Com. v. Barna, D.

J-S51035-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DENNIS STEVEN BARNA, :
:
Appellant : No. 7 MDA 2014
Appeal from the PCRA Order entered on November 14, 2013
in the Court of Common Pleas of Union County,
Criminal Division, No(s): CP-60-CR-0000089-2008;
CP-60-CR-0000162-2003; CP-60-CR-0000353-2005
BEFORE: BOWES, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 26, 2014
missing his
first Petition for relief, filed pursuant to the Post Conviction Relief Act
with time served when sentencing him on his underlying convictions. See
42 Pa.C.S.A. §§ 9541-9546. We affirm.
On April 5, 2006, Barna pled guilty at docket number 162-
162-
court sentenced him to two days to six months in the Union County Prison,
plus eighteen months of probation. On the same day, Barna pled guilty at
docket number 353- -
trial court sentenced him to a consecutive term of six months to one year in
J-S51035-14
prison, plus three years of probation. Barna was subsequently released from
prison on parole/probation.
On January 9, 2007, police learned that Barna had committed
technical violations of his parole/probation, and they took him into custody
and incarcerated him in the Union County Prison. On April 11, 2007, the
trial court -2005, gave him credit for the
ninety-one days that he had been incarcerated, and resentenced him to
serve the balance of his underlying maximum sentence of one year in prison.
Barna was subsequently released on parole in June 2007.
On March 7, 2008, Barna was arrested and charged at docket number
89- -
by unlawful taking. In response, by an Order entered on April 23, 2008, the
trial court revoked Barna -2003, resentenced him to
serve six to eighteen months in the Union County Prison, and gave him
credit for forty-six days that he had served toward this sentence.1
Over five years later, Barna, pro se, filed his first PCRA Petition,
alleging a claim of newly discovered facts in the nature of new information
showing that he did not receive proper credit for time he had served at No.
162-2003 in the Union County Prison. On October 15, 2013, the PCRA court
gave Barna Notice of its intent to dismiss his PCRA Petition without a
1
-2008 to the charge of theft by
unlawful taking, the trial court sentenced Barna to serve eight months to five
years in prison, consecutive to the probation revocation sentence imposed at
No. 162-2003.
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hearing, pursuant to Pa.R.Crim.P. 907, and issued an Opinion explaining its
reasons for determining that Barna had failed to meet the requirements of
the newly discovered facts exception. Barna filed a pro se response. On
November 14, 2013, the PCRA court dismissed Barna
after which Barna timely filed a Notice of Appeal.
On appeal, Barna presents the following issues for our review:
I. Whether the [PCRA] court erred when it summarily
denied the issues raised in the PCRA Petition without
an evidentiary hearing?
II. Whether the PCRA court committed reversible error
when it failed to address whether [] Barna was
entitled to credit for time previously served prior to
sentencing?
Brief for Appellant
related issues simultaneously.
In reviewing a challenge to an order dismissing a PCRA petition, our
supported by the evidence of r
Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa. Super. 2012).
Under the PCRA, any PCRA petition must be filed within one year of
the date the judgment of sentence becomes final. 42 Pa.C.S.A.
§ 9545(b)(1)
nature and a court may not address the merits of the issues raised if the
PCRA petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d
1091, 1093 (Pa. 2010).
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Where, as here, a PCRA petitioner challenges the legality of his
sentence by asserting that he was not awarded credit for time served, this is
a cognizable claim under the PCRA. Commonwealth v. Beck, 848 A.2d
987, 989 (Pa. Super. 2004). However, the petitioner must still meet the
jurisdictional timeliness requirements of the PCRA or one of the exceptions
thereto. Id.Although Barna concedes that his PCRA Petition is facially untimely, he
exception to the PC See 42 Pa.C.S.A. § 9545(b)(1)(ii)
(providing that a PCRA petitioner may file a petition after the expiration of
the one-year time bar the facts
upon which the claim is predicated were unknown to the petitioner and could
see also
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010)
steps to prote
newly-discovered facts, not a newly discovered or newly willing source for
Commonwealth v. Marshall, 947 A.2d 714, 720
has addressed the meaning
Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013) (citation
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omitted). The requirement that the petitioner must explain why he could
not have obtained the new fact(s) earlier with due diligence is strictly
enforced. Commonwealth v. Medina, 92 A.3d 1210, 1216 (Pa. Super.
2014) (en banc) (citation omitted). Finally, any PCRA petition invoking one
sixty days of the date that the claim could have been presented. See 42
Pa.C.S.A. § 9545(b)(2).
Barna argues that the probation revocation court at No. 162-2003
erred in failing to credit him for time that he had served toward that case in
the Union County Prison between January 9, 2007, and June 19, 2007,
which, Barna asserts, was not applied to any of the other sentences that he
was serving. See Brief for Appellant at 15-17; see also PCRA Petition,
10/7/13, at 3-4. Barna maintains that he first discovered that he was not
credited with the time in question when he allegedly received a letter from
the Snyder County Prison in August 2013 (herei
2
According to Barna, the Snyder Prison Letter
included a separate letter addressed to him from the Union County
dated December 3, 2010, which merely stated that Barna had been
2
We observe that the Snyder Prison Letter, which Barna attached to his
PCRA Petition, consists only of a handwritten note, on which Barna himself
had also written, as well as a copy of an envelope addressed to Barna from
the Snyder County Prison, date-stamped August 14, 2013. See PCRA
Petition 10/7/13, Exhibit B.
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incarcerated in the Union County Prison between January 9, 2007, and June
19, 2007. Id.; see also PCRA Petition 10/7/13, Exhibit C. Additionally,
Barna maintains that he filed his PCRA Petition within sixty days of receiving
the Snyder Prison Letter. Reply Brief for Appellant at 5-6.
Barna has failed to explain why he could not have learned of the
purported lack of credit for time served earlier with the exercise of due
diligence. Not only was the amount of time that he served in the Union
information was also part of the public record. See Edmiston, supra
(stating that a petitioner cannot meet the newly discovered facts exception
3
fails
Nevertheless, even if Barna had established the newly discovered facts
exception, our review of the certified record shows that he was credited at
No. 353-2005 with the time he served in the Union County Prison between
January 9, 2007, and April 11, 2007.4 See Probation Revocation Court
Order, 4/13/07, at ¶ 3. Barna was not entitled to have this time also
credited toward his sentence at No. 162-2003. See Commonwealth v.
3
Moreover, Barna received the Union County Letter in December 2010, but
he never raised a claim that he was not credited with the time referenced in
that letter until nearly three years later. Accordingly, Barna failed to file a
PCRA Petition invoking the newly discovered facts exception within sixty
days after receiving the Union County Letter, as required by section
9545(b)(2).
4
Barna fails to acknowledge in his brief that the trial court revoked his
parole at No. 353-2005.
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Davis, 852 A.2d 392, 400 (Pa. Super. 2004) (stating that a defendant is
entitled to credit only once for presentence detainment). Additionally, Barna
was released on parole, at No. 353-2005, on June 19, 2007, and, therefore,
the time he served in prison between April 11, 2007, and June 19, 2007,
was applied toward his sentence at No. 353-2005. See
-2005), 3/19/07,
Exhibit C.
he has failed to meet his burden of proof with regard to the newly
discovered facts exception
Petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2014
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