Com. v. Hooks (memorandum)

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J-S71036-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE SUPERIOR COURT OF PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA, Appellee v. HAROLD HOOKS, Appellant No. 1391 EDA 2012 Appeal from the Judgment of Sentence April 16, 2012 In the Court of Common Pleas of Delaware County Criminal Division at No.: CP-23-CR-0003350-2005 BEFORE: BOWES, J., ALLEN, J., and PLATT, J.* MEMORANDUM BY PLATT, J. Filed: January 11, 2013 Appellant, Harold Hooks, appeals from the order denying his second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm. The charges in this matter arose from Appellant s role in the kidnapping and false imprisonment of the victim because of a dispute over drugs. On August 31, 2005, a jury convicted Appellant of criminal conspiracy, kidnapping, unlawful restraint, recklessly endangering another person. false imprisonment, and On December 6, 2005, the court sentenced Appellant to consecutive sentences of no less than four nor more than eight years incarceration for unlawful restraint, no less than six nor ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S71036-12 more than twelve years incarceration for criminal conspiracy to commit kidnapping, and five years probation for false imprisonment. On May 9, 2007, this Court affirmed Appellant s judgment of sentence, and our Supreme Court denied review on October 16, 2007. (See Commonwealth v. Hooks, 929 A.2d 240 (Pa. Super. 2007) (unpublished memorandum), appeal denied, 934 A.2d 72 (Pa. 2007)). On July 8, 2008, Appellant filed a pro se first PCRA petition and appointed counsel filed an amended petition, arguing that Appellant s sentence for false imprisonment should have merged with that for unlawful restraint. Appellant requested resentencing. The PCRA court granted Appellant s petition and resentenced him on July 16, 2009 pursuant to his request for relief. The PCRA court imposed consecutive sentences of no less than four nor more than eight years incarceration, plus one year of consecutive probation, for unlawful restraint, and no less than six nor more than twelve years incarceration for criminal conspiracy to commit kidnapping. The court did not impose a sentence for false imprisonment on the basis of merger.1 On June 7, 2010, Appellant filed a pro se second PCRA petition. Appointed counsel filed an amended petition raising the issue of trial counsel s alleged ineffectiveness. On March 15, 2012, the court issued a ____________________________________________ 1 We note that the court did not reinstate Appellant s direct appeal rights. -2- J-S71036-12 Rule 907 notice of intent to dismiss the petition on the basis of untimeliness. The court dismissed the petition on April 16, 2012. Appellant timely appealed. The court did not order a Rule 1925(b) statement, but issued a Rule 1925(a) opinion on July 5, 2012. Appellant raises one issue for our review: Was the [PCRA c]ourt in error for denying Appellant s [PCRA] Petition indicating that it was untimely filed? (Appellant s Brief, at 4). Our standard of review of a PCRA court s denial of a petition is wellsettled: On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court s findings are supported by the record and without legal error. A second or subsequent request for PCRA relief will not be entertained unless the petitioner presents a strong prima facie showing that a miscarriage of justice may have occurred. Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267 (Pa. 2008) (citations omitted), cert. denied, 555 U.S. 916 (2008). Title 42 Pa.C.S.A. § 9545(b)(1) requires that any PCRA petition, including a second or subsequent petition, must be filed within one year of the date that the petitioner s judgment of sentence becomes final, unless a petitioner pleads or proves that one of the exceptions to the timeliness requirement enumerated in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) is applicable. The timeliness requirement is mandatory and jurisdictional; therefore, no court may disregard, alter, or create equitable exceptions to the timeliness requirement in order to reach the substance of a petitioner s arguments. Commonwealth v. McKeever, 947 A.2d 782, 784-85 (Pa. Super. 2008) (citation omitted). -3- J-S71036-12 Appellant argues that the sentence imposed on him in 2005 was illegal and that, therefore, he had one-year from the resentencing in 2009 to file a second PCRA petition. (See Appellant s Brief, at 9-10). Appellant s argument lacks merit. As this Court stated in Commonwealth v. Anderson, 788 A.2d 1019, 1022 (Pa. Super. 2001), appeal denied, 798 A.2d 1286 (Pa. 2002): [T]he time for seeking PCRA relief following . . . the imposition of a new sentence runs for one year from the conclusion of direct review of that new sentencing order, but only as to the issues of the validity of the revocation proceedings and the legality of the new sentence. Anderson, supra at 1022 (emphasis in original; citation omitted); see also Commonwealth v. Lesko, 15 A.3d 345, 366 (Pa. 2011) (concluding that judgment of sentence is final for all purposes except for that part of the final judgment that was disturbed by the federal habeas proceedings, i.e., [petitioner s] penalty phase proceeding. ) (emphasis in original). In this case, after the court granted Appellant s first PCRA petition and resentenced him on the basis that his sentence for false imprisonment should have merged with that for unlawful restraint, (see Commonwealth s Brief, at 3; PCRA Court Opinion, 7/05/12, at 4), Appellant filed a second petition in which he raised only the issue of trial counsel s ineffectiveness during the guilt phase of his case. (See Amended [PCRA] Petition, 7/18/11, at unnumbered page 2 ¶¶ 9, 10). Therefore, although resentencing resets the clock for the filing of a timely PCRA that challenges the validity of the -4- J-S71036-12 revocation proceedings [or] the legality of the new sentence[,] it did not do so for the PCRA claim leveled here. Anderson, supra at 1022; see also Lesko, supra at 366.2 Thus, Appellant s judgment of sentence became final for purposes of his PCRA claim on January 14, 2008, when the time for seeking a writ of certiorari with the United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3) ( [J]udgment [of sentence] becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review. ); Sup. Ct. R. 13. Hence, he had one year from this date to file his petition for collateral relief unless he pleaded and proved that a timeliness exception applied. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii); McKeever, supra at 784. Accordingly, Appellant s current petition, filed on June 7, 2010, is untimely on its face and, because Appellant has failed to plead and prove any of the statutory exceptions to the time-bar, we conclude that the trial court properly denied his petition as untimely. See McKeever, supra at 784-85. ____________________________________________ 2 We also note that Appellant s reliance on Commonwealth v. Lewis, 718 A.2d 1262 (Pa. Super. 1998), appeal denied, 737 A.2d 1224 (Pa. 1999), in support of his argument that the 2010 PCRA petition was actually his first is misplaced. (See Appellant s Brief, at 10). In Lewis, this Court concluded that a second PCRA petition was timely where the first PCRA merely restored the petitioner s direct appeal rights. See Lewis, supra at 1263. Here, no such relief was either sought or granted by Appellant s first PCRA petition and, therefore, Lewis is inapplicable. -5- J-S71036-12 Order affirmed. -6-

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