Com. v. Jones, C.

J-S76039-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLIFFORD DUANE JONES :
:
Appellant : No. 926 WDA 2018
Appeal from the PCRA Order Entered May 30, 2018
In the Court of Common Pleas of Armstrong County Criminal Division at
No(s): CP-03-CR-0000519-2011
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED DECEMBER 14, 2018
Clifford Duane Jones (Appellant) appeals pro se from the order denying
as untimely his third petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541–9546. We affirm.
On June 7, 2012, Appellant pled guilty to driving under the influence of
alcohol (DUI), 75 Pa.C.S.A. § 3802(c). On August 21, 2012, the trial court
sentenced him to serve one to five years of incarceration. The trial court also
sentenced Appellant to a consecutive 90 days of incarceration for driving while
his license was suspended, 75 Pa.C.S.A. § 1543(b). Appellant was paroled on
or about May 7, 2013. However, his parole was revoked on several occasions.
Most recently, on February 23, 2016, the trial court revoked Appellant’s parole
and ordered him “to serve the balance of his sentence without receiving credit
for street time.” As a result, at this writing, Appellant remains incarcerated
at SCI Mercer.
J-S76039-18
Appellant filed his first PCRA petition on August 5, 2016. The PCRA court
appointed counsel and conducted a hearing. On October 21, 2016, the PCRA
court dismissed Appellant’s first PCRA petition. Appellant did not file a direct
appeal.
On May 8, 2017, Appellant filed a second PCRA petition pro se; on
September 12, 2017, counsel for Appellant filed an amended PCRA petition.
The PCRA court held a hearing on December 1, 2017. By order dated January
3, 2018 and docketed January 5, 2018, the PCRA court dismissed Appellant’s
second PCRA petition. Again, Appellant did not file a direct appeal.
On April 27, 2018, Appellant filed the underlying pro se “Motion for
Modification of Sentence (Nunc Pro Tunc)” which the trial court properly
treated as Appellant’s third petition under the PCRA. See 42 Pa.C.S.A. § 9542
(providing that “[t]he action established in this subchapter shall be the sole
means of obtaining collateral relief and encompasses all other common law
and statutory remedies for the same purpose that exist when this subchapter
takes effect . . .”); see also Commonwealth v. Johnson, 803 A.2d 1291,
1293 (Pa. Super. 2002) (holding that “any petition filed after the judgment of
sentence becomes final will be treated as a PCRA petition.”). On May 7, 2018,
the PCRA court issued a memorandum and notice of its intent to dismiss
Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907. The PCRA
-2-
J-S76039-18
court entered an order dismissing the petition as untimely on May 30, 2018.
Appellant filed this timely appeal.1
On appeal, Appellant presents four issues:
[1.] IS [APPELLANT’S] ORIGINAL SENTENCE FOR DRIVING
UNDER THE INFLUENCE AN ILLEGAL SENTENCE BECAUSE IT WAS
IMPOSED WITHOUT [APPELLANT] FIRST UNDERGOING THE
MANDATORY DRUG AND ALCOHOL ASSESSMENT?
[2.] CAN THE VIOLATION OF THE TERMS OF AN ILLEGAL
SENTENCE PROPERLY FORM THE BASIS OF THE REVOCATION OF
PAROLE?
[3.] DID [APPELLANT’S] REVOCATION COUNSEL RENDER
INEFFECTIVE ASSISTANCE BY FAILING TO RAISE THE ILLEGALITY
OF THE AUGUST 21, 2012 SENTENCE AS A DEFENSE TO
[APPELLANT’S] FEBRUARY 23, 2016 PAROLE REVOCATION?
[4.] DID THE PCRA COURT ERR AS A MATTER OF LAW BY
FINDING THAT [APPELLANT’S] AUGUST 4, 2016 PCRA PETITION
CHALLENGING HIS FEBRUARY 23, 2016 REVOCATION COUNSEL’S
INEFFECTIVENESS WAS UNTIMELY?
Appellant’s Brief at 6.
As noted, the PCRA court denied relief on the basis that the underlying
PCRA petition was untimely. Our standard of review of an order denying PCRA
relief is “whether the PCRA court’s determination is supported by the evidence
of record and free of legal error. We grant great deference to the PCRA court’s
findings, and we will not disturb those findings unless they are unsupported
by the certified record.” Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa.
____________________________________________
1 The PCRA court and Appellant have complied with Pa.R.A.P. 1925.
-3-
J-S76039-18
Super. 2017) (citation omitted). Before we reach the merits of a petitioner’s
claim, Section 9545 of the PCRA requires that “[a]ny petition under this
subchapter, 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).
The timeliness requirement of the PCRA is “mandatory and jurisdictional in
nature.” Commonwealth v. McKeever, 947 A.2d 782, 784-785 (Pa. Super.
2008) (citing omitted). Therefore, “no court may disregard, alter, or create
equitable exceptions to the timeliness requirement in order to reach the
substance of a petitioner’s arguments.” Id. at 785. Although the timeliness
requirement is mandatory and jurisdictional, “an untimely petition may be
received when the petition alleges, and the petitioner proves, that any of the
three limited exceptions to the time for filing set forth at 42 Pa.C.S.A. §
9545(b)(1)(i), (ii), and (iii), is met.” Commonwealth v. Hernandez, 79
A.3d 649, 651 (Pa. Super. 2013). The three exceptions to the timeliness
requirement are:
(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
-4-
J-S76039-18
provided in this section and has been held by that court
to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition invoking an exception “shall be
filed within 60 days of the date the claim could have been presented.” 42
Pa.C.S.A. § 9545(b)(2).
In the summary of his argument, Appellant asserts:
Revocation counsel . . . rendered ineffective assistance by
failing to raise the illegality of [Appellant’s] original sentence as a
defense to the revocation of [Appellant’s] parole on February 23,
2016.
The PCRA court erred as a matter of law when it found that
[Appellant’s] PCRA petition filed on August 4, 2016 challenging his
February 23, 2016 revocation counsel’s ineffective assistance was
untimely.
Appellant’s Brief at 8-9.2
As set forth above, Appellant was sentenced on August 21, 2012, and
the underlying PCRA petition – Appellant’s third – was filed on April 27, 2018.
The PCRA court explained:
[Appellant] raises the same substantive issues, namely, that
because a drug and alcohol assessment was not originally ordered
prior to his sentencing hearing on August 21, 2012, his sentence
is illegal and must be vacated. The [c]ourt already has concluded
that this claim must have been raised in either a timely post-
sentence motion, on direct appeal, or in a timely PCRA petition.
It was not.
When the [c]ourt resentenced [Appellant] . . . on February
23, 2016, after serial parole violations, the issue was not raised
by his counsel. [Appellant] argued in his first two counseled PCRA
petitions that his revocation counsel should have raised it at the
revocation hearing, and the failure to do so constituted ineffective
____________________________________________
2 The Commonwealth has not filed a brief.
-5-
J-S76039-18
assistance of counsel. . . . The purpose of a revocation hearing
is for the [c]ourt to determine whether the alleged violations have
been proven and, further, whether under all the circumstances
revocation is appropriate. It is not the proper forum for
challenging the legality of a sentence imposed years prior.
Moreover, as previously noted by the [PCRA c]ourt, even
assuming revocation counsel could be ineffective for failing to
raise a legality issue at the revocation hearing, any PCRA petition
alleging ineffective assistance on that basis would have to have
been [filed] on or before March 24, 2017.
PCRA Court Memorandum, 5/7/18, at 1-2.
Our review confirms that Appellant is not entitled to relief. Appellant’s
brief is devoid of any meaningful or coherent argument as to why the
underlying petition should qualify for an exception to the PCRA’s time bar.
Appellant does not mention the PCRA’s time bar until the next to last page of
his argument. See Appellant’s Brief at 18. Appellant states that he “does not
seek correction of the August 21, 2012 sentence.” Id. Rather, he asserts
“that his claim that his February 23, 2016 revocation counsel was ineffective
for failing to raise a defense has been timely raised” and his “PCRA petition
was filed within one-year of his parole revocation hearing date.” Id. at 18-
19. The record does not support this assertion. Appellant’s revocation of
parole hearing occurred on February 23, 2016, and the trial court entered the
order directing Appellant to serve the remainder of his sentence that day.
Appellant did not appeal the February 23, 2016 order. Appellant did not file
the underlying petition until April 27, 2018 – more than two years after the
order. In sum, Appellant has not presented any argument to persuade us that
he qualifies for an exception to the PCRA’s time bar. See Commonwealth
-6-
J-S76039-18
v. Gibbs, 981 A.2d 274, 284 (Pa. Super. 2009) (It is an appellant’s obligation
to sufficiently develop arguments in his brief by applying the relevant law to
the facts of the case, persuade this Court that there were errors below, and
convince us relief is due because of those errors.).
Accordingly, we agree with the PCRA court that Appellant is not entitled
to relief because his petition is untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2018
-7-