Com. v. Arrington, J.

J-S07045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES KENNETH ARRINGTON, JR. :
:
Appellant : No. 937 WDA 2021
Appeal from the PCRA Order Entered June 23, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001694-2018
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: MARCH 23, 2022
James Kenneth Arrington, Jr. (Arrington) appeals pro se and nunc pro
tunc from the order entered in the Court of Common Pleas of Erie County
(PCRA court) dismissing his second petition filed pursuant to the Post-
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Arrington challenges
the propriety of the order entered in his first PCRA proceeding and the
effectiveness of plea counsel. We affirm the order of the PCRA court.
I.
On January 9, 2020, Arrington entered a negotiated guilty plea to one
count each of possession with intent to deliver a controlled substance and
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S07045-22
criminal use of a communication facility.1 The charges were brought after
Arrington sold a combination of heroin and fentanyl to a confidential informant
on three separate occasions in the spring of 2018.
Prior to entering his plea, Arrington executed a written Statement of
Understanding of Rights in which he represented that the plea “is made
voluntarily by me without any pressure or promise not reflected on this paper,
and that I fully understand all of my rights in choosing to plead guilty.”
(Statement of Understanding of Rights, 1/09/20). Arrington was represented
by counsel at the plea and sentencing hearing, and the trial court conducted
a colloquy during which Arrington averred that he understood the terms of the
plea agreement and the elements of the crimes to which he was pleading
guilty; that he was guilty of the offenses; and that no one had forced him or
promised him anything to enter the plea.
After the court accepted Arrington’s plea as voluntary, intelligent and
knowing, Arrington waived preparation of a pre-sentence investigation report
and elected to proceed immediately to sentencing. Counsel and the court then
addressed the possibility of running Arrington’s sentence concurrently with the
state parole sentence that he was then serving, as it related to receiving credit
____________________________________________
1 35 P.S. § 780-113(a)(30), 18 Pa.C.S. § 7512(a).
-2-
J-S07045-22
for time served. (See N.T. Guilty Plea, 1/09/20, at 11-13).2 The trial court
sentenced Arrington in accordance with the parties’ agreed-upon
recommended sentence to an aggregate term of 27 to 54 months’
incarceration. Arrington did not file a direct appeal.
In August 2020, Arrington filed a counseled first PCRA petition
challenging the validity of his guilty plea, arguing that the trial court “created
the impression and the Petitioner thereby held the expectation that the
sentence of 27 to 54 months was to be served concurrently with any other
sentence including any back time imposed from a revocation.” (See PCRA
Petition, 8/17/20, at 1-2). Arrington requested amendment of the sentence
to comport with the plea agreement. The Commonwealth countered that the
court sentenced Arrington to the agreed-upon recommended sentence, and
that nothing was promised or could be guaranteed to Arrington regarding his
separate parole revocation, which was within the discretion of the state parole
board. (See Commonwealth’s Response to PCRA petition, 9/11/20, at 1-3).
The PCRA court held a hearing and granted Arrington limited relief on
December 4, 2020, by entering an order specifying that his sentence began
____________________________________________
2 The record indicates that there was some confusion as to whether the trial
court could run the time concurrently, and the court indicated that it had no
issue with that and would run the sentence “concurrent with any State parole
hit.” (Id. at 13). However, the issue of time credit associated with parole
violations is left to the discretion of the state parole board. See 61 Pa.C.S.
§ 6138(2.1) (governing parole violations).
-3-
J-S07045-22
to run on January 9, 2020, the date he was sentenced in this case, and
directing that he receive credit for any time served on the charges at this
docket. (See Order, 12/04/20).
Arrington filed the instant pro se PCRA petition on June 1, 2021, again
contesting the validity of his plea and his sentence. Arrington characterized
the December 4, 2020 order as a “modification” of his initial sentence and
alleged that the order is illegal because the PCRA court entered it outside of
his presence without notice. Arrington also advanced claims of ineffective
assistance of counsel by contending that his plea was unlawfully induced by a
promise that his sentence would run concurrently with the separate state
parole sentence. (See PCRA petition, 6/01/21, at 6, 10).
On June 4, 2021, the PCRA court issued Rule 907 notice to dismiss the
PCRA petition without a hearing. See Pa.R.Crim.P. 907(1). In doing so, the
court explained that the December 4, 2020 order did not modify the original
sentence, “but rather reiterated that the sentence was to begin [on January
9, 2020] and that Petitioner should receive all time credit applicable to that
docket.” (Rule 907 Notice, 6/04/21, at 2). The PCRA court also stated that
Arrington was not induced into pleading guilty and that the bargained-for
sentencing recommendation was accepted and imposed by the court. On June
23, 2021, the PCRA court entered its order dismissing the petition. Arrington
-4-
J-S07045-22
filed a pro se notice of appeal3 and he and the PCRA court complied with Rule
1925. See Pa.R.A.P. 1925(a)-(b).
II.
Before we may consider the merits of Arrington’s PCRA petition, we must
first address whether it is timely under the PCRA’s jurisdictional time-bar. A
PCRA petition, “including a second or subsequent petition, shall be filed within
one year of the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1).4
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.” 42 Pa.C.S. § 9545(b)(3). Because the timeliness requirements
of the PCRA are jurisdictional in nature, courts cannot address the merits of
an untimely petition. See Commonwealth v. Moore, 247 A.3d 990, 998
(Pa. 2021).
In this case, although Arrington attempts to cast the PCRA court’s
December 4, 2020 order as a new modified sentence, the PCRA order merely
reiterated and clarified the original sentence and does not constitute a new
____________________________________________
3 Although Arrington’s notice of appeal dated August 12, 2021, is facially
untimely, the PCRA court granted Arrington’s request for nunc pro tunc relief.
4The issue of whether a PCRA petition is timely raises a question of law over
which our standard of review is de novo. See Commonwealth v. Reid, 235
A.3d 1124, 1166 (Pa. 2020).
-5-
J-S07045-22
order from which a direct appeal can be taken or from which the PCRA run
date begins. Arrington’s judgment of sentence became final on February 9,
2020, when his time to file a direct appeal expired. See 42 Pa.C.S.
§ 9543(b)(3).5 Because he did not file the instant PCRA petition until June 1,
2021, it is facially untimely and he must plead and prove one of the three
limited exceptions to the time-bar:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii).
In his appellate brief, Arrington does not invoke any of these exceptions
and instead raises arguments challenging the propriety of the December 4,
2020 order he claims was imposed without notice and the effectiveness of
counsel concerning his “involuntary” plea. (See Arrington’s Brief, at 8-9, 13-
14). However, neither of these contentions serve as a basis for PCRA relief.
____________________________________________
5 Arrington’s position that the order entered in his first PCRA proceeding
somehow reset the one-year timeliness requirement lacks any legal support.
-6-
J-S07045-22
First, with regard to Arrington’s claim concerning the December 4, 2020
order, he was required to take a direct appeal from that order to address any
purported defect in that order within 30 days of its entry. See Pa.R.A.P.
903(a) (providing that notice of appeal “shall be filed within 30 days after the
entry of the order from which the appeal is taken.”). Because Arrington did
not take a timely appeal from that order, we are without jurisdiction to review
his first claim.6
Arrington next contends the PCRA court erred in failing to find that
counsel provided ineffective assistance in connection with entry of his
unlawfully induced guilty plea. However, it is well-settled that a “claim of
ineffective assistance of counsel does not save an otherwise untimely PCRA
petition for review on the merits.” Commonwealth v. Zeigler, 148 A.3d
849, 853 (Pa. Super. 2016) (citation omitted). Because Arrington’s ineffective
assistance of counsel claim cannot satisfy an exception to the PCRA’s time-
bar, we lack jurisdiction to review it.7
Order affirmed.
____________________________________________
6To the extent that Arrington attempts to use the December 4, 2020 order to
again challenge the time credit/parole violation issue, such claim was
previously litigated in his first counseled petition and is unreviewable on this
basis as well. See 42 Pa.C.S. §§ 9543(a)(3); 9544(a)(2).
7Although our reasoning differs from the PCRA court in that it did not conduct
a timeliness analysis, it is well-settled that we may affirm on any basis. See
Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010).
-7-
J-S07045-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2022
-8-