Com. v. Jones, D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DUANE JONES :
:
Appellant : No. 1306 EDA 2021
Appeal from the PCRA Order Entered May 24, 2021
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0002547-2018
BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED SEPTEMBER 22, 2022
Duane Jones (“Jones”) appeals pro se from the order dismissing his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
In light of our disposition, a recitation of the facts is unnecessary. Jones
pled guilty in Montgomery County to possession of methamphetamine with
intent to deliver and conspiracy to possess methamphetamine with intent to
deliver, pursuant to a negotiated plea agreement for an aggregate term of
eighty to 160 months of imprisonment concurrent to all previously imposed
sentences. See N.T., 8/26/19, 3-8. At the plea hearing, Jones’s counsel
(“plea counsel”) stated that Jones was appealing an April 2018 Philadelphia
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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conviction (“the Philadelphia conviction”), and that if Jones prevailed on the
appeal, he would seek time credit in this case for the eighteen months of
imprisonment he had served on the Philadelphia conviction. Id. at 9-10. On
August 26, 2019, the plea court imposed the sentence the parties had
negotiated. See id. at 13-14.
Jones did not file post-sentence motions or appeal his judgment of
sentence. On October 27, 2020, he filed a pro se PCRA petition via the
prisoner mailbox rule2 claiming a violation of his plea agreement. Specifically,
Jones claimed that because the plea court ordered his sentence to run
concurrent to all previously imposed sentences, he was entitled to credit in
this case for the time he had served on the Philadelphia conviction. See PCRA
Petition, 10/30/20, at 8B-F. Jones also asserted that plea counsel was
ineffective for not correcting the effective date of his sentence in this case
from August 26, 2019, the date of his plea and sentencing in this case, to April
27, 2018, the date of his sentencing on the Philadelphia conviction. See id.
The PCRA court appointed PCRA counsel, Sean E. Cullen, Esquire, to
represent Jones. Attorney Cullen subsequently filed a “no-merit” letter
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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2See Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 (Pa. Super. 2019)
(stating that prisoner mailbox rule provides that a document is deemed filed
when a prisoner delivers it to prison authorities for mailing).
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Attorney Cullen explained that Jones’s claims were time-barred and, in any
event, meritless because the parties agreed that Jones could only seek time
credit in this case for the Philadelphia conviction if he succeeded in obtaining
the reversal of that conviction, which did not occur.3 See Turner/Finley
Letter, 1/24/21, at 1-2, 28-30, 35-36, 39-40.
The PCRA court granted PCRA counsel’s petition to withdraw, and issued
notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss Jones’s PCRA
petition without a hearing. Jones responded pro se to the PCRA court’s Rule
907 notice, asserting that his PCRA petition was timely and that he did not
discover the factual basis for his claim until approximately October 1, 2020,
when he spoke to a prison counselor. See Jones’s Objection to 907 Notice,
5/19/21, at 5-6. The PCRA court dismissed Jones’s PCRA petition as time-
barred and meritless. Jones filed a timely pro se notice of appeal. Jones and
the PCRA court complied with Pa.R.A.P. 1925.
Jones presents the following issues for our review:
1. Did the PCRA court err[] when it granted PCRA [c]ounsel leave
to withdraw?
2. Did the PCRA court err[] when it denied [Jones‘s] initial pro se
. . . PCRA petition without the ben[e]fit of a[n] evidentiary hearing
violating [Jones’s] due process rights?
Jones’s Brief at 4.
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3 See Commonwealth v. Jones, 226 A.3d 664 (Pa. Super. 2020)
(unpublished memorandum) (affirming Jones’s Philadelphia conviction),
appeal denied, Commonwealth v. Jones, 238 A.3d 340 (Pa. 2020) (table).
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This Court’s standard for reviewing the dismissal of PCRA relief is well-
settled:
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the record in the light most favorable to the
prevailing party in the PCRA Court. We are bound by any
credibility determinations made by the PCRA court where they are
supported by the record. However, we review the PCRA court’s
legal conclusions de novo.
Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (citation and
quotations omitted).
At the outset, we note that Jones’s issues raise three distinct theories
for relief, namely that: (1) he did not receive the benefit of his plea bargain;
(2) the plea court erred by failing to set a retroactive effective date of the
present sentence to the date Jones began serving his sentence for the
Philadelphia conviction; and (3) he was entitled to credit in this case for the
time he served on the Philadelphia conviction from the date he began serving
it until the date of sentencing in this case. Therefore, as a preliminary matter,
we must determine whether Jones’s claims fall within the scope of the PCRA.
To the extent Jones seeks to enforce his plea agreement, his claims may
be raised outside of the timeliness restrictions of the PCRA. See
Commonwealth v. Kearns, 220 A.3d 607, 616 (Pa. Super. 2019) (holding
that if there is a plea agreement to enforce, a review of the agreement
“remains outside the aegis of the PCRA”). Accordingly, we initially review the
PCRA court’s determination that Jones’s claimed right to enforce his plea
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agreement was meritless. See Commonwealth v. Snook, 230 A.3d 438,
444 (Pa. Super. 2020) (stating that “[a] determination of exactly what
promises constitute the plea bargain must be based upon the totality of the
surrounding circumstances and involves a case-by-case adjudication”).
Jones asserts that he was entitled to an assignment of a retroactive
effective date of the present sentence to the date he began serving his
sentence for the Philadelphia conviction. The PCRA court rejected that
argument finding that there was no breach of the plea agreement.
Following our review, we conclude that the record supports the PCRA
court’s finding that Jones failed to establish a violation of a term of the plea
agreement. Jones was present in court when the parties agreed that his
sentence in this case would run concurrent to other sentences he was serving,
and when plea counsel told the court that any request for credit in this case
for time served on the Philadelphia conviction that Jones could later advance
was contingent upon his obtaining reversal of the Philadelphia conviction. See
N.T., 8/26/19, at 9-10 (plea counsel stating that Jones’s receipt of time credit
in this case for the Philadelphia conviction was dependent upon a favorable
result in that appeal, and informing the court that “there’s nothing we can do
until that other charge [sic] is resolved”). Jones then told the plea court that
he had no questions or issues for the court and was pleading guilty of his own
free will. See id. at 12. Further, the plea court expressly stated that Jones’s
commitment date in this case began the day of sentencing in this case, August
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26, 2019 (not eighteen months before when the Philadelphia sentence was
imposed). See id.
Contrary to Jones’s argument, there is no indication in the record that
Jones’s sentence would be concurrent retroactive to the date of the
Philadelphia conviction and sentencing, nor did the parties agree to time credit
in this case based on Jones’s time served on his Philadelphia sentence. See
id. (stating only that Jones’s sentence is to run concurrent to all other
sentences). The only representation that the time Jones had served on his
Philadelphia conviction might be credited to the sentence in this case was that
Jones could seek such a result if he obtained reversal of the Philadelphia
conviction, which he did not. Thus, we agree with the PCRA court that there
is no merit to Jones’s claim that he did not receive the benefit of a term of his
plea bargain, or was entitled to a retroactive sentencing date in this case. See
Commonwealth v. Anderson, 995 A.2d 1184, 1195 (Pa. Super. 2010)
(rejecting a PCRA petitioner’s claim about the terms of his plea agreement
where the record did not support the claim).4
However, to the extent that Jones suggests that his sentence was illegal
because he was not awarded proper time credit, that claim is cognizable under
the PCRA. See Commonwealth v. Fowler, 930 A.2d 586, 595 (Pa. Super.
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4 For these reasons, Jones’s related claims that plea counsel was ineffective
for not seeking enforcement of the plea agreement, and that Attorney Cullen
was ineffective for seeking leave to withdraw also fail. See Anderson, 995
A.2d at 1195.
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2007). Accordingly, we consider whether the PCRA erred in concluding that
Jones’s request for PCRA request was untimely.
Under the PCRA, any petition, including a second or subsequent petition,
must be filed within one year of the date the judgment becomes final. See
42 Pa.C.S.A. § 9545(b)(1). 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.A. § 9545(b)(3). The
PCRA’s timeliness requirements are jurisdictional in nature, and a court may
not address the merits of the issues raised if the PCRA petition was not timely
filed. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Pennsylvania courts may consider an untimely PCRA petition if the
petitioner explicitly pleads and proves one of three exceptions set forth under
section 9545(b)(1), which provides:
(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
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(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.A. § 9545(b)(1). Any petition attempting to invoke one of these
exceptions must “be filed within one year of the date the claim could have
been presented.” Id. § 9545(b)(2).
Here, Jones was sentenced on August 26, 2019, and he did not file a
post-sentence motion or a direct appeal. Therefore, his sentence became final
on September 25, 2019, and he had one year, or until September 25, 2020,
to file a timely PCRA petition. See 42 Pa.C.S.A. §9545(b)(3) (providing that
a judgment of sentence becomes final at the conclusion of direct review or at
the expiration of time for seeking the review); see also Pa.R.A.P. 903(c)(3)
(providing that in a criminal case in which no post sentence motion has been
filed, the notice of appeal shall be filed within thirty days). Thus, Jones’s
petition, filed on October 27, 2020, was facially untimely.5
On appeal, Jones asserts that he established the application of the PCRA
time-bar exception for a newly discovered fact. See 42 Pa.C.S.A. §
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5 Jones asserts that his one year to file a timely PCRA petition was extended
by the ninety-day period in which a petitioner may seek a writ of certiorari to
the United States Supreme Court. See Jones’s Objection to the PCRA Court’s
907 Notice, 5/19/21, at 5-6. However, because Jones did not file post-
sentence motions or a direct appeal, his appeal became final thirty days after
his sentence, on September 25, 2019. See 42 Pa.C.S.A. § 9545(b)(3); see
also Pa.R.A.P. 903(c)(3). Jones’s assertion that he timely filed his PCRA
petition therefore lacks merit.
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9545(b)(1)(ii). He asserts that he first learned in an October 1, 2020,
conversation with a prison counselor that the plea court’s sentence was
effective on August 26, 2019, the date the plea court sentenced him in this
case, rather than April 27, 2018, the date of his sentence on the Philadelphia
conviction. See Jones’s Brief at 15-16. The PCRA court found that Jones had
not established a newly discovered fact that was unknown to him and could
not have been discovered with exercise of due diligence, and that the alleged
new fact did not change the analysis of the facts of Jones’s case or undermine
the validity of his guilty plea. See PCRA Court Opinion, 8/5/21, at 7, citing
42 Pa.C.S.A. § 9545(b)(1)(ii).
We agree with the PCRA court that Jones’s attempt to invoke the newly
discovered fact exception to the time bar is unavailing. Jones, who was
present in court, was fully aware of the terms of his negotiated sentence,
including the fact that the plea court declared that his sentence had an
effective date of August 26, 2019, the date of sentence in this case, and that
any claim for credit for the Philadelphia conviction was contingent upon the
reversal of that conviction. Thus, Jones failed to establish that he had
discovered a new fact giving rise to his claim for sentencing credit or exercised
due diligence in ascertaining that alleged fact. See 42 Pa.C.S.A. §
9545(b)(1)(ii). Jones’s failure to establish a time-bar exception deprives this
Court of jurisdiction over his claim that the PCRA court abused its discretion
by declining to grant an evidentiary hearing on his PCRA petition. See
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Albrecht, 994 A.2d at 1093. Accordingly, the PCRA court properly dismissed
Jones’s request for PCRA relief as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2022
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