Com. v. Romagnolo, J. ( 2021 )

J-S16007-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN ROMAGNOLO :
:
Appellant : No. 2126 EDA 2020
Appeal from the Order Entered September 22, 2020
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001024-2013
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 23, 2021
Appellant, John Romagnolo, appeals pro se from the post-conviction
court’s order denying his “Motion for Sentence Modification Nunc Pro Tunc.”
Appellant contends that the court erred by treating his motion as a petition
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, and
denying it as untimely. After careful review, we affirm.
The facts of Appellant’s underlying convictions are not germane to this
appeal, and we need not reproduce the detailed summary of the procedural
history of his case that was set forth by the PCRA court in its opinion. See
PCRA Court Opinion (PCO), 2/9/21, at 1-4. We need only note that on June
25, 2014, Appellant pled guilty to corrupt organizations (18 Pa.C.S. §
911(b)(3)) and conspiracy to commit a crime under 35 P.S. § 780-113(a)(12)
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* Former Justice specially assigned to the Superior Court.
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(“The acquisition or obtaining of possession of a controlled substance by
misrepresentation, fraud, forgery, deception or subterfuge.”). On August 1,
2016, Appellant was sentenced to consecutive terms of imprisonment that
totaled 9 to 18 years’ incarceration.1 He did not file post-sentence motions or
a direct appeal.
Over the ensuing four years, Appellant unsuccessfully litigated two PCRA
petitions. On July 30, 2020, he filed the present, pro se “Motion for Sentence
Modification Nunc Pro Tunc.” Therein, Appellant claimed that his trial counsel
acted ineffectively by not filing a post-sentence motion for sentencing
reconsideration on the basis that Appellant’s plea agreement called for
concurrent sentences, yet the court had imposed consecutive terms of
incarceration. On August 25, 2020, the PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss Appellant’s motion without a hearing, explaining
that it constituted an untimely PCRA petition.2 See Rule 907 Notice, 8/25/20,
____________________________________________
1 The delay in Appellant’s sentencing was due to several continuances, and
then Appellant’s failing to appear for his initial sentencing hearing on April 30,
2015. A bench warrant was issued, and Appellant was taken into custody in
July of 2016.
2 The docket incorrectly states that the August 25, 2020 order dismissed
Appellant’s petition. A review of the document, however, demonstrates that
it is a Rule 907 notice.
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at 1. Appellant did not file a response.3 On September 22, 2020, the court
issued an order dismissing Appellant’s petition.
Appellant filed a timely, pro se notice of appeal.4 He also timely
complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Herein, he states one issue for
our review: “Did the trial court commit reversible error by not reviewing …
Appellant’s pleading as a nunc pro tunc request for reconsideration and
reviewing the pleading under the PCRA?” Appellant’s Brief at 6.
Appellant contends that the PCRA court erred by treating his motion for
reconsideration of his sentence as an untimely PCRA petition.
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3 A docket entry immediately after the August 25, 2020 Rule 907 notice states,
“Returned Mail — PO Marked Refused,” indicating that Appellant may not have
received the Rule 907 notice. However, he does not raise any issue with this
error in his appellate brief. Consequently, it is waived for our review.
See Commonwealth v. Taylor, 65 A.3d 462 (Pa. Super. 2013) (explaining
that the appellant’s failure to challenge the PCRA court’s omission of a Rule
907 notice results in waiver of that claim on appeal). Additionally, because
we conclude, for the reasons set forth infra, that Appellant’s motion is an
untimely PCRA petition that was properly denied, the fact that Appellant may
not have received the Rule 907 notice is not reversible error. Id.4 Appellant’s notice of appeal was due on October 22, 2020, but it was not
docketed until November 2, 2020. However, Appellant dated his notice of
appeal October 20, 2020. Additionally, in response to this Court’s issuing a
rule to show cause why his appeal should not be dismissed as untimely,
Appellant provided a certificate of service and a cash slip that were both dated
October 20, 2020. Accordingly, pursuant to the prisoner mailbox rule, we
deem Appellant’s notice of appeal as being timely filed. See Commonwealth
v. Cooper, 710 A.2d 76, 78 (Pa. Super. 1998) (stating that the prisoner
mailbox rule means “that, for prisoners proceeding pro se, a notice is deemed
filed as of the date it is deposited in the prison mail system”).
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A petition for collateral relief will generally be considered a PCRA
petition if it raises issues cognizable under the
PCRA. See Commonwealth v. Peterkin, … 722 A.2d 638, 640
([Pa.] 1998); 42 Pa.C.S.[] § 9542 (stating [the] PCRA shall be
sole means of obtaining collateral relief and encompasses all other
common law and statutory remedies for same purpose). The plain
language of the PCRA mandates that claims which could be
brought under the PCRA, must be brought under the PCRA.
Commonwealth v. Hall, 771 A.2d 1232, 1235 ([Pa.] 2001).
Commonwealth v. Kerns, 220 A.3d 607, 611 (Pa. Super. 2019).
Here, in Appellant’s pro se petition, he alleged, inter alia, that his trial
counsel acted ineffectively by not filing a post-sentence motion challenging
the court’s imposition of consecutive sentences. “[A] claim of ineffective
assistance of counsel is explicitly recognized in the PCRA.” Commonwealth
v. Fahy, 737 A.2d 214, 224 (Pa. 1999) (citing 42 Pa.C.S. § 9543(a)). Thus,
the court properly treated Appellant’s ineffectiveness argument as a PCRA
claim.
The court also correctly concluded that it lacked jurisdiction to address
the merits of Appellant’s untimely ineffectiveness issue. The PCRA time
limitations implicate our jurisdiction and may not be altered or disregarded in
order to address the merits of a petition. See Commonwealth v. Bennett,
930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-
conviction relief, including a second or subsequent one, must be filed within
one year of the date the judgment of sentence becomes final, unless one of
the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(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
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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 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)(i)-(iii). Additionally, any petition attempting to
invoke one of these exceptions must “be filed within one year of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on August 31,
2016, and, therefore, he had until August 31, 2017, to file a timely petition.
Appellant did not file his petition raising his ineffectiveness claim until July 30,
2020. Consequently, it is facially untimely and, for this Court to have
jurisdiction to review the merits of Appellant’s ineffectiveness argument, he
must prove that he meets one of the exceptions to the timeliness
requirements set forth in 42 Pa.C.S. § 9545(b). Appellant fails to meet this
burden. He did not plead the applicability of any timeliness exception in his
pro se petition, and he makes no such argument on appeal. “It is well-settled
that allegations of ineffective assistance of counsel will not overcome the
jurisdictional timeliness requirements of the PCRA.” Commonwealth v.
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Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (citations omitted). Accordingly,
the court did not err by dismissing Appellant’s untimely ineffectiveness claim.
See Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007) (stating
that this Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error).
Appellant also argued in his pro se petition, and reiterates on appeal,
that he entered a negotiated guilty plea requiring concurrent sentences, which
was violated by the court’s imposition of consecutive terms of incarceration.
He contends that this claim falls outside the scope of the PCRA. Appellant
requests that we vacate his judgment of sentence and order the specific
enforcement of the concurrent-sentence requirement of his guilty plea.
Initially, we agree with Appellant that the court erred by treating his
request for specific enforcement of his plea agreement as an untimely PCRA
claim. This Court has held that, “generally[,] … if there is a plea bargain to
enforce, review of a genuine petition for specific performance of a plea
agreement remains outside the aegis of the PCRA.” Kerns, 220 A.3d at 616.
Nevertheless, Appellant is not entitled to relief. We recognize that the
Commonwealth stated that it would agree to concurrent sentences in
exchange for Appellant’s plea. See Written Plea Colloquy, 6/26/14, at 2
(unnumbered); N.T. Guilty Plea Colloquy, 6/25/14, at 9. However, Appellant
acknowledged, in both his written and oral plea colloquies, that he understood
that the Commonwealth’s concession to concurrent terms did not bind the
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court to impose them. See Written Plea Colloquy at 2 (unnumbered); N.T.
Guilty Plea at 8-9; 10. At the oral plea colloquy, Appellant agreed that he was
entering an “open” plea with no agreement for sentencing, and he answered
“yes” when the court specifically asked him if he understood that he could
receive consecutive sentences totaling an aggregate term of 35 years’
incarceration. N.T. Guilty Plea at 8, 9. Thus, Appellant understood when
pleading guilty that there was no requirement for the court to impose
concurrent sentences. As Appellant recognizes in his brief, the trial court
ultimately decided to impose consecutive terms based on the “aggravating
factor” of Appellant’s absconding before his sentencing hearing, which led to
a bench warrant being issued for his arrest. Appellant’s Brief at 16; N.T.
Sentencing, 8/1/16, at 13. The court’s sentencing decision did not violate
Appellant’s plea agreement.
Accordingly, although the court erred by treating Appellant’s request for
specific performance of his plea agreement as an untimely PCRA claim, we
discern no error in the court’s decision to deny him relief. See
Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000) (“[T]his
Court may affirm the decision of the PCRA [c]ourt if it is correct on any basis.”)
(citing Commonwealth v. Pursell, 749 A.2d 911, 917 (Pa. 2000);
Commonwealth v. Ahlborn, 683 A.2d 632, 641 n.14 (Pa. Super. 1996)).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2021
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