Com. v. Carter, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMES EDWARD CARTER, JR.,
Appellant No. 33 WDA 2016
Appeal from the PCRA Order November 13, 2015
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0000077-2012
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES EDWARD CARTER, JR.,
Appellant No. 34 WDA 2016
Appeal from the Order December 9, 2015
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0000077-2012
BEFORE: SHOGAN, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 24, 2017
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S92008-16
Appellant, James Edward Carter, Jr., appeals from the order denying
his second petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541–9546, without a hearing. We affirm.
This Court, relying on the explanation of the first PCRA court,
previously summarized the facts and initial procedural history as follows:
The above-captioned matter arises out of a series of
controlled drug transactions arranged by the Pennsylvania Office
of the Attorney General. On August 6, 2010, Agent Ronald A.
Pate of the Attorney General’s Office provided $1,500.00 to a
confidential informant for the purpose of purchasing one pound
of marijuana from Defendant James Edward Carter, Jr.
(hereinafter, “Defendant”). Later that day, while agents of the
Attorney General’s Office watched, the informant provided the
$1,500.00 to Defendant. At approximately 4:01 p.m.,
Defendant delivered to the informant a large zip-loc bag
containing approximately one pound of green vegetable matter.
The substance inside the bag was sent to the Greensburg Crime
Lab for testing, and the test results revealed that the substance
was 429 grams of marijuana.
On August 16, 2010, the informant was supplied with
$3,200 for the purpose of purchasing cocaine from Defendant.
Later that day, while agents watched and positively identified
Defendant, the informant provided the $3,200 to Defendant. On
August 30, 2010 at 1:32 p.m., Defendant delivered a baggie
containing a light-colored powder to the informant by placing it
in a sock by a stop sign and instructing the informant to pick it
up. The baggie containing the powder was subsequently sent to
the DEA Northeast Crime Lab for testing, and the test results
revealed that the powder weighed 146.9 grams and contained
cocaine.
On August 9, 2011, Agent Pate from the Pennsylvania
Attorney General’s Office and Detective Todd Naylor filed a
criminal complaint charging Defendant with four counts of
possession with intent to deliver under 35 P.S. § 780-
113(a)(30), two counts of possession of a controlled substance
under 35 P.S. § 780-113(a)(16), and one count of theft by
deception under 18 Pa.C.S.A. § 3922(a)(1). Defendant was
arrested shortly thereafter. On January 12, 2012, Defendant
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waived his right to a preliminary hearing. On February 13,
2012, the Commonwealth filed an Information charging
Defendant with two counts of possession with intent to deliver,
two counts of possession, and one count of theft by deception.
After several continuances of Defendant’s trial, Defendant
and his attorney, Mr. Louis Emmi, completed the process of
selecting a jury. On March 5, 2013, before the jury was sworn,
Defendant and the Commonwealth reached an agreement in
which Defendant pled guilty to two counts of possession with
intent to deliver. In exchange, the Commonwealth reduced the
weight from 146.9 grams of cocaine to 49 grams, waived the
mandatory minimum sentence, and Defendant was not required
to report for execution of the sentence for a period of one
month. Defendant signed an A Information, pleading guilty to
the amended charges under the agreement and also signed a
waiver of arraignment. In accordance with the plea agreement,
Defendant was sentenced on the same date to a term of
imprisonment of not less than two and one-half years nor more
than five years. The Sentence Order stated that, pursuant to
Defendant’s plea agreement, execution of the sentence was
deferred to April 4, 2013 at 9:00 a.m., when Defendant was to
report to the Beaver County Jail to begin serving his sentence.
On April 4, 2013, Defendant failed to appear at the Beaver
County Jail as required. As a result, a bench warrant for
Defendant’s arrest was issued on April 5, 2013. Defendant was
subsequently arrested and incarcerated on August 4, 2013.[1]
____________________________________________
1
The trial court entered the following order on August 15, 2013:
AND NOW, this 15th day of August, 2013, having been
advised that the defendant failed to appear at the date and time
as set forth in the sentencing order of March 5, 2013, directing
him to report on April 4, 2013, and having been advised that he
was apprehended and placed in the Beaver County Jail on
August 4, 2013, it is hereby order[ed] and directed that the
effective date of this sentence be amended to August 4, 2013.
All other aspects of the sentence order of March 5, 2013,
are to remain unchanged.
(Footnote Continued Next Page)
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On November 8, 2013, Defendant filed a pro se Motion for
Post Conviction Collateral Relief in which he claims that his
sentence was improperly calculated, that the “evidence is more
than questionable[,]” that his counsel was ineffective, and that
the “evidence [was] not at trial when [Defendant was] coerced
into a plea bargain “‘deal.’” Pro se PCRA Pet., at 4. As this was
Defendant’s first PCRA petition in this matter, the [c]ourt
appointed the Beaver County Public Defender to represent
Defendant in these proceedings. On March 14, 2014, Defendant,
through counsel, filed an Amended Petition for Post Conviction
Relief. In the Amended Petition, Defendant incorporates his pro
se PCRA petition by reference, and he averred that his March 5,
2013 guilty plea was not knowing, intelligent, and voluntary
because he was coerced by his counsel into accepting a plea
agreement he did not entirely understand or want. As relief,
Defendant requests a new trial, an evidentiary hearing, or
modification of his sentence. On April 22, 2014, the
Commonwealth filed an Answer to Defendant’s Post Conviction
Relief Petition in which the Commonwealth asserts that
Defendant’s plea colloquy demonstrates that he understood the
plea agreement and was not coerced into accepting it. The
Answer also contains a New Matter in which the Commonwealth
claims that Defendant failed to comply with the mandates of 42
Pa.C.S.A. § 9545(d) and, therefore, is not entitled to a hearing
or any relief.
Despite the Commonwealth’s claim in its New Matter, the
[c]ourt held a hearing in this matter on June 9, 2014. During
the hearing, Defendant was the only witness that was available
to testify. After Defendant testified, the [c]ourt issued an Order
continuing the PCRA hearing to September 3, 2014. The parties
were directed to ensure that Defendant’s prior counsel, Louis
Emmi, Esquire, and the Assistant District Attorney that
represented the Commonwealth during Defendant’s guilty plea,
Ronald DiGiorno, appear at the hearing. On September 3, 2014,
the [c]ourt resumed Defendant’s PCRA hearing, and heard
testimony from Attorney Emmi, who testified that Defendant
admitted his guilt to him and that he entered a knowing,
intelligent, and voluntary plea in order to avoid a greater
sentence.
_______________________
(Footnote Continued)
Order, 8/15/13.
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The [c]ourt entered an Order denying Defendant’s PCRA
petitions on September 4, 2014. On September 5, 2014,
Defendant attempted to file pro se a Post-Sentence Motion to
reverse his conviction.1 A Notice of Appeal was then filed on
October 2, 2014. On October 6, 2014, Defendant was directed
to file a 1925(b) Concise Statement of Matters Complained of on
Appeal. Defendant moved for an extension of time in which to
file his Concise Statement, and this was granted by the [c]ourt
on October 27, 2014. On November 7, 2014, Defendant filed his
Concise Statement.
1
The Motion was disregarded by the [c]ourt as an
attempt to have hybrid representation when
Defendant was already represented by counsel.
Commonwealth v. Ali, 608 Pa. 71, 89, 10 A.3d
282, 293 (2010) (where “appellant was represented
by counsel on appeal,” “his pro se Rule 1925(b)
statement was a legal nullity.”); Commonwealth v.
Ellis, 534 Pa. 176, 626 A.2d 1137, 1139, 1141
(1993) (“There is no constitutional right to hybrid
representation either at trial or on appeal. . . . A
defendant may not confuse and overburden the court
by his own pro se filings of briefs at the same time
his counsel is filing briefs on his behalf.”).
Commonwealth v. Carter, 122 A.3d 456, 1651 WDA 2014 (Pa. Super. filed
May 22, 2015) (unpublished memorandum) (quoting PCRA Court Opinion,
11/19/14, at 1–4).
On appeal, we affirmed the dismissal of the first PCRA petition.
Carter, 1651 WDA 2014. The present PCRA court described the subsequent
procedural history as follows:
On September 21, 2015, Defendant filed his second PCRA
Petition [pro se], which is the basis for the instant proceedings.
On October 1, 2015, the [c]ourt entered an Order and Notice of
Intention to Dismiss Without Hearing in which the [c]ourt denied
Defendant’s request for appointment of counsel on this second
PCRA Petition, notified the Defendant of the [c]ourt’s intent to
dismiss this second PCRA Petition without a hearing, and
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explained its reasons. Those reasons were that the issues raised
were previously litigated and/or waived and that Defendant’s
Petition was untimely and thus the [c]ourt did not have
jurisdiction. On October 23, 2015, Defendant filed a Show of
Cause, further arguing his position.
The [c]ourt then entered an Order on November 13, 2015
dismissing Defendant’s PCRA Petition without a hearing for the
reasons previously stated. On December 14, 2015, Defendant
filed a Notice of Appeal.[2] This Notice, however, did not refer to
the [c]ourt’s Order of November 13, 2015, nor did it contain the
required filing fee, nor did it contain a Petition to Proceed in
Forma Pauperis. The Clerk then mailed a letter to Defendant
dated December 14, 2015, which informed him of these
deficiencies in his filing. Then, on December 30, 2015,
Defendant filed an Application for Leave to Appeal in Forma
Pauperis along with a second Notice of Appeal.
On January 12, 2016, the [c]ourt entered an Order
directing Defendant to file a Concise Statement of Matters
Complained of on Appeal. Defendant filed his Concise Statement
on February 2, 2016.
PCRA Court Opinion, 2/12/16, at 2–3 (footnote omitted). On February 19,
2016, this Court, sua sponte, consolidated the appeals at 33 and 34 WDA
2016, noting that the appeal at 34 WDA 2016 “appear[ed] to be Appellant’s
____________________________________________
2
Appellant’s appeal was timely filed, and he is represented by private
counsel. The record reveals that Appellant placed his notice into the prison
mail on December 11, 2015. Pursuant to the “prisoner mailbox rule,” the
notice of appeal is considered filed on the date it is delivered to prison
authorities for mailing. See Commonwealth v. Wilson, 911 A.2d 942, 944
(Pa. Super. 2006) (recognizing that under the “prisoner mailbox rule,” a
document is deemed filed when placed in the hands of prison authorities for
mailing). Moreover, even utilizing the date the notice was received by the
clerk of courts, December 14, 2015, the appeal was timely. The thirtieth
day of the appeal period fell on December 13, 2015, which was a Sunday.
See 1 Pa.C.S. § 1908 (whenever the last day of any time period referred to
in a statute falls on a Saturday, Sunday, or holiday, we omit that day from
the computation.).
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attempt at correcting or amending his notice of appeal filed at appeal
number 33 WDA 2016 . . . .” Order Per Curiam, 2/19/16.3 The PCRA court
complied with Pa.R.A.P. 1925(a).
Appellant raises the following issues in this appeal:
I. Did the PCRA Court err in determining that the issue of the
validity of the plea was previously litigated or waived[?]
II. Did the PCRA Court err in determining that the PCRA
Petition was untimely[?]
Appellant’s Brief at 5 (footnote omitted).
When reviewing the propriety of an order denying PCRA relief, this
Court is limited to determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA
court’s findings will not be disturbed unless there is no support for them in
____________________________________________
3
The “second” notice of appeal was an attempt to correct the deficiencies of
Appellant’s timely notice of appeal received by the clerk of courts on
December 14, 2015. A second notice of appeal was unnecessary,
Appellant’s correction of the deficiencies notwithstanding. Commonwealth
v. Williams, 106 A.3d 583 (Pa. 2014) (A timely notice of appeal triggers the
jurisdiction of the appellate court, notwithstanding whether the notice of
appeal is otherwise defective.). As the High Court stated in Williams:
The precise nature of the alleged defect in the . . . notice of
appeal is of no consequence. As Rule 902 of the Rules of
Appellate Procedure states, “failure of an appellant to take any
step other than the timely filing of a notice of an appeal does not
affect the validity of the appeal.”
Id. at 590. Thus, we quash the appeal docketed at 34 WDA 2016.
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the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.
Super. 2014).
Initially, we must address whether this appeal is properly before us.
The PCRA court dismissed Appellant’s petition as untimely. “As the
timeliness of a PCRA petition is a question of law, our standard of review is
de novo and our scope of review is plenary.” Commonwealth v. Callahan,
101 A.3d 118, 121 (Pa. Super. 2014) (citation omitted). Moreover, the
timeliness of a PCRA petition is a jurisdictional threshold that may not be
disregarded in order to reach the merits of the claims raised in a PCRA
petition that is untimely. Commonwealth v. Cintora, 69 A.3d 759, 762
(Pa. Super. 2013). “Whether [a petitioner] has carried his burden is a
threshold inquiry prior to considering the merits of any claim.”
Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).
In order to be considered timely, a first, or any subsequent PCRA
petition, must be filed within one year of the date the petitioner’s judgment
of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment 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.” 42 Pa.C.S. § 9545(b)(3).
Our review of the record reflects that Appellant pled guilty and was
sentenced on March 5, 2013. The sentencing order provided that “[p]er the
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plea agreement, execution of sentence is deferred to April 4, 2013 . . . .”
Order, 3/5/13. Appellant failed to report on April 4, 2013, as ordered, and
on April 5, 2013, a Bench Warrant issued for Appellant’s arrest. Appellant
was apprehended and incarcerated on August 4, 2013, and the court issued
the August 15, 2013 order described supra n.2, wherein it directed that the
effective date of Appellant’s sentence be amended to August 4, 2013.
Appellant asserts that he is entitled to utilize August 15, 2013, as the
date to determine when his judgment of sentence became final. Just as we
would not use April 4, 2013, as the pivotal date, we cannot use August 4,
2013, let alone August 15, 2013.4 The common pleas court imposed
Appellant’s judgment of sentence on March 5, 2013. That Appellant
negotiated until April 4, 2013, to begin serving his sentence of
incarceration, or that due to his flight, Appellant’s apprehension on August 4,
2013, further delayed Appellant’s execution of his sentence of
imprisonment, does not alter the fact that the trial court imposed
Appellant’s sentence on March 5, 2013. Thus, this is the date we must
utilize to determine the timeliness of the instant PCRA petition.
Appellant did not file a direct appeal; therefore, his judgment of
sentence became final thirty days after March 5, 2013, on Thursday, April 4,
____________________________________________
4
It goes without saying that utilizing August 4, 2013, as the date of
imposition of sentence would permit Appellant to benefit from his
abscondence from the jurisdiction.
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2014.5 Pa.R.A.P. 903. Thus, Appellant had until Friday, April 4, 2014, to file
a timely PCRA petition. 42 Pa.C.S. § 9545(b)(3). The instant petition, filed
September 21, 2015, is facially untimely.
Our review of the record, the briefs, and the relevant law compels our
conclusion that the PCRA court has properly, thoroughly, and succinctly
evaluated the issues, beginning with the untimeliness of the appeal and the
inapplicability of any exception to the timeliness requirement. 6 Therefore,
we rely on the February 12, 2016 opinion of the PCRA court and adopt it as
our own.7
The appeal at 33 WDA 2016 is affirmed. The appeal at 34 WDA 2016
is quashed.
____________________________________________
5
We note that the PCRA court made a computational error by one day when
determining the date when Appellant’s judgment of sentence became final
and a timely PCRA petition was due. The PCRA court determined that any
petition was due by Thursday, April 3, 2014, when in actuality, as noted, the
pivotal date was Friday, April 4, 2014. This computational error, however,
has no effect because Appellant never filed his petition until September 21,
2014, more than five months late.
6
As Appellant asserts that his petition is timely, he does not argue
applicability of any of the limited exceptions set forth in the PCRA. See 42
Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
7
We direct the parties to attach a copy of the PCRA court opinion in the
event of further proceedings in this matter.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2017
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Circulated 01/09/2017 11:37 AM
IN THE¢0URT OF COMMQN.PLEAS·OF BEAVER COUNTY
PENNSYLVANIA
'CRIMINAL DIVISION - LAW
COMMONWEALTH 0.F.PENNSYL VANIA
vs.
NO: 77 OF .2012
JAMES BDWARP CARTER,. JR.,
DEFENDANT
TESLA, J. ·FEBRUARY l~ ,2016
~-
RULE 19.ZS(a) ·O:PINION
FACTS AND PROCEDURAL HISTORY
This Opinion is issued to .address. Defendant's second Petition in the above-captioned
case under the Post-Conviction Relief Act (hereinafter, ·''PCRA'' or "i\yt';)'. The facts and
procedural history 'Oftht$ case are.presented in brief because they are described in .greater detail
in the Court's Order and Notice of'Intention to Dism~s.s Without Hearing and in thee Court's Rule
1 ~25 (a) Opinion from Defendant's first PCRA proceedings.1
On the eve of trial aft;er selecting .a jury; Defendant pled guilty to. two -counts .of"
Possession wifu·Jntertt to, Peli~ei-; Defelldant,signed an am~nded rtrformation;pleading guilty to
the amended .charges· .per the plea· agn~¢ment, :and also sign.e4 waiving his: Arraignment. In
accordance with the· ple~ agreement, Defendant W~s $entepe¢d on the same date to a term of
· imprisonment of not less than two and one..half years nor more than five years. The Sentence
Order stated that, pursuant to Defendant's plea .agreement, execution of the sentence was
deferred to A-p.nl 4, 2013' .at 9:00 a.m., when Defendant was to report to the Beaver County J aH to
I
A copy of the following Orders are attadie~ to this Opinion under A1>pelidfx "A" and are incorporated 'into this
Opinion as ff niJly set forth herein: ('.)rder Dismtssing· Oefendant'.s PCRA Petitior» Without Hearing, entered'
Nove1nber 13;, 2015;; OrderandNotice·ofln\entiontoDism:i;s.s Without Hearing> -ehteteci October I., 2015;and Rµle.
1925(a)Qpirtkin, eqt~redNovember 191 '20J4,
APP.B
begin serving his sentence, On April 4, 2013, Defendant faile4 to appear a:t the Beaver County
Jail as required. As a result, a bench warr~t for Deferl:dant 1 s arrestwas 1'$$Ued on April $. 2013 ,,
Defendant was· subs.equently arrested: a.nd.in¢arcerated fourmonths. later on August 4, '2013.
On Novembe, 8, :Z:013, Defendant filed pro se his fo:st Motion for Post Conviction
Co:ilateraL Relief. ])efendartf was appointed. counsel, filed an Amended Petition, and the Court
held a hearing oh two separate days on Defendant's Petition. The Court then denied Dere~dant• s
Petition and Defendant appealed that denial. On May 22, 20{ 5, the Superior Court at l 651 WDA
2014 entered an unpublished memorandum decision. A copy is attached under "Exhibit "A" per
210 Pa. Code § 65J 7(A); The Honorable Judge Shogan, writing for the Superior Court, stated:
We have ;reviewed the hriefs hf the parties, the, relevantlaw, the certified record
before us on appeal, and the thorough opinion ofthe PCRA court dated.November
19; 2014; We conclude that each ineffectiveness: claimraised by Appellant lacks
merit and the PCRA eourt's Well~crafted opinion adequately addresses
Appellant's claims on appeal, Accordingly; we affirrn on the basis ofthe PORA
court's opinion and adopt its.reasoning. as· our· own, The paracs are directed to
attach :a copy or that opinion in the: event ot.fuiflrer proceedings in this matter .
Commonwealth ,of'.P!ennsylvania v .. .i:ames Edwatd darte.t; It, J~S.20030-15, Docket No. 1651
WDA 2014> at 4(P~;Super; May 22, 2015) (mern.prandiun decision).
On Septernber.21, 2015, Defe.rtd.ant filed his second :PCRA Petition, which is the basis for
the instant proceedings. On October l~ 2015, the Court entered an Order and Notice of Intention
to Dismiss Without Hearing In which the Court denied 'Defendant's request for appointment of·
counsel on this second PCRA Petition, .notified the Defendant of the Court's intent to dismiss
this second PCRA Petitfon without a, hearing, and e~plaJned it$ reasons, Those reasons were that
the issues raised were previously litigated and/or waived and' that Defendant's Petition was
untimely and thus the Court' did not havejurisdiction .. On 'October 23, 2015, Defendant filed a
Show of Cause, further arguing his position,
The CQlirl 'then entered an Order on November 13, 2Rl 5 ·dismissing Defendant's. PCRA
Jletitiort withou~ :a heari11g· forthe reasons preyio_usJy stated. On,J)ecember 14, 20J;5i Defendant
filed a Notice of App.eat 'This Noti¢¢, 'however, did not -r¢{er to the Court' s Order of'November
13, 2015, nor di:d it' containthe required filing fee; nor did it contain a Petition to Proceed in
F onna Paµpetis.2 The Clerk then mailed. a Ietter: to befendan:t dated December 14, 2015, which
infotm.ed· him of these d:eficiende:s in bis filing .. Then,. on December 31};. 2015.,. Defendant filed an
Application for Leave to Appeal in F0n_na Paup eris along with a. second Notice ofAppeal,
On January 12; 2016; the Court. entered an Order directing Defendant to file a Concise
Statement of Matters Complained -of on Appeal, Defendant filed bis Concise Statement on
February .z, 2016. In his Concise Statement, Defendant raises two issues. Pirst, he raises as an
issue whether the Court erred' in failing to 'distihguisli b-¢twel;)11·.his· -previous argument of
ineffective assistanee of counsel and his instant argameat offacrallyattacking .the validityof the
plea, Second~ he raises an issue of whetaer' the Court erred in determining his Petition was
untimely; claiming that previous appeals tolled . the applicable time· period.
ANALYS!S
A. Defendant1.s PCRA .Pedtion was not tirnely fifed and tberefore the Court does not
havejurisdfotion to.consider the-merlts of his claims,
Before the Court can address the merits of Defendant's arguments, it must first determine
whether Defendant's. Petition was timely filed, In this case, Defendaat's petition is untimely .and
. 1 Al~hoµgh l)efendant'.s- first attetnpt~nt No.tide pf Appeal did :not contain. ei~ey the required, fee or a ];'etition to
Proceed in Forma Pauperis, and did' not corre~tly·'ide,ntify- the .pertinent {)tder-, '.thes.e .fuattflrs d<>. no't nec.essarily
affect the Jµ.dsdiction of the.·appeUa1~·.cott,.tt; bur tathet ~liow Jt·to. take any ,a:ppt'opri~t~ acttem. See, e.g; Pll.RAP,
902 :(''F'aililh~· or''tj.TI app~ilnntto ta.~e ·!JTJY $t¢p other than :the timely fifing of a .nQffoe· -of appe-a:F dees not affect the
·•laHd'ity .of the appea(-but itfa subjecti9.,s1,1_ch acMt!.as the ~ppe,Uate ceurt-deems apprepriate.; }')1 Fir.st Union· Nat
]lank K FA Realty In•lts Cbrp;l 2000'PA Super 3'60'i :~ 9:; 812' A.2d: 7'19, 722-23 e'[T]he p.err~ctiol'l. of the appeal
does notdepe11d ir1.at1ywa)"'Qn the. payment of the ftli'ng 'fee;''f ,
3
the Coutt therefore does .tiofhave jurjsdtction to consi\1er his Petition,, See, e,g., Commonwealth
· A.·,11·'·,
V, s··6'A·
· · , •··3··a. ·· · ;17·3·:, 1·,,.,7·
Cf.< ·c'll)
'Ea. -·2'··0'. :·'14·y· ·1 ···"'·· · c· omm:On\¥e
· .: \~Httttg .· ·a1'1:ti·· . V· ... ·p· a:h··y, ·s·c4.s··· p·.a.3· :1· 3· · .,. · 7·.·3··.7
. ·A
· · · •:·2a··2'1·',4
(1999)) ("PCRA time limits ate jurisdietional in nature, implicating a court's very power to
adjudicate a. controversy."). ·
Any .Petition for PCRA relief, "including a second or subsequent petition, shall be filed
within one year of the date the judgi;nent becomes final," unless the Defendant alleges and .proves
that one of three .enumerated exceptions· applies. 1+2 Pa.C.S.A. § 9545(b)(l). ''A judgment
becomes final at the eouelusion of' direct review, i11cluding. discretjona.ty review in the Supteme
Court ofthe Tltlited States and the :$,upreme·Coutt. ofPennsyl:vania, or at the expieationof.zime
for seeki11g the review," 42 pa;.;C.S .:A. § 9'545(b)(2). A,notice ofa,ppeal must be filed within.thirty
days> after Which an appellate court no longer-has jurisdiction to hear ,the case, Commonwealth v.
Bey,437 l?a.134; 136; 262 A.2d 144, 145 (1970); PaJl,A.P~ go:3;
Defendant pled guilty on March 5,, 2013 and never filed
~-'i
a direct appeal. The judgment
.. 4~· • ,.~"·-
therefeee became final. after Wednesday, April 3, 2013, thirty days later. His deadline to file a
PCRA was thus April 3, 2014, also a Thursday. The instant Petition, however, was filed on
/ .
September 21, 2015, over one year past th¢ deadline.
Because Defendant's. Petition was not filed Within one year; it is untilnely and this Court
has no jurisdictid.n to consider the arguments nt~de in his Petition unless one, ofthe enumerated
exceptions under 42 'Pa.G.8.A. § 9545(b)is satisfied. See :i&,, 1999 Pa.Super; 124, 734 A:2:d at
399-400;
Th~ exceptions for railing to fj1¢ a timely :PCM Petition provided under :Pa.C.S.A. §
9545(b) are:
of interference· by
(i) the failure to raise the claim previously was the result
government officials with the presentation. of the claim in violation of the
4
Constitution or laws of this Commonwealth or the Constitution er laws of the·
United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner
and could not have been. ascertained by the exercise of due diligence; or
(iii)the right asserted.is a constitutional right that was recognized by the Supreme
Ooµrt of the United St~t~s or the Supreme Court ·Qf Pennsylvania after the time
peripcl provided in this section and has been held by that court to apply
retroactively.
42 Pa.C.S.A. ·§ 9545(b).
At no time in his Petition does Defendant claim a retroactive constitutional :right. 42
Pa.C.S.A. ,§.9545(b)(iii)-. Thus this section does not-11pply,
In Section 5(!} of hi~ P.etitiPfi~ P.e:fo11dant .cl~frns> reg~rdinggovemmental i'nterf¢ten·ce,
"The Commonwealth }tas changed dates, event.s, an:d withheld information from the Court and
the defense." Defendant appears, as he has in the past, to her referring to the amended
Information which was previously addressed in his first PCRA Petition. Contrary to Defendant's
',
repeated assertions that he "was unaware of these charges when entering into a plea deal," the
Court explained. in its first Rule ,1925(a) Opinion that Defendant knew of the amended
Information and agreed to enter µ.is· guilty plea tq those amendmeats, deriving a substantial
benefit from.that pleaRule 1925(a) Opinion, ·atJJ-11 (Nov, 19'i· 20:14), No miscenductwasfound
then, and Defendant · neither pleads nor proves. any differ~nt or ad·clitional misconduct now.
Rather, it appears that Defendant merely wishes to telitigate issues Which have .already been
addressed. ·
To the extent that Defendant intends to argue governmental interference based upon
alleged ineffectiveness of his counsel (section 6(A) of his Petition refers to· his counsel as
"defense. attomey as counsel for the prosecutien"), ineffective assistance of counsel does not
qualify for the governmental .interference exception. 42 Pa.C.S.A .. § 9545(b)(4) fFor purposes of
5
this subchapter, "government officials" shall net include defense counsel, whether appointed or
i:etaiMd);Com. v. Crews,,. 58-1 Pa . .45, 53,, 8·63 A.2d 498., 503 {2.@04) ('1(I]t is well settled that the
atleged irieffecfi¥c:he$s of ail prior counsel.fncluding.first PCRA:cpunsel, does not fall within the
governmental interference exception.").
Regarding Rfter'-discovel'e573 Pa. 503, 506, 827 A2d 3.6.9, 370 (2003) (quoting Com. v; Lark. 560 Pa. 487,
746 A.2d 585, 587 (2:bOOJ} ("[T]he Legislature enacted amendments to the· PCRA, 'Which
mandate that all.;petitions· fot post-convictio» relief, including second and subsequent petitions,
be filed within: one year ofthe date upon which the judgment became fina], unless .one ef three
enumerated exceptions apply.''"). Aspreviously stated, this subsequent PCRA Petition is beyond
the filing deadline.
D~fen:da:nt fails. to. plead or prove facts th~l wouJd support either the govemmental
interference' or the aftei'-discovei;ed evidence (,W¢-eptions Which he asserts ht hi$· Petition. 42
PttC.$'.A, '.§ 9545(b)(l}. His .f>etltion is theref9re;u.11tfr1;1ely. Becausehls :Petition is iltitimely. the
Court does riot have .jurisdiction to consider Defendants PCRA Petifion, and it was therefore
properly denied.
)3. The Claiins raisetl l:>y Defendant in bis Petition have been previqus,ylltigated and/or
waived a,nd heJs thereto.re ineligible for relief und,er tile Post.. Conv-icfion Relief Act.
Jn.additiontt, Def¢ndant'sfailure to ·file,a timely PQR.A Petition,. Defendant simply· is not
eligible. for PCRA relief undez the Act because, inter alia, .his claims have been. previously
litigated and/or waived.
7
To be eligible for PCRA refie~ the petition.~t niustpleadartd prove ·by a preponderance of.
the eviden~e four ge11¢taI' requite.m:ertts; 42 Pa.Ct's.A. §,~:9541~9546.. First, the petitioner must
ha:Ye been eonvicted of a crime 11ttder. Pennsylvania law and subsequently sentenced to either
incarceration. or probation. 42 Pa:.C.S.A. .§ 95430t), Second, the conviction· and sentence rnust
have resulted from at least one of the errors Md/bt violations elu6idated: in § 9543(a)(2) of the
PCRA. Id. Third, the allegation of errc:>t must nothave been previously litigate& or waived ·by the
petitioner. let Fourth, the petitioner must demonstrate. that the failure to Htigate the claim could
nothave been "the result of any rational, strategic or tactical de·cision ;by cows el." Id.
Defendant· does meet the first requirement because he was convicted of a crime under
Pennsylvania law and has been sentenced to a period of In:qiu:cerati<;ln. Regarding the second
requirement, De:fendantola1m:s errors or vio.l~tiorts tn:idet § 9543(a}(Z)(i)~(iv) of th~ PCRA, I.e.,
constitutional vt~'flation, ineffective assistance of coµnsel, unlawfully induced guilty plea, and
improper obstt'.Ue.fendartt was: teptesented hy counsel at his gu:ilty plea, signed' the
8
amended Information and the Guilty Plea Colloquy; entered his guilty p.h~a on the record,
received a substantiel pel)efit from the plea· including charges with reduced weight of: the drugs
as well .as a deferred :execution of sentence, wliich he then later failed to report for: Rule l925(a)
Opinion, at 9-:11 ('Nov. 19, 2014). He even claimed at the hearing on his first PCRAthat he had
lied under oath dt1tin:g his guilty plea. Id. at 9,.nA, Defendants repeated assertions that he. did
not know what he was pleading to ·are simply incredible, and he fails to prove by a
preponderance oftheevid.ence.any oftheviolationsrequiredby the PCRA.
Most clearly deficient in Defendant's Petition is his failure to meet the third requirement
under the PCRA. The claims he raises have been previously litigated :and/or waived in the prior
proceedings and thus, under the Act, they .eannot agai11 serve-as a basis. for requesting relief. 42
Pa.C. s~A. .§ 9543(a){3).
An issue lias been previously litigated if •1the bighest. a,p.pellate co:utt in which the
petitioner oouldhavehad revfowasam~tter,ofrighthas nifod,onthe xrteritsof'the issue." Id .. at §
9544~a)(2). A PCRA claim is waived "if the :petitioner could have raised it but failed to do so
before trial, at tdal, dµting unitary review, on. appeal -or in a prior state pcstconvictroa
proceeding." & at§ 9544Gb)~
Defendant wishes to argue irt his Concise ·statement that in his first Petition he only
complained: of ineffeetive assistance of counsel, and not as to the actual invalidity of the
amended Information and the entry of his plea. Defendant' s argument is· totally without merit.
The Court e1rpt'essly ac:r~r~ssed these issuss in its Qpirtibti. irt ultimately .concluding that
Defendant's ccunsel was ~ot.ineffecdve. Rtde 19:25:(aJ Qpinion,.at 11-12 (Nbv. 19, 2014).
Based on .the Court's observation ofbefen:dant's demeanor and testimony at 'the
time of his .plea compared with his later incredible. recanted testfrnony, :based on
the credibility of Mr. Emmi's testimony, and considering' the favorable terms of
the plea agreement Mr. Emmi secured for Defendant, this Court finds. that
. 9
Defep.da11t has n:0t met his burden•9f ptovf~g. that he. was uiilaw:fµlly· imfoced into
c;nterlng his .pl¢a. Nor ·is.th~ Coart· convinced that n.efend~t did not u11detsta11d ·
tllat he was plead.fog te reduced charges as outlined in the plea agreeinent, placed
on the record, and memorialized by Defendant when he signed' the amended
Inf~miatfon in. oren COU11, waiving .his arraignment to the redu~ed charg~s. N.T.
3/5/13, at 22-24. The record clearly shows that Defendant was Infcrmed in open
court of the reduced charges he was pleading to; the substantial benefit he
obtained from pleadingto those.reduced eharges.mteems.ofthe.reduced weight
and avoidance .of[the]mandatory· 111inimunt sentence. was .ex;p:lained to him, and
he hims¢{f signed the: atnended.Infonn.aticm and•waived his arraignment.,Based ()11'
these fo'¢ts• clearly ptese11t. fuothe tecord1 .J)efettdarlt's a.tguni~ntthat Mt, En1nii·did
not explain -to him thafhe was pleading to an, amended lnfcmnation qoes 11.ot even
meet· the ar.gual;,le, merit pron;g for :ineffocJiv:e . assistance. counsel. S~e. S:needi 899
A:2d at t07:Ct - · ·
Rather, based on the evidence and the record, this Court finds tha; Defendani's
plea was indeed knowingly, intelligently, and· voluntarily made; Because his plea
was knol;i,!f'ng/y; .'int¢#(gtnt{y; andvoluntar.ilymade, D¢fendt1.n,ti· arguments thathe
wa,s- tnef!ectt;v.`` t.epresente.d1iJJl counsel wtth r~gardto his en.tering a guilty plea
have-11,r>,nefl:t. S``Willis,.2(H3 Pa.Super;· 14l'i.68 A.3datlOot.:02.
ld. ·(emphasiS a;dded).
Defendant simply wishes to argue again regarding the amended Information and his
waiver of Arraignment. These issues were already unambiguously addressed by the Court in the
firstPCRA Proceedings. and by the Court's Opinion. Id. That Opinion was appealedand.affirmed
. .
by the Superior
. Court, which ad.opted the Court's
. reasomng . in its f'frst 1925(a) Opinion. Thus
these matters are previously
. litigated
. and cannot; again ·.serve as a basis for requesting PCRA
relief.
Furth~\ the issµes of ah amended Information and Arraigronent were .also waived by
failin,g to ·properly include them withln Defendant's first PCRA Petition, C.omn1onwealth v .
.Williams, 2006-Pa.S\iper; 121~ 900 A.2d.9.Q6, . 9d9(2006)(fiiilure to.ralse'lssueat PCRA Petition
stage waives .is~ue a:nd. precludes it on appeal). Indeed, the! issues of the amended Information
and Atraignmertt werl$ first waived when Defendant entered his guilty plea. Com. v: Eisenberg,
98 A.3d · 1268,. 1275 (Pa. 2014) ('1[lJJpon.entty of a guilty plea, a defendant waives· all claims and
ro
defenses other than those sounding in the jurisdiction of the court; the validity of the plea, and
what has .been termedthe 'legality' ofthe semence imposed ... ."); Com. v. Jones, 593 Pa, 295,
307, 929 A.2d 205, 212 (2007). (Defendant who plead guilty waived right to . challenge alleged
defectin Information); Com. v. Montgomery,. 48'5 Pa.. 110, H4, 401 A.2cl 318, 319-20 (1979)
(Defendant who .pled guilty waived ·right to challenge alleged defect in Indictment): Com. v. Hill;
427 Pa. t514',
.
617,. 235 A.2d 347, 349 (1967). {Defendant who plecl guilty waived right to
'
challenge validity of'erraignment.]
Because Defendant's arguments have already be~fitai:sedin this Court and its decision
reviewed and affirmed' :by the- StiJ:Yerior Court, they are ptevi0usly litigated .. By entering a guilty
plea and by failing to raise them at. earlier stages in his criminal proceedings; Defendant's issues
are also waived. Because his issues are previously litigated and/or waived, they are not eligible
for relief under the PCRA. 42 Pa.C.S.A. § 9543(a)(3). Therefore Defendant's Petition was
properly denied without a hearing.
C 'There was 'neither a vfo'httion of the Rules of Criminal Procedure nor prejudice to
Defendant and therefc:,re be is not eJ.ttitledt~ relief,
Even if D¢fe~.danf's .Petition was notuntimelY and even if the issues heraises were not
previously Htigat(;d l\ncl/Qr waived1 still there was ne.violation o:fllules $64 or 571 as he alleges,
nor has he .beerr prejuclfoe~L The COutt notes the legal authbdties whtch Defendant cites in his
petition, to Wit,,.Corrt. v. Bricker, 20@5 PA Super 3'07; $82A.2d 1008, and Pa.R.Crim.P. $64,
'
571. Unfortunately for Defendant, the authorities hecites cut directly against his .arguments,
Pa.R.Crim.P, 571(I>) states that a defendant may waive his arraignment where be is
represented by counsel and the defendant signs. and . files a written waiver meeting certain
11
requirements. Defendant did exactly that; as this Court has _previously observed. Thus the rule
was not violated.
Pa.R.Ci:im.P. 564 :states that an information may be amended "provided the information
as amended does .nor dharge an additional. or different offense," In Bricker> the case which
Defendant cites> the. S4p'edor Court. explaj:11s preci.sely: the me?Lrtin:g :and pu11J)ose .of this rule.
We 'have st~tedthat the putpo$.ie qfRt.i1e5l54 '~is.to .ensut.e that a· defendant is ftilly
apptised ~f:the charges,. and to. :avoid pt~judiceby prohibiting the Iast minute
addition ¢f ·aJ~f:'ged ,crhnfaal acts of which the defendant is. urtinforme~."
CammortWMlth v: Dctvctlos, 779 A.2d lt90, 1194 {Pa:Super2001) (citation
omitted). The test to be applied is!
[Wjhether the crimes specified in the original indictment or
information involve the same basic elements and evolved out of
the same factual situation as the crimes specified it1 the amended
indictment· or i11fot'm~tion. If so, then the defendant is deemed· to
have been .p1ac~4 on notice reg~tdihghis alleg~cl ctimJnal conduct.
r£;. however; th¢ amended' provistOn alleg~s a different set of
events; or the eleme11t's qr defenses to the ajnended crime are
materially different from the elements o.t defeases to the crime
originally 9hatg¢d, · such that the defendant would be prejudieed: l;'>y
the· change, th~ the amendment fa not: permltted.
Bricker, 2005 PA Super 3~7, if 27, :882. A.2d at 10.rn (citi11;g· Commonwealth v. Davalos, 779
A;2d 119'0, 1194 (Pa.Super, 2001)). See also Com. v.Jvfentzer,;2:01J PA Supet 62, 18A.3d 1200,
In this case, Defendant was not cltarged· with additio1::tal crimes in the aniended
Information. Rather, in accordance with the plea. agreement, he was charged with fewer and less
serious crimes. In this case, the weight of the cocaine Defendant was charged with was reduced
from 146,9 gtams to 49 grams, with Defendant.receiving only a thirty to sixty month sentence
instead of the seventy~two to ninety month sentence indicated by the Sentencing Guidelines.
Rule 1925(a) 'Opinion, at 10 (Novi 19, %01:4). This reduction, in addition to other considerations
such as the Commcnwealtf not requestirtga;pplication ofthe.mand.atory 111.inhnum sentence; was
12
to · effectuate the· plea agreement from which Defendant ,plainly derived a substantial be)1eflt.
Further; Defendant was capably tepresentecl at :th~ time of his plea, S-ee Jones, 59'.3 P·a, at 3'07,
929 A.2d at 212 (''It :is clear that fa. defendant] .and his connsel, [are]well aware of the .charges'f
when they have ''hegotfated Er·plea bargah1 :witll.Jb.e GomtnofiWealth:'').
Despite Ms ·$lihs~quertt -dissati~factfon with his decision to enter a guilty plea, "the law
does not require that'[~ defendant] be pleased with the-outcome.of his c:lecfsion to enter a.plea of
guilty .. , ." Comtrtenwealth v .. Willis, 2013 Pa.Super. 143~ 68 A.3d 997, i002 {citing
Commonwealth· v. Anderson, 995 A.2d 1184~ 1192 (P~.Super. 2010)); Defendant fails to
demonstrate eitherthat there. was a violation of Rule 564 as explained by the Court in Bridker, or
that he has been prejudiced.
Because there has been no violation of either Rule 564· or Rule 571 and .because
Defendant, with the assistance.of courtsel,waived his Arraignment and agreed witll the amended
Informatien in accorid.ance With a plea agreern¢nt front which h.e .greatly benefitted by
were properly·.de11ied.
CONCLUSION
For the aforementioned reasons, the issues which Defendant raises were ~r.operly denied
and th¥ decision.of'this Court. should be affirmed .. OJ
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