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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUSTIN BERNARD BEGANDY,
Appellant No. 1306 WDA 2013
Appeal from the PCRA Order June 27, 2013
in the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0000271-2007
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED: OCTOBER 1, 2014
Appellant, Justin Bernard Begandy, appeals pro se from the order of
June 27, 2013, dismissing his first petition pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
On March 1, 2007, the Commonwealth charged Appellant with one
count each of robbery, criminal attempt (kidnapping), aggravated assault,
terroristic threats, possessing instruments of crime, simple assault, and
recklessly endangering another person.1 The charges arose out of an
incident on December 17, 2006, when Appellant confronted the victim at a
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3701(a)(1)(i) or (ii), 901(a), 2702(a)(4), 2706(a)(1),
907(a), 2701(a)(1), and 2705, respectively.
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shopping mall, forced his way into her car and attacked her with a steak
knife.2 (See N.T. Plea, 5/21/09, at 4).
On May 21, 2009, Appellant entered an open plea of nolo contendere
to all charges, except the robbery charge.3 (See id. at 2). In return for the
plea, the Commonwealth withdrew the robbery charge and agreed not to
seek a five year mandatory minimum sentence. (See id.). There was no
other agreement as to sentence. (See id.).
On August 12, 2009, following receipt of a pre-sentence investigation
report, the court sentenced Appellant to an aggregate term of incarceration
of not less twelve years four months nor more than forty years. (See N.T.
Sentencing, 8/12/09, at 8-9). At that time, defense counsel noted that
Appellant faced additional jail time because this conviction violated the
conditions of previous probation or parole. (See id. at 4).
After sentencing, on August 17, 2009, Appellant filed a pro se motion
to rescind the nolo contendere plea. The trial court denied the motion by
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2
The victim managed to free herself and fled into the mall. She had
suffered a laceration to her finger as Appellant swung the knife at her. He
was apprehended shortly after by the police. The victim positively identified
Appellant as her assailant. DNA analysis confirmed that blood on Appellant’s
trousers and shirt belonged to the victim. (See N.T. Guilty Plea, 5/21/09, at
4-6).
3
Defense counsel conceded that the evidence “would certainly have
supported” a guilty plea, but entered a nolo plea based on Appellant’s
“mental health situation.” (N.T. Plea, 5/21/09, at 7).
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order dated November 16, 2009, and docketed on November 19, 2009.
Appellant did not file a direct appeal.
On April 4, 2013, Appellant filed the instant PCRA petition, pro se. The
PCRA court appointed counsel who filed a Turner/Finley4 “no merit” letter
and petitioned the court for permission to withdraw from further
representation. On May 29, 2013, the PCRA court granted counsel’s request
to withdraw and issued notice of its intent to dismiss the petition pursuant to
Pennsylvania Rule of Criminal Procedure 907. See Pa.R.Crim.P. 907(1).
Appellant filed a reply on June 17, 2013. On June 27, 2013, the PCRA court
dismissed the petition.
Appellant subsequently filed a timely pro se notice of appeal. On
August 21, 2013, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b). Appellant filed a timely Rule 1925(b)
statement on August 29, 2013. See Pa.R.A.P. 1925(b). On September 18,
2013, the PCRA court issued a statement in lieu of a Rule 1925(a) opinion.
See Pa.R.A.P. 1925(a). The court subsequently filed a supplemental
opinion, on January 6, 2014, explaining in pertinent part that the petition
was untimely filed with no statutory exception to the time bar applicable.
(See PCRA Court Opinion, 1/06/14, at 4-5).
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4
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Appellant raises two questions on appeal:
A. Did [the] trial judge have constitutional and statutory
authority to sentence [Appellant] under [c]rimes [c]ode [s]tatute
18 Pa.C.S. § 2901(A)(1) which was withdrawn by the
Commonwealth?
B. Is trial counsel’s abandonment of [Appellant] for appeal
purposes grounds for nunc pro tunc restoration of direct appeal
rights?
(Appellant’s Brief, at 4).
Our standard of review for an order denying PCRA relief is well-settled:
This Court’s standard of review regarding a PCRA court’s
order is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Great deference is granted to the findings of the PCRA court, and
these findings will not be disturbed unless they have no support
in the certified record.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a
trial court has no jurisdiction to entertain the petition.” Commonwealth v.
Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).
Here, Appellant filed his first PCRA petition on April 4, 2013. 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[.]” 42 Pa.C.S.A. § 9545(b)(1). A judgment becomes final for
PCRA purposes at the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the Supreme Court of
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Pennsylvania, or at the expiration of time for seeking the review. 42
Pa.C.S.A. § 9545(b)(3).
Here, the court imposed sentence on August 12, 2009. Therefore,
Appellant’s judgment of sentence became final on September 11, 2009, after
the thirty day period to file a direct appeal expired.5
Because Appellant did not file his petition until April 4, 2013, the
petition is facially untimely. As already noted, Appellant concedes this.
(See Appellant’s Brief, at 7). Thus, to obtain PCRA relief, he must plead and
prove that his claim falls under one of the statutory exceptions to the one-
year time bar provided at section 9545(b). See 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii).
Section 9545 provides that the court can still consider an untimely
petition where the petitioner successfully pleads and proves that:
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5
The PCRA court maintains that Appellant’s judgment of sentence became
final on December 16, 2009, thirty days after it denied his pro se post-
sentence motion and he did not appeal to this Court. (See PCRA Court
Opinion, 1/6/14, at 4); see also Pa.R.A.P. 903. However, pro se motions
filed by appellants represented by counsel are legal nullities. See
Commonwealth v. Figueroa, 29 A.3d 1177, 1179 n.2 (Pa. Super. 2011).
Here, it is not readily apparent from the record whether plea counsel was
appointed or retained. We find no reference in the record granting
permission for counsel to withdraw, although the sentencing court assumes
that if Appellant wanted a lawyer to file motions (and he was unable to
afford one) the court would appoint a lawyer at no charge. (See N.T.
Sentencing, 8/12/09, at 10). In any event, Appellant’s petition is untimely
under either calculation. Appellant also concedes that his petition is facially
untimely. (See Appellant’s Brief, at 7).
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(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.A. § 9545(b)(1)(i)-(iii).
Further, a petitioner who wishes to invoke any of the above exceptions
must file the petition “within 60 days of the date the claim could have been
presented.” Id. at § 9545(b)(2). The Pennsylvania Supreme Court has
repeatedly stated that it is an appellant’s burden to plead and prove that one
of the above-enumerated exceptions applies. See, e.g., Commonwealth
v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916
(2008).
Here, Appellant first contends that his petition should be considered
timely because he challenges the legality of his sentence and such a
challenge is can never be waived. (See Appellant’s Brief, at 7). In
Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), the Pennsylvania
Supreme Court rejected Appellant’s contention. The Fahy Court stated,
“[a]lthough legality of sentence is always subject to review within the PCRA,
claims must still first satisfy the PCRA’s time limits or one of the exceptions
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thereto.” Fahy, supra at 223 (citation omitted). Appellant concedes that a
claim of illegality must be brought within the PCRA time limits or one of the
statutory exceptions. (See Appellant’s Brief, at 7).
Appellant asserts that his illegality of sentence claim was timely
because he did not become aware that his sentence was illegal until he
received a copy of a “corrected” sentencing order in March 2013.6 (See
Appellant’s Brief, at 9; see also id. at 9-10). Appellant claims that this
constituted both governmental interference and newly discovered facts and
thus his sentencing claims are timely under both § 9545(b)(1)(i) and (ii).
(See id. at 9-14). We disagree.
[W]here a petitioner alleges that a District Attorney’s failure to
produce documents amounts to governmental interference, then
that petitioner must identify a specific claim that he was unable
to discover or develop due to the District Attorney’s
conduct. Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d
581, 588 (1999). Appellant, however, has failed to explain how
the District Attorney's conduct hobbled his development or
prevented his discovery of any particular claim. Thus, he has not
established the existence of governmental interference such that
this PCRA petition is excused from the timeliness requirements.
Commonwealth v. Howard, 788 A.2d 351, 355 (Pa. 2002).
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6
For clarity and context, we note that Appellant’s claims appear to derive
from his perception that his sentence was “corrected,” apparently to resolve
a discrepancy between the charge presented as count 2 in the Information,
criminal attempt (kidnapping) and the printed sentencing order, which
identified the relevant charge as kidnapping.
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Further, Appellant must plead and prove that the information could not
have been discovered earlier with the exercise of due diligence. See
Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013), cert. denied,
134 S.Ct. 639 (2013). Here, Appellant has not pleaded facts which establish
that he exercised due diligence in obtaining this information regarding his
sentence. “Our Supreme Court has held for purposes of 42 Pa.C.S. §
9545(b)(1)(ii) information is not ‘unknown’ to a PCRA petitioner when the
information was a matter of public record.” Commonwealth v. Taylor,
933 A.2d 1035, 1040 (Pa. Super. 2007), appeal denied, 951 A.2d 1163 (Pa.
2008) (citing Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006))
(claim founded on arrest warrant in record of case was based on matter of
public record that due diligence would have disclosed to appellant long
before filing of PCRA petition).
Appellant concedes that trial courts have inherent common law
authority to correct clerical errors. (See Appellant’s Brief, at 14, (citing
Commonwealth v. Borrin[, 80 A.3d 1219, 1227 (Pa. 2013)]). He fails to
demonstrate why the correction of his sentence exceeds that authority.
Notably, Appellant does not establish that the apparent correction
changed the length of his sentence, exceeded the statutory maximum or
otherwise constituted an illegal sentence. He merely contends that there
was no clear clerical error in his original sentence order, and therefore the
corrected sentence must be vacated. (See Appellant’s Brief, at 17).
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Appellant also maintains that the trial court “violated the sep[a]ration
of powers doctrine.” (Id.). His argument is without merit, and fails to prove
an exception to the time bar.7 Thus, Appellant has not shown that his
sentencing claim is timely under any of the exceptions provided in
§ 9545(b)(1)(i)-(iii). His first claim merits no relief.
In his second claim, Appellant asserts that he received ineffective
assistance of counsel because counsel did not file a direct appeal. He claims
counsel abandoned him, entitling him to nunc pro tunc restoration of his
direct appeal rights. (See Appellant’s Brief, at 21-25).
Preliminarily, Appellant does not present an exception to the time-bar
by claiming ineffective assistance of counsel. See Commonwealth v.
Davis, 816 A.2d 1129, 1135 (Pa. Super. 2003), appeal denied, 839 A.2d
351 (Pa. 2003) (“[A]ttempts to utilize ineffective assistance of counsel
claims as a means of escaping the jurisdictional time requirements for filing
a PCRA petition have been regularly rejected by our courts.”) (citations
omitted).
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7
Moreover, we observe that Appellant was present at sentencing. (See N.T.
Sentencing, 8/12/09, at 2). However, he did not seek clarification of his
sentence and copies of the sentencing order and related documents until
February 26, 2012, over two years later. (See Appellant’s Brief, at 8).
Appellant fails to provide any explanation for this delay. Accordingly,
Appellant has not shown that he exercised due diligence in obtaining the
information regarding his allegedly illegal sentence.
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Furthermore, Appellant has not invoked any of the three statutory
exceptions with respect to his ineffective assistance of counsel claim. Thus,
the claim is untimely, without a statutory exception to the time bar pleaded
or proven.
Moreover, Appellant does not assert that he requested a direct appeal.
(See Appellant’s Brief, at 21-25). Nor does he explain, after entering his
nolo plea, on what basis he could have. He cites no pertinent authority,
other than cases for general principles. Instead, he baldly asserts that plea
counsel gave him erroneous advice on his eligibility for “second strike”
sentencing. (See id. at 23). Appellant’s second claim fails to establish an
exception to the time-bar.
The record supports the PCRA court’s finding that Appellant’s PCRA
petition is untimely with none of the statutory exceptions to the time bar
proven.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/1/2014
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