Com. v. Miller, K. ( 2021 )

J-A29039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN J. MILLER :
:
Appellant : No. 235 MDA 2020
Appeal from the PCRA Order Entered January 17, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001074-1997
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED JANUARY 25, 2021
Appellant, Kevin J. Miller, appeals from the order of the Court of
Common Pleas of Dauphin County that dismissed his March 2019 Post
Conviction Relief Act (PCRA)1 petition as untimely. We affirm.
In 1997, Appellant was charged with rape, involuntary deviate sexual
intercourse (IDSI), indecent assault, corruption of the morals of a minor,
statutory sexual assault2 and other offenses for sexually assaulting his 12-
year old step-daughter. On February 10, 1998, Appellant pled guilty to rape,
IDSI, indecent assault, corruption of the morals of a minor, and statutory
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541–9546.
2 18 Pa.C.S. §§ 3121, 3123, 3126, 6301, and 3122.1, respectively.
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sexual assault under a plea agreement that provided that his minimum
imprisonment sentence would be 5 years, but that the trial court was not
restricted with respect to the maximum sentence. N.T. Guilty Plea at 3, 5-6,
12-14, 17-18; N.T. Sentencing at 3-4. On November 16, 1998, the trial court
sentenced Appellant to 5 to 20 years for the rape conviction and imposed
concurrent sentences of 2 and 1/2 to 5 years for both indecent assault and
corruption of the morals of a minor. N.T. Sentencing at 10-12; Sentencing
Order at 1-2. For the IDSI conviction, the trial court sentenced Appellant to
20 years of probation to “commence upon the date of any parole granted”
from the 5-to-20 year rape sentence and “run concurrent with that parole
time.” N.T. Sentencing at 11; see also Sentencing Order at 2 (stating that
IDSI 20-year probation sentence is “concur. w. Parole time of ct.1”). The
statutory sexual assault conviction merged with the rape and IDSI convictions.
N.T. Sentencing at 9-11; Sentencing Order at 2.
Appellant did not file a direct appeal from his judgment of sentence.
Commonwealth v. Miller, No. 1889 MDA 2014, unpublished memorandum
at 6 (Pa. Super. filed August 28, 2015). Between December 1999 and October
2015, Appellant filed numerous PCRA petitions, all of which were denied or
dismissed. In November 2018, Appellant filed an additional pro se PCRA
petition alleging that his guilty plea and sentence were products of alleged
fraud and asserting claims of ineffective assistance of counsel.
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Appellant was not paroled from his 5-to-20 year sentence and on
December 3, 2018, was released from prison after having served the full 20-
year maximum sentence. Upon his release from prison, Appellant began
serving the 20-year probation sentence. On March 6, 2019, after his release
from prison and while the November 2018 PCRA petition was pending before
the trial court, Appellant filed the instant counseled PCRA petition asserting
that his sentence of 20 years’ probation was concurrent to his 5-to-20 year
sentence and seeking an order terminating his probation.3 On April 23, 2019,
the trial court held a hearing on the March 2019 PCRA petition at which the
trial judge who had sentenced Appellant testified concerning the sentence that
he imposed on Appellant.
On September 24, 2019, the trial court dismissed Appellant’s November
2018 PCRA petition. Appellant did not appeal from the dismissal of that PCRA
petition. On January 17, 2020, the trial court dismissed Appellant’s March
2019 PCRA petition as untimely. Trial Court Order, 1/17/20; Trial Court
Statement in Lieu of Rule 1925(a) Opinion. On February 6, 2020, Appellant
timely filed this appeal from the dismissal of his March 2019 PCRA petition.
Appellant presents the following single issue for our review in this appeal:
Whether the PCRA court erred by denying Appellant's PCRA
petition challenging the legality of his sentence where the court
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3Appellant originally titled the March 2019 PCRA petition as a “Post-Sentence
Motion Nunc Pro Tunc to Correct Error Regarding Execution of Defendant’s
Sentence.” Appellant, however, concedes that this filing was a PCRA petition
and refiled it as a PCRA petition.
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sentenced him to serve 5 to 20 years confinement on Count 1
[rape] and at Count 2 [IDSI] a sentence of 20 years of probation
to be serve conconcurrently [sic] with any parole on Count 1?
Appellant’s Brief at 4.
As the trial court correctly held, the courts must address whether
Appellant’s March 2019 PCRA petition was timely filed before addressing the
merits of the PCRA petition. The PCRA provides 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, 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
(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). This time limit is jurisdictional, and a court may not
ignore it and reach the merits of the petition, even where the convicted
defendant claims that his sentence is illegal. Commonwealth v. Fahy, 737
A.2d 214, 223 (Pa. 1999); Commonwealth v. Whiteman, 204 A.3d 448,
450-51 (Pa. Super. 2019); Commonwealth v. Pew, 189 A.3d 486, 488 (Pa.
Super. 2018).
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Appellant’s judgment of sentence became final on December 16, 1998,
upon the expiration of the 30-day period to file an appeal. 42 Pa.C.S. §
9545(b)(3). The instant PCRA petition, filed more than 20 years after the
judgment became final, is patently untimely unless Appellant has alleged and
proved one of the three limited exceptions set forth in Sections 9545(b)(1)(i)-
(iii). These exceptions can apply only if Appellant filed the PCRA petition
“within one year of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).
The only timeliness exception that Appellant contends applies here is
Section 9545(b)(1)(ii), the exception for newly-discovered facts. Appellant
contends that he did not know that his probation sentence would start to run
after he finished serving his 5-to-20 year sentence until he was released from
prison on December 3, 2018 and that he filed his PCRA petition less than a
year after he learned that fact.
We do not agree that these assertions satisfy the requirements of
Section 9545(b)(1)(ii). This timeliness exception applies only where the
convicted defendant shows both that he did not know the facts upon which he
bases his PCRA petition and that he could not have learned of those facts
earlier by the exercise of due diligence. 42 Pa.C.S. § 9545(b)(1)(ii);
Commonwealth v. Sanchez, 204 A.3d 524, 526 (Pa. Super. 2019);
Commonwealth v. Taylor, 933 A.2d 1035, 1040-41 (Pa. Super. 2007).
Mere allegations that the convicted defendant did not learn of facts until
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shortly before the PCRA petition was filed, without any allegations showing
timely efforts or inability to discover that information earlier, are insufficient
to satisfy Section 9545(b)(1)(ii)’s exception for newly-discovered facts.
Sanchez, 204 A.3d at 526-27; Pew, 189 A.3d at 489-90; Commonwealth
v. Perrin, 947 A.2d 1284, 1286-87 (Pa. Super. 2008); Taylor, 933 A.2d at
1040-42.
Here, Appellant, if he had acted with diligence, would have known years
before 2019 that his probation sentence would run consecutively to his
maximum 20-year sentence if he was not paroled from that sentence.
Appellant knew from his sentencing in 1998 that the probation was concurrent
only with respect to parole from the 5-to-20 year prison sentence, not
concurrent to the entire the 5-to-20 year sentence. N.T. Sentencing at 11;
Sentencing Order at 2. Appellant thus knew in 1998 that the probation would
extend beyond the 5-to-20 year prison sentence, even if he were granted
parole at the earliest possible date, and that the date that his 20 years’
probation would begin to run would depend on when he was granted parole.
Indeed, in 2015, more than three years before he filed this PCRA petition,
Appellant also received notice, from a decision of this Court affirming the
dismissal of one of his prior PCRA petitions, that the trial court characterized
his sentence as “an aggregate term of five to twenty years’ incarceration at a
state correctional institution, followed by twenty years of conditional
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probation.” Miller, No. 1889 MDA 2014, unpublished memorandum at 2
(quoting Trial Court Opinion, 12/3/14) (brackets omitted, emphasis added).
While the trial court in imposing sentence did not discuss the possibility
that Appellant would not be paroled and would serve the full 20 years,
Appellant could have sought clarification of the sentence if he was not sure
when his probation would commence in the absence of parole. Had he done
so, he would have learned years before he filed the March 2019 PCRA petition
that if he was not paroled, the probation sentence would not begin to run until
he was released from prison at the end of his maximum sentence and that he
was to be under supervision for a full 20 years after he was released from
prison, whether he was released on parole or at the end of 20 years’
imprisonment. N.T. PCRA Hearing, 4/23/19, at 9-11, 14-20, 24, 26-27.
Appellant, however, did not seek clarification, even in 2004, after he
was not paroled after serving his minimum sentence, or in 2015, after he had
additional notice that the probation would not begin until his release from
prison. Appellant has not alleged that anything prevented him from seeking
clarification and challenging his probation sentence earlier. Because the newly
discovered fact that Appellant asserts as a basis for timeliness could have
been ascertained by him years before he filed this PCRA petition if he had
exercised due diligence, Appellant has not alleged or proved an exception to
the PCRA’s one-year time limitation. and the trial court properly dismissed the
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PCRA petition as untimely. Sanchez, 204 A.3d at 526-27; Pew, 189 A.3d at
489-90; Perrin, 947 A.2d at 1286-87; Taylor, 933 A.2d at 1042.
Appellant argues that he was not required to show that his PCRA petition
was timely filed because the sentence was allegedly illegal. This is without
merit. A claim that a sentence is illegal is not subject to waiver. See, e.g.,
Commonwealth v. Vasquez, 744 A.2d 1280, 1284 (Pa. 2000). The issue
here, however, is jurisdiction, not waiver. As noted above, a claim of illegality
of sentence does not provide an exception to the time limitations of the PCRA,
and the courts lack jurisdiction to address a claim that a sentence is illegal
where the PCRA petition is filed more than one year after the judgment of
sentence became final and none of the three timeliness exceptions has been
shown to apply. Fahy, 737 A.2d at 223; Whiteman, 204 A.3d at 450-51;
Commonwealth v. Woods, 179 A.3d 37, 43 (Pa .Super. 2017);
Commonwealth v. Jackson, 30 A.3d 516, 521-23 (Pa. Super. 2011).
Because this PCRA petition was filed more than 20 years after Appellant’s
judgment of sentence became final and none of the timeliness exceptions is
applicable, the trial court’s dismissal of the PCRA petition was proper even if
Appellant’s probation sentence were illegal.
Appellant also argues that the trial court has jurisdiction to grant the
PCRA relief he seeks because courts have an inherent power to correct patent
and obvious errors in sentencing orders under Commonwealth v. Holmes,
933 A.2d 57 (Pa. 2007). This argument fails for two reasons. First, Appellant
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has not shown that there was any error in the sentence, let alone a patent
error. To the contrary, the commencement of Appellant’s 20 years’ probation
upon his release from imprisonment is consistent with the trial court’s
direction that the probation be concurrent only with parole from that sentence.
Indeed, the record demonstrates that this was in fact the intent of the trial
judge who imposed that sentence. N.T. PCRA Hearing, 4/23/19, at 9-11, 14-
20, 24, 26-27. Secondly, the trial court’s inherent power under Holmes to
correct patent errors does not apply to untimely PCRA petitions and does not
give a court jurisdiction to grant an untimely PCRA petition. Whiteman, 204
A.3d at 450-51; Jackson, 30 A.3d at 522-23.
Because the trial court correctly concluded that Appellant’s March 2019
PCRA petition was untimely, we affirm its order dismissing the PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/25/2021
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