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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
MARK A. PEREZ, :
:
Appellant : No. 162 EDA 2015
Appeal from the PCRA Order December 10, 2014,
Court of Common Pleas, Montgomery County,
Criminal Division at No. CP-46-CR-0007249-2009
BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 12, 2015
Appellant, Mark A. Perez (“Perez”), appeals pro se from the order
entered on December 10, 2014 by the Court of Common Pleas of
Montgomery County, Criminal Division, dismissing his second petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
The trial court summarized the relevant facts and procedural history of
this case as follows:
On June 20, 2011, in conformance with a
negotiated guilty plea agreement, [Perez] pled guilty
to aggravated assault, robbery, theft by unlawful
taking, burglary and persons not to possess a
firearm. In return for his guilty plea[, Perez] was
sentenced to an aggregate term of [fifteen to thirty
years of] imprisonment. [Perez] filed a post-
sentence motion to withdraw his guilty plea, which
was denied.
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[Perez] filed a timely direct appeal which was
rejected by the Pennsylvania Superior Court, and on
August 14, 2012, [Perez]’s judgment of sentence
was affirmed. No further appeal was taken.
On October 16, 2012, [Perez] filed a timely pro se
PCRA petition. Counsel was appointed to assist
[Perez] with his petition. On December 7, 2012,
PCRA counsel determined that all issue[s] lacked
merit and submitted a no-merit letter, seeking to
withdraw. A pre-dismissal notice was issued in
compliance with Pa.R.Crim.P. 907. [Perez] exercised
his right to respond to the notice and filed a motion
for leave to file an amended PCRA petition.
Ultimately[,] on January 7, 2013, a final order of
dismissal was issued, dismissing [Perez]’s PCRA
petition.
[Perez] appealed from the final order of dismissal,
but the appeal was denied on September 13, 2013.
[Perez] did not pursue a petition for allowance of
appeal with the Pennsylvania Supreme Court.
Subsequently, on November 13, 2014, [Perez]
filed a second PCRA petition, which is the subject of
this appeal. On November 18, 2014, this [c]ourt
issued a pre-dismissal notice, notifying [Perez] of
this [c]ourt’s proposed dismissal due to the untimely
nature of his second PCRA petition, to which [Perez]
filed a response. Thereafter, a final order of
dismissal was entered. This timely appeal followed.
PCRA Ct. Op., 3/11/15, at 1-2.
From what we can discern from his pro se appellate brief, Perez raises
four arguments in support of his claim that the trial court abused its
discretion in dismissing his second PCRA petition. See Perez’s Brief at 6-9.
First, Perez argues that the PCRA court erred in not permitting him to
withdraw his guilty plea. Id. at 8. Perez asserts that the PCRA court should
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have permitted him to withdraw his guilty plea because on September 26,
2014, over three years after his guilty plea in this case, the Philadelphia
County Court of Common Pleas vacated a prior, unrelated conviction (“the
Philadelphia conviction”), which the Commonwealth had used against him in
negotiating his sentence in this case. Id. Perez contends that as a result,
he received a longer sentence than he otherwise would have. Id. Second,
in the alternative, Perez argues that the PCRA court erred in failing to credit
the time he served on the Philadelphia conviction to his current sentence of
fifteen to thirty years. See id. at 6-9. Third, Perez contends that the PCRA
court erred by failing to appoint him counsel. See id. Finally, Perez argues
that the PCRA abused its discretion by dismissing his PCRA petition without a
hearing. See id.
Prior to determining the merits of Perez’s claims, we must determine
whether we have jurisdiction to decide his appeal. “Pennsylvania law makes
clear no court has jurisdiction to hear an untimely PCRA petition.”
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010)
(quoting Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).
A petitioner must file a PCRA petition within one year of the date on which
the petitioner’s judgment became final, unless one of the three statutory
exceptions apply:
(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
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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). A petitioner must file a petition invoking one of
these exceptions “within 60 days of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). If a petition is untimely, and the
petitioner has not pled and proven any exception, “‘neither this Court nor
the trial court has jurisdiction over the petition. Without jurisdiction, we
simply do not have the legal authority to address the substantive claims.’”
Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).
Perez’s instant PCRA petition is facially untimely and he does not
contest this determination. Accordingly, we are without jurisdiction to
decide Perez’s appeal unless he pled and proved one of the three timeliness
exceptions of section 9545(b)(1). See id. In the instant PCRA petition,
Perez invoked the timeliness exception set forth in section 9545(b)(1)(ii),
that “the claim is predicated on facts that were unknown to the petitioner
and could not have been discovered with due diligence.” Our Court recently
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provided the following explanation of the timeliness exception of section
9545(b)(1)(ii):
The timeliness exception set forth in [s]ection
9545(b)(1)(ii) requires a petitioner to demonstrate
he did not know the facts upon which he based his
petition and could not have learned those facts
earlier by the exercise of due diligence.
Commonwealth v. Bennett, [] 930 A.2d 1264,
1271 ([Pa.] 2007). Due diligence demands that the
petitioner take reasonable steps to protect his own
interests. Commonwealth v. Carr, 768 A.2d 1164,
1168 (Pa. Super. 2001). A petitioner must explain
why he could not have learned the new fact(s)
earlier with the exercise of due diligence.
Commonwealth v. Breakiron, [] 781 A.2d 94, 98
([Pa.] 2001); Commonwealth v. Monaco, 996
A.2d 1076, 1080 (Pa. Super. 2010), appeal denied,
[] 20 A.3d 1210 ([Pa.] 2011). This rule is strictly
enforced. Id. Additionally, the focus of this
exception “is on the newly discovered facts, not on a
newly discovered or newly willing source for
previously known facts.” Commonwealth v.
Marshall, [] 947 A.2d 714, 720 ([Pa.] 2008)
(emphasis in original).
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).
Here, Perez asserts that this case falls within the timeliness exception
of section 9545(b)(1)(ii) because he could not have learned that the
Philadelphia County Court of Common Pleas vacated his conviction and nolle
prossed the underlying charges until it actually entered the order dismissing
the conviction on September 26, 2014. Perez’s Brief at 8. Additionally,
Perez contends that he met the sixty-day requirement by filing the instant
PCRA petition on November 13, 2014. Id.
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The trial court initially dismissed Perez’s second PCRA petition as
untimely. PCRA Ct. Op., 3/11/15, at 1. In its Rule 1925(a) opinion,
however, the trial acknowledged that Perez had properly pled and proved
the timeliness exception of section 9545(b)(1)(ii). 1 See id. at 5-7. We
agree with the PCRA court that Perez has satisfied the timeliness exception
of section 9545(b)(1)(ii). The certified record on appeal reflects the
following. The vacateur of Perez’s Philadelphia conviction stemmed from the
arresting officer in that case, Officer Jeffrey Walker (“Officer Walker”),
pleading guilty to robbery and theft. See PCRA Petition, 11/13/14, Exhibit
1. The investigation of those charges revealed that Officer Walker had been
fabricating facts to support affidavits of probable cause for his arrests. See
Id. The investigation also revealed that Officer Walker had planted drugs,
stolen drugs and money, and lied in police paperwork and in court. Id.
Based upon these findings, the Defender Association of Philadelphia
filed petitions to reopen over 200 convictions, including Perez’s Philadelphia
conviction. Id. The Philadelphia District Attorney’s Office and the
Philadelphia Court of Common Pleas agreed that Perez’s Philadelphia
conviction was improper. Id. Therefore, on September 26, 2014, the
Philadelphia Court of Common Pleas vacated his conviction and nolle prossed
the charges against him. Id.
1
The PCRA court ultimately determined that issues Perez raised in his PCRA
petition were meritless. See PCRA Ct. Op., 3/11/14, at 7-10.
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It is clear from the record that Perez did not know these facts at the
time of his June 20, 2011 guilty plea in this case. Perez would have had no
way of knowing that over three years later, his Philadelphia conviction would
be vacated and the charges dismissed. Additionally, there was no way that
Perez could have known these facts earlier than September 26, 2014,
because that was the date on which the Philadelphia County Court of
Common Pleas vacated his Philadelphia conviction and nolle prossed the
charges underlying that conviction. Therefore, Perez has satisfied the
requirements of section 9545(b)(1)(ii).
Furthermore, Perez filed the instant PCRA petition within sixty days of
the date that the claim could have been presented. The Philadelphia Court
of Common Pleas nolle prossed the charges underlying his Philadelphia
conviction on September 26, 2014 and Perez filed this PCRA petition forty-
eight days later on November 13, 2014. Thus, Perez has also satisfied the
requirements of section 9545(b)(2). Accordingly, because we have
concluded that we have jurisdiction over this appeal, we now turn to the
merits of Perez’s claims.
We begin by acknowledging that “[o]ur 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.”
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). “The
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PCRA court’s findings will not be disturbed unless there is no support for the
findings in the certified record.” Id.
Perez argues that the PCRA court erred in failing to permit him to
withdraw his guilty plea because the Commonwealth used the now-vacated
Philadelphia conviction in negotiating his sentence in this case, which
resulted in him receiving a longer sentence. See Perez’s Brief at 6-9. We
conclude that Perez has waived this argument for failing to raise it in the
statement of questions involved section of his appellate brief. See Pa.R.A.P.
2116(a) (“No question will be considered unless it is stated in the statement
of questions involved or is fairly suggested thereby.”). Therefore, this
argument does not entitle Perez to relief.
Even if Perez had preserved this argument in his Rule 2116(a)
statement, it is still meritless. Section 9543(a)(2) of the PCRA identifies a
petitioner’s burden of proof and pleading requirements to be eligible for
PCRA relief. Section 9543(a)(2) provides:
(a) General rule.--To be eligible for relief under
this subchapter, the petitioner must plead and prove
by a preponderance of the evidence all of the
following:
* * *
(2) That the conviction or sentence resulted
from one or more of the following:
(i) A violation of the Constitution of this
Commonwealth or the Constitution or
laws of the United States which, in the
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circumstances of the particular case, so
undermined the truth-determining
process that no reliable adjudication of
guilt or innocence could have taken
place.
(ii) Ineffective assistance of counsel
which, in the circumstances of the
particular case, so undermined the truth-
determining process that no reliable
adjudication of guilt or innocence could
have taken place.
(iii) A plea of guilty unlawfully induced
where the circumstances make it likely
that the inducement caused the
petitioner to plead guilty and the
petitioner is innocent.
(iv) The improper obstruction by
government officials of the petitioner’s
right of appeal where a meritorious
appealable issue existed and was
properly preserved in the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial
of exculpatory evidence that has
subsequently become available and
would have changed the outcome of the
trial if it had been introduced.
(vii) The imposition of a sentence greater
than the lawful maximum.
(viii) A proceeding in a tribunal without
jurisdiction.
42 Pa.C.S.A. § 9543(a)(2).
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Perez’s argument falls under section 9543(a)(2)(iii), that his guilty
plea was “unlawfully induced where the circumstances make it likely that the
inducement caused the petitioner to plead guilty and the petitioner is
innocent.” Perez, however, has at no point, either before the PCRA court or
on appeal, asserted his innocence. Section 9543(a)(2)(iii) requires such an
assertion. See 42 Pa.C.S.A. § 9543(a)(2). Accordingly, Perez’s first
argument is meritless.
Second, in the alternative, Perez argues that the PCRA court erred in
failing to award him credit on his current sentence for the time he served on
the Philadelphia conviction. See Perez’s Brief at 6-9. Perez contends that
this claim is a challenge to the legality of his sentence and is therefore
cognizable under the PCRA. See id. at 6. The Commonwealth argues,
based on Commonwealth v. Heredia, 97 A.3d 392 (Pa. Super. 2014), that
this claim is not cognizable under the PCRA. We agree.
In Heredia, this Court explained the appropriate procedure for
presenting a sentencing challenge based on credit for time served, as
follows:
If the alleged error is thought to be the result of
an erroneous computation of sentence by the Bureau
of Corrections, then the appropriate vehicle for
redress would be an original action in the
Commonwealth Court challenging the Bureau’s
computation. If, on the other hand, the alleged error
is thought to be attributable to ambiguity in the
sentence imposed by the trial court, then a writ of
habeas corpus ad subjiciendum lies to the trial court
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for clarification and/or correction of the sentence
imposed.
It [is] only when the petitioner challenges the
legality of a trial court’s alleged failure to award
credit for time served as required by law in
imposing sentence, that a challenge to the
sentence [is] deemed cognizable as a due process
claim in PCRA proceedings.
Commonwealth v. Heredia, 97 A.3d 392, 395 (Pa. Super. 2014)
(emphasis added; brackets in original) (quoting Commonwealth v. Perry,
563 A.2d 511, 513 (Pa. Super. 1989)).
When the trial court imposed Perez’s sentence in the instant matter, it
was not required to grant Perez credit for the time he served on the
Philadelphia conviction, as the Philadelphia conviction had not yet been
dismissed. Therefore, Perez’s sentence was legal at that time the trial court
imposed it. As such, Perez’s claim is not cognizable under the PCRA and
does not entitle him to relief.2
Third, Perez argues that the trial court erred by failing to appoint
counsel to represent him for his second PCRA petition. See Perez’s Brief at
6-9. It is well settled that a criminal defendant is only entitled to the
2
We note that the Commonwealth Court has exercised original jurisdiction
over claims that a defendant is entitled to time-credit on a current sentence
based on the dismissal of a prior conviction for which the defendant has
already served a sentence. See Gasper v. Commonwealth, Bd. of Prob.
& Parole, 388 A.2d 1139, 1141 (Pa. Cmwlth. 1978) (holding that the period
of time defendant served on sentence that was subsequently dismissed was
properly credited against a later sentence for a different crime and that the
defendant was not entitled to have time on the dismissed sentence credited
against both an earlier sentence for another crime and the later sentence).
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appointment of counsel for his first PCRA petition. See Pa.R.Crim.P. 904(C)
(“when an unrepresented defendant satisfies the judge that the defendant is
unable to afford or otherwise procure counsel, the judge shall appoint
counsel to represent the defendant on the defendant’s first petition for post-
conviction collateral relief.”). Therefore, because this is Perez’s second PCRA
petition, we conclude that the trial court did not abuse its discretion in
declining to appoint him counsel.
Finally, Perez argues that the PCRA court erred in dismissing his
petition without a hearing. See Perez’s Brief at 8. Our Supreme Court has
held that “a PCRA court must hold a hearing when a PCRA petition raises any
issues of material fact.” Commonwealth v. Marshall, 947 A.2d 714, 723
(Pa. 2008); see also Pa.R.Crim.P. 908(A)(2) (requiring a hearing on a PCRA
petition “when the petition for post-conviction relief or the Commonwealth’s
answer, if any, raises material issues of fact”). “If a PCRA petitioner’s offer
of proof is insufficient to establish a prima facie case, or his allegations are
refuted by the existing record, an evidentiary hearing is unwarranted.”
Commonwealth v. Eichinger, 108 A.3d 821, 849 (Pa. 2014). Here,
Perez’s claims do not raise any issues of material fact and the trial court was
able to determine that the issues he raised were meritless based on the
existing record. Therefore, the trial court did not err by failing to hold a
hearing on Perez’s petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2015
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