Com. v. Begandy, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUSTIN BERNARD BEGANDY
Appellant No. 1210 WDA 2015
Appeal from the Judgment of Sentence August 12, 2009
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000271-2007
BEFORE: SHOGAN, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED AUGUST 31, 2016
Justin Bernard Begandy appears to appeal from the judgment of
sentence entered on August 12, 2009, and modified by the trial judge, the
Honorable Donald E. Machen, Ret., on February 22, 2010, in the Court of
Common Pleas of Allegheny County, following Begandy’s entry into an open
plea of nolo contendere to a variety of charges, including attempted
kidnapping. After a thorough review of the submissions by the parties,
relevant law, and the certified record, we hold the lower court had no
jurisdiction, approximately six years late, to grant Begandy nunc pro tunc
permission to file a direct appeal. Accordingly, we quash this appeal.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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The procedural posture is somewhat confusing in that the trial court,
on July 18, 2015, purportedly granted Begandy nunc pro tunc relief to file a
direct appeal of his judgment of sentence, but subsequently opined Begandy
was not entitled to direct appeal relief on the basis of the October 1, 2014
decision of this Court which affirmed the denial relief to Begandy on his first
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §
9541 et seq, as untimely. See Trial Court Opinion, 11/5/2015, at 2.
We direct the parties to the October 1, 2014 decision of our Court for
the thorough recitation of the factual and procedural history of this matter.
See Commonwealth v. Begandy, 108 A.3d 100, at *1-3, (Pa. Super.
2014) (unpublished memorandum), We note for ease of reference, that
Begandy has, in the past and is currently, attempting to convert a clerical
error in sentencing into a determination he was illegally sentenced for a
crime he was not charged with. Specifically, Begandy entered into the nolo
contendere plea to attempted kidnapping. He was sentenced in open court
on that charge. However, when transcribed, it appeared he was sentenced
on a charge of kidnapping. On February 22, 2010, the trial judge, the
Honorable Donald E. Machen, corrected the written order to reflect the fact
Begandy was sentenced on attempted kidnapping.
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Begandy attempted to raise his claim of an illegal sentence in an
untimely PCRA petition, filed in April, 2013.1 Neither the PCRA court nor our
Court addressed the merits of his claim because the petition was patently
untimely and Begandy failed to demonstrate his entitlement to any of the
exceptions to the one-year PCRA filing requirement. Begandy apparently
sought to circumvent this failing by filing a petition for nunc pro tunc relief
on July 16, 2015. The lower court purportedly granted that petition without
considering that Begandy’s request should have been treated as a PCRA
petition seeking nunc pro tunc relief.
The Commonwealth has argued, and we agree, that Begandy’s claim is
essentially one of being subject to an illegal sentence. Such claims are
generally cognizable under the PCRA.
In Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007),
the learned Judge, now Justice, McCaffery, collected cases and
reiterated that all motions filed after a judgment of sentence is
final are to be construed as PCRA petitions. Id. at 591 (citing
Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super.
2002)); Commonwealth v. Evans, 866 A.2d 442 (Pa. Super.
2005); Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.
Super. 2004); Commonwealth v. Guthrie, 749 A.2d 502, 503
(Pa. Super. 2000). More recently, in Commonwealth v.
Jackson, 30 A.3d 516 (Pa. Super. 2011), this Court held that a
defendant's motion to correct his illegal sentence was properly
addressed as a PCRA petition, stating broadly, “any petition filed
after the judgment of sentence becomes final will be treated as a
PCRA petition.” Id. at 521 (quoting Johnson, supra).
____________________________________________
1
If we interpret his argument correctly, Begandy believes Judge Machen did
not have the jurisdiction to correct the sentence. Therefore, the original,
“illegal” sentence remained.
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We are, however, cognizant that in a one-page decision, a panel
of this Court recently opined that a trial court may elect to treat
a motion challenging a defendant's sentence, filed after the time
for seeking direct review or the conclusion of a direct appeal, as
an untimely post-sentence motion and not a PCRA petition.
Commonwealth v. Glunt, 2012 Pa. Super. 269, 61 A.3d 228.
The defendant in Glunt framed the question as an illegal
sentence and entitled his motion as a motion to vacate/correct
illegal sentence. The Glunt panel referenced no case law in the
body of the opinion and, insofar as it suggests a court may
choose to treat a post-conviction sentencing motion as not
falling within the strictures of the PCRA where the defendant's
claim is that his sentence is illegal, it is contradicted by the
numerous precedents mentioned supra and the language of the
PCRA statute itself. See 42 Pa.C.S. § 9542.
Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013).
Accordingly, Begandy’s petition for nunc pro tunc relief was not an
untimely post-sentence motion, it was his second PCRA petition. As noted,
“any petition filed under this subchapter, including a second or subsequent
petition. Shall be filed within one year of the date the judgment of sentence
became final[.]” 42 Pa.C.S. § 9545(b)(1). Further, “Pennsylvania law makes
clear that when a PCRA petition is untimely, neither this Court nor the trial
court has jurisdiction over the petition.” Commonwealth v. Miller, 102
A.3d 988, 992 (Pa. Super. 2014) (citation omitted).
Here, as in his prior PCRA petition, Begandy had filed a facially
untimely petition. Although in his prior petition he attempted to
demonstrate entitlement to the timeliness exceptions, instantly he has failed
to claim any such entitlement. The petition is, therefore, untimely and the
lower court had no jurisdiction to grant Begandy nunc pro tunc relief.
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Actions taken by a court without jurisdiction are void. See Commonwealth
v. Walters, 814 A.2d 253, 256 (Pa. 2002). Because the underlying order
purporting to grant Begandy relief was void, there is no order to appeal.
Accordingly, we quash this appeal.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2016
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