Com. v. Stepney, D. (memorandum)
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J-S37039-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. DENNIS STEPNEY, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 124 MDA 2014 Appeal from the PCRA Order entered on December 12, 2013 in the Court of Common Pleas of Lackawanna County, Criminal Division, No(s): CP-35-CR-0000747-2005; CP-35-CR-0001139-2005 BEFORE: LAZARUS, STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED JUNE 25, 2014 pro se, from the Order dismissing his first Petition for relief pursuant to the Post Conviction Relief See 42 Pa.C.S.A. §§ 9541-9546. We affirm. On May 20, 2005, Stepney pled guilty to fleeing or attempting to elude a police officer.1 On August 24, 2005, Stepney was sentenced to 9 to 23 months in prison. Subsequently, on February 2, 2006, Stepney pled guilty to drug-related charges of corrupt organizations, criminal conspiracy to commit possession with intent to deliver, and possession with intent to deliver.2 On June 27, 2006, he was sentenced to 7½ to 15 years in prison, to be served concurrently to the August 24, 2005 sentence. With regard to 1 See 75 Pa.C.S.A. § 3733(a). 2 See 18 Pa.C.S.A. §§ 911(b)(3), 903; 35 P.S. § 780-113(a)(30). J-S37039-14 the June 27, 2006 sentence, Stepney filed a Motion for Reconsideration to reduce fines, which the trial court granted on July 13, 2006. Stepney did not file a direct appeal from either sentence. On August 13, 2012, Stepney filed the instant PCRA Petition, claiming ineffectiveness of counsel and seeking credit for time served. court dismissed the Petition as untimely. The PCRA Stepney filed a timely Notice of Appeal. On appeal, Stepney raises the following questions for review: misapprehending/disregarding the Orders dictated by the Commonwealth on 8-24-05 and 6-27-06 respectively, in that the former entities failed to credit [Stepney] with all time served while not at liberty, to both concurrently ran cases [sic] as they were an original and subsequent charge for the same act? II. Is this conduct of the PBPP/DOC in direct violation of [a] governing and applicable statute, significantly and accordingly; 42 Pa.C.S.A. § 9760(8)(e)(2)? Brief for Appellant at 4. We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court ruling if it is supported by evidence of record and is free of legal error. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations omitted). Under the PCRA, a petition must be filed within one year from the date the judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). A -2- J-S37039-14 judgment of sentence becomes final at the conclusion of direct review or at the expiration of time for seeking review. Id. § 9545(b)(3). An appellate court cannot reach the merits of an appeal if the PCRA petition is untimely. Commonwealth v. Fisher, 870 A.2d 864, 869 n.10 (Pa. 2005). Because Stepney did not seek direct review of either judgment of sentence, the sentences became final when the period of time in which to 25, 2005, and August 14, 2006, respectively. Stepney had one year from those dates to file the instant PCRA Petition. Because he did not file his PCRA Petition until August 13, 2012, the Petition was untimely.3 However, we may consider an untimely PCRA petition if the petitioner can plead and prove one of three exceptions set forth under 42 Pa.C.S.A. § 9545(b)(1)(iId. § 9545(b)(2); Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). Here, Stepney did not plead or prove any exception and, instead, claims that some of the time he served was not properly credited to both sentences, resulting in an additional 14½ months in prison. 3 See Brief for It appears that Stepney is no longer serving the first sentence. Under 42 Pa.C.S.A. § 9543(a)(1)(i), to be eligible for PCRA relief, a PCRA petitioner must be currently serving a prison sentence or be on probation or parole for the crime. Thus, even if his PCRA Petition had been timely filed, he would not have been eligible for relief. -3- J-S37039-14 Appellant at 7. Because Stepney did not successfully invoke any of the three cannot address the merits of his claims on appeal. Accordingly, the PCRA 4 court did n Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/25/2014 4 To the extent Stepney was harmed by actions of the Department of Corrections and the Board of Probation and Parole, his remedy was to seek administrative review, and in the event of an adverse determination, an appeal to the Commonwealth Court. -4-
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