Com. v. Jones, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CURTIS R. JONES :
:
Appellant : No. 3492 EDA 2018
Appeal from the PCRA Order Entered October 24, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001758-2002
BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED JULY 08, 2019
Curtis R. Jones appeals pro se from the order, entered in the Court of
Common Pleas of Delaware County, dismissing his petition filed pursuant to
the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon
careful review, we affirm.
On July 27, 2005, a jury convicted Jones of first-degree murder1 and
robbery.2 On September 7, 2005, the trial court sentenced Jones to life
imprisonment without parole for first-degree murder and a consecutive term
of 66 to 132 months’ incarceration for robbery. On direct appeal, this Court
vacated Jones’s judgment of sentence, finding the evidence seized was the
result of an illegal search, Commonwealth v. Jones, 928 A.2d 1054 (Pa.
Super. 2007), but the Pennsylvania Supreme Court reversed this Court’s
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1 18 Pa.C.S. § 2502
2 18 Pa.C.S. § 3701
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decision and reinstated the judgment of sentence. Commonwealth v.
Jones, 988 A.2d 649, 657 (Pa. 2010). The United States Supreme Court
denied Jones’s petition for writ of certiorari on October 4, 2010. Jones v.
Pennsylvania, 562 U.S. 832, (2010).
On November 3, 2010, Jones filed his first PCRA petition pro se, which
the PCRA court dismissed on June 2, 2011. This Court affirmed the PCRA
court’s order, 1590 EDA 2011 (Pa. Super. July 29, 2013), and the
Pennsylvania Supreme Court denied Jones’s petition for allowance of appeal.
675 MAL 2013 (Pa. Super. January 21, 2014).
Jones filed the instant pro se PCRA petition, his second, on October 13,
2016, claiming ineffective assistance of counsel for failing to properly convey
a guilty plea offer. The PCRA court dismissed the PCRA petition as untimely
on October 24, 2018, and Jones filed a timely appeal to this Court on
November 29, 2018.
Preliminarily, we must consider the timeliness of Jones’s petition. The
timeliness of a PCRA petition implicates the jurisdiction of the PCRA court.
Commonwealth v. Williams, 35 A.3d 44, 52 (Pa. Super. 2011). No court
has jurisdiction to hear an untimely PCRA petition. Id. A PCRA petition,
including a second or subsequent petition, must be filed within one year of the
date the underlying judgment of sentence becomes final unless one of the
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three statutory exceptions applies.3 42 Pa.C.S.A § 9545(b)(1)(i-iii); see also
Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa. Super. 2003). A
petition invoking one of the exceptions must be filed within 60 days of the
date the claim could have been presented. 42 Pa.C.S.A § 9545(b)(2).4 A
judgment is deemed 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
review.” 42 Pa.C.S.A § 9545(b)(3); Commonwealth v. Pollard, 911 A.2d
1005, 1007 (Pa. Super. 2006).
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3 The statutory exceptions to the time-bar are as follows:
(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.A § 9545(b)(1)(i)-(iii).
4 In 2018, the legislature amended the PCRA to extend the previous 60-day
limitation for time-bar exceptions to one year. See 2018, Oct. 24, P.L. 894,
No. 146, § 2, effective in 60 days (Dec. 24, 2018). This extension only applies
to claims arising one year before the effective date of this section, i.e.,
December 24, 2017, or thereafter. Because Jones filed his petition on October
13, 2016, and his claim arose before then, the 60-day time limit applies to his
claim.
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Jones attempts to circumvent the jurisdictional time-bar by pleading the
newly-discovered-facts exception under Section 9545(b)(1)(ii). Jones
contends he was unaware he rejected a plea offer, and defense counsel was
ineffective in failing to articulate the terms to which Jones was agreeing. Brief
of Appellant, at 13. He argues the transcript of a 2004 on-the-record pre-trial
hearing before the trial judge in which he rejected a guilty plea offer was an
“unknown fact” because he was unaware of and unable to discover the plea
offer until 2017. Id. at 27.
Jones’s underlying claim for relief, counsel’s alleged failure to properly
convey a plea offer to Jones before trial, cannot itself be the newly-discovered
fact establishing the exception. See Commonwealth v. Gamboa-Taylor,
753 A.2d 780, 785 (Pa. 2000) (“conclusion that previous counsel was
ineffective is not a newly discoverable ‘fact’ entitling Appellant to the benefit
of the exception for after-discovery evidence”). Moreover, Jones cannot claim
the plea offer was unknown to him because the transcript of his pre-trial
hearing shows the court made sure he was aware he was rejecting the
Commonwealth’s offer. See N.T. Colloquy, 6/30/14, at 3-4; see also
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1269 (Pa. 2008) (holding
fact not newly discovered because Appellant was in court when fact was
presented).
Because Jones fails to establish an exception under Section 9545(b)(1),
his petition is untimely, and the PCRA court lacked jurisdiction.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/19
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