Com. v. Bivens, B.

J-S02043-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRAHEEM BIVENS :
:
Appellant : No. 1583 EDA 2020
Appeal from the Order Entered July 31, 2020
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0006525-2011
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: Filed: May 20, 2021
Appellant Braheem Bivens appeals pro se from the order denying his
motion for modification of sentence nunc pro tunc. Appellant contends that
he was deprived of the benefit of his plea bargain because the trial court stated
that his sentence would begin running on a certain date. Appellant also alleges
that his prior counsel was ineffective and that his sentence is illegal. For the
reasons that follow, we affirm.
On March 6, 2012, Appellant entered a negotiated guilty plea to
possession with intent to deliver cocaine. During its recitation of the terms of
the plea, the Commonwealth stated that it understood that Appellant “wishes
to report to commence his sentence next Tuesday . . . that being March 13,
2012.” N.T., 3/6/12, at 5. During Appellant’s plea colloquy, he acknowledged
that he was on probation or parole for another case and discussed with counsel
the possible consequences the instant conviction would have on the prior
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case.1 See id. at 14. That same day, the trial court sentenced Appellant in
accordance with the agreement to seven to fourteen years’ imprisonment.
The sentencing order stated that Appellant would report for his sentence on
March 13, 2012. The trial court also credited the time from March 28, 2011,
to November 4, 2011. Appellant did not file a direct appeal.
On February 28, 2013, Appellant filed a timely, counseled, first Post
Conviction Relief Act2 (PCRA) petition challenging the validity of his guilty plea.
The PCRA court dismissed the petition on July 29, 2013, and on March 6, 2014,
this Court affirmed. See Commonwealth v. Bivens, 2502 EDA 2013 (Pa.
Super. filed Mar. 6, 2014) (unpublished mem.).
On June 6, 2016, Appellant filed his second PCRA petition. The PCRA
court issued notice of its intent to dismiss on October 20, 2016. See
Pa.R.Crim.P. 907(1). The PCRA court dismissed the second PCRA petition on
March 23, 2017, and Appellant did not appeal to this Court.
Meanwhile, beginning in June of 2014, Appellant began raising claims
for “time credit” and filed a motion alleging that he was not credited with the
time from March 28, 2011, to November 4, 2011. He also requested that his
sentence “run concurrent with any other sentence being served.” Mot. for
Time Credit, 6/26/14. The trial court entered an order granting Appellant’s
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1 The trial court stated that Appellant was previously paroled in a prior case in
“docket no. 6443-2005.” Trial Ct. Op., 9/14/20, at 1. Based on Appellant’s
instant conviction, it further appears that Appellant was recommitted to
eighteen months’ backtime for the parole violation in his prior case.
2 42 Pa.C.S. §§ 9541-9546.
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motion, which the Department of Corrections refused to honor as an illegal
sentence.
On July 13, 2017, Appellant filed a motion for credit for time served,
which the trial court dismissed, explaining that it did not have jurisdiction to
entertain the merits of the motion. See Trial Ct. Op., 9/14/20, at 5. Appellant
subsequently filed two additional motions seeking to correct his sentence and
to hold the Department of Corrections in contempt for miscalculating time
served. The court denied both motions on January 1, 2018. Thereafter,
Appellant sought relief in the Commonwealth Court, concerning his back time
served. The Commonwealth Court denied Appellant’s motion on March 11,
2020.3
On April 20, 2020, Appellant filed the instant pro se motion for
modification of sentence nunc pro tunc. Following a hearing on July 21, 2020,
the trial court denied Appellant’s motion. Appellant timely appealed. The trial
court did not order Appellant to file a Pa.R.A.P. 1925(b) statement, but issued
a Rule 1925(a) opinion addressing the claims raised in Appellant’s motion.
See Pa.R.A.P. 1925(a).
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3 We note that the Commonwealth Court concluded that the trial court’s order
granting Appellant’s June 26, 2014 motion for time credit was illegal because
the trial court could not order Appellant’s instant sentence to run concurrently
with Appellant’s backtime for his prior conviction. Notably, the
Commonwealth Court added a footnote suggesting that Appellant “seek
modification of his sentence nunc pro tunc before the trial court by asserting
that he has not received the benefit of the negotiated guilty plea bargain that
the court approved.” Bivens v. Pennsylvania Dep't of Corr., 192 M.D.
2018, 2020 WL 1171089, at *3 n.1 (Pa. Cmwlth. filed Mar. 11, 2020)
(unpublished mem.).
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Appellant presents the following questions for review:
1. Did the trial court abuse its discretion in denying Appellant
appropriate avenue for review to seek vacation/modification of
his sentence nunc pro tunc before the trial court by asserting
that he has not received the benefit of the negotiated guilty
plea bargain that the court approved?
2. Whether Appellant’s plea of guilty was knowingly, voluntarily
or intelligently made or rather induced as a result of threats,
coercion and promises by the court.
3. Should Appellant be permitted to withdraw his plea or, in the
alternative, vacate and modify from an illegal sentence
pursuant to 61 Pa.C.S. § 6138(A)(5)(i) and 61 Pa.C.S. § 4503?
Appellant’s Brief at 4 (some formatting altered)
Appellant claims that because he did not receive the benefit of his plea
agreement, his plea was unknowing and the court erred in refusing to allow
him to withdraw his plea. Additionally, Appellant claims that his plea was
unlawfully induced by the trial court and alleges the ineffectiveness of all prior
counsel. In sum, Appellant contends that he is entitled to credit or to have
his sentence restructured to conform to his belief that his sentence would
commence as soon as he reported to prison. Alternatively, he claims that he
is entitled to withdraw his plea.
The Commonwealth contends that despite being titled as a motion to
modify the sentence, Appellant’s motion was a PCRA petition because the
PCRA subsumes all forms of collateral relief. See Commonwealth’s Brief at 7-
9. Further, the Commonwealth argues that Appellant is not entitled to review
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of his claims because the petition is untimely on its face and Appellant does
not establish any of the exceptions to the PCRA time bar. See id.
We first address whether Appellant’s claims must be raised within a
PCRA petition. This issue raises a question of law for which our standard of
review is de novo and our scope of review is plenary. See Commonwealth
v. Moore, --- A.3d ---, 14 EAP 2019, 2021 WL 1133063, at *2 (Pa. filed Mar.
25, 2021); Commonwealth v. Montgomery, 181 A.3d 359, 367 (Pa. Super.
2018) (en banc).
“It is well settled that the PCRA is intended to be the sole means of
achieving post-conviction relief.” Commonwealth v. Taylor, 65 A.3d 462,
465 (Pa. Super. 2013) (citing 42 Pa.C.S. § 9542). Claims that must be
brought under the PCRA include a conviction or sentence that resulted from:
(i) A violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could
have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances
make it likely that the inducement caused the petitioner to plead
guilty and the petitioner is innocent.
42 Pa.C.S. § 9543(a)(2)(i)-(iii). A claim that a sentence is illegal must also
be brought under the PCRA. See Moore, 2021 WL 1133063, at *2.
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If the PCRA applies, the petitioner must generally file a petition within
one year of the date the judgment of sentence becomes final. See 42 Pa.C.S.
§ 9545(b)(1). The timeliness requirements of the PCRA are jurisdictional in
nature, and, thus, a PCRA court cannot hear untimely petitions. See
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003).
However, 42 Pa.C.S. § 9545(b) provides forth three statutory
exceptions for reviewing a facially untimely PCRA petition:
(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). To invoke one of these exceptions, a
petitioner must also file his petition within one year of the date the claim could
have been presented. See 42 Pa.C.S. § 9545(b)(2) (as amended eff. Dec.
24, 2018). It is the PCRA petitioner’s “burden to allege and prove that one of
the timeliness exceptions applies.” Commonwealth v. Albrecht, 994 A.2d
1091, 1094 (Pa. 2010) (citation and quotation marks omitted).
Instantly, to the extent Appellant’s motion implicated the ineffective
assistance of his prior counsel and the withdrawal of an unlawfully induced
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plea, such claims are cognizable under the PCRA. See 42 Pa.C.S. §
9543(a)(2)(i)-(iii); Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa.
Super. 2006). Appellant’s claims that his sentence is illegal are cognizable,
as is his claim that the trial court erred in calculating the credit due for a
sentence. See Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super.
2007); see also Commonwealth v. Perry, 563 A.2d 511, 512-13 (Pa.
Super. 1989) (discussing challenges to sentencing credits). Because
Appellant’s petition was facially untimely and Appellant neither pled nor
proved a timeliness exception under the PCRA,4 he failed to meet the
jurisdictional threshold for a court to consider the merits of these claims. See
Robinson, 837 A.2d at 1161.
Appellant also claims that he was deprived of the benefit of his plea
bargain. Generally, such claims fall outside the scope of the PCRA. See
Commonwealth v. Snook, 230 A.3d 438, 444 (Pa. Super. 2020) (noting that
“a collateral petition to enforce a plea agreement is regularly treated as
outside the ambit of the PCRA and under the contractual enforcement theory
of specific performance” (citation omitted)); accord Perry, 563 A.2d at 512
(stating that if an alleged error concerns ambiguity in the trial court’s
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4 Specifically, Appellant’s judgment of sentence became final on April 5, 2012,
thirty days after the March 6, 2012 judgment of sentence. See 42 Pa.C.S. §
9545(b)(3). Appellant had one year from that date to file a timely PCRA
petition. The instant motion, filed over seven years after his judgment of
sentence became final, is facially untimely under the PCRA.
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sentence, then a trial court may consider a petition for writ of habeas corpus
for “clarification and/or correction of the sentence imposed”).
As our Supreme Court noted:
[T]he convicted criminal is entitled to the benefit of his bargain
through specific performance of the terms of the plea agreement.
Thus, a court must determine whether an alleged term is part of
the parties’ plea agreement. If the answer to that inquiry is
affirmative, then the convicted criminal is entitled to specific
performance of the term.”
Commonwealth v. Martinez, 147 A.3d 517, 532-33 (Pa. 2016) (citations
omitted). Our courts demand “strict compliance” with the Commonwealth’s
duty to honor the terms of plea agreement “in order to avoid any possible
perversion of the plea bargaining system.” Id. at 532.
Here, we conclude that the trial court’s consideration of Appellant’s
motion as a nunc pro tunc post-sentence motion was improper. Nevertheless,
the trial court retained jurisdiction to consider Appellant’s claims that he did
not receive the benefit of his plea bargain outside of the framework the PCRA.
See Snook, 230 A.3d at 444; Perry, 563 A.2d at 512.
Critical to Appellant’s plea enforcement claim is the trial court’s
statement that “[t]he possible consequences of Appellant’s violation of parole
were not part of the negotiated plea agreement” in the instant case. See Trial
Ct. Op. at 3; Martinez, 147 A.3d at 533. Specifically, the terms of the plea
agreement were that Appellant would plead guilty to possession with the
intent to deliver as an ungraded felony; the Commonwealth’s recommended
sentence was seven to fourteen years, which is a non-mandatory sentence;
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Appellant was to forfeit $13,778 and two cell phones; the Commonwealth was
to dismiss the remaining charges; and Appellant “wishes to report to
commence his sentence . . . March 13, 2013.” N.T., 3/6/12, at 4-5. There
was no term in the plea agreement discussed at sentencing with respect to
either credit for time served, or how this sentence would run with respect to
the prior case. Thus, the sentence imposed by the court comported with the
terms of the plea agreement and Appellant was not deprived of the benefit of
the bargain. See Martinez, 147 A.3d at 533.
Therefore, we conclude that Appellant’s motion, which raised trial
counsel’s ineffectiveness and the legality of his guilty plea, should have been
treated as a PCRA petition. Further, because Appellant did not plead and
prove an exception to the PCRA time bar, it was untimely. Finally, because
Appellant was sentenced in accordance with the terms of the plea agreement,
Appellant’s claim that he did not receive the benefit of his plea agreement
lacks merit. Accordingly, we affirm the order of the PCRA court.5
Order affirmed.
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5 The PCRA court addressed the merits of Appellant’s petition. However,
because the petition was untimely, it lacked the jurisdiction to do so. “[W]e
may affirm the decision of the PCRA court if there is any basis on the record
to support the PCRA court’s action; this is so even if we rely on a different
basis in our decision to affirm.” Commonwealth v. Wiley, 966 A.2d 1153,
1157 (Pa. Super. 2009) (citation omitted and some formatting altered).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/21
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