Com. v. Toney, J. ( 2015 )

J-S16011-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEFFREY TYRONE TONEY
Appellant No. 1283 MDA 2014
Appeal from the Order July 14, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001437-2009
CP-36-CR-0001721-2008
CP-36-CR-0001780-2009
CP-36-CR-0002423-2009
CP-36-CR-0003183-2009
CP-36-CR-0004413-2007
CP-36-CR-0004417-2007
BEFORE: PANELLA, J., OLSON, J., and OTT, J.
MEMORANDUM BY PANELLA, J. FILED MAY 07, 2015
Appellant, Jeffrey Tyrone Toney, appeals pro se from the order entered
July 14, 2014, in the Court of Common Pleas of Lancaster County, which
denied as untimely Toney’s petition filed pursuant to the Post Conviction
Relief Act,1 styled as an Application for Relief. We affirm.
On March 1, 2010, Toney pled guilty to one count of persons not to
possess firearms, fleeing or attempting to elude, accident involving death or
personal injury, and recklessly endangering another person, two counts of
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1
42 Pa.C.S.A. § 9541, et seq.
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false identification to law enforcement, and three counts of delivery of a
controlled substance. The trial court sentenced Toney pursuant to a
negotiated plea agreement to six to 15 years’ imprisonment. The court
determined that Toney was ineligible for the Recidivism Risk Reduction
Incentive (RRRI) program because he was sentenced pursuant to a
mandatory sentence. This Court affirmed Toney’s judgment of sentence on
appeal. See Commonwealth v. Toney, 405 MDA 2010 (Pa. Super., filed
9/14/10) (unpublished memorandum). Toney did not file a petition for
allowance of appeal with the Pennsylvania Supreme Court.
On September 2, 2011, Toney filed a pro se PCRA petition. The PCRA
court appointed counsel who filed an amended petition. Following a hearing,
the PCRA court denied Toney’s petition. On appeal, this Court affirmed the
order denying Toney’s PCRA petition, and the Supreme Court denied
allocatur. See Commonwealth v. Toney, 52 MDA 2013 (Pa. Super., filed
8/21/13) (unpublished memorandum), appeal denied, 87 A.3d 815 (Pa.
2014) (Table).
On July 11, 2014, Toney filed an Application for Relief, which the PCRA
court properly treated as a second PCRA petition. The Application
challenged, among other things, the legality of the sentences imposed
pursuant to the negotiated plea agreement. The PCRA court denied Toney’s
petition on July 12, 2014. This timely pro se appeal followed.
Toney raises the following issues for our review.
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1) Did the lower court commit error when it denied Appellant’s
Application for relief that raised challenges to the legality of
his sentence?
2) Can a global negotiated plea agreement serve to circumvent
Pennsylvania’s mandatory minimum sentencing guidelines or
the statutory language and legislative intent of sentencing
statutes pursuant to Pennsylvania Statutory Construction Act?
3) Is there a violation of Fourteenth Amendment Due Process for
lack of proper sentencing procedures and lack of statutory
authorization for the sentences imposed?
Appellant’s Brief at 5.
“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.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,
Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). In order to be eligible
for PCRA relief, a petitioner must plead and prove by a preponderance of the
evidence that his conviction or sentence arose from one or more of the
errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues must be neither
previously litigated nor waived. See 42 Pa.C.S.A. § 9543(a)(3). “[T]his
Court applies a de novo standard of review to the PCRA court’s legal
conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)
(citation omitted).
Before we may address the merits of a PCRA petition, we must first
consider the petition’s timeliness because it implicates the jurisdiction of
both this Court and the PCRA court. Commonwealth v. Williams, 35 A.3d
44, 52 (Pa. Super. 2011) (citation omitted), appeal denied, 50 A.3d 121 (Pa.
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2012). We may raise issues concerning our appellate jurisdiction sua
sponte. Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super.
2007). A court is without jurisdiction if the PCRA petition is untimely. See
id. The PCRA “confers no authority upon this Court to fashion ad hoc
equitable exceptions to the PCRA time-bar[.]” Commonwealth v. Watts,
23 A.3d 980, 983 (Pa. 2011) (citation omitted). This accords finality to
collateral review. See id. “A petition for relief under the PCRA, including a
second or subsequent petition, must be filed within one year of the date the
judgment becomes final unless the petition alleges, and the petitioner
proves, that an exception to the time for filing the petition, set forth at 42
Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met.” Commonwealth v.
Harris, 972 A.2d 1196, 1199-1200 (Pa. Super. 2009).
Section 9545 provides, in relevant part, as follows.
(b) Time for filing petition.—
(1) Any petition under this subchapter, including a
second or subsequent petition, shall be filed within
one year of the date the judgment becomes final,
unless the petition alleges and the petitioner
proves that:
(i) the failure to raise the claim previously was
the result of interference by government
officials with the presentation of the claim in
violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of
the United States;
(ii) the facts upon which the claim is predicated
were unknown to the petitioner and could not
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have been ascertained by the exercise of due
diligence; or
(iii) the right asserted is a constitutional right
that was recognized by the Supreme Court of
the United States or the Supreme Court of
Pennsylvania after the time period provided in
this section and has been held by that court to
apply retroactively.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the
date the claim could have been presented.
…
42 Pa.C.S.A. § 9545(b)(1)-(2).
Toney was sentenced to a term of six to 15 years’ imprisonment on
March 1, 2010. As noted, this Court affirmed Appellant’s judgment of
sentence on September 14, 2010, and Toney did not file a petition for
allowance of appeal with our Supreme Court. Thus, Toney’s judgment of
sentence became final on October 14, 2010, 30 days after this Court
affirmed his judgment of sentence and when the time to file a petition for
allowance of appeal with our Supreme Court expired. See 42 Pa.C.S.A.
§ 9545(b)(3); see also Pa.R.A.P. 1113.
Therefore, in order to be timely, Toney’s PCRA petition had to be filed
by October 14, 2011. As noted, Appellant filed his second pro se PCRA
petition on July 11, 2014—nearly three years past the deadline.
Accordingly, Toney’s petition is untimely, and he must plead and prove one
of the three enumerated statutory exceptions to the time-bar.
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Toney does not argue the applicability of the § 9545(b)(1) statutory
exceptions. We further note that Toney’s claim that his sentence was illegal
does not circumvent the PCRA time bar. See Commonwealth v. Jackson,
30 A.3d 516, 521-522 (Pa. Super. 2011), appeal denied, 47 A.3d 845 (Pa.
2012) (untimely PCRA petition raising legality of sentence claim does not
surmount jurisdictional limits of PCRA). Accordingly, we find no error in the
PCRA court’s dismissal of Toney’s petition as untimely filed.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/2015
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