Com. v. Isaacs, D.

J-A11030-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DWAYNE ISAACS
Appellant No. 549 EDA 2021
Appeal from the PCRA Order Entered January 27, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0004304-2011
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED AUGUST 18, 2022
Appellant Dwayne Isaacs appeals from the January 27, 2021 order of
the Court of Common Pleas of Philadelphia County (“PCRA court”), which
dismissed as untimely his petition under the Post Conviction Relief Act (the
“Act”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The facts and procedural history of this case are undisputed. As
summarized by the PCRA court:
On February 24, 2011, Appellant was arrested and charged with
possession with intent to deliver (“PWID”) and conspiracy, both
ungraded felonies; criminal use of a communication facility, a
third-degree felony, knowing and intentional possession of a
controlled substance and possession of drug paraphernalia, both
ungraded misdemeanors; and corruption of minors and
possession of an instrument of crime (“PIC”), both first-degree
misdemeanors. Appellant entered a non-negotiated guilty plea
to PWID, conspiracy and PIC on January 22, 2013, with the
remaining charges being nolle prossed. [On the same day, the
trial court sentenced Appellant to four years’ reporting probation
for PIC and deferred sentencing as to the other two charges. At
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the time of the guilty plea, Appellant was serving a 12-to-24-
year prison sentencing imposed in an unrelated rape case
docketed at 2568-2009. See Commonwealth v. Isaacs, 106
A.3d 177 (Pa. Super. 2014) (unpublished memorandum). On
March 25, 2013, the trial court sentenced Appellant on the
remaining charges. Specifically, the court imposed a mandatory
minimum sentence of five years’ imprisonment for PWID to be
followed by a three-year probation sentence for conspiracy that
was to run concurrently with the four-year probation term
already imposed for PIC.]
On April 5, 2013, the trial court [sua sponte modified Appellant’s
sentence by resentence[ing him] to a term of 14 to 60 months’
incarceration on the PWID charge followed by an aggregate term
of four years’ probation for both conspiracy and PIC. [The trial
court directed] Appellant’s sentence was to be served
consecutive to the sentence imposed at docket 2568-2009.
Appellant filed no direct appeal, and the judgment of sentence
became final on May 5, 2013.
Appellant filed a pro se motion for time credit and corrected
commitment on March 9, 2020, alleging that he was not given
credit for time served in Philadelphia County prison from the
date of his arrest of February 24, 2011 until August 10, 2012,
the date of his sentencing [in the rape case] on docket number
2568-2009. The PCRA court docketed the pro se motion as
PCRA petition. As such, Appellant sought relief based on an
unlawfully induced guilty plea, ineffective assistance of counsel
in connection with the guilty plea, and the imposition of a
sentence greater than the lawful maximum. Appellant
contended that trial counsel’s failure to request credit for time
served from February 25, 2011 through August 10, 2011
constitutes ineffective assistance of counsel based on counsel’s
assurance to Appellant that the request for time credit would
indeed be made. Additionally, Appellant claimed that counsel’s
ineffectiveness was the causal nexus for the unlawfully induced
guilty plea. Appellant also asserts that his prior record score
was miscalculated based on the court confusing him with his
father of the same name and incorrectly assigning his father’s
criminal record to him when calculating his prior record score.
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Counsel was appointed and on October 15, 2020, counsel filed a
Finley[1] letter of no merit. After conducting review, th[e] court
determined that Appellant’s issues were meritless and dismissed
Appellant’s petition on January 27, 2021. Appellant filed a notice
of appeal to the Superior Court on February 8, 2021.[2] On July
7, 2021, th[e] court granted a motion to appoint counsel. On
August 12, 2021, Appellant filed his statement of errors
complained of on appeal.
PCRA Court Opinion, 9/7/21, 1-3 (unnecessary capitalizations omitted). In
response, the PCRA court issued a Pa.R.A.P. 1925(a) opinion.
On appeal,3 Appellant essentially argues that the PCRA court erred in
dismissing as untimely his PCRA petition.4 See Appellant’s Brief at 5.
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1 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2 Although Appellant’s pro se notice of appeal does not identify the date of
the order being appealed, we decline to quash this appeal. Appellant
attached the January 27, 2021 PCRA order as an exhibit to his notice of
appeal. Because no other final and appealable orders appear on the docket,
it is clear that Appellant’s notice of appeal relates solely to the PCRA court’s
January 27 order.
3 “In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
4 Insofar as Appellant suggests that the trial court lacked the authority to
modify its sentencing order more than ten days after sentencing, see
Appellant’s Brief at 28, the suggestion lacks merit. Pursuant to Section 5505
of the Judicial Code, a trial court may “modify or rescind any order within 30
days after its entry, . . . if no appeal from such order had been taken or
allowed.” 42 Pa.C.S.A. § 5505; see Haines v. Jones, 830 A.2d 579, 584
(Pa. Super. 2003) (“Under Section 5505, the trial court has broad discretion
to modify or rescind an order, and this power may be exercised sua sponte
or invoked pursuant to a party’s motion for reconsideration.”). Because no
appeal was then pending, the trial court properly exercised its broad
discretion to modify sua sponte Appellant’s March 25, 2013 judgment of
sentence on April 5, 2013—within a period of eleven days.
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Initially, we review whether Appellant’s March 9, 2020 motion for
credit for time served was in the nature of a PCRA petition subject to the
jurisdictional requirements of Section 9545(b). The plain language of the
statute provides that “[t]he [PCRA] shall be the sole means of obtaining
collateral relief and encompasses all other common law and statutory
remedies for the same purpose.” 42 Pa.C.S.A. § 9542. Cognizant of the
stated purpose of the PCRA, we have held that any petition filed after an
appellant’s judgment of sentence becomes final must be treated as a PCRA
petition where the PCRA provides for a potential remedy. See, e.g.,
Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013)
(deeming petition for habeas corpus relief from allegedly illegal sentence a
PCRA petition because claim challenging legality of sentence is cognizable
under PCRA); accord Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa.
Super. 2011); see also Commonwealth v. Eller, 807 A.2d 838, 842 (Pa.
2002) (noting that if relief is available under the PCRA, the PCRA is the
exclusive means of obtaining the relief sought).
Here, the motion for time credit alleges that the trial court failed to
award Appellant credit for time served. It is settled that “[a] challenge to
the trial court’s failure to award credit for time spent in custody prior to
sentencing involves the legality of sentence and is cognizable under the
PCRA.” Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super. 2007)
(citation omitted), appeal denied, 944 A.2d 756 (Pa. 2008); see also 42
Pa.C.S.A. § 9543(a)(2). In other words, a challenge to the legality of one’s
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sentence implicates a claim that falls within the purview of the PCRA. See,
e.g., Commonwealth Beck, 848 A.2d 987, 989 (Pa. Super. 2004).
Consequently, we agree that the PCRA court properly treated the motion for
time credit as a PCRA petition, because the motion challenged the legality of
Appellant’s sentence.
Having established that the PCRA court properly treated the motion for
time credit as a PCRA petition, we now must determine whether the PCRA
court properly dismissed it as untimely. A court cannot entertain a PCRA
petition unless the petitioner has first satisfied the applicable filing deadline.
It is settled that the PCRA contains the following restrictions governing the
timeliness of any PCRA petition.
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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.
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(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within sixty days of the date the claim could have
been presented.[5]
(3) For purposes of this subchapter, 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). Section 9545’s timeliness provisions are
jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
Additionally, we have emphasized repeatedly that “the PCRA confers no
authority upon this Court to fashion ad hoc equitable exceptions to the PCRA
time-bar in addition to those exceptions expressly delineated in the Act.”
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
omitted).
Here, Appellant’s judgment of sentence became final on May 5, 2013.
Because Appellant had one year from May 5, 2013, to file his PCRA petition,
the instant petition is facially untimely given it was filed on March 9, 2020,
more than six years late.
The one-year time limitation, however, can be overcome if a petitioner
alleges and proves one of the three exceptions set forth in Section
9545(b)(1)(i)-(iii) of the PCRA. See Commonwealth v. Marshall, 947
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5 Section 9545(b)(2) was recently amended, effective December 24, 2018,
to extend the time for filing from sixty days of the date the claim could have
been presented to one year. The amendment applies only to claims arising
on or after December 24, 2017. Because Appellant filed the instant PCRA
petition on January 20, 2020, this amendment applies sub judice.
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A.2d 714, 719 (Pa. 2008). Here, Appellant has failed to prove at any stage
of the proceeding any exceptions to the one-year time bar. Although he
appears to invoke the government-interference or newly-discovered facts
exceptions, he does not tell us how he satisfied the one-year period in
subsection 9545(b)(2) for invoking the exceptions. With respect to
governmental interference, as the PCRA court noted, Appellant was present
at the initial March 25, 2013 sentencing and the April 5, 2013 resentencing.
PCRA Court Opinion, 9/7/21, at 6-7. Critically, at both proceedings,
Appellant was advised by counsel of his appellate rights, i.e., the right to file
post-sentence motions within ten days and direct appeal within 30 days of
sentencing. See N.T. Resentencing, 4/5/13, at 8-9. Thus, Appellant fails to
explain how the trial court’s April 5, 2013 modification of his sentence
caused the untimeliness of the instant petition.6
Relatedly, Appellant fails to explain why the facts upon which his
instant claims are predicated would have been unknown to him, or when and
how he discovered them. Indeed, Appellant offers no explanation for why he
could not have discovered the claims raised in this untimely PCRA petition
for over six years. As PCRA court found,
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6 The April 5, 2013 amended sentence was reduced to a written order that
set forth the duration of the prison and probation sentences imposed, the
commencement date of the new prison sentence, and the fact that the
sentence was “to be served consecutive[ly]” to the sentence imposed in the
connection with Appellant’s rape case.
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[I]t is clear that Appellant was not only present at his
resentencing, but was also advised of his rights by [plea
counsel] upon being resentenced. This proves that: 1) Appellant
knew or should have known that he was not receiving credit for
time served, if Appellant was in fact owed such time credit; 2)
that Appellant was advised of his rights to ask [the trial court] to
reconsider and to appeal; and 3) that Appellant was addressed
on the record during the April 5, 2013 resentencing.
PCRA Court Opinion, 9/7/21, at 7.7 Based on the foregoing, Appellant has
failed to prove at any stage of the proceeding any exceptions to the one-
year time bar. Accordingly, the PCRA court did not err in dismissing as
untimely the instant PCRA petition.
Order Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2022
____________________________________________
7 Appellant’s suggestion that he was not specifically asked at the
resentencing hearing to again confirm on the record whether he understood
his modified sentence, as he had at the initial sentencing hearing eleven
days earlier, is insufficient to establish that he did not understand the terms
of his sentence. Again, Appellant simply fails to explain why he did not
understand his sentence and post-sentence or appellate rights at the April 5,
2013 resentencing hearing or why it took him over half a decade to
understand them.
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