J-S29027-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MIKE ANTHONY ZIGLER

Appellant No. 1500 WDA 2015

Appeal from the PCRA Order entered September 2, 2015

in the Court of Common Pleas of Erie County

Criminal Division, at No(s): CP-25-CR-0001472-2000

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MIKE ANTHONY ZIGLER

Appellant No. 1504 WDA 2015

Appeal from the PCRA Order entered September 2, 2015

in the Court of Common Pleas of Erie County

Criminal Division, at No(s): CP-25-CR-0001471-2000

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MIKE ANTHONY ZIGLER

Appellant No. 1506 WDA 2015

Appeal from the PCRA Order entered September 2, 2015
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in the Court of Common Pleas of Erie County

Criminal Division, at No(s): CP-25-CR-0001469-2000

BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J. FILED JUNE 07, 2016

In these consolidated appeals, Appellant challenges the PCRA court’s 

denial of his serial petition, filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

On September 5, 2000, Appellant entered an open guilty plea to seven 

counts, including robbery, conspiracy, and related charges at three separate 

dockets. In October 2000, the trial court imposed an aggregate term of 

twelve to thirty-four years of imprisonment. Each sentence imposed by the 

trial court fell within the standard range of the applicable sentencing 

guidelines except for count 1 at Docket No. CP-25-CR-0001472-2000, which 

fell within the aggravated range.1 

Subsequently, Appellant moved to withdraw his guilty plea and modify 

his sentence. The trial court denied both motions. Appellant filed a timely 

appeal to this Court, in which he raised a challenge to the discretionary 

aspects of his sentence. In an unpublished memorandum filed on June 19, 

____________________________________________



Former Justice specially assigned to the Superior Court.

1 Due to the use of a firearm, one of Appellant’s convictions required the 

imposition of a five-year mandatory minimum sentence. See N.T., 10/9/00, 

at 23. 
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2001, we rejected Appellant’s claim and, therefore, affirmed his judgment of 

sentence. See Commonwealth v. Zigler, 779 A.2d 1225 (Pa. Super. 2001) 

(Table). Appellant did not file a petition for allowance of appeal to our 

Supreme Court.

Appellant filed a timely pro se PCRA petition on January 22, 2001. The 

PCRA court appointed counsel, who ultimately filed a “no-merit letter” and 

petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 

(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 

1988) (en banc). After issuing notice of intent to dismiss without a hearing, 

the PCRA court dismissed the petition by order entered March 7, 2002, and 

permitted counsel to withdraw. Appellant filed a timely appeal. In an 

unpublished memorandum filed on November 8, 2002, we affirmed the PCRA 

court’s order denying post-conviction relief. See Commonwealth v. Zigler, 

816 A.2d 337 (Pa. Super. 2002) (Table).

On March 5, 2009, Appellant filed a pro se motion for modification of 

sentence, nunc pro tunc, which the PCRA court denied on March 13, 2009. 

Appellant filed another pro se PCRA petition on May 11, 2009. After 

providing notice, the PCRA court denied this petition on August 10, 2009. 

On March 26, 2010, Appellant filed a pro se “Petition to Vacate Illegal 

Sentence and Resentence,” which the PCRA court treated a serial PCRA 

petition. After providing notice, the PCRA court dismissed Appellant’s petition 

July 1, 2010.
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Appellant filed the instant PCRA petition, on January 15, 2015, and the 

PCRA court appointed counsel.2PCRA counsel filed a supplement to 

Appellant’s pro se petition and the Commonwealth filed a response. The 

PCRA court filed notice of intent to dismiss Appellant’s petition without a 

hearing. Appellant did not file a response. By order entered September 2, 

2015, the PCRA court denied Appellant’s latest PCRA petition. These timely 

appeals follow.

Appellant raises the following issues:

A. Whether the [PCRA] court erred in denying PCRA relief 

based upon a finding that the PCRA was untimely filed 

and the challenges to the legality of sentence timebarred as a result?

B. Whether the [PCRA] court erred in denying PCRA relief 

on the substantive grounds asserted as to the 

[reference] to and consideration of invalid sentencing 

factors including that [Appellant] was under supervision 

at the time of the offense and that the sentencing court 

considered non-existent drug and alcohol evaluations?

Appellant’s Brief at 2 (excess capitalization removed).

We first determine whether the PCRA court correctly concluded that 

Appellant’s latest PCRA petition was untimely filed. The timeliness of a post-

____________________________________________

2

“In a second or subsequent petition, the [PCRA] court shall appoint counsel 

for an indigent defendant only if an evidentiary hearing is required under 

Rule 908. In addition, Rule 904 authorizes the [PCRA] court to appoint 

counsel ‘whenever the interests of justice require it.’” Thomas M. Place, The 

Post Conviction Relief Act, Practice and Procedure, § 6.03[4][a] (11th ed. 

2016) (citing Pa.R.Crim.P. 904(E)).
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conviction petition is jurisdictional. See Commonwealth v. Hernandez, 79 

A.3d 649, 651 (Pa. Super. 2013). Because the PCRA’s time limitations 

implicate the court’s jurisdiction and may not be altered or disregarded in 

order to address the merits of a petition, the court must start by examining 

the timeliness of defendant’s petition. See Commonwealth v. Davis, 86 

A.3d 883 (Pa. Super. 2014). Generally, a petition for relief under the PCRA, 

including a second or subsequent petition, must be filed within one year of 

the date the judgment is final unless the petition alleges, and the petitioner 

proves, that an exception to the time for filing the petition, set forth at 42 

Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met. A PCRA petition invoking one 

of these statutory exceptions must “be filed within 60 days of the date the 

claims could have been presented.” Hernandez, 79 A.3d 651-52 (citations 

omitted). See also 42 Pa.C.S.A. § 9545(b)(2).

Appellant’s judgment of sentence became final on July 19, 2001, when 

the thirty day time period for filing a petition for allowance of appeal to our 

Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Therefore, 

Appellant needed to file the petition at issue by July 19, 2002, in order for it 

to be timely. As Appellant filed the instant petition over ten years later, it is 

untimely unless he has satisfied his burden of pleading and proving that one 

of the enumerated exceptions applies. 

Within his brief, Appellant has not attempted to prove any of the PCRA 

time bar exceptions. Instead, he asserts that “[t]here exists a sub-set of the 
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illegal sentencing non-waiver doctrine, which holds that a Court possesses 

inherent power and authority, at anytime [sic], to correct an illegal sentence 

where the illegal sentencing error is patent and obvious.” Appellant’s Brief at 

5 (citing Commonwealth v. Holmes, 933 A.2d 57, 66-67 (Pa. 2007); 

Commonwealth v. Ellsworth, 97 A.3d 1255 (Pa. Super. 2014)). We 

disagree.

Unfortunately for Appellant, although illegal sentencing issues cannot 

be waived, they still must be presented in a timely PCRA petition. See 

Commonwealth v. Taylor, 65 A.3d 426 (Pa. Super. 2013). Moreover, 

Appellant’s reliance upon Holmes and Ellsworth is inapt; neither of those 

cases involved the PCRA. Under the PCRA, “[w]hen the one-year filing 

deadline of section 9545 has expired, and no statutory exception has been 

pled or proven, a PCRA court cannot invoke inherent jurisdiction to correct 

orders, judgments and decrees, even if the error if patent and obvious.” 

Commonwealth v. Jackson, 30 A.3d 516 (Pa. Super. 2011). 

The PCRA correctly concluded that it lacked jurisdiction to consider 

Appellant’s serial PCRA petition. We therefore affirm the PCRA court’s order 

denying Appellant post-conviction relief.

Order affirmed.

President Judge Emeritus Bender joins the memorandum.

Justice Fitzgerald concurs in the result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/7/2016