Com. v. Neal, C.

J-A29014-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CORNELL DANTE NEAL :
:
Appellant : No. 720 WDA 2021
Appeal from the PCRA Order Entered April 19, 2021
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0001037-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CORNELL DANTE NEAL :
:
Appellant : No. 721 WDA 2021
Appeal from the PCRA Order Entered April 19, 2021
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0002114-2017
BEFORE: BENDER, P.J.E., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: NOVEMBER 30, 2021
Appellant, Cornell Dante Neal, attempts to appeal nunc pro tunc from
the post-conviction court’s April 19, 2021 order (entered in his two,
separately-docketed cases) denying his first petition under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
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* Retired Senior Judge assigned to the Superior Court.
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The facts of Appellant’s underlying convictions are not pertinent to his
present appeal. We only note that, on January 7, 2019, Appellant pled nolo
contendere to various offenses in two separate cases, including possession
with intent to deliver a controlled substance, possession of a controlled
substance, possession of drug paraphernalia, and possession of a firearm by
a person prohibited. Pursuant to Appellant’s negotiated plea agreement, he
was sentenced on April 18, 2019, to an aggregate term of 2 to 4½ years’
incarceration. He did not file a direct appeal and, thus, his judgment of
sentence became final thirty days thereafter, or on May 18, 2019. See 42
Pa.C.S. § 9545(b)(3) (directing that a judgment of sentence becomes final at
the conclusion of direct review or the expiration of the time for seeking the
review); Pa.R.A.P. 903(a) (stating that a notice of appeal to the Superior Court
must be filed within 30 days after the entry of the order from which the appeal
is taken).
On August 6, 2019, Appellant filed a pro se PCRA petition. The court
denied his petition without appointing counsel. Appellant then appealed to
this Court, and we ultimately remanded for a determination of whether
Appellant was entitled to the appointment of counsel pursuant to Pa.R.Crim.P.
904(C) (“Except as provided in paragraph (H), when an unrepresented
defendant satisfies the judge that the defendant is unable to afford or
otherwise procure counsel, the judge shall appoint counsel to represent the
defendant on the defendant’s first petition for post-conviction collateral
relief.”). On remand, counsel was appointed and, after delays due to other
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procedural complications not pertinent to this appeal, counsel filed an
amended PCRA petition on Appellant’s behalf on October 30, 2020.
After conducting a PCRA hearing on January 12, 2021, the court issued
an order and opinion denying Appellant’s petition. That order was dated April
16, 2021, but was entered on the docket on April 19, 2021. Appellant did not
file a timely notice of appeal. However, on June 14, 2021, his counsel filed a
“Motion to File Appeal Nunc Pro Tunc,” simply stating that Appellant “would
like the opportunity to raise on appeal those issues that were denied in his
PCRA [p]etition.” Motion, 6/14/21, at 1 (single page). On June 17, 2021, the
court issued an order granting Appellant leave to file a nunc pro tunc appeal.
Appellant filed notices of appeal in each of his two cases on June 22,
2021.1 That same day, he filed a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal, despite not being ordered to do so by the
PCRA court. The court issued a “Statement in Lieu of Opinion” on July 1, 2021,
indicating that the reasons for its dismissal of Appellant’s petition were set
forth in its April 19, 2021 order and opinion.
Herein, Appellant states four issues for our review:
1. Whether Appellant’s constitutional rights were violated when he
was not provided with notice of the preliminary hearing in case
No. 2114 of 2017 that was scheduled for November 1, 2017?
2. Whether Appellant was forced to plead [nolo contendere] in the
above[-] captioned cases?
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1 This Court sua sponte consolidated Appellant’s appeals on July 9, 2021.
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3. Whether Appellant’s counsel, Michael Ford, Esq., was ineffective
for failing to explain to him the terms of the plea bargain and the
consequences of pleading [nolo contendere]?
4. Whether Attorney Ford was ineffective for failing to investigate
these cases before Appellant plead [sic] [nolo contendere]?
Appellant’s Brief at 3 (unnecessary capitalization omitted).
To begin, we note that our 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.
Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). Before
addressing Appellant’s issues, we must sua sponte examine whether the PCRA
court possessed jurisdiction to reinstate his right to file the present appeal
nunc pro tunc. See Commonwealth v. Reid, 235 A.3d 1124, 1143 (Pa.
2020) (“[T]o confirm proper jurisdiction, it is appropriate for an appellate court
to consider sua sponte the timeliness of a PCRA petition from which nunc pro
tunc appellate rights have been reinstated, even where the Commonwealth
has not separately appealed (or appeals but then withdraws its appeal) from
the order granting relief.”). It is clear that Appellant’s “Motion to File Appeal
Nunc Pro Tunc” was technically his second PCRA petition. See id.; see also
Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013) (“[A]ll
motions filed after a judgment of sentence is final are to be construed as PCRA
petitions.”) (citations omitted). Furthermore, that petition was untimely
because it was filed on June 14, 2021, over one year after Appellant’s
judgment of sentence became final on May 18, 2019. See 42 Pa.C.S. §
9545(b)(1) (stating that any PCRA petition, including a second or subsequent
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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). Appellant did not attempt to plead or prove the
applicability of any timeliness exception in his “Motion to File Appeal Nunc Pro
Tunc.” Thus, we conclude that the court lacked jurisdiction to reinstate
Appellant’s right to appeal nunc pro tunc from the April 19, 2021 order
dismissing his petition.
Nevertheless, we will not quash Appellant’s appeal. When the court
issued the order denying Appellant’s petition, it did not advise him of his “right
to appeal from the final order disposing of the petition and of the time limits
within which the appeal must be filed[,]” as required by Pa.R.Crim.P. 908(E).2
See PCRA Court Order, 4/19/21, at 1 (single page). Thus, Appellant was not
informed that he could appeal from the court’s April 19, 2021 order, or that
he had thirty days within which to do so. The court’s failure to adhere to Rule
908(E) constituted a breakdown in the operation of the court. See
Commonwealth v. Larkin, 235 A.3d 350, 354 (Pa. Super. 2020), appeal
denied, 251 A.3d 773 (Pa. 2021) (indicating that “a breakdown occurs in
the court system” when “a defendant is misinformed or misled regarding
his appellate rights”). This Court has declined to quash “an otherwise
untimely appeal if fraud or breakdown in the trial court’s processes resulted
____________________________________________
2We also note that Appellant was not notified of his rights at the close of the
PCRA hearing, as the court took the matter under advisement. See N.T. PCRA
Hearing, 1/12/21, at 27.
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in an untimely appeal.” Commonwealth v. Khalil, 806 A.2d 415, 420 (Pa.
Super. 2002). See also Commonwealth v. Rodriguez, 174 A.3d 1130,
1138-39 (Pa. Super. 2017), appeal denied, 186 A.3d 941 (Pa. 2018);
Commonwealth v. Braykovich, 664 A.2d 133, 137-38 (Pa. Super. 1995).
Therefore, we will not quash Appellant’s untimely appeal.
In Appellant’s first issue, he briefly contends that he should be permitted
to withdraw his nolo contendere plea because he was “effectively denied … his
right to a [p]reliminary [h]earing” when he was not provided notice of that
proceeding and it was conducted in his absence, without objection by his
counsel. Appellant’s Brief at 9.
Appellant’s cursory argument is meritless. It is well-settled that when
a defendant enters a plea, “he waives the right to challenge anything but the
legality of his sentence and the validity of his plea.” Commonwealth v.
Jones, 929 A.2d 205, 212 (Pa. 2007). Thus, Appellant waived any challenge
to his absence at the preliminary hearing by pleading nolo contendere.
Moreover, we reject his attempt to assert an ineffectiveness claim by stating,
in a single sentence, that his attorney “failed to ask to have the [p]reliminary
[h]earing continued as a result of his client’s absence.” Appellant’s Brief at 9.
Appellant’s undeveloped argument does not overcome the presumption that
counsel acted effectively or demonstrate that he has met all three prongs of
the test for proving ineffectiveness. See Commonwealth v. Franklin, 990
A.2d 795, 797 (Pa. Super. 2010) (citations omitted) (“It is well-established
that counsel is presumed to have provided effective representation unless the
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PCRA petitioner pleads and proves all of the following: (1) the underlying legal
claim is of arguable merit; (2) counsel’s action or inaction lacked any
objectively reasonable basis designed to effectuate his client’s interest; and
(3) prejudice, to the effect that there was a reasonable probability of a
different outcome if not for counsel’s error.”).
In Appellant’s next three issues, which he combines in a single Argument
section spanning just three pages of his brief, he contends that his plea
counsel acted ineffectively by not adequately investigating his case, by forcing
him to enter his plea, and by failing to explain to him the terms and
consequences thereof. See Appellant’s Brief at 10-12.
The record does not support Appellant’s arguments. Namely, at the
PCRA hearing, Appellant’s plea counsel testified that he conducted an
“extensive” investigation of Appellant’s case, and he filed a pretrial motion to
suppress evidence, which was ultimately denied. N.T. PCRA Hearing at 23.
After the motion to suppress was denied, counsel decided to advise Appellant
to enter the nolo contendere plea. Id. Counsel testified that he explained the
terms of the plea to Appellant, and he and Appellant “had extensive
conversations about the likelihood of success going forward in terms of trial[,]”
as compared to accepting the plea deal offered by the Commonwealth. Id. at
22. Counsel adamantly denied having forced Appellant to accept the plea,
stating that he simply “advised [Appellant] that in [counsel’s] opinion[, the
plea] would be in his best interests.” Id. at 22, 23. The PCRA court clearly
believed counsel’s testimony, and we are bound to accept the court’s
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credibility determination. See Commonwealth v. Medina, 92 A.3d 1210,
1214 (Pa. Super. 2014) (“The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court.”). Thus, we discern no
error in the court’s dismissing Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2021
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