Com. v. Pavlichko, J. ( 2017 )


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  • J-S70006-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellee              :
    :
    v.                          :
    :
    JAMES STEPHEN PAVLICHKO                  :
    :
    Appellant             :         No. 762 MDA 2017
    Appeal from the PCRA Order April 17, 2017
    In the Court of Common Pleas of Schuylkill County
    Criminal Division at No(s): CP-54-CR-0000802-1996
    BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.
    JUDGMENT ORDER BY GANTMAN, P.J.:               FILED NOVEMBER 21, 2017
    Appellant, James Stephen Pavlichko, appeals pro se from the order
    entered in the Schuylkill County Court of Common Pleas, which dismissed his
    pro se serial petition for collateral relief (labeled as a motion to modify and
    correct illegal sentence nunc pro tunc) per the Post Conviction Relief Act
    (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546.         On July 16, 1997, Appellant
    entered an open guilty plea to, inter alia, homicide generally and conspiracy
    to commit homicide.    Following a degree of guilt hearing, the court found
    Appellant guilty of first-degree murder on July 22, 1997.      On August 28,
    1997, the court sentenced Appellant to life imprisonment for first-degree
    murder and a consecutive term of 15-40 years’ incarceration for conspiracy
    to commit to homicide.    This Court affirmed the judgment of sentence on
    June 29, 1998, and our Supreme Court denied allowance of appeal on
    J-S70006-17
    December 23, 1998.         See Commonwealth v. Pavlichko, 
    724 A.2d 959
    (Pa.Super. 1998) (unpublished memorandum), appeal denied, 
    557 Pa. 645
    ,
    
    734 A.2d 393
     (1998). So, the judgment of sentence became final on March
    23, 1999.
    Appellant timely filed his first pro se PCRA petition on April 13, 1999.
    The PCRA court appointed counsel, and subsequently denied Appellant’s
    petition on June 13, 2000.         On March 27, 2001, this Court affirmed the
    denial of PCRA relief. See Commonwealth v. Pavlichko, No. 1347 MDA
    2000 (Pa.Super. filed March 27, 2001) (unpublished memorandum).
    Appellant filed on March 3, 2005, his second pro se PCRA petition. On April
    18, 2005, the PCRA court dismissed Appellant’s petition. This Court affirmed
    on December 21, 2005. See Commonwealth v. Pavlichko, 
    894 A.2d 822
    (Pa.Super. 2005) (unpublished memorandum).                  On August 8, 2006,
    Appellant filed his third pro se PCRA petition, which the PCRA dismissed on
    October     17,   2006.     This   Court   affirmed   on    July    2,   2007.    See
    Commonwealth          v.   Pavlichko,      
    932 A.2d 260
         (Pa.Super.    2007)
    (unpublished memorandum).
    On March 10, 2017, Appellant filed the current pro se “Motion to
    Modify and Correct Illegal Sentence Nunc Pro Tunc,” which the PCRA court
    deemed Appellant’s fourth PCRA petition. The PCRA court issued Rule 907
    notice on March 27, 2017, and denied Appellant’s PCRA petition on April 17,
    2017.     On April 18, 2017, Appellant filed a pro se “Amended Motion to
    -2-
    J-S70006-17
    Correct Illegal Sentence,” which the PCRA denied on April 20, 2017. On May
    4, 2017, Appellant timely filed a pro se notice of appeal from the PCRA
    court’s April 17, 2017 order. The record indicates Appellant filed a voluntary
    concise statement of errors complained of on appeal, per Pa.R.A.P. 1925(b),
    on June 5, 2017.
    Preliminarily, any petition for post-conviction collateral relief will
    generally be considered a PCRA petition, even if captioned as a request for
    habeas corpus relief, if the petition raises issues cognizable under the PCRA.
    See Commonwealth v. Peterkin, 
    554 Pa. 547
    , 
    722 A.2d 638
     (1998); 42
    Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral
    relief and encompasses all other common law and statutory remedies for
    same purpose).     The timeliness of a PCRA petition is a jurisdictional
    requisite.   Commonwealth v. Turner, 
    73 A.3d 1283
     (Pa.Super. 2013),
    appeal denied, 
    625 Pa. 649
    , 
    91 A.3d 162
     (2014). A PCRA petition must be
    filed within one year of the date the underlying judgment becomes final. 42
    Pa.C.S.A. § 9545(b)(1).   A judgment is deemed final at the conclusion of
    direct review or at the expiration of time for seeking review. 42 Pa.C.S.A. §
    9545(b)(3).   The exceptions to the PCRA time-bar allow for very limited
    circumstances under which the late filing of a petition will be excused; a
    petitioner asserting an exception must file a petition within 60 days of the
    date the claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(1-
    2).
    -3-
    J-S70006-17
    Instantly, Appellant purports to challenge the legality of his sentence.
    Appellant’s claim is cognizable under the PCRA.         See 42 Pa.C.S.A. §
    9543(a)(2)(vii); Commonwealth v. Fowler, 
    930 A.2d 586
     (Pa.Super.
    2007), appeal denied, 
    596 Pa. 715
    , 
    944 A.2d 756
     (2008) (holding collateral
    attack on legality of sentence must be raised in PCRA petition; challenges to
    legality of sentence must first satisfy PCRA time limits or one of statutory
    exceptions). Thus, the court properly treated Appellant’s most recent prayer
    for relief as a PCRA petition.      See Peterkin, 
    supra.
            Nevertheless,
    Appellant’s judgment of sentence became final on March 23, 1999, upon
    expiration of the time to file a petition for writ of certiorari with the U.S.
    Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the current, pro se
    serial petition for collateral relief on March 10, 2017, which is patently
    untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant did not assert any of
    the exceptions to the PCRA time-bar.       See 42 Pa.C.S.A. § 9545(b)(1).
    Therefore, Appellant’s petition remains time-barred, and the PCRA court
    lacked jurisdiction to review it. See Turner, 
    supra.
     Accordingly, we affirm.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/21/2017
    -4-
    

Document Info

Docket Number: 762 MDA 2017

Filed Date: 11/21/2017

Precedential Status: Precedential

Modified Date: 11/21/2017