Com. v. Abuhadba, M. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MAHMOUD ABUHADBA :
:
Appellant : No. 1931 EDA 2022
Appeal from the PCRA Order Entered July 1, 2022
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000704-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MAHMOUD ABUHADBA :
:
Appellant : No. 1933 EDA 2022
Appeal from the PCRA Order Entered July 1, 2022
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000700-2015
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED APRIL 12, 2023
Mahmoud Abuhadba (“Abuhadba”) appeals from the orders dismissing
the petitions he filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We
affirm.
We summarize the factual and procedural history of this appeal as
follows. In March of 2015, Abuhadba was on parole for convictions from 2013.
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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The Pennsylvania State Police suspected Abuhadba’s involvement in trafficking
drugs, and state troopers, along with Abuhadba’s parole officer, surveilled
Abuhadba and observed suspected drug transactions at his house. Later that
day, Abuhadba’s parole officer moved in on foot to stop Abuhadba from driving
away from his house. As Abuhadba subsequently admitted, he possessed
heroin with the intent to deliver at the time, drove away as his parole officer
was opening Abuhadba’s car door, put the officer in fear of serious imminent
bodily injury by physical menace, and drove while under the influence of
heroin. See Guilty Plea Form, 10/2/15, at 1.
The Commonwealth charged Abuhadba with aggravated assault and
other offenses related to his flight from his parole officer at docket number
700 of 2015 (“docket 700 of 2015”) and possession of a controlled substance
with the intent to deliver (“PWID”) and driving under the influence (“DUI”) at
docket number 704 of 2015 (“docket 704 of 2015”) (collectively, the “present
cases”). In September 2015, Abuhadba, who was represented by counsel
(“plea counsel”), entered open guilty pleas to the aggravated assault at docket
700 of 2015 and PWID and DUI at docket 704 of 2015. The trial court
accepted Abuhadba’s pleas and subsequently held a sentencing hearing.
During the sentencing hearing, the parties and the trial court discussed
Abuhadba’s pending parole violations for his prior convictions: Abuhadba’s
plea counsel noted that Abuhadba would be separately punished for his parole
violations, but that due to his prior convictions, Abuhadba’s prior record score
was higher than counsel had anticipated. See N.T., 12/8/15, at 4-6, 8.
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Abuhadba declined the trial court’s invitation to withdraw his guilty pleas in
the present cases. See id. at 6. The trial court then sentenced Abuhadba to
an aggregate term of imprisonment of five to ten years. Additionally, the trial
court ordered restitution at docket 700 of 2015 for the parole officer’s medical
costs and ordered credit for time served. Abuhadba filed timely motions for
reconsideration of the sentences, which the trial court denied on December
23, 2015. Abuhadba did not file a direct appeal.
In 2019, Abuhadba filed a prior pro se PCRA petition at docket 700 of
2015 challenging the imposition of restitution. The PCRA court appointed
counsel, but, following a hearing, dismissed Abuhadba’s petition as untimely
in June 2021. Abuhadba did not file an appeal.
Abuhadba, acting pro se, filed PCRA petitions in the present cases in
July 2021.2 The PCRA court appointed present counsel (“PCRA counsel”), who
filed amended petitions asserting that Abuhadba recently obtained information
from the Department of Corrections (“DOC”) that he began serving the
sentences in the present cases in May 2021, after he served the backtime for
his parole violations.3 See Amended PCRA Petition, 10/25/21, at 4-5.
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2 Abuhadba filed the instant PCRA petition, technically, his second, at 700 of
2015 before the time for appealing the dismissal of his first PCRA petition at
700 of 2015. Because Abuhabda did not appeal the order dismissing the
previous PCRA petition at docket 700 of 2015, the PCRA court retained
jurisdiction to consider the second PCRA petition. See Commonwealth v.
Zeigler, 148 A.3d 849, 852 (Pa. Super. 2016).
3 See 61 Pa.C.S.A. § 6138(a)(5)(i)(requiring a parolee to serve the balance
of his original sentence before serving a new sentence).
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Abuhadba’s petition asserted plea counsel’s ineffectiveness for failing to
inform him that the sentences in the present cases would run consecutively
to his backtime. See id. at 5-6. He alleged that he would not have pleaded
guilty had he known that the sentences in the present cases would begin
running in 2021, rather than 2015 when the trial court imposed the sentence.
See id. at 8.
Abuhadba attached to the petitions numerous exhibits, including: (1) a
copy of a July 2016 DC16-E form stating that Abuhadba’s maximum backtime
sentences for his prior convictions would expire in 2021 and that the DOC had
lodged detainers for the present cases, see Amended PCRA Petition, 7/19/21,
Exhibit A, at 1, 4; (2) Abuhadba’s April 2019 inmate request form asking for
DOC forms concerning the sentences in the present cases, to which a staff
member replied that Abuhadba needed to ask the trial court for the forms,
see id., Exhibit D, at 1 (unnumbered); and (3) Abuhadba’s May 2021 inmate
request form asking about the status of his sentences, and the staff member’s
answer, “You rolled to a new number.” See id., Exhibit D, at 2 (unnumbered).
The staff member also indicated that a counselor had already explained why
Abuhadba was still in prison after serving the backtime for his parole
violations. See id., Exhibit D, at 2 (unnumbered).4
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4 Abuhadba’s pro se PCRA petitions had attached a May 2021 DL-16E form,
which indicated the sentences in the present cases would commence on May
20, 2021. PCRA counsel appears to have inadvertently used a duplicate copy
of the July 2016 DL-16E form instead of the May 2021 form as Exhibit C
(Footnote Continued Next Page)
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The PCRA court held hearings, at which Abuhadba and plea counsel
testified, and considered supplemental briefs from the parties. On July 1,
2022, the PCRA court dismissed the PCRA petitions concluding that they were
untimely and, in any event, lacked merit. Abuhadba timely appealed, and
both he and the PCRA court complied with Pa.R.A.P. 1925.5 This Court
consolidated these appeals.
Abuhadba raises the following issues for review:
1. . . . Abuhadba[’s PCRA] petition was timely under the one (1)
year statutory exception, 42 Pa.C.S.A. § 9545(b)(1)(ii) or the
newly discovered [facts] exception.
2. [Abuhadba’s] guilty plea was not knowingly and voluntarily
entered and was the product of ineffective assistance of
counsel.
Abuhadba’s Brief at 2.
Our standard of review is well settled:
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court's findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the record in the light most favorable to the
prevailing party in the PCRA Court. We are bound by any
credibility determinations made by the PCRA court where they are
supported by the record. However, we review the PCRA court's
legal conclusions de novo.
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throughout these proceedings. This oversight, however, does not affect our
disposition.
5 The PCRA court concluded that its order and opinion of July 1, 2022,
addressed the issues raised in Abuhadba’s Pa.R.A.P. 1925(b) statement. We
cite to the court’s July 1, 2022 order and opinion as the “PCRA Court Opinion.”
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Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (internal citation
and quotations omitted).
Under the PCRA, any petition “including a second or subsequent petition,
shall be filed within one year of the date the judgment becomes final[.]” 42
Pa.C.S.A. § 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.A. § 9545(b)(3). The
PCRA’s timeliness requirements are jurisdictional in nature, and a court may
not address the merits of the issues raised if the PCRA petition was not timely
filed. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Abuhadba concedes that the instant PCRA petitions, which he filed in
2021, were facially untimely because he did not file within one year of his
convictions becoming final in 2016. In his first issue, he asserts that he
established an exception to the PCRA’s timeliness requirements.
Pennsylvania courts may consider an untimely PCRA petition if the
petitioner can plead and prove one of three exceptions set forth in section
9545(b)(1)(i)-(iii). See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.
Super. 2013) (providing that a PCRA court must dismiss an untimely petition
if no exception is pleaded and proven). Section 9545(b)(1)(ii) provides an
exception to the PCRA’s timeliness requirement if “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[.]” 42 Pa.C.S.A. § 9545(b)(1)(ii).
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The focus of this exception is on newly discovered facts, not on a newly
discovered or newly willing source for previously known facts. See
Commonwealth v. Lopez, 249 A.3d 993, 1000 (Pa. 2021). “Due diligence
demands that the petitioner take reasonable steps to protect his own
interests.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015)
(internal citation omitted).
Abuhadba argues that he first learned that the sentences in the present
cases commenced in May 2021, when he received DOC forms that same
month, and exercised reasonable diligence when discovering the information
necessary to seek relief. He asserts that he did not know he would have to
serve the backtime for his parole violations before serving the sentences in
the present cases and that neither the trial court nor plea counsel ensured he
was aware of all legal ramifications of his pleas. He adds that under these
circumstances, a court cannot impute to him knowledge of the law requiring
service of backtime for violations of parole before new sentences.6
The PCRA court initially noted that Abuhadba apparently misunderstood
61 Pa.C.S.A. § 6138(a)(5), which required to him to serve the backtime for
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6 Abuhadba also alleges that plea counsel had a deficient knowledge of the
law about the service of backtime for parole violations and that deficiency
constitutes ineffectiveness. However, it is well settled that allegations of prior
counsel’s ineffectiveness do not state an exception to the PCRA timeliness
requirements unless prior counsel’s ineffectiveness rose to the level of
ineffectiveness per se. See Commonwealth v. Peterson, 192 A.3d 1123,
1130 (Pa. 2018). Abuhadba does not argue per se ineffective assistance of
counsel as a new fact. Moreover, Abuhadba does not allege that plea counsel
affirmatively misrepresented the order in which his backtime for the parole
violations and the sentences in the present cases would run.
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his parole violations before the sentences in the present case. See PCRA
Court Opinion, 7/1/22, at 10-11 (unnumbered). Nevertheless, the PCRA court
concluded that Abuhadba failed to state a timeliness exception under section
9545(b)(1)(ii) because the sentencing transcript made clear that his parole
violations would result in sentencing consequences additional to the sentences
in the present cases. See id. at 11-12 (unnumbered). The PCRA court
credited plea counsel’s testimony that he discussed the parole violation
consequences with Abuhadba and Abuhadba knew that the consequences of
his parole violations could not be determined until after sentencing in the
present cases. See id. Further, the PCRA court noted that Abuhadba could
have obtained at any time the information that claimed he first learned in May
2021, and that Abuhadba took no further steps to investigate his sentences
after asking for DOC sentencing forms in 2019. See id. at 12-13. In sum,
the PCRA court concluded that Abuhadba failed to establish that the facts upon
which his claim was predicated were unknown or could not be discovered by
the exercise of due diligence in discovering the fact that the sentences in the
present cases would begin to run in May 2021. See id. at 13.
Following our review, we conclude that the record supports the PCRA
court’s finding and its conclusion that Abuhadba did not exercise due diligence
is free of legal error. The parties’ statements at the sentencing hearing and
plea counsel’s testimony at the PCRA hearing support the PCRA court’s finding
that Abuhadba knew his parole violation would result in prison time additional
to the sentence in the present cases. See PCRA Court Opinion, 7/1/22, at 11-
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12; see also N.T., 2/3/22, at 9-11; N.T., 12/8/15, at 4-6, 8 Abuhadba had
further notice that the maximum date of his backtime for his parole violations
ended in May 2021 and the DOC had lodged detainers for him based on the
sentences in the present cases in 2016, when he received the July 2016 DL-
16E form. See PCRA Court Opinion, 7/1/22, at 12-13; see also Amended
PCRA Petition, Exhibit A. We also agree with the PCRA court that Abuhadba’s
2019 inmate requests for information about the sentences in the present cases
evidenced his concern about how these sentences would run with his backtime
for his parole violations. See PCRA Court Opinion, 7/1/22, at 12-13; see also
Amended PCRA Petition, Exhibit D at 1 (unnumbered). Additionally, at that
same time, Abuhadba had filed his first PCRA petition in docket 700 of 2015,
and the PCRA court had appointed counsel in that matter. However, nothing
in the record shows he took any steps to clarify his concerns that he would
serve his sentences in the present case to consecutive to his parole backtime.
For these reasons, we conclude that the PCRA court properly rejected
Abuhadba’s assertions that the May 2021 forms constituted a newly
discovered fact that the sentences in the present cases would not commence
until after he served the backtime for his parole violations. Abuhadba failed
to demonstrate that he obtained a newly discovered fact or that he exercised
due diligence in discovering this information earlier. Thus, his arguments
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predicated upon the PCRA time-bar exception in section 9545(b)(1)(ii) merit
no relief. See Staton, 184 A.3d at 954.7
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2023
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7 Because Abuhadba has not demonstrated an abuse of discretion or error of
law in the PCRA court’s conclusion his petitions were untimely, we agree with
the PCRA court that it lacked jurisdiction to address the merits of the instant
PCRA petitions. See Albrecht, 994 A.2d at 1093. Accordingly, we will not
address the merits of Abuhadba’s second issue on appeal challenging plea
counsel’s ineffectiveness as a basis to withdraw his pleas.
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