Com. v. Gray, C.

J-S02001-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CRAIG GRAY :
:
Appellant : No. 1719 EDA 2019
Appeal from the PCRA Order Entered May 17, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000072-2010
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: APRIL 5, 2021
Appellant, Craig Gray, appeals pro se from the post-conviction court’s
May 17, 2019 order, dismissing as meritless his timely petition filed pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We
affirm.
The PCRA court summarized the background of this case as follows:
On September 12, 2011, before the Honorable Carolyn Engel
Te[min], [Appellant] entered a negotiated guilty plea [to] third-
degree murder and possession of an instrument of crime.
[Appellant] was sentenced to 20-40 years’ imprisonment for the
murder conviction and 2½-5 years’ imprisonment for the
possession of an instrument of crime conviction, to run
concurrently.
[Appellant] filed a timely motion to withdraw his guilty plea on
September 22, 2011. The trial court denied the motion on
September 26, 2011. No direct appeal was filed on [Appellant’s]
behalf at this time.
On September 7, 2012, [Appellant] filed his first pro se PCRA
petition. PCRA counsel, John P. Cotter, Esquire, was appointed
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and counsel filed an amended petition on May 6, 2015[,] based
on ineffective assistance of counsel. In his amended petition,
[Appellant] requested nunc pro tunc reinstatement of his direct
appeal rights since trial counsel failed to file a notice of appeal to
[the] Superior Court despite his request for counsel to do so.
[Appellant’s] rights to file a direct appeal were reinstated nunc pro
tunc on December 22, 2015. The Superior Court affirmed
[Appellant’s] judgment of sentence on January 12, 2017, holding
that the trial court did not abuse its discretion when it denied
[Appellant’s] motion to withdraw his guilty plea because he
knowingly, intelligently, and voluntarily entered the agreement
despite his assertion of a mental health issue. [Commonwealth
v. Gray, 160 A.3d 252 (Pa. Super. 2017).] The Pennsylvania
Supreme Court denied [Appellant’s] petition for allowance of
appeal on October 17, 2017. [Commonwealth v. Gray, 172
A.3d 1116 (Pa. 2017)].[1]
On October 18, 2018, [Appellant] filed his … instant, pro se PCRA
petition, seeking relief based upon ineffective assistance of
counsel and improper obstruction by a government official. PCRA
counsel was appointed and counsel filed a Finley1 letter on April
2, 2019. On April 16, 2019, this [c]ourt sent [Appellant] a notice
pursuant to Pennsylvania Rule of Criminal Procedure 907,
indicating that his petition would be dismissed as meritless.
[Appellant] did not file a response to the [Rule] 907 Notice. On
May 17, 2019, after conducting a thorough and independent
review of the record, this [c]ourt dismissed [Appellant’s] petition
____________________________________________
1 Our review of the record demonstrates that Appellant did not seek review
with the United States Supreme Court. Therefore, Appellant’s judgment of
sentence became final on January 15, 2018, when the time for filing a petition
for writ of certiorari to the U.S. Supreme Court expired. See 42 Pa.C.S. §
9545(b)(3) (stating that a judgment of sentence becomes final at the
conclusion of direct review or the expiration of the time for seeking the
review); U.S.Sup.Ct.R. 13 (providing that “[a] petition for a writ of certiorari
seeking review of a judgment of a lower state court that is subject to
discretionary review by the state court of last resort is timely when it is filed
with the Clerk within 90 days after entry of the order denying discretionary
review”). Thus, Appellant’s second petition, filed on October 18, 2018, was
timely. See 42 Pa.C.S. § 9545(b)(1) (setting forth that “[a]ny petition under
this subchapter, including a second or subsequent petition, shall be filed within
one year of the date the judgment becomes final”).
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without a hearing as meritless.[2] On June 10, 2019, [Appellant]
filed a [pro se] notice of appeal to the Superior Court.[3]
1 Where PCRA counsel has determined that the issues raised
in a defendant’s pro se PCRA petition are without merit, she
[or he] may inform the court and seek to withdraw.
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc).
PCRA Court Opinion (PCO), 12/20/19, at 1-3.
Appellant raises one issue for our review, which we set forth verbatim:
Whether the PCRA Court erred in dismissing the PCRA without a
hearing for lack of merit. When the Sentencing Court misadvised
the Appellant of the time requirements to file a post-sentencing
motion amounts to governmental interference?
Appellant’s Brief at 4.
At the outset, we note that our standard of review regarding an order
denying post-conviction relief is whether the findings of the court are
“supported by the record and free of legal error.” Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citations omitted).
Appellant argues that, during sentencing on September 12, 2011, the
court advised him that he had 30 days to file a post-sentence motion. See
Appellant’s Brief at 10-11. Believing that he had 30 days, he says he filed a
motion asking the court to reconsider his sentence within that timeframe,
specifically on October 6, 2011. Id. at 11. However, he claims that the
____________________________________________
2 The PCRA court also permitted counsel to withdraw from further
representation of Appellant pursuant to his Finley letter.
3 The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, and he did not do so. The PCRA
court subsequently issued a Rule 1925(a) opinion.
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sentencing court deemed his post-sentence motion untimely. Id.4 He
complains that the sentencing court’s misadvising him of the time
requirements to file a post-sentence motion constituted governmental
interference and caused the untimely filing of his motion. Id. at 7. In his pro
se petition, he claimed that these circumstances made him eligible for relief
under Section 9543(a)(2)(iv) of the PCRA. See PCRA Petition, 10/18/18, at
3.
Section 9543(a)(2)(iv) states:
(a) General rule.--To be eligible for relief under this subchapter,
the petitioner must plead and prove by a preponderance of the
evidence all of the following:
***
(2) That the conviction or sentence resulted from one or
more of the following:
***
(iv) The improper obstruction by government officials
of the petitioner’s right of appeal where a meritorious
appealable issue existed and was properly preserved
in the trial court.
42 Pa.C.S. § 9543(a)(2)(iv).
In dismissing Appellant’s petition, the PCRA court explained:
[Appellant] has failed to plead and prove by a preponderance of
the evidence that his sentence resulted from the alleged improper
obstruction of the sentencing court, as required by [Section]
____________________________________________
4 The docket does not reflect these filings. However, Appellant attaches to his
brief a letter from the sentencing judge, dated October 29, 2011, advising him
that she received his October 6, 2011 letter, and that it is “too late” for him
to request reconsideration of his sentence. See Appellant’s Brief at Exhibit B.
Appellant also attached the sentencing court’s letter to his PCRA petition.
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9543(a)(2)(iv). More specifically, [Appellant] has failed to
demonstrate that he did not know of the facts upon which he
bases his claim. Although the [sentencing] court somewhat
ambiguously stated “you have 30 days to appeal or asking [sic]
me to reconsider the sentence,” any ambiguity that the statement
might have caused was resolved by the written guilty plea
colloquy form, which explicitly states[,] “I have ten (10) days after
sentencing to file a motion to complain about the sentence or I
lose the right to do that.” During his colloquy, [Appellant] stated
that he reviewed that written guilty plea colloquy form with his
attorney before signing it. [Appellant] was well aware of his
obligation to file a motion for reconsideration within ten days of
his sentencing, and the record does not substantiate his
justification for his believing he had more time. Therefore,
[Appellant] has failed to plead and prove by a preponderance of
the evidence that his sentence resulted from the alleged improper
obstruction of the sentencing court, and his petition was properly
dismissed for lack of merit.
PCO at 6-7. While we concur with Appellant that the sentencing court’s verbal
instruction was incorrect or — at the very least — confusing, we agree with
the PCRA court that Appellant failed to demonstrate improper obstruction
where the written guilty plea colloquy form set forth the time requirements
for filing a motion for reconsideration of sentence. See Written Guilty Plea
Colloquy, 9/12/11, at 3 (“I have ten (10) days after sentencing to file a motion
to complain about the sentence or I lose the right to do that.”).5
Moreover, in addition to the instructions in the written guilty plea
colloquy form, we observe that Appellant has not shown that a meritorious
appealable issue existed here. Appellant entered a negotiated guilty plea with
the Commonwealth, and the sentencing court sentenced him in accordance
____________________________________________
5 We also note that Appellant was represented by counsel at that time, and
his counsel filed a timely motion to withdraw the plea agreement.
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with that plea agreement. Appellant does not identify in his brief what
meritorious issue(s) regarding his sentence he would have raised, had the
sentencing court not misadvised him of the time constraints for filing a motion
for reconsideration of sentence. Coulter v. Ramsden, 94 A.3d 1080, 1088-
89 (Pa. Super. 2014) (“The Rules of Appellate Procedure state unequivocally
that each question an appellant raises is to be supported by discussion and
analysis of pertinent authority. … This Court will not act as counsel and will
not develop arguments on behalf of an appellant.”); see also
Commonwealth v. Coles, 530 A.2d 453, 457 (Pa. Super. 1987) (“[A] plea
of guilty usually constitutes a waiver of all defects and defenses except those
concerning the jurisdiction of the court, legality of sentence, and validity of
plea.”) (citations and footnote omitted). Accordingly, Appellant’s claim fails
on this basis as well. Consequently, we affirm the PCRA court’s order
dismissing his petition as meritless.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/21
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