Com. v. Romagnolo, J.

J-S46022-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN J. ROMAGNOLO :
:
Appellant : No. 3662 EDA 2018
Appeal from the PCRA Order Entered November 15, 2018
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001024-2013
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED OCTOBER 28, 2019
Appellant, John J. Romagnolo, appeals pro se from an order entered on
October 4, 2018, which dismissed his petition for collateral relief filed pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We
affirm.
The PCRA court accurately summarized the factual background of this
case as follows:
On May 20, 2013, Appellant was charged by criminal information
with 64 counts relating to his participation in the trafficking of
oxycodone by having fraudulent prescriptions filled at pharmacies
throughout Monroe County[, Pennsylvania]. On June 25, 2014,
Appellant entered an open guilty plea to two counts of the criminal
information: conspiracy to commit acquisition or obtaining of
possession of a controlled substance by misrepresentation, fraud,
forgery, deception, or subterfuge and corrupt organizations.
Appellant's written guilty plea and colloquy states that "[i]n return
for this guilty plea, the Commonwealth has agreed to the
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* Retired Senior Judge assigned to the Superior Court.
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following: nolle pros [sic] all other charges [and] agree to [a]
concurrent sentence." Sentencing was originally scheduled for
September 23, 2014[;] however, after a number of continuances
of the sentencing hearing, [the trial court] issued a bench warrant
on April 30, 2015, for Appellant's failure to appear[.] In July of
2016, Appellant was apprehended and returned to [the trial] court
on said bench warrant. On August 1, 2016, [the trial court]
sentenced Appellant to a period of incarceration of not less than
90 months nor more than 180 months for the crime of conspiracy
and a period of incarceration of not less than 18 months nor more
than 36 months for the crime of corrupt organizations. [The trial
court] directed [] [the] sentences [to] run consecutive for a total
aggregate sentence of not less than 108 months nor more than
216 months. Appellant did not file post-sentence motions or a
direct appeal.
On September 12, 2017, Appellant filed a pro se motion that [the
PCRA court] construed as a petition for post-conviction collateral
relief. [The PCRA court] assigned Appellant new counsel, Janet
Catina, Esq., and scheduled a hearing. After a number of
continuances, the Attorney General's Office filed a motion to
dismiss Appellant's PCRA [petition] as untimely. After
consideration of said motion, Appellant's response to same, and
the record, [the PCRA court] dismissed Appellant's first PCRA
petition as untimely on July 3, 2018. Appellant did not [] appeal
[the PCRA court’s] dismissal.
PCRA Court Opinion, 2/5/19, at 1-2 (footnotes, internal citations, and
superfluous capitalization omitted).
Appellant filed his second pro se PCRA petition on August 9, 2018.
Appellant’s Second PCRA Petition, 8/9/18, at 1-11. On October 25, 2018, the
PCRA court provided Appellant with notice that it intended to dismiss his PCRA
petition in 20 days without holding a hearing, as the petition was untimely.
PCRA Court Order, 10/25/18, at 1; see Pa.R.Crim.P. 907(1). The PCRA court
dismissed Appellant’s petition on November 13, 2018. PCRA Court Order,
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11/13/18, at 1. This appeal followed.1 Appellant raises various issues on
appeal.2 However, “[c]rucial to the determination of any PCRA appeal is the
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1 The deadline for filing an appeal to this Court was Monday, December 17,
2018. Appellant’s notice of appeal has two timestamps indicating when it was
received and docketed: one from receipt in chambers on December 19, 2018,
and one from the clerk of courts’ office dated December 20, 2018, both of
which are after the 30-day deadline. However, Appellant’s notice of appeal
was self-dated December 2, 2018. “Pursuant to the prisoner mailbox rule, we
deem a document filed on the day it is placed in the hands of prison authorities
for mailing.” Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa. Super.
2007) (citation omitted). Notably, Appellant’s petition lacks a certificate of
service or postmark and, as such, we cannot definitively determine when it
was placed into the hands of prison officials. Nonetheless, due to the
significant period of time between the date notated on Appellant’s notice of
appeal, and the date it was docketed, we decline to quash the appeal as
untimely, as it is likely that Appellant placed his notice of appeal in the hands
of prison authorities on or before December 17, 2018. See id. at 714
(“Although the record is bereft of the envelope in which the notice of appeal
was mailed, and thus lacks a postmark definitively noting the date of mailing”
it is, however, “likely that [a]ppellant mailed his notice of appeal on or before
[the deadline]. Accordingly, we decline to quash the appeal for
untimeliness”). Alternatively, we note that the PCRA court used First Class
mail to send Appellant the dismissal order. This is contrary to Pa.R.Crim.P.
907(4) (explaining that if a judge dismisses a petition without a hearing, it
shall “advise the defendant by certified mail, return receipt requested”).
Accordingly, this failure may be considered a breakdown in the court system
which excuses the untimely filing of the notice of appeal. See
Commonwealth v. Flowers, 149 A.3d 867, 872 (Pa. Super. 2016);
Commonwealth v. Braykovich, 664 A.2d 133, 136-138 (Pa. Super. 1995).
As such, this Court has jurisdiction to hear the instant appeal under both
theories.
2Appellant raises the following issues: (1) Was [] Appellant prejudiced by trial
counsel and the Attorney General of Pennsylvania, by the failure to honor the
negotiated agreement that Appellant satisfied? (2) Was the Attorney General
of Pennsylvania authorized to approach counsel and Appellant and offer an
agreement to have Appellant cooperate? (3) Did the [trial c]ourt abuse [its]
discretion during sentencing by not honoring the previously established
agreement by the Attorney General of Pennsylvania? Appellant’s Brief at *2
(un-paginated).
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timeliness of the underlying petition. Thus, we must first determine whether
the instant PCRA petition was timely filed.” Commonwealth v. Smith, 35
A.3d 766, 768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).
The timeliness requirement for PCRA petitions “is mandatory and
jurisdictional in nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248
(Pa. 2013) (citation omitted). A PCRA petition is timely if it is “filed within one
year of the date the judgment [of sentence] becomes final.” 42 Pa.C.S.A.
§§ 9545(b)(1). “[A] judgment 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). Here, Appellant’s
judgment of sentence became final on August 31, 2016, as Appellant failed to
appeal his judgment of sentence to this Court. Hence, Appellant’s August 9,
2018 petition is manifestly untimely. Therefore, unless one of the statutory
exceptions to the time-bar applies, no court may exercise jurisdiction to
consider this petition.
Pursuant to 42 Pa.C.S.A. §9545(b), there are three statutory exceptions
to the timeliness provision that allow for very limited circumstances under
which the late filing of a PCRA petition will be excused. To invoke an
exception, a petitioner must allege and prove one of the following:
(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;
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(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.A. § 9545(b)(1)(i)-(iii). If an exception applies, a PCRA petition
may be considered if it is filed “within one year of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2) (Effective December 24,
2018). Notably, it is the appellant’s burden to “allege and prove that one of
the timeliness exceptions applies.” Commonwealth v. Edmiston, 65 A.3d
339, 346 (Pa. 2013).
In this case, Appellant made no attempt to plead or prove that one of
the above-mentioned exceptions to the PCRA time-bar applies. Indeed,
Appellant’s argument section in his brief consists of three sentences, none of
which even mention one of the exceptions listed in 42 Pa.C.S.A. §9545(b). As
such, the PCRA court properly dismissed the PCRA petition for lack of
jurisdiction.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/19
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