Com. v. Fowler

• Decision Date: 23 July 2007
• Docket Number: No. 743 WDA 2006.,No. 742 WDA 2006.,No. 741 WDA 2006.,741 WDA 2006.,742 WDA 2006.,743 WDA 2006.
• Citation: 930 A.2d 586
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jeremy Dylan FOWLER, Appellant.
• Court: Pennsylvania Superior Court

930 A.2d 586

COMMONWEALTH of Pennsylvania, Appellee v. Jeremy Dylan FOWLER, Appellant.

No. 741 WDA 2006.

No. 742 WDA 2006.

No. 743 WDA 2006.

Superior Court of Pennsylvania.

Submitted October 30, 2006.

Filed July 23, 2007.

David A. Schroeder, Erie, for appellant.

Bradley H. Foulk, Asst. Dist. Atty., Erie, for Com., appellee.

BEFORE: ORIE MELVIN, McCAFFERY, and JOHNSON, JJ.

OPINION BY McCAFFERY, J.:

¶ 1 Appellant, Jeremy Dylan Fowler, appeals from the order denying his petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA").¹ On appeal, Appellant challenges the legality of his original sentence imposed on April 12, 2001, following his guilty plea to violations of The Controlled Substance, Drug, Device and Cosmetic Act. Appellant also seeks 25 months' credit for time served in the Erie County Drug Treatment Court Program. For the reasons set forth below, we hold that Appellant's challenge to his original sentence is untimely. Additionally, we determine that the sentencing court acted well within its discretion in denying credit for time served under the facts of this case. Accordingly, we affirm.

¶ 2 The underlying facts and procedural history in this matter were previously recounted by this Court on direct appeal as follows:

Appellant was arrested on December 22, 2000, for selling heroin to an undercover agent.[²] A search warrant was issued for his residence. The search revealed six (6) grams of marijuana, five and one-half (5½) grams of marijuana seeds, and various drug paraphernalia. On April 12, 2001, Appellant pled guilty to five (5) counts of possession of a controlled substance with intent to deliver (heroin),[] one (1) count of possession of a controlled substance (marijuana),[] and two (2) counts of possession of drug paraphernalia.[] At his request, Appellant was admitted into [d]rug [t]reatment [c]ourt. The court sentenced Appellant to fifteen (15) years' intermediate punishment, beginning with ninety (90) days' electronic monitoring (restrictive intermediate punishment), forty (40) years' probation to be served consecutively to the restrictive intermediate punishment, fifty (50) hours' community service, plus court costs.³,[⁴]

On May 6, 2003, the court revoked Appellant's intermediate punishment for twenty-one (21) violations of certain technical conditions of his treatment⁵ and imposed [an aggregate] sentence of four (4) to twenty (20) years' imprisonment, plus twenty-five (25) years' probation to be served consecutively to the term of imprisonment.[⁶] On May 16, 2003, Appellant filed a motion to modify sentence[,] which the court denied on May 19, 2003. On June 9, Appellant filed [a] notice of appeal. On September 22, 2003, this Court dismissed the appeal as untimely.

On October 1, 2003, Appellant filed a petition pursuant to the [PCRA], seeking leave of court to reinstate his appellate rights nunc pro tunc. The court granted the petition. On October 31, 2003, Appellant filed [a] timely notice of appeal.

Commonwealth v. Fowler, No. 1971 WDA 2003, unpublished memorandum at 1-3, 860 A.2d 1127 (Pa.Super. filed July 26, 2004). On direct appeal, Appellant challenged the trial court's revocation of his intermediate punishment sentence and re-sentence to total confinement. Appellant argued his sentence was manifestly excessive and clearly unreasonable because his violations were strictly technical and did not involve a new criminal offense. Appellant did not challenge his guilty plea or the original sentence imposed on April 12, 2001. On July 26, 2004, this Court affirmed Appellant's judgment of sentence. See id. Appellant filed an Application for Reconsideration and Reargument on August 6, 2004, which this Court denied on September 30, 2004.

¶ 3 On February 25, 2005, Appellant filed a Motion to Correct Record for Pre-sentence Commitment Credit seeking credit for the time he spent in rehabilitation facilities as part of the Erie Drug Treatment Court Program. Before the trial court ruled on this motion, Appellant filed a pro se PCRA petition on September 19, 2005, which included his request for time credit as well as other claims purporting to challenge his guilty plea and the legality of his original sentence imposed in 2001. The court appointed current counsel for Appellant, who filed a supplement to Appellant's PCRA petition on October 27, 2005.

¶ 4 On February 10, 2006, Judge Cunningham presided over an evidentiary hearing on Appellant's motion for time credit, which the court treated as Appellant's second petition for PCRA relief. The PCRA court issued a notice of intent to dismiss Appellant's PCRA petition on March 1, 2006. In that notice, the PCRA court addressed Appellant's motion for time credit as well as the issues Appellant raised in his September 19, 2005 petition and counsel's supplemental petition. On March 22, 2006, the court issued an order denying PCRA relief.

¶ 5 Appellant filed a timely notice of appeal and now raises the following four questions for our review:

1. Whether the [PCRA] court erred in denying PCRA relief in misapplying the applicable standard upon finding the PCRA [petition] to be [] Appellant's third PCRA petition?

2. Whether the [PCRA] court erred in finding that [] Appellant's challenges to the original sentences were untimely, waived and/or previously litigated?

3. Whether the [PCRA] court erred in finding [] Appellant's challenges to his revocation sentence were without merit?

4. Whether the [PCRA] court erred in denying [] Appellant time credit for the time served in court-ordered inpatient treatment programs wherein his liberty was restrained so as to constitute a circumstance sufficiently similar to incarceration as to mandate the provision of time credit?

(Appellant's Brief at 2).

¶ 6 Our standard of review of a trial court's denial of PCRA relief is limited to determining whether the order is supported by the record evidence and is free of legal error. Commonwealth v. Liebensperger, 904 A.2d 40, 44 (Pa.Super.2006); Commonwealth v. Yakell, 876 A.2d 1040, 1042 (Pa.Super.2005). Our scope of review is limited to the PCRA court's factual findings and the evidence of record. Commonwealth v. Duffey, 585 Pa. 493, 502, 889 A.2d 56, 61 (2005). We grant great deference to the PCRA court and will not disturb findings supported by the certified record. Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa.Super.2006), appeal denied, 589 Pa. 720, 907 A.2d 1102 (2006).

¶ 7 Preliminarily, we note that the timeliness requirements of the PCRA are mandatory and jurisdictional in nature. 42 Pa.C.S.A. § 9545(b); Commonwealth v. Robinson, 575 Pa. 500, 508, 837 A.2d 1157, 1161 (2003). All PCRA petitions must be filed within one year of the date a judgment of sentence becomes final unless the petitioner pleads and proves that (1) there has been interference by government officials in the presentation of the claim; or (2) there exists after-discovered facts or evidence; or (3) a new constitutional right has been recognized. 42 Pa.C.S.A. § 9545(b)(1)(i-iii); Robinson, supra at 507, 837 A.2d at 1161.

¶ 8 If a petition is not filed within the one-year time frame, the courts lack jurisdiction to grant relief unless the petitioner can plead and prove that one of the three statutorily-enumerated exceptions to the time-bar applies. Id.; Commonwealth v. Gallman, 838 A.2d 768, 774-775 (Pa.Super.2003). A petition invoking one or more of these exceptions must be filed within sixty days of the date the claim first could have been presented. 42 Pa.C.S.A. § 9545(b)(1) and (b)(2). The petitioner has the burden to plead in the petition and subsequently to prove that an exception applies. Commonwealth v. Beasley, 559 Pa. 604, 609, 741 A.2d 1258, 1261 (1999). "[A]llegations of ineffective assistance of counsel will not overcome the jurisdictional timeliness requirements of the PCRA." Commonwealth v. Pollard, 911 A.2d 1005, 1008 (Pa.Super.2006) (quoting Commonwealth v. Wharton, 584 Pa. 576, 588, 886 A.2d 1120, 1127 (2005)).

¶ 9 In his first issue on appeal, Appellant asserts that his motion for time credit should not have been treated as a PCRA petition by the trial court. Appellant claims that the trial court also erred in addressing his motion as a second PCRA petition and Appellant's September 19, 2005 petition as his third PCRA petition. We agree, in part.

¶ 10 "It is now well[-]established that a PCRA petition brought after an appeal nunc pro tunc is considered [an] appellant's first PCRA petition, and the one-year time clock will not begin to run until this appeal nunc pro tunc renders his judgment of sentence final." Commonwealth v. O'Bidos, 849 A.2d 243, 252 n. 3 (Pa.Super.2004) (citing Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super.2003); Commonwealth v. Lewis, 718 A.2d 1262 (Pa.Super.1998)). It is equally well-settled that "the PCRA provides the sole means for obtaining collateral review, and that any petition filed after the judgment of sentence becomes final will be treated as a PCRA petition." Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa.Super.2002) (citation omitted) (concluding the appellant's motion to vacate sentence qualified as a PCRA petition). See also Commonwealth v. Evans, 866 A.2d 442 (Pa.Super.2005) (concluding motion for reconsideration or modification of sentence required treatment under the PCRA); Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super.2004) (holding collateral challenge to legality of sentence for failure to credit for time served must be brought under the PCRA); Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa.Super.2000) (holding motion to correct illegal sentence would be treated as PCRA petition where the appellant did not file timely post-sentence motions or a direct appeal).

¶ 11 In the case sub judice, the trial court granted Appellant's request for an appeal nunc pro tunc. Appellant's judgment of sentence from the intermediate sentence revocation became final on November 1, 2004, or thirty days from this...