Com. v. Scheer, J.

J-S05010-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN SCHEER :
:
Appellant : No. 786 WDA 2022
Appeal from the PCRA Order Entered June 14, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0012731-2009
BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: April 28, 2023
Justin Scheer, Appellant, appeals from the post-conviction court’s order
denying as untimely his motion for collateral relief. We affirm.
Appellant entered a guilty plea to two counts of robbery and two
firearms violations after negotiating a plea agreement with the
Commonwealth. Appellant, who was sixteen years old at the time of the
incident, was initially charged with seven counts pertaining to a shooting. The
victim, who was on friendly terms with Appellant, was taking a shortcut
through a cemetery to a friend’s house when Appellant and an unnamed
individual approached. Appellant demanded that the victim give him
everything he was carrying. When the victim refused and began to walk away,
Appellant pulled out a revolver and fired two shots. One of the bullets struck
the victim in his buttocks. Appellant pleaded guilty to the four charges
specified above, with the Commonwealth agreeing to withdraw the remaining
J-S05010-23
counts. Appellant was facing a mandatory minimum sentence of five to ten
years’ incarceration at the robbery counts, and the Commonwealth agreed to
request an aggregate sentence of five to ten years’ incarceration. The parties
made no agreement as to probation.
On September 9, 2010, the trial court accepted the plea and sentenced
Appellant to the agreed-upon term of incarceration, as well as a consecutive
period of five years’ probation to be supervised by the Board of Probation and
Parole (“Board”). Appellant did not file post-sentence motions or a direct
appeal.
It is not entirely clear when Appellant was paroled. The certified record
establishes that on or about April 26, 2011, Appellant accepted state
supervision of his probation. On July 16, 2019, the trial court issued a bench
warrant for Appellant’s arrest due to a probation violation. This violation was
apparently cleared. Appellant was detained again sometime in 2020 due to
an arrest on unrelated charges. He filed a pro se motion to lift his detainer in
August of 2020, followed by a pro se petition for habeas corpus relief in
September, and another pro se motion in December of 2021. The court did
not rule on those motions. On January 26, 2022, the Commonwealth
requested that the court appoint counsel as Appellant was seeking relief
available under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
9546. The court appointed counsel and directed the filing of an amended
petition or an advisement that no further amendment was necessary.
-2-
J-S05010-23
On April 21, 2022, Appellant filed a pleading captioned as a petition for
relief under the PCRA and/or a motion to enforce plea agreement, and/or a
petition for writ of habeas corpus. With respect to PCRA claims, Appellant
sought to challenge the voluntariness of his guilty plea and, as discussed in
detail below, argued that an exception to the time-bar applied. Regarding his
claims for enforcement of his plea bargain, Appellant maintained that this
request for relief may be filed outside the PCRA and argued that the
Commonwealth violated its agreement when the Board imposed certain
probationary conditions. He thus sought to have those probation conditions
invalidated. Finally, Appellant argued that, if the claims were deemed to be
untimely under the PCRA, they could be addressed as a writ of habeas corpus.
See generally Commonwealth v. Judge, 916 A.2d 511, 520 (Pa. 2007)
(holding that a claim concerning deportation from Canada to face the death
penalty may be raised outside the PCRA; “this Court has never held that
habeas corpus cannot provide a separate remedy, in appropriate
circumstances”).
The PCRA court determined that the claim for contractual enforcement
failed as the probation conditions were imposed at a separate case. The court
construed the voluntariness-of-the-guilty-plea claim as a request for relief
under the PCRA and determined that the cited time-bar exception did not
apply. As such, the court entered an order denying Appellant’s petition.
Thereafter, Appellant filed a timely notice of appeal. He complied with
the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement, and the
-3-
J-S05010-23
court authored an opinion in support pursuant to Rule 1925(a). Appellant
raises the following points for our review:
I. The [c]ourt had jurisdiction to rule on [Appellant]’s Motion to
Enforce Plea Agreement and Petition for Writ of Habeas Corpus
because these motions do not fall under the timeliness provisions
of the [PCRA].
II. The [c]ourt had jurisdiction to rule on [Appellant]’s Amended
PCRA Petition because it fell within an exception to the timeliness
provisions of the [PCRA] where [Appellant] filed within one (1)
year of discovering that he suffers from lead poisoning, which
caused an unknowing[ —] and therefore illegal[ —] guilty plea.
III. [Appellant] is entitled to the benefit of the plea bargain he
entered, and to the terms explained to him as part of the plea
agreement.
Appellant’s Brief at 5.
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the record evidence and free of legal error.” Commonwealth v.
Whitehawk, 146 A.3d 266, 269 (Pa. Super. 2016). All PCRA petitions,
including second or subsequent petitions, “shall be filed within one year of the
date the judgment becomes final, unless the petition alleges and the petitioner
proves” one of three statutory exceptions. See 42 Pa.C.S. § 9545(b)(1)(i-iii).
“The General Assembly’s determination that a PCRA petition must be filed
within one year of when a petitioner’s judgment of sentence becomes final is
statutorily described as a jurisdictional limitation.” Scott v. Pennsylvania
Bd. of Prob. & Parole, 284 A.3d 178, 187 (Pa. 2022). Our Supreme Court
has held that this jurisdictional requirement implicates subject-matter
-4-
J-S05010-23
jurisdiction, id., and the timeliness of a petition is “a threshold question
implicating our subject matter jurisdiction and ability to grant the requested
relief.” Commonwealth v. Whitney, 817 A.2d 473, 478 (Pa. 2003),
overruled on other grounds by Commonwealth v. Small, 238 A.3d 1267 (Pa.
2020).
Additionally, “both the PCRA and the state habeas corpus statute
contemplate that the PCRA subsumes the writ of habeas corpus in
circumstances where the PCRA provides a remedy for the claim.”
Commonwealth v. Hackett, 956 A.2d 978, 985–86 (Pa. 2008). Our
Supreme Court has interpreted the PCRA to reflect a legislative judgment that
“claims that could be brought under the PCRA must be brought under that
Act. No other statutory or common law remedy ‘for the same purpose’ is
intended to be available; instead, such remedies are explicitly ‘encompassed’
within the PCRA.” Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001)
(emphasis in original).
Initially, we address Appellant’s claim that some or all of his claims are
not subject to the PCRA. Beginning with the voluntariness of his plea, it is
well-settled that “to be valid, a guilty plea must be knowingly, voluntarily and
intelligently entered.” Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa.
Super. 2003). If a challenge to the voluntariness of the plea is premised on
some defect or inadequacy in the court’s colloquy, those claims must be raised
during the direct appeal process. See Commonwealth v. Fears, 86 A.3d
795, 808 (Pa. 2014) (examining, on collateral review, whether the underlying
-5-
J-S05010-23
guilty plea was voluntarily entered as filtered through ineffective assistance of
direct appellate counsel for failing to litigate that claim). While Appellant is
not challenging the voluntariness of his plea by reference to counsel’s
performance or any defect in the colloquy, he asserts that newly-discovered
facts support the pursuit of the involuntariness claim. Appellant’s challenge
to his guilty plea could be brought under the PCRA and is therefore subject to
its time constraints. See Commonwealth v. Kutnyak, 781 A.2d 1259, 1261
(Pa. Super. 2001) (holding that a pro se petition challenging the validity of a
guilty plea must be treated as a PCRA).
Appellant acknowledges that the petition is patently untimely.
Nevertheless, he claims that he meets the timeliness exception set forth in
Section 9545(b)(1)(ii). See 42 Pa.C.S. § 9545(b)(1)(ii) (providing an
exception to the PCRA’s one-year time bar when “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”). Specifically, Appellant submits
that, in January of 2022, “he obtained copies of his [s]ister’s blood tests, which
were performed when she was approximately … 1 year old, which revealed
that she had high levels of lead in her system.” Amended Petition for Relief,
4/21/22, at 9. Appellant states that he and his sister grew up together and
argues that the test proves that he was exposed to the same toxins. If the
time-bar is satisfied, Appellant wishes to pursue a claim that the asserted lead
poisoning rendered his plea invalid “and he should be permitted to withdraw
it through a showing of prejudice that rises to the level of manifest injustice.”
-6-
J-S05010-23
Id. (quoting Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super.
2011)).
The PCRA court disposed of Appellant’s claim as follows:
Appellant alleges subsection (ii) applies to him. Appellant is
incorrect. Appellant’s “new fact” is his sister’s January 2022
positive test for lead, which Appellant asserts means that he
suffered from lead poisoning at the time of his plea, thus making
his plea unknowing. Aside from the mental gymnastics required
to connect a sibling’s lead level in 2022 with Appellant’s own lead
level at any point, the issue of his sister’s lead level is not new.
In fact, the issues of her lead level and Appellant’s lead level were
addressed at the [d]ecertification hearing on July 6, 2010.
Counsel for Appellant at the [d]ecertification hearing speculated
that Appellant could have lead poisoning because he lived with his
sister who tested positive for lead poisoning. This issue is not new
as it relates to subsection (ii)[,] and this [c]ourt correctly found
that this exception does not apply.
PCRA Court Opinion, 7/26/22, at 4 (citation to transcript and footnote
omitted).
While not explicitly framed as such, we agree with the PCRA court that
Appellant failed to plead and prove that he acted with due diligence in
obtaining this newly-discovered fact. For claims that arose on or after
December 24, 2017, a PCRA petitioner has one year to present the claim. 42
Pa.C.S. § 9545(b)(2) (“Any petition invoking an exception provided in
paragraph (1) shall be filed within one year of the date the claim could have
been presented.”). Even crediting that Appellant is entitled to application of
the statutory amendment, i.e., that his claim arose on or after December 24,
2017, Appellant has failed to establish due diligence. We agree with the PCRA
-7-
J-S05010-23
court that Appellant has offered no explanation for why he could not have
obtained this new fact earlier.
We find illustrative our decision in Commonwealth v. Robinson, 185
A.3d 1055 (Pa. Super. 2018) (en banc). There, as here, the PCRA petitioner
sought to establish that his plea was involuntarily entered based on facts
learned long afterwards. Robinson, who entered a guilty plea in 1983,
asserted that he obtained information in 2015, establishing that his trial
counsel had been using cocaine during his representation. Specifically,
Robinson learned from an inmate that Robinson’s attorney had accepted a
plea in 1994 to federal drug charges. Robinson then reviewed the attorney’s
plea transcript, which indicated that the attorney regularly used cocaine during
times relevant to his representation of Robinson’s case. The PCRA court did
not address the timeliness of the petition, instead denying relief on the merits.
Id. at 1060. A split panel initially determined that petitioner was entitled to
an evidentiary hearing. However, on en banc review, we concluded that
Robinson failed to establish due diligence. While distinguishing that inquiry
from an assessment of the underlying claim’s merits, we explained that a
recognition of the nature of the claim is proper when ascertaining whether the
petitioner has satisfied his or her due diligence obligations:
[W]hile [Commonwealth v.] Bennett[, 930 A.2d 1264 (Pa.
2007),] and its progeny instruct courts to avoid analyzing the
merits of the underlying claim, we believe that principle cannot go
so far as to altogether preclude the courts from considering the
claim the petitioner seeks to raise in determining whether an
evidentiary hearing is warranted. As an extreme example,
suppose an incarcerated PCRA petitioner asserted in an untimely
-8-
J-S05010-23
petition that he recently discovered that the Houston Astros won
the 2017 World Series. It would defy reason to suggest that a
PCRA court must hold an evidentiary hearing to carefully apply the
newly-discovered fact inquiry before considering how that fact
could possibly matter. [Commonwealth v. ] Cox, [146 A.3d 221(Pa. 2016),] stated that “[t]he function of a section 9545(b)(1)(ii)
analysis is that of a gatekeeper.” Id. at 229 n.11. A gatekeeping
function contemplates that there may be a reason to open the
gate.
“… [Robinson] alleged that trial counsel had a substance abuse
issue in the early 1980s and that counsel’s addiction caused
[Robinson] to enter an invalid plea.” [Robinson]’s brief at 4
(emphasis added). Recognizing the nature of the underlying
claim—as distinguished from assessing its merits—is necessary to
determine whether [Robinson] acted with due diligence in
unearthing the newly-discovered facts.
Id. at 1061–62 (emphasis in original).
The Robinson Court ultimately affirmed the PCRA court’s order on due
diligence grounds. We explained that Robinson was “challeng[ing] counsel’s
mental state on the day of [his] plea,” and accordingly was required to
“uncover ... the ‘facts upon which [his] underlying claim is predicated[.]’” Id.(quoting Commonwealth v. Chmiel, 173 A.3d 617, 625 (Pa. 2017)). Any
deficiency in counsel’s advice would have been apparent on the day of
Robinson’s plea, as he “always ‘knew’ that his counsel supplied ineffective
advice, and he has failed to show why he could not have learned these newly-
discovered facts at an earlier time.” Id. at 1063.
A similar point applies here. We may not examine the merits of the
claim that Appellant wishes to pursue, but we may recognize the nature of the
underlying claim to assess due diligence. If Appellant’s underlying claim has
any traction whatsoever, the involuntariness of his plea must have been
-9-
J-S05010-23
known well before he obtained his sister’s blood test. Appellant may not have
known exactly which medical condition caused him to involuntarily plead
guilty, but surely he realized, at some point between 2010 and 2022, that
some defect was to blame. In other words, accepting that we cannot examine
the merits of the claim, Appellant knew the theory, just not the precise reason.
With respect to lead poisoning, Appellant had every reason to investigate that
possibility. As the PCRA court pointed out, the issue of lead poisoning in
Appellant’s home was raised at his decertification hearing. Appellant,
anticipating this response, argues that his “ability to raise the claim did not
fully develop until he had actual proof, in the form of his sister’s blood tests,
in 2022.” Appellant’s Brief at 20. Appellant also argues that he was
incarcerated and, even upon his release, “many restrictions were placed on
him that continued to prevent him from obtaining the information he needed
to support this claim.” Id.
We disagree. Appellant’s ability to raise his claim may have been
stymied by his delay in obtaining the “actual proof,” but this does not relieve
him of the burden to discover facts that would enable him to press the known
claim. Due diligence is a fact-intensive inquiry, and a petitioner must “take
reasonable steps to protect his own interests. A petitioner must explain why
he could not have learned the new fact(s) earlier with the exercise of due
diligence.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015)
(citations omitted). Even charitably extending to Appellant the proposition
that an alleged lead poisoning would have prevented him from learning that
- 10 -
J-S05010-23
he was suffering from that malady in the intervening years, cf.
Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa. 2004) (holding that PCRA
petitioner was permitted to raise newly-discovered evidence exception where
petitioner had suffered a severe brain injury prior to the entry of his plea and
wished to show that he had regained competence), Appellant has made no
attempt to explain when he first suspected that lead poisoning may have
affected his plea. Indeed, Appellant offers no explanation for why (or how)
he obtained his sister’s blood tests in the first place and why he suspected
that his sister’s blood test has anything to do with the voluntariness of his
plea.
In any event, the fact that the source of this information is his own
family member is fatal to his due diligence obligations. As Appellant alludes
to, our jurisprudence recognizes that petitioners face difficulties in obtaining
information while incarcerated. See Commonwealth v. Burton, 158 A.3d
618, 620 (Pa. 2017) (rejecting presumption that information in public record
is not “unknown” as applied to incarcerated pro se individuals). However, as
explained by Robinson, “Burton modifies the ‘unknown’ nature of public
facts as applied to incarcerated pro se PCRA petitioners, but the case did not
modify the due diligence inquiry.” Robinson, 185 A.3d at 1064. Appellant
has utterly failed to explain why he could not have obtained the test results
earlier than 2022 by simply asking his sister or his mother for a copy of the
document. In fact, Appellant does not even state when the report itself was
dated. Since his sister was referenced at the decertification hearing, and this
- 11 -
J-S05010-23
document is from her first year of life, it appears that this document existed
at the time of Appellant’s plea. Based on the foregoing, we agree with the
PCRA court that Appellant failed to establish the applicability of the newly-
discovered-fact exception.
We now address Appellant’s plea-bargain-enforcement claim. We agree
that Appellant would be entitled to the benefit of his bargain if he established
that he was entitled to specific performance. “[A] collateral petition to enforce
a plea agreement is regularly treated as outside the ambit of the PCRA and
under the contractual enforcement theory of specific performance.”
Commonwealth v. Kerns, 220 A.3d 607, 611–12 (Pa. Super. 2019). Thus,
if Appellant could successfully establish that he made a bargain with the
Commonwealth regarding his probation, he would be entitled to specific
enforcement on a contractual theory. See Commonwealth v. Martinez,
147 A.3d 517, 533 (Pa. 2016) (upholding enforcement of plea bargain where
trial court credited testimony that the plea agreement included specific term
of a ten-year period of registration under sexual offender registration laws).
We note that the Commonwealth argues that this claim is waived
because Appellant “fails to supply any documentation” concerning the
conditions of his probation. Commonwealth’s Brief at 7. Additionally, the
Commonwealth agrees with the PCRA court that Appellant “may be …
conflating the special conditions set forth in [this case] with those imposed"
at his conviction for another case. Id. at 20. By way of background, at the
time of his plea in this case, Appellant was also facing charges in Allegheny
- 12 -
J-S05010-23
County at a separate docket. Appellant accepted a guilty plea on June 13,
2011, to one count of aggravated indecent assault of a child and received a
sentence of two to four years’ incarceration, consecutive to any other sentence
of confinement. The paperwork in the original record that was filed in
connection with Appellant’s probation detainer lodged at this docket states,
under a field labeled “other,” that Appellant must “continue sex offender
treatment.” See Docket Entry 15. Appellant responds that he is therefore
required to comply with these conditions, which were not part of his plea
bargain.
We agree with Appellant that his claim for specific performance is not
subject to the PCRA. Simultaneously, there is some merit to the
Commonwealth’s position in that it is not clear exactly what Appellant is
alleging. Two different concepts are at issue: the first being the authority to
order Appellant to serve any period of probation, and, secondly, whether the
conditions of probation are themselves legal. Appellant’s argument touches
on both aspects. In one portion of his brief, Appellant argues there was no
authority to impose probation because there was no agreement to probation.
See Appellant’s Brief at 27 (“The probationary sentence, which was not part
of the plea agreement, served as the basis for a detainer to be lodged against
[Appellant] after he was released from incarceration.”). In the next
paragraph, however, Appellant appears to object not to the imposition of
probation, but rather to the validity of the conditions imposed by the Board.
See id. at 27-28 (arguing that “the probation office imposed overly broad,
- 13 -
J-S05010-23
strict conditions on him as part of the supervisory release[,]” including no
contact with the minor victim from the other case and restrictions on internet
access).
We conclude that Appellant is not entitled to relief as he has failed to
show that there is any bargain to enforce. Whatever the merits of his “special
conditions” claim, the flaw in Appellant’s position is that the Commonwealth
and Appellant simply made no bargain with respect to probation whatsoever.
While we agree with the PCRA court and the Commonwealth that the directive
to continue sexual offender treatment may well refer only to Appellant’s
obligations at his other criminal docket, there is no need to reach that part of
Appellant’s argument. As aptly stated in Appellant’s brief, “[t]he probationary
sentence … was not part of the plea agreement[.]” Appellant’s Brief at 27.
Because Appellant concedes there was no agreement to probation, then any
derivative claim regarding specific performance concerning the special
conditions necessarily fails, too. The certified record demonstrates that the
Commonwealth and Appellant made no agreement to probation, and the trial
court apparently imposed that sentence sua sponte. N.T., 9/9/10, at 3
(Commonwealth’s stating that the negotiated sentence was for an aggregate
sentence of five to ten years’ incarceration); id. at 20 (imposing “a period of
5 to 10 years’ incarceration, with a consecutive period of 5 years of
probation”). Any obligations imposed by the Board derive directly from the
trial court’s order requiring Appellant to comply with any conditions imposed
by that entity. See generally Commonwealth v. Elliot, 50 A.3d 1284 (Pa.
- 14 -
J-S05010-23
2012) (discussing the interplay of the Sentencing Code and the Prisons and
Parole Code, and whether other governmental actors may impose conditions
on probation not dictated by the sentencing judge).1
Relatedly, we note that, to the extent Appellant is challenging the trial
court’s decision to depart from the plea bargain, which in turn authorized the
Board to impose special conditions, that claim could have been pursued either
on direct appeal or via an ineffective assistance of counsel claim in a timely
PCRA petition. In Commonwealth v. Berry, 877 A.2d 479 (Pa. Super. 2005)
(en banc), Berry elected to proceed pro se and negotiated a plea agreement
with the Commonwealth. The Commonwealth agreed to recommend
concurrent sentences, and the trial judge informed Berry that he could
____________________________________________
1 We recognize that the Board would seem to have no authority to require
Appellant to comply with sexual offender obligations in this robbery case. See
Commonwealth v. Shires, 240 A.3d 974, 976 (Pa. Super. 2020) (vacating
judgment of sentence imposed following probation revocation where probation
conditions imposed by Board conviction were not germane to court-imposed
conditions of probation). However, even if it were clear that Appellant’s
sentence were illegal in this regard, the claim would still be subject to the
PCRA. See Commonwealth v. Jackson, 30 A.3d 516, 518 (Pa. Super. 2011)
(holding that claim a sentence is patently illegal is subject to the PCRA);
Commonwealth v. McGee, 276 A.3d 701 (Pa. 2022) (granting allowance of
appeal to determine whether Jackson was correctly decided).
If, as in Shires, Appellant receives a probation revocation sentence he could
challenge the validity of those conditions on direct appeal from any such
sentence. Finally, we observe that, in the interim, it is possible Appellant
could pursue relief in the Commonwealth Court. Cf. Jackson v.
Pennsylvania Bd. of Prob. & Parole, 169 A.3d 1226, 1230 (Pa. Cmwlth.
2017) (concluding that litigant was precluded from challenging Board’s
imposition of special parole conditions due to failure to exhaust administrative
remedies before the Board).
- 15 -
J-S05010-23
withdraw the plea if the court decided to reject the negotiated agreement.
Berry chose to enter his plea, and sentencing was deferred. At sentencing,
with Berry again proceeding pro se, the judge chose to impose consecutive
sentences but did not reiterate that the plea could be withdrawn. Berry did
not file a post-sentence motion nor did he file a direct appeal. Instead, he
challenged the sentence in a timely PCRA petition.
We held that Berry waived his claim. “Since [Berry] failed to raise this
claim in the trial court or on direct appeal, this issue is waived unless an
exception to the waiver rule applies.” Id. at 482. We declined to find that
the trial court’s deviation from the plea agreement implicated the legality of
the sentence, as “current case law does not support the proposition that
[Berry’s] claim is a non-waivable challenge to the legality of the sentence. …
[W]e decline to expand the definition of ‘illegal sentence’ to encompass claims
of this type, because there is simply no principled basis for doing so.” Id. at
484. We further determined that Berry could not succeed on the merits, as
the trial court’s failure to inform Berry that he could withdraw his plea “is not
the same as ‘failing’ to allow [Berry] to withdraw his plea. Rather, it remained
[Berry]’s responsibility to move to withdraw his plea, if he so desired.” Id.
The same logic applies here. The trial court announced that probation
was a part of Appellant’s sentence, and the sentencing order as contained in
the certified record explicitly stated that the Board of Probation and Parole
would impose the conditions. Order of Sentence, 9/8/10 (stating that
Appellant is to “be placed on probation for a [m]inimum [t]erm of 5 years and
- 16 -
J-S05010-23
a [m]aximum [t]erm of 5 years to be supervised by [the Board]”).2 Berry
did not address an ineffectiveness theory since the litigant represented
himself. Here, however, Appellant could have raised this claim on direct
appeal or in a PCRA proceeding as an ineffective assistance of counsel claim.
Thus, to the extent Appellant is challenging the fact that probation was
imposed at all, he has failed to establish any exception to the time-bar.3 We
therefore affirm the PCRA court’s order denying Appellant’s petition.
Order affirmed.
____________________________________________
2We note that the guilty plea transcript is dated September 9, 2010. The
docket reflects that the sentencing order was docketed September 8, 2010.
3 Requiring these claims to be brought during the direct appeal process or in
a timely PCRA proceeding is consistent with the General Assembly’s attempt
to channel all collateral claims into the PCRA framework. If Appellant were to
successfully pursue his “plea bargain” theory at this late date, Appellant would
receive a windfall by leaving intact the negotiated sentence of incarceration
and withdrawal of charges while invalidating the probationary part of his
sentence. The trial court was not obligated to accept the plea as structured,
and Appellant cannot now selectively decide that he wishes to benefit from
some parts of his plea bargain while striking the portions that he does not like.
The trial court may well have decided not to accept the plea without a period
of supervision following confinement.
- 17 -
J-S05010-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2023
- 18 -