J-S39029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRIS ALLEN NEAL,
Appellant No. 1996 MDA 2015
Appeal from the PCRA Order November 5, 2015
in the Court of Common Pleas of Lebanon County
Criminal Division at Nos.: CP-38-CR-0000465-2012
CP-38-CR-0000467-2012
BEFORE: STABILE, J., PLATT, J.*, and STRASSBURGER, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 17, 2016
Appellant, Chris Allen Neal, appeals from the order denying his
counseled first petition for relief pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541–9546, after a hearing. On independent
review, we agree with the PCRA court that Appellant’s petition is untimely on
its face with no cognizable exception to the statutory time-bar properly
pleaded and proven. Accordingly, we affirm.
Appellant and his partner operated Bad Boy[s] Toys stores in
Cumberland, Lancaster, and Lebanon counties, at which they sold synthetic
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*
Retired Senior Judge assigned to the Superior Court.
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marijuana, “bath salts,”1 designer drugs, and similar products. (See PCRA
Court Opinion, 11/05/15, at 2-3).
On June 4, 2013, Appellant entered a counseled plea of nolo
contendere at docket no. 467-2012 to two counts of possession with intent
to deliver (PWID), and two counts of conspiracy to commit PWID.2 The
same day, he pleaded nolo contendere at docket no. 465-2012 to one count
of corrupt organizations-employee; one count of conspiracy to commit
corrupt organizations-employee; one count of dealing in proceeds of
unlawful activities; one count of conspiracy to commit dealing in proceeds of
unlawful activities; thirteen counts of PWID; three counts of selling a non-
controlled substance similar to a controlled substance; three counts of
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1
The DEA explains so-called bath-salts as follows:
Synthetic stimulants[,] often referred to as “bath salts[,]”
are from the synthetic cathinone class of drugs. Synthetic
cathinones are central nervous stimulants and are designed to
mimic effects similar to those produced by cocaine,
methamphetamine and MDMA (ecstasy). These substances are
often marketed as “bath salts,” “research chemicals,” “plant
food,” “glass cleaner” and labeled “not for human consumption,”
in order to circumvent application of the Controlled Substance
Analogue Enforcement Act. Marketing in this manner attempts to
hide the true reason for the products’ existence—the distribution
of a psychoactive/stimulant substance for abuse.
Source: U.S. Drug Enforcement Administration Drug Fact Sheet, accessed
April 15, 2016.
2
35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. § 903(c), respectively.
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knowingly or intentionally manufacturing or distributing a designer drug; and
three counts of delivery or intent to deliver drug paraphernalia.3
It bears noting that Appellant entered his plea on the eve of trial and
after a jury panel had been selected. (See PCRA Ct. Op., at 3).4
On September 25, 2013, the court sentenced Appellant under both
dockets to an aggregate term of not less than five nor more than fifteen
years’ incarceration. (See id.). No direct appeal followed. On or about
March 9, 2015, Appellant filed a pro se PCRA petition. The PCRA court
appointed counsel, who filed an amended petition.
After a PCRA hearing on August 27, 2015, the PCRA court denied
Appellant’s petition, in an order with accompanying opinion, on November 5,
2015, as untimely. This appeal followed on November 16, 2015.5
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3
18 Pa.C.S.A. § 911(b)(3), 18 Pa.C.S.A. § 903(c); 18 Pa.C.S.A.
§ 5111(a)(1), 18 Pa.C.S.A. § 903(c); 35 P.S. § 780-113(a)(30); 35 P.S.
§ 780-113(a)(35)(i), 35 P.S. § 780-113(a)(36), and 35 P.S. § 780-
113(a)(33), respectively.
4
Three of Appellant’s co-defendants had already pleaded guilty, been
sentenced, and were set to testify for the Commonwealth. (See. N.T. Nolo
Contend[e]re Plea, June 4, 2013 [filed 9/18/15], at 4). The trial court
explained the premises and procedure of the nolo plea in great detail and
engaged in an extensive colloquy directly with Appellant before finding his
plea to have been made “freely, intelligently, and voluntarily.” (Id. at 23-
24; see also id. at 6-24).
5
Appellant filed a concise statement of errors on November 23, 2015. On
November 25, 2015, the PCRA court filed a Rule 1925(a) opinion,
referencing its order and opinion of November 5, 2015. See Pa.R.A.P. 1925.
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Appellant raises eight overlapping issues on appeal, framed as three
questions, for our review:
1. Whether [the] PCRA Court erred when it denied
Appellant’s Petition as being untimely, where Appellant’s time-
restraint meets an exception requirement as set forth in 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii)?
2. Whether Appellant was denied his constitutionally-
guaranteed right to due process when he was unlawfully induced
to plead nolo contendere and therefore could not proceed with a
trial, where:
a. Trial Court placed a three (3) day limit if
Appellant took his case to trial, thus, causing an undue
burden on Appellant to present his defense;
b. Trial Court refused to allow Appellant to present
relevant, exculpatory evidence in the form of reports, if
Appellant took his case to trial, where the Commonwealth
filed a suppression motion on the day of jury selection;
c. The Commonwealth prevented Appellant from
calling a key witness, inter alia, Luis Toro by:
i. Threatening said witness that he would have to
serve “state time” since he had been given a “sweet deal”
in exchange for testifying against Appellant, where Mr.
Toro’s attorney was not present, and where Mr. Toro had
already been held in the jail beyond his release date.
ii. Filing a suppression motion on the day of jury
selection, barring Appellant from calling key witnesses on
his behalf?
3. Whether Appellant was denied his constitutionally-
guaranteed right to due process when Appellant was subject to
selective prosecution, where the business owners selling
identical products were not subject to criminal prosecution, but
rather, given the opportunity to turn-over their products to the
authorities?
(Appellant’s Brief, at 4-5).
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In reviewing the propriety of an order granting or denying PCRA relief,
this Court is limited to determining whether the evidence of record supports
the determination of the PCRA court, and whether the ruling is free of legal
error. See Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003).
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. See Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super.
2003), appeal denied, 839 A.2d 352 (Pa. 2003).
However, before we may review Appellant’s claims on the merits, we
must determine if his petition was timely filed. “It is a well-settled principle
of law that if a PCRA petition is untimely filed, a court lacks jurisdiction to
address the claims contained therein.” Commonwealth v. Boyd, 923 A.2d
513, 515 (Pa. Super. 2007), appeal denied, 932 A.2d 74 (Pa. 2007) (citing
Commonwealth v. Gamboa–Taylor, 753 A.2d 780 (Pa. 2000).
Pursuant to 42 Pa.C.S.A. § 9545(b)(3), “a judgment 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.”
[W]hen a PCRA petition is not filed within one year of the
expiration of direct review, or not eligible for one of the three
limited exceptions, or entitled to one of the exceptions, but not
filed within 60 days of the date that the claim could have been
first brought, the trial court has no power to address the
substantive merits of a petitioner’s PCRA claims.
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Gamboa-Taylor, supra at 783.
The PCRA provides three exceptions to the time-bar:
(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
(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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the claim
could have been presented.
42 Pa.C.S.A. § 9545(b)(1), (2). “It is the petitioner’s burden to allege and
prove that one of the timeliness exceptions applies.” Commonwealth v.
Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916
(2008).
Here, as already noted, after Appellant entered his nolo pleas, the
court sentenced him on September 25, 2013. Because he did not file a
direct appeal, his judgment of sentence became final thirty days later, on
October 25, 2013, when the time to file an appeal expired. Therefore,
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Appellant had one year, or until October 25, 2014, to file a timely PCRA
petition. Accordingly, his instant petition, filed March 9, 2015, is untimely
on its face unless he pleads and proves one of the three statutory exceptions
to the time bar.
Appellant maintains that he meets an exception to the time-bar. (See
Appellant’s Brief, at 11). Contrary to his contention, none of the claims he
raises satisfy any of the three statutory exceptions. In particular, Appellant
claims newly discovered facts. (See Appellant’s Brief, at 24).
However, on independent review of Appellant’s somewhat discursive
argument, it becomes evident that the alleged newly discovered facts are no
more, at best, than Appellant’s purportedly evolving perception of the effect
of various evidentiary and length of trial rulings made by the trial court prior
to the plea. (See e.g., id. at 28) (“Furthermore, the aforementioned
situation [exclusion of police report containing supposed legal conclusions on
key issues of case] is tantamount to newly- or after-discovered evidence as
Appellant was not aware that he was potentially permitted to question [the
police chief] regarding his report, had he opted to take his case to trial.”)
(emphasis added).
First, it is self-evident that trial court rulings made prior to the plea
were not “unknown” to Appellant, who was present at his own proceedings,
including the pre-trial hearing. At the very least, e.g., where the claim is
premised on counsel sidebar conferences with the trial judge, if the facts
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were not already known by Appellant, they could have been learned through
the exercise of due diligence by Appellant’s immediate direct inquiry with
plea counsel.
Furthermore, our Supreme Court has held that “the [after-discovered
facts] exception does not apply where the petitioner merely alleges that
more competent counsel would have presented other claims based on a
better evaluation of the facts available to him or her at the time of trial[.]”
Gamboa-Taylor, supra at 786. (citation omitted).
Appellant alternatively claims he was “essentially abandoned” by
counsel. (Appellant’s Brief, at 25) (emphasis added). Yet, by his own
admission, “[w]hile [p]lea [c]ounsel continually supported Appellant’s
decision to file a PCRA [p]etition, he had never advised Appellant of the
deadline in which the [p]etition must be filed.” (Id. at 24) (emphasis
added). Neither of these contradictory assertions supports a claim of newly
discovered facts. Nor are they supported by reference to controlling
authority.
Appellant argues that because he filed his pro se petition within sixty
days of receiving what he deems to be “final discovery” from plea counsel,
he complied with the sixty-day rule. (Id. at 25). However, Appellant fails to
identify any new facts received by him through this ongoing process which
were not previously known to him or discoverable by the exercise of due
diligence.
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None of the other various complaints about the pre-trial rulings raise a
cognizable exception to the time-bar. The PCRA court properly determined
that Appellant’s petition was untimely with no statutory exception to the
time-bar proven.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
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