Com. v. Williams, J. ( 2018 )


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  • J-S50023-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    JEFF SCHIRONE WILLIAMS                     :
    :
    Appellant               :   No. 64 WDA 2018
    Appeal from the PCRA Order December 18, 2017
    In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0014658-2004
    BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.
    MEMORANDUM BY OTT, J.:                             FILED SEPTEMBER 24, 2018
    Jeff Schirone Williams appeals pro se from the order entered December
    18, 2017, in the Court of Common Pleas of Allegheny County, dismissing,
    without a hearing, his serial petition filed pursuant to the Post Conviction Relief
    Act (“PCRA”).1 Williams claims (1) the PCRA court erred in denying him the
    appointment of counsel, (2) his sentence is illegal under Alleyne,2 and (3) he
    is entitled to credit for time served. Based upon the following, we affirm.
    The history of this case was summarized by this Court in Williams’
    previous appeal:
    On June 25, 2007, the trial court sentenced Williams to an
    aggregate term of 15 to 30 years’ incarceration following his
    convictions for kidnapping, corruption of minors, possession with
    ____________________________________________
    1   42 Pa.C.S. §§ 9541-9546.
    2   Alleyne v. United States, 
    570 U.S. 99
     (2013).
    J-S50023-18
    intent to deliver, possession of a controlled substance, and
    possession of drug paraphernalia. Williams filed a post-sentence
    motion, which the trial court denied on July 11, 2007. Williams
    appealed to this Court and on May 3, 2010, we affirmed his
    judgment of sentence. [Commonwealth v. Williams, 
    4 A.3d 181
    (Pa. Super. 2010) (unpublished memorandum)].
    On June 20, 2011, Williams filed his first PCRA petition, which he
    later amended. The PCRA court dismissed Williams’ petition and
    Williams appealed. On March 12, 2013, this Court vacated the
    PCRA court’s order dismissing Williams’ petition and remanded for
    a hearing to determine whether Williams should receive credit for
    time served. [Commonwealth v. Williams, 
    69 A.3d 1290
     (Pa.
    Super. 2013) (unpublished memorandum)]. On June 26, 2013,
    the trial court held a hearing at which Williams was present and
    modified Williams’ sentence to reflect credit for time served. That
    same day, the trial court entered a judgment of sentence. Williams
    appealed, and we affirmed on February 20, 2014. Thereafter,
    Williams filed a second PCRA petition, which the PCRA court denied
    on March 26, 2015. He appealed and, on January 29, 2016, we
    affirmed the portion of the PCRA court’s order denying relief on
    Williams’ Alleyne/Hopkins and offense gravity score (“OGS”)
    claims and vacated the order to the extent it purportedly imposed
    fees and costs as part of the 2013 judgment of sentence. See
    Commonwealth v. Williams, 
    136 A.3d 1041
    , 2016 Pa. Super
    Unpub. LEXIS 254, at *17 (Pa. Super. filed 2016). We remanded
    for a determination of whether Williams was responsible for fees
    and costs. 
    Id.
    Following remand, the trial court held a hearing on April 12, 2016,
    at which Williams was present, and the court determined that the
    imposition of fees and costs was a clerical error. That same day,
    the trial court entered a judgment of sentence. Williams timely
    filed his notice of appeal.
    Commonwealth v. Williams, 
    175 A.3d 1100
     (Pa. Super. Ct. 2017)
    (unpublished memorandum) (footnotes omitted). On August 21, 2017, this
    Court affirmed the 2016 judgment of sentence. 
    Id.
     Williams did not seek
    further review.
    -2-
    J-S50023-18
    On November 9, 2017, Williams filed the present PCRA petition, seeking
    PCRA relief and appointment of counsel. On December 19, 2017, the PCRA
    court denied the petition and the request for appointed counsel.3 This appeal
    followed.4
    Williams contends the PCRA court erred by failing to appoint counsel for
    his current PCRA petition that challenges the judgment of sentence entered
    on April 12, 2016, and affirmed by this Court on August 21, 2017. Williams
    asserts the current petition is a timely, first PCRA petition under the 2016
    judgment of sentence, and he is therefore entitled to appointment of counsel.
    See Williams’ Brief at 10, citing Commonwealth v. Guthrie, 
    749 A.2d 502
    ,
    504 (Pa. Super. 2000) (“[W]here an indigent PCRA petitioner requests the
    appointment of counsel for assistance in the preparation of a first petition
    pursuant to the PCRA, counsel must be appointed ….”) We conclude Williams’
    argument is unavailing.
    ____________________________________________
    3The PCRA court did not issue Pa.R.Crim.P. 907 notice of intent to dismiss the
    petition. However, Williams does not challenge the absence of the Rule 907
    notice and, therefore, the issue is waived. Commonwealth v. Taylor, 
    65 A.3d 462
    , 468 (Pa. Super. 2013).
    4 Although the PCRA court did not direct Williams to file a Pa.R.A.P. 1925(b)
    statement of errors complained of on appeal, Williams filed a Rule 1925(b)
    statement of his own accord, claiming the “PCRA court erred by dismissing
    PCRA petition without appointing counsel pursuant to [Pa.R.Crim.P.] 904.”
    Williams’ Concise Statement, 1/9/2018.
    -3-
    J-S50023-18
    As a result of Williams’ prior, successful PCRA petition, this Court
    vacated his 2013 sentence to the extent it imposed fees and costs, and
    remanded to the trial court for a determination whether Williams was
    responsible for fees and costs. Williams, 
    136 A.3d 141
     (Pa. Super. 2016)
    (unpublished memorandum).            On April 12, 2016, the trial court issued an
    amended sentencing order without fees and costs, and Williams appealed to
    this Court, which affirmed the judgment of sentence. In his current pro se
    PCRA petition, Williams claims his sentence is illegal under Alleyne.5
    Furthermore, in this appeal, Williams claims he is entitled to credit for time
    served.
    The 2016 sentencing order, however, does not reset the date upon
    which Williams’ judgment of sentence became final for purposes of the PCRA.
    In Commonwealth v. McKeever, 
    947 A.2d 782
     (Pa. Super. 2008), this Court
    explained that a successful first PCRA petition “does not ‘reset the clock’ for
    the calculation of the finality of the judgment of sentence for purposes of the
    PCRA where the relief granted in the first petition neither restored a
    petitioner’s direct appeal rights nor disturbed his conviction, but, rather,
    affected his sentence only.” 
    Id. at 785
    . See also Commonwealth v. Lesko,
    
    15 A.3d 345
    , 366 (Pa. 2011) (“Lesko’s ‘right’ to first petition PCRA review is
    ____________________________________________
    5In his petition, Williams asserts this Court, in his prior PCRA appeal, “did not
    address the correct [Alleyne] argument presented by Petitioner challenging
    [42 Pa.C.S. §] 9714.” Williams’ PCRA Petition, 11/9/2017, at 1 n.2.
    -4-
    J-S50023-18
    necessarily confined to that part of the final Pennsylvania judgment that was
    disturbed by the federal habeas proceedings. All other aspects of the original
    judgment remain as before – final”). Therefore, in this case, the trial court’s
    act of correcting a clerical error did not reset the clock for the calculation of
    Williams’ finality of judgment for purposes of a subsequent PCRA petition.
    Accordingly, because Williams’ PCRA petition sets forth an Alleyne
    claim, which is a claim unrelated to his 2016 resentencing, his petition
    constitutes a second, untimely petition.6        Consequently, the PCRA judge
    properly dismissed Williams’ petition without appointing counsel. See
    Pa.R.Crim.P. 904 (“[T]he judge shall appoint counsel to represent the
    ____________________________________________
    6 For a court to entertain any PCRA petition, the petition must be filed no later
    than one year after petitioner’s judgment of sentence becomes final, unless
    he establishes one of the enumerated exceptions to the timebar. 42 Pa.C.S. §
    9545(b)(1)(i-iii). In Williams’ prior PCRA appeal, this Court determined
    Williams’ 2013 sentence became final on March 22, 2014. Williams, 
    136 A.3d 1041
     (Pa. Super. 2016) (unpublished memorandum). Furthermore, in
    that prior appeal, this Court addressed Williams’ claim that his 2013 sentence
    was illegal under Alleyne. See Williams, 
    id.
     Here, the current petition, filed
    on November 9, 2017, is facially untimely and Williams has not attempted to
    establish any enumerated exception.
    To the extent Williams contends in this appeal that his sentence is illegal
    under Alleyne and that he is entitled to credit for time served, neither this
    Court nor the PCRA court has jurisdiction to review these legality of sentence
    claims due to the untimeliness of the petition. See Commonwealth v. Fahy,
    
    737 A.2d 214
    , 223 (Pa. 1999) (claims challenging the legality of sentence are
    subject to review under the PCRA, but must first satisfy the PCRA’s time
    limits).
    -5-
    J-S50023-18
    defendant on the defendant’s first petition for post-conviction collateral
    relief.”) (emphasis added).
    Accordingly, we affirm.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/24/2018
    -6-
    

Document Info

Docket Number: 64 WDA 2018

Filed Date: 9/24/2018

Precedential Status: Precedential

Modified Date: 9/24/2018