Com. v. Thorpe, T. ( 2018 )

J-S23044-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TELLY MONTEZ THORPE :
:
Appellant : No. 3420 EDA 2017
Appeal from the PCRA Order September 21, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0000104-2014
BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 04, 2018
Appellant, Telly Montez Thorpe, appeals from the order entered in the
Court of Common Pleas of Delaware County dismissing his first petition filed
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546, as
untimely. Herein, Appellant contends his patently untimely petition qualified
for merits review under an exception to the PCRA’s timeliness requirement.
We affirm.
The PCRA aptly summarizes the pertinent facts and procedural history
of the case, as follows:
Appellant entered into a negotiated guilty plea on September 23,
2014, to two counts of robbery, a felony of the first degree.
Pursuant to the plea, he was sentenced to an aggregate sentence
of 60 to 120 months of incarceration, with credit for time served
from 12/6/13 to 9/23/14. Appellant did not file an appeal.
...
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S23044-18
[Appellant] claims that in the spring of 2016, he requested
through his unit counselor, Ms. Krug, to find out when he would
be paroled because his 2 ½ years were served on or about June
6, 2016. [It was then, Appellant says, he learned for the first time
that he was not eligible for parole after 2 ½ years’ incarceration
under his plea agreement.]
On March 24, 2016, Appellant filed a petition pursuant to the
[PCRA] . . . . PCRA counsel was appointed and counsel filed an
amended PCRA petition on January 4, 2017. Following a hearing
on this motion, [the PCRA] court ultimately concluded that the
Appellant was not entitled to relief and denied his motion by Order
on September 21, 2017.
PCRA Court Opinion, filed 12/28/17, at 1, 5.
This timely appeal followed. Appellant presents the following questions
for our review.
I. WHETHER THE PCRA COURT ERRED IN DENYING
APPELLANT’S PCRA PETITION WHERE THE RECORD
CLEARLY SHOWS IT WAS TIMELY FILED PURSUANT TO
42 PA.C.S. [§§] 9545(b)(1)(ii) AND (b)(2) BECAUSE IT
WAS FILED WITHIN 60 DAYS OF THE TIME THAT
APPELLANT LEARNED THAT HE WOULD NOT BE PAROLED
AFTER 2 ½ YEARS AND THIS FACT COULD NOT HAVE
BEEN ASCERTAINED BY THE EXERCISE OF DUE
DILIGENCE.
II. WHETHER THE PCRA COURT ERRED IN DENYING
APPELLANT’S PCRA PETITION WHERE THE RECORD
CLEARLY SHOWED THAT COUNSEL WAS INEFFECTIVE
FOR INDUCING APPELLANT TO ENTER A GUILTY PLEA
BASED ON COUNSEL’S ERRONEOUS ADVICE THAT
APPELLANT WOULD BE PAROLED AFTER 2 ½ YEARS IF
HE ENTERED A NEGOTIATED GUILTY PLEA TO [A] NON-
MANDATORY SENTENCE OF 5 TO 10 YEARS, AND
APPELLANT WAS PREJUDICED BY COUNSEL’S
INEFFECTIVENESS?
Appellant’s brief, at 4.
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This Court's standard of review regarding an order
dismissing a PCRA petition is whether the determination of the
PCRA court is supported by evidence of record and is free of legal
error. Commonwealth v. Burkett, 5 A.3d 1260, 1267
(Pa.Super. 2010) (citations omitted). “In evaluating a PCRA
court's decision, our scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the trial level.” Id.Commonwealth v. Brandon, 51 A.3d 231, 233 (Pa.Super. 2012).
We first examine whether Appellant timely filed the petition under
review, as this question implicates our jurisdiction. Under the PCRA, all
petitions must be filed within one year of the date that the petitioner's
judgment became final, unless one of three statutory exceptions applies. 42
Pa.C.S. § 9545(b)(1); Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.
2006). For purposes of the PCRA, a judgment becomes final at the conclusion
of direct review. 42 Pa.C.S. § 9545(b)(3). “The PCRA's time restrictions are
jurisdictional in nature.” Chester, 895 A.2d at 522. Pennsylvania law makes
clear that no court has jurisdiction to hear an untimely PCRA petition. See
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003).
Instantly, Appellant was sentenced on September 23, 2014. Because
he did not file a post-sentence motion or direct appeal, his judgment of
sentence became final on October 23, 2014. See 42 Pa.C.S. § 9545(b)(3);
Pa.R.A.P. 903. Thus, Appellant had until October 23, 2015, to file timely a
PCRA petition. He did not do so, as he filed the present petition on March 24,
2016.
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Accordingly, Appellant had to plead and prove that his petition met one
of the following exceptions to the timeliness requirement:
(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 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.
42 Pa.C.S. § 9545(b)(1). A PCRA petition invoking one of these statutory
exceptions “must be filed within sixty days of the date the claim could first
have been presented.” 42 Pa.C.S. § 9545(b)(2). Commonwealth v.
Hernandez, 79 A.3d 649, 651 (Pa.Super. 2013).
Appellant alleges he timely filed his petition pursuant to 42 Pa.C.S. §
9545(b)(1)(ii). As stated above, a petitioner satisfies this section by alleging
and proving that the factual basis of his claim was previously unknown to him
and that he could not have discovered the facts earlier through the exercise
of due diligence. See 42 Pa.C.S. § 9545(b)(1)(ii); Commonwealth v.
Huddleston, 55 A.3d 1217, 1220 (Pa.Super. 2012). “Due diligence demands
that the petitioner take reasonable steps to protect his own interests.”
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010). As
such, a petitioner must provide reasons for why, through the exercise of due
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diligence, he did not discover the facts earlier. Id. “This rule is strictly
enforced.” Id.Upon review, we conclude Appellant has failed to meet his burden to
establish that the exception at section 9545(b)(1)(ii) applies to his case.
Appellant alleges he is entitled to PCRA relief because he entered an
unknowing plea, induced by counsel’s failure to explain that the “non-
mandatory” five to ten year sentence to which he agreed in exchange for his
plea did not mean he would be eligible for parole sooner than the five-year
minimum sentence imposed. To the extent, therefore, that Appellant offers
as his “newly discovered fact” plea counsel’s alleged ineffective failure to
advise him properly of parole eligibility, his position is unavailing. See
Commonwealth v. Bennett, 930 A. 2d 1264 (Pa. 2007) (holding ineffective
assistance claim may not be relied upon to circumvent PCRA timeliness
requirement unless counsel effectively abandoned client during
representation); Commonwealth v. Perrin, 947 A.2d 1284, 1287 (Pa.Super.
2008) (“Our Supreme Court has made clear that the section 9545(b)(1)(ii)
exception will not apply to alleged ineffective assistance of counsel claims,
even if the claims were not knowable until advised of their existence by
present counsel.”).
Given the above, we conclude Appellant has failed to meet his burden
to plead and prove that his patently untimely petition should be treated as
timely pursuant to section 9545(b)(1)(ii). Accordingly, the PCRA court
committed no error in dismissing Appellant’s petition as untimely filed.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/18
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