Com. v. Slone, R.

J-S42026-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAHEEM SLONE :
:
Appellant : No. 1158 EDA 2019
Appeal from the PCRA Order Entered April 16, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): Cp-51-CR-0002746-2008
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAHEEM SLONE :
:
Appellant : No. 1159 EDA 2019
Appeal from the PCRA Order Entered April 16, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0412981-2002
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAHEEM SLONE :
:
Appellant : No. 1160 EDA 2019
Appeal from the PCRA Order Entered April 16, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1301609-2006
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S42026-20
:
v. :
:
:
RAHEEM SLONE :
:
Appellant : No. 1161 EDA 2019
Appeal from the PCRA Order Entered April 16, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006057-2007
BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: Filed: January 21, 2021
Appellant, Raheem Slone, appeals from the order entered on April 16,
2019 in the Criminal Division of the Court of Common Pleas of Philadelphia
County that dismissed, without a hearing, his petition filed pursuant to the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The PCRA
court concluded that Appellant’s petition was untimely and that he was not
eligible for collateral relief since he was no longer serving a sentence for his
state convictions. After review, we affirm.
The PCRA accurately summarized the procedural history and facts of this
case as follows.
On October 14, 2004, [Appellant] pled guilty . . . to possession of
a controlled substance with intent to deliver [“PWID”] and criminal
conspiracy [at docket number CP-51-CR-0412981-2002,
hereafter “412981-2002”]. He was sentenced to six to [23]
months’ incarceration followed by one year or probation[.] On
February 6, 2008, [Appellant] pled guilty . . . to another count of
[PWID at docket number CP-51-CR-0006057-2007, hereafter
“6057-2007”]. He was sentenced to nine to [23] months’ followed
by two years of probation[.] On April 4, 2008, [Appellant] pled
guilty . . . to possession of a firearm prohibited and carrying a
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firearm without a license [at docket number
CP-51-CR-1301609-2006, hereafter “1301609-2006”]. The court
deferred sentencing until June 11, 2008, at which time [Appellant]
also pled guilty to [PWID] in a separate matter [at docket number
CP-51-CR-0002746-2008, hereafter “2746-2008”]. Appellant
[received a sentence of four to 10 years of state incarceration at
docket number 1301609-2006 and four to 10 years of state
incarceration at docket number 2746-2008, both sentences to run
concurrently. Appellant did not pursue direct appeals challenging
his guilty pleas or sentences at docket numbers 412981-2002,
6057-2007, 1301609-2006, and 2746-2008].
On January 23, 2009, [Appellant] filed his first pro se petition for
post-conviction relief [from the judgments imposed at docket
numbers 1301609-2006 and 2746-2008], seeking relief due to
alleged ineffective assistance of [plea] counsel[. Appellant]
claimed [plea] counsel failed to file a direct appeal despite his
request to do so. PCRA counsel was appointed and filed an
amended petition on January 11, 2010. On March 25, 2011, [the
PCRA court] dismissed the petition. [Appellant] did not file an
appeal.
[Appellant] was paroled from prison on June 11, 2010, and his
parole was set to expire on June 11, 2018[, the date on which the
maximum term of his imprisonment at docket numbers
1301609-2006 and 2746-2008 was reached].
On March 24, 2017, [Appellant] pled guilty in the United States
District Court for the Eastern District of Pennsylvania to unlawful
possession of a firearm, in violation of 18 U.S.C.A. § 922(g)(1)
based upon an incident which occurred on February 13, 2016.
[Appellant received a sentence of] 180 months of imprisonment
on July 21, 2017.
On July 28, 2017, [Appellant] filed the instant pro se PCRA petition
[challenging the convictions and/or sentences at docket numbers
412981-2002, 6057-2007, 1301609-2006, and 2746-2008].
PCRA counsel was appointed. Counsel filed an amended petition
on October 16, 2017 and a memorandum in support on September
13, 2018. In his petition, [Appellant requested] an evidentiary
hearing and relief under the PCRA due to ineffective assistance of
counsel. Specifically, [Appellant claimed that [plea counsel] failed
to warn or notify him that pleading guilty [at docket numbers
412981-2002, 6057-2007, 1301609-2006, and 2746-2008] could
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subject him to the mandatory [15] year [term of] imprisonment
under 18 U.S.C.A. § 924(e)[1] if later prosecuted in federal court
for [a] violation of 18 U.S.C.A. 922(g)(1) [(making it unlawful for
any person who has been convicted in any court of a crime
punishable by imprisonment for a term exceeding one year to be
in possession of a weapon)]. On March 12, 2019, [the PCRA court]
sent [Appellant] a notice pursuant to [Pa.R.Crim.P. 907],
indicating that his petition would be dismissed because
[Appellant] lacked standing and the petition was untimely. On
March 28, 2019, [Appellant] sent a response to the [Rule] 907
notice. On April 16, 2019, after conducting a thorough and
independent review of the record, [the PCRA court] dismissed
[Appellant’s] petition without a hearing as untimely and for lack
of standing. [Appellant] appealed the dismissal [of his PCRA
petition to this Court.2]
PCRA Court Opinion, 9/13/19, at 1-4 (certain footnotes omitted).
Appellant raises two claims on appeal which, in sum, allege that the
attorney who represented him in connection with the prosecutions docketed
at 412981-2002, 6057-2007, 1301609-2006, and 2746-2008 rendered
____________________________________________
1 The relevant provision states as follows:
In the case of a person who violates section 922(g) of this title
and has three previous convictions by any court referred to in
section 922(g)(1) of this title for a violent felony or a serious drug
offense, or both, committed on occasions different from one
another, such person shall be fined under this title and imprisoned
not less than fifteen years, and, notwithstanding any other
provision of law, the court shall not suspend the sentence of, or
grant a probationary sentence to, such person with respect to the
conviction under section 922(g).
18 U.S.C.A. § 924(e)(1).
2The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Nevertheless, the
court issued an opinion on September 13, 2019 setting forth the reasons
underlying the dismissal of Appellant’s petition.
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ineffective assistance in counseling him to plead guilty without advising that
those convictions would subject him to a mandatory minimum sentence of 15
years’ incarceration under the Armed Career Criminal Act, 18 U.SC.C.A.
§ 924(g), if he were ever charged and convicted in federal court as a felon in
possession of a firearm, in violation of 18 U.S.C.A. § 922(g). Before we
address the substance of those claims, we must consider whether we can
assume appellate jurisdiction over this appeal, whether this Court (or any
Pennsylvania court) possesses jurisdiction to reach the issues raised in
Appellant’s untimely petition, and whether Appellant retains standing to obtain
collateral relief given that he is no longer serving a sentence imposed under
the laws of this Commonwealth. We conclude that, while we may exercise
jurisdiction over this appeal, the PCRA court correctly determined that it
lacked jurisdiction over Appellant’s collateral claims because Appellant’s
petition is untimely and, furthermore, that Appellant is ineligible for collateral
relief since he is no longer serving a sentence under Pennsylvania law.
On April 22, 2019, Appellant filed a single notice of appeal listing all four
trial court docket numbers attached to his underlying criminal convictions.
Because Appellant did not file separate notices of appeal and because the
order dismissing his petition affected claims arising at multiple trial court
dockets, our authority to exercise appellate jurisdiction in this case is
governed by our Supreme Court’s decision in Commonwealth v. Walker,
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185 A.3d 969 (Pa. 2018). Hence, before we consider Appellant's claims, we
first determine whether this appeal is properly before us.
As this Court previously explained:
Pennsylvania Rule of Appellate Procedure 341(a) directs that “an
appeal may be taken as of right from any final order of a
government unit or trial court.” Pa.R.A.P. 341(a). “The Official
Note to Rule 341 was amended in 2013 to provide clarification
regarding proper compliance with Rule 341(a)[.]” [Walker, 185
A.3d at 976]. The Official Note now reads:
Where . . . one or more orders resolves issues arising on
more than one docket or relating to more than one
judgment, separate notices of appeal[] must be filed.
Commonwealth v. C.M.K., 932 A.2d 111, 113 & n.3 (Pa.
Super. 2007) (quashing appeal taken by single notice of
appeal from order on remand for consideration under
Pa.R.Crim.P. 607 of two persons' judgments of sentence).
Pa.R.A.P. 341, Official Note.
In Walker, our Supreme Court construed the above-language as
constituting “a bright-line mandatory instruction to practitioners
to file separate notices of appeal.” Walker, 185 A.3d at
976-[9]77. Therefore, the Walker Court held that “the proper
practice under Rule 341(a) is to file separate appeals from an
order that resolves issues arising on more than one docket. The
failure to do so requires the appellate court to quash the appeal.”
Id. at 977. However, the Court tempered its holding by making
it prospective [and applicable only to appeals filed after June 1,
2018], recognizing that “[t]he amendment to the Official Note to
Rule 341 was contrary to decades of case law from this Court and
the intermediate appellate courts that, while disapproving of the
practice of failing to file multiple appeals, seldom quashed appeals
as a result.” Id. Accordingly, the Walker Court directed that “in
future cases Rule 341 will, in accordance with its Official Note,
require that when a single order resolves issues arising on more
than one lower court docket, separate notices of appeal must be
filed. The failure to do so will result in quashal of the appeal.” Id.
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Commonwealth v. Williams, 206 A.3d 573, 575–576 (Pa. Super. 2019)
(emphasis in original). Because Appellant filed his notice of appeal on April
22, 2019, the rule announced in Walker governs. As stated above, Appellant
filed a single notice of appeal listing four docket numbers, rather than four
separate notices of appeal at each trial court docket. As such, Appellant
violated our Supreme Court’s mandate in Walker and this appeal is subject
to quashal.
This Court, however, in Commonwealth v. Stansbury, 219 A.3d 157(Pa. Super. 2019), declined to quash an appeal listing two docket numbers
because the trial court misinformed Stansbury that he could file a single notice
of appeal. Indeed, we determined that the trial court’s failure to advise
Stansbury properly regarding his appellate rights amounted to a “breakdown
in the court system” and, accordingly, we excused his failure to comply with
Walker. Stansbury, 219 A.3d at 160. Notably, this holding in Stansbury
was recently reaffirmed by an en banc panel of this Court. See
Commonwealth v. Larkin, 235 A.3d 350, 354 (Pa. Super. 2020) (en banc)
(holding that, because the trial court’s order informed Larkin that he had “[30]
days from the date of [the] order to file an appeal” a breakdown in the court
system occurred which excused non-compliance with Walker) (emphasis in
original). Thus, based upon both Stansbury and Larkin, “we may overlook
the requirements of Walker where [] a breakdown occurs in the court system,
and a defendant is misinformed or misled regarding his appellate rights.”
Larkin, 235 A.3d at 354.
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Here, our review of the record reveals a scenario which potentially
misled Appellant as to the need to file separate notices of appeal. Indeed, the
PCRA court’s April 16, 2019 dismissal order states that “appeals must be filed
within thirty (30) days of the entry of this order[.]” PCRA Court Order,
4/16/19. The court did not specifically advise Appellant of his obligation to
file separate notices of appeal at each docket number as required in Walker.
See Stansbury, 219 A.3d at 160. In light of the PCRA court’s failure to
correctly inform Appellant regarding his appellate rights, we conclude that a
breakdown in the court system occurred which permits us to overlook the
requirements of Walker. As such, we decline to quash the instant appeal.
We turn now to consider whether the PCRA court correctly determined
that Appellant’s petition was subject to dismissal because it was untimely and,
alternatively, because Appellant lacked standing to pursue collateral relief
since he was no longer serving a sentence imposed under Pennsylvania law.
Appellate review of an order denying post-conviction relief asks whether
the PCRA court's determination is supported by the evidence of record and
whether it is free of legal error. See Commonwealth v. Ali, 86 A.3d 173,
177 (Pa. 2014). “Where an issue presents a question of law, the appellate
court's standard of review is de novo, and its scope of review is plenary.”
Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016).
The PCRA is the sole means of obtaining collateral relief on issues
that are cognizable under the statute, see 42 Pa.C.S.[A.] § 9542,
and [our Supreme Court has] held on numerous occasions that
the PCRA[’s] time restrictions are jurisdictional in nature;
consequently, Pennsylvania courts may not entertain untimely
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PCRA petitions. See Commonwealth v. Robinson, 837 A.2d
1157, 1161 (Pa. 2003); Commonwealth v. Brown, 943 A.2d
264, 267 (Pa. 2008). Furthermore, [our Supreme Court has]
observed that the statute “confers no authority upon [any court]
to fashion ad hoc equitable exceptions to the PCRA time-bar in
addition to those exceptions expressly delineated in the Act.”
Robinson, 837 A.2d at 1161, quoting Commonwealth v. Eller,
807 A.2d 838, 845 (Pa. 2002). The time restrictions in the
existing statutory scheme are reasonable and accord finality to
the collateral review process. Commonwealth v. Peterkin, 722
A.2d 638, 642–643 (Pa. 1998).
As noted above, the one-year filing deadline is not absolute. The
PCRA contains three narrow exceptions that enable petitioners to
assert claims after the deadline has passed. The exception at
issue herein, [42 Pa.C.S.A § 9545(b)(1)(ii) and (b)(2)], states in
relevant part:
(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:
....
(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;
....
(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.
42 Pa.C.S.[A.] § 9545(b)(1)(ii) and (2).[3]
____________________________________________
3An amendment to § 9545(b)(2) which took effect on December 24, 2018 did
not apply in this case because Appellant filed his petition on July 28, 2017.
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Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (parallel citations
omitted).
There is no dispute that the instant petition was filed more than one
year from the date Appellant’s judgments of sentence became final and,
therefore, they are facially untimely. As the PCRA court observed:
A judgment [of sentence] 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. See 42 Pa.C.S.A.
§ 9545(b)(3). [Appellant’s] judgment of sentence became final
on or about November 14, 2004 in [412981-2002], March 6, 2008
in [6057-2007], and July 11, 2008 in [1301609-2006] and
[2746-2008], thirty days after each sentence was imposed and
when his right to seek review expired. See Pa.R.Crim.P.
720(A)(3). [Appellant] had one year from the date [his judgments
became final] to file a timely petition in each case – namely he
had until November 14, 2005 to file a timely PCRA petition in
[412981-2002], March 6, 2009 to file a timely PCRA petition in
[6057-2007], and July 11, 2009 to file a timely PCRA petition in
[1301609-2006] and [2746-2008]. He did not, however, file the
instant petition until July 28, 2017, over eight years after the
deadline in each of the four cases. Consequently, [Appellant’s]
petition is facially untimely.
PCRA Court Opinion, 9/13/19, 5-6.
Appellant alleges that he validly invoked an exception to the PCRA’s one
year time-bar. Specifically, Appellant claims that the characterization of his
prior convictions as “serious drug offenses” for purposes of 18 U.S.C.A.
§ 924(e) constitutes a newly-discovered fact under § 9545(b)(1)(ii).
Appellant reasons that since he did not learn of this “fact” until he was
sentenced in federal court on July 21, 2017, the discovery allows him to now
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pursue a claim that plea counsel was ineffective in failing to identify this
possibility during his last plea hearing in June 2008.
The PCRA court rejected Appellant’s contention, stating:
The timeliness exception set forth at Section 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the facts on
which he bases his petition and could not have learned those facts
earlier by the exercise of due diligence. Commonwealth v.
Brown, [111 A.3d 171, 176 (Pa. Super. 2015), citing
Commonwealth v. Bennett, 930 A.2d 1264, 1271 (Pa. 2007)].
Due diligence demands that the petitioner take reasonable steps
to protect his own interests. Id.[, citing Commonwealth v.
Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001)]. A petitioner must
explain why he could not have learned the new fact [or facts]
earlier with the exercise of due diligence. [Bennett, 930 A.2d at
1271, citing Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa.
2001).
In the case at bar, [Appellant] fails to meet this exception because
he could have learned that his earlier Pennsylvania convictions
subjected him to sentencing under 18 U.S.C.A. § 924(e) with the
exercise of due diligence. Notably, [Appellant’s] federal
indictment designation form was filed on September 27, 2016,
and indicates that [Appellant was] to be charged for [violating 18
U.S.C.A. § 922(g)(1) and sentenced according to 18 U.S.C.A.
§ 924(e)]. Certainly it is reasonable to expect a defendant to
carefully review charges brought against him with his current
lawyer. If [Appellant] had exercised due diligence by reviewing
the charges brought against him with his lawyer, he would have
learned that his Pennsylvania convictions subjected him to
sentencing under 18 U.S.C.A. § 924(e) shortly after the
indictment form was filed on September 27, 2016, nearly a year
before the date he claims to have discovered the information [and
filed the instant petition]. Because [Appellant has failed to
demonstrate that he could not have learned the information
earlier by the exercise of due diligence, his petition fails to meet
the exception to the PCRA time-bar and must be dismissed
without a hearing as untimely. [Brown, 111 A.3d at 176, citing
Bennett, 930 A.2d at 1271].
PCRA Court Opinion, 9/13/19, at 6-7.
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We agree with the PCRA court that Appellant failed to employ due
diligence in discovering the factual basis of his claim and, relatedly, failed to
file his petition in accordance with the then-applicable 60-day requirement of
§ 9545(b)(2). We further observe that Appellant’s effort to invoke the
timeliness exception set forth at § 9545(b)(1)(ii) is inconsistent with
Pennsylvania law. Our Supreme Court has observed that judicial
determinations, in-court rulings, and the publication of judicial opinions
ordinarily involve the application of abstract principles to actual events. See
Watts, 23 A.3d at 986-987. Hence, judicial pronouncements and declarations
constitute law, not facts that trigger the timeliness exception found at
§ 9545(b)(1)(ii). Id. Here, a federal court determined that 18 U.S.C.A.
§ 924(e), which permits enhanced sentencing for offenders with a history of
serious drug offenses, applied to Appellant based upon the conduct underlying
his prior convictions. The determination by the federal court constitutes “law”
and does not qualify as a fact that triggers application of § 9545(b)(1)(ii).
Upon reviewing the instant PCRA petition, the PCRA court correctly determined
that it lacked jurisdiction to grant relief because the petition was untimely,
and no filing exceptions were applicable.
As a final matter, we fully concur in the PCRA court’s conclusion that
Appellant was ineligible for collateral relief since he was no longer serving a
sentence imposed under Pennsylvania law. The PCRA court explained its
conclusion as follows:
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[Appellant] lacks standing for relief under the PCRA in [the cases
docketed at 412981-2002, 6057-2007, 1301609-2006, and
2746-2008]. The statutory requirements for eligibility for
post-conviction relief are set forth at 42 Pa.C.S.A. § 9543(a),
which states:
To be eligible for relief under [the PCRA], the petitioner must
plead and prove by a preponderance of the evidence [that
the petitioner has been convicted of a crime under the laws
of this Commonwealth and is at the time relief is granted]:
(i) currently serving a sentence of imprisonment, probation
or parole for the crime; (ii) awaiting execution of a sentence
of death for the crime; (iii) serving a sentence which must
expire before the person may commence serving the
disputed sentence; or (iv) has completed a sentence of
imprisonment, probation or parole for the crime and is
seeking relief based upon DNA evidence obtained under
section 9543.1(d) (relating to post-conviction DNA testing).
See 42 Pa.C.S.A. § 9543(a)(1)(i)-(iv). [Appellant] does not
satisfy [the] eligibility requirement[s]. To be eligible for relief
under the PCRA, a [petitioner] must plead and prove by a
preponderance of the evidence that he has been convicted of a
crime under the laws of this Commonwealth and is [at the time
relief is granted] currently serving a sentence of imprisonment,
probation, or parole for the crime. Commonwealth v. Plunkett,
151 A.3d 1108 (Pa. Super. 2016), citing 42 Pa.C.S.A.
§ 9543(a)(1)(i). To grant relief at a time when a [petitioner] is
not currently serving a sentence would be to ignore the language
of the statute. Commonwealth v. Ahlborn, 699 A.2d 718, 720
(Pa. 1997). [Appellant] is not currently serving a sentence of
imprisonment, probation, or parole for his convictions [at
412981-2002, 6057-2007, 1301609-2006, and 2746-2008]. He
is currently serving a sentence in a federal facility for his violation
of 18 U.S.C.A. § 922(g)(1). As such, [Appellant] lacks standing
for relief under the PCRA and the [PCRA court’s] dismissal of
[Appellant’s] petition was proper.4
____________________________________________
4 Even if Appellant claims to have standing pursuant to 42 Pa.C.S.A.
§ 9543(a)(iii) because he is currently serving a sentence of imprisonment in
a federal facility and his parole term had not expired in 1301609-2006 and
2746-2008 at the time he was charged with the federal crime, he would not
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PCRA Court Opinion, 9/13/19, at 7-8 (footnote, appearing in original, cleaned
up).
For each of the foregoing reasons, we conclude that the PCRA court
correctly concluded that Appellant’s petition was untimely and, alternatively,
that he was no longer eligible for collateral relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/21
____________________________________________
be entitled to relief. Appellant commenced serving his sentences at docket
numbers 1301609-2006 and 2746-2008 in 2008. He is not awaiting release
from the federal facility to commence serving these sentences, as required by
the plain language of the statute. Furthermore, Appellant has not alleged a
set of facts from which it could be inferred that either his parole or
imprisonment for his sentences at 1301609-2006 and 2746-2008 would
resume upon the expiration of his federal sentence. In the absence of such
essential averments, we are compelled to conclude that Appellant has not met
his burden of demonstrating that he remains eligible for relief under the PCRA.
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