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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOEL A. JAMES
Appellant No. 1698 EDA 2016
Appeal from the PCRA Order May 4, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004093-2011
BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 27, 2016
Appellant, Joel A. James, appeals from the order denying his petition
for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The PCRA court summarized the relevant facts and procedural history
as follows.
On November 21, 2011, [James] entered into a negotiated
guilty plea to a Pharmacy Act Violation for obtaining drugs by
fraud (M3). The sentencing judge . . . sentenced [James]
pursuant to the plea agreement, 2-12 months of incarceration.
The minimum sentence was to be served on electronic home
monitoring, with the remaining balance of the sentence to be
supervised by the Substance Abuse Unit of the Delaware County
Department of Probation and Parole. As no appeal was filed, the
judgment of sentence became final on December 21, 2011.
[James] was found to be in violation of his parole and a
Gagnon II hearing was conducted on December 14, 2012.
[James] was ordered to serve his full back time with immediate
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parole, and to complete outpatient treatment. . . . [James]
completed serving his sentence on this matter in 2013. . . .
In August of 2015, counsel for [James] filed “Motion for
Nunc Pro Tunc Reconsideration of Sentence.” Counsel alleged
that as a result of his plea in 2011, [James] was being detained
by immigration authorities and faced deportation. [The PCRA
court] conducted oral argument on October 2, 2015, and denied
the motion via [o]rder on October 16, 2015.
On November 2, 2015, [James filed] a pro se PCRA
petition alleging that counsel was ineffective for failing to notify
him of the possible immigration consequences as a result of
entering the negotiated guilty plea on November 21, 2011. [The
PCRA court] appointed PCRA counsel who filed an amended
petition on February 8, 2016. The Commonwealth filed its
response on February 17, 2016, arguing that the petition was
untimely and that [James] had completed his sentence and thus
is not eligible for relief under the [PCRA].
PCRA Court Opinion, 7/7/16. The PCRA court adopted both of the
Commonwealth’s arguments and denied James’s petition. This timely appeal
followed.
On appeal, James contends that he asserted a valid claim and
therefore the PCRA court erred in dismissing his PCRA petition. See
Appellant’s Brief, at 10. Specifically, James alleges that based upon the
United States Supreme Court’s ruling in Padilla v. Kentucky, 599 U.S. 356
(2010), his guilty plea counsel rendered ineffective assistance because
counsel failed to inform him of the potential immigration consequences of his
guilty plea. See id. at 9.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
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supported by the evidence of record and is free of legal error. See
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. See Commonwealth v. Carr, 768 A.2d
1164, 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold
a hearing on the petition if the PCRA court determines that petitioner’s claim
is patently frivolous and is without a trace of support in either the record or
from other evidence. See Commonwealth v. Jordan, 772 A.2d 1011, 1014
(Pa. Super. 2001).
Prior to addressing James’s substantive claim, we must first determine
whether the PCRA court correctly dismissed James’s petition without a
hearing based upon its conclusions that: 1) it lacked jurisdiction to entertain
James’s pro se PCRA petition; and 2) that James’s petition was untimely
filed.
Eligibility for relief under the PCRA is governed by 42 Pa.C.S.A. §
9543, which 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:
(1) That the petitioner has been convicted of a crime under
the laws of this Commonwealth and is:
(i) currently serving a sentence of imprisonment,
probation or parole for the crime;
(ii) awaiting execution of a sentence of death for the
crime; or
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(iii) serving a sentence which must expire before the
person may commence serving the disputed
sentence.
See also Commonwealth v. Descardes, 136 A.3d 493, 501-503 (Pa.
2016).
James does not meet any of the three eligibility requirements. He
completed his sentence in 2013. He is therefore ineligible for PCRA relief.
See Commonwealth v. Turner, 80 A.3d 754, 767 (Pa. 2013) (“[O]ur
legislature chose not to create any statutory entitlement to collateral review
for defendants who have completed their sentences.”)
James contends that because he is being detained at an Immigration,
Customs, and Enforcement center as a result of his guilty plea, he has not
yet completed his sentence. However, this argument is woefully
underdeveloped and James does not support his argument with any case
law. Therefore, we will not consider it. See, e.g., Banfield v. Cortes, 110
A.3d 155, 176 n. 11 (Pa. 2015) (citation omitted) (“[w]here an appellate
brief fails to provide any discussion of a claim without citation to relevant
authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived”).
Further, we note that even if we were to find that James was eligible
to file for PCRA relief, the PCRA court would have been correct in denying
James’s petition as untimely. The timeliness of a post-conviction petition is
jurisdictional. See Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa.
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Super. 2013). Generally, a petition for relief under the PCRA must be filed
within one year of the date the judgment is final, unless the petition alleges
and proves an exception to the time for filing the petition. See 42 Pa.C.S.A.
§ 9545(b)(1)(i)-(iii). A PCRA petition invoking one of those statutory
exceptions must “be filed within sixty days of the date the claims could have
been presented.” Hernandez, 79 A.3d at 651-652 (citing 42 Pa.C.S.A. §
9545(b)(2)). Exceptions to the time bar must be pled in the petition, and
may not be raised for the first time on appeal. See Commonwealth v.
Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a)
(providing that issues not raised before the lower court are waived and
cannot be raised for the first time on appeal).
James’s judgment of sentence became final on December 21, 2011,
when the thirty-day time period for filing an appeal to this Court expired.
See 42 Pa.C.S.A. § 9545(b)(3). Therefore, James needed to file the petition
at issue by December 20, 2012 in order for it to be timely. 1 He filed the
instant petition almost three years later; it is patently untimely unless James
has satisfied the burden of pleading and proving one of the timeliness
exceptions.
Though James argues in his appellate brief that his PCRA petition
meets the newly discovered constitutional right exception because of the
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1
The year 2012 was a leap year. Therefore, December 20, 2012 constitutes
one year from the date James’s judgment of sentence was finalized.
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United States Supreme Court’s ruling in Padilla, he failed to even plead this
exception in either his PCRA petition or in his amended PCRA petition. By
failing to plead this exception in his petition, he has waived all claims that an
enumerated exception applies to his PCRA petition. See Burton, 936 A.2d at
525; Pa.R.A.P. 302(a).
In sum, James was ineligible to file for PCRA relief. and even if he was
eligible for relief, his PCRA petition was untimely, and he waived any
exception to the timeliness requirements of the PCRA. Thus, the PCRA court
properly concluded that it lacked jurisdiction and correctly denied James’s
post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/27/2016
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