentence. 

Id. at 1014 (internal citations omitted). Accordingly, the Kelley panel 

granted the defendant relief based upon the ineffectiveness of plea counsel, 

that led him to enter an unknowing and involuntary plea. The defendant 

properly raised his claim in a timely PCRA petition.

Here, as explained supra, Zimmer’s PCRA petition is untimely filed, and 

Zimmer failed to plead or prove any of the three time-for-filing exceptions to 

the PCRA. See 42 Pa.C.S. §§ 9545(b)(1)(i)-(iii) (failure to raise the claim 

previously was due to (1) interference by government officials, (2) newly 

discovered facts that could not have been obtained by due diligence, or (3) a 

newly recognized constitutional right). There is no timing exception for an 
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illegal sentence. Rather, we emphasize our Supreme Court’s longstanding 

holding: “Although legality of sentence is always subject to review within the 

PCRA, claims must still first satisfy the PCRA’s time limits or one of the 

exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 

1999). Accord Commonwealth v. Washington, 179 A.3d 37, 43 (Pa. 

Super. 2017). Accordingly, the facts in the present case are readily 

distinguishable from those in Kelley, and Zimmer is entitled to no relief.

Consequently, we find no error on the part of the PCRA court in failing 

to conduct a hearing on Zimmer’s claim, because we agree with the court’s 

determination that the petition was untimely filed.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/26/2019
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