J-S73005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
JOSHUA MICHA GIANQUITTO :
: No. 849 MDA 2017
Appellant
Appeal from the PCRA Order May 8, 2017
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0003139-2015
BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER*, J.
DISSENTING MEMORANDUM BY OLSON, J.: FILED MARCH 23, 2018
As I am unable to agree with my learned colleagues’ construction and
application of the newly discovered facts exception set forth at 42 Pa.C.S.A.
§ 9545(b)(1)(ii), I am compelled to dissent.
Appellant concedes that the instant Post-Conviction Relief Act (PCRA)
petition is untimely. Nevertheless, he asserts, and the Majority agrees, that
“finding out that the [Department of Corrections (DOC)] could not implement
the sentence imposed by the trial court constituted a newly-discovered fact.”
See Majority Memorandum at 5-7. The Majority’s conclusion is contrary to
the statutory language and interpretive case law relating to § 9545(b)(1)(ii).
I briefly recite the statutory provisions that govern this case.
The PCRA’s timeliness requirement is mandatory and jurisdictional
in nature and [no] court may [] ignore it in order to reach the
merits of the petition. [Commonwealth v. Brown, 943 A.2d
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S73005-17
264, 267 (Pa. 2008).] A PCRA petition, including a second or
subsequent petition, [must] be filed within “one year of the date
of the judgment becomes final, unless the petition alleges and the
petitioner proves that” one of the following three exceptions
applies:
(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). A PCRA petition invoking one of the
three above exceptions must “be filed within 60 days of the date
the claim could have been presented.” 42 Pa.C.S.A. § 9545
(b)(2).
PCRA Court Opinion, 4/19/17, at 2-3.
Appellant’s contention is that the newly discovered fact exception found
at § 9545(b)(1)(ii) should apply in this case. Specifically, Appellant claims
that he first learned that the sentence he received at docket no. 3139 CR 2015
was illegal under 61 Pa.C.S.A. § 6138(a)(5)(i)1 when he received his DC16E
____________________________________________
1 Section 6138 provides that Appellant’s new sentence at docket no. 3139 CR
2015 could not run concurrently with the time he owed on state parole. In
relevant part, it states:
-2-
J-S73005-17
status summary on or around September 8, 2016. Appellant’s Brief at 12.
Appellant relies on the decision of this Court in Commonwealth v. Kelly, 136
A.3d 1007 (Pa. Super. 2016) as support for his claim.
Our Supreme Court recently stated that the timeliness exception for
newly discovered facts “requires that the ‘facts' upon which such a claim is
predicated must not have been known to appellant, nor could they have been
ascertained by due diligence.” Commonwealth v. Chmiel, 2017 WL
5616233, *5 (Pa. 2017), quoting, Commonwealth v. Lambert, 884 A.2d
848, 852 (Pa. 2005). The Court further clarified that, “to fall within this
exception, the factual predicate of the claim must not be of public record and
must not be facts that were previously known but are now presented through
a newly discovered source.” Chmiel, 2017 WL 5616233, *5, quoting,
Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013).
Appellant is not entitled to relief under the present circumstances. Two
factual components underlie Appellant’s current claim. The first is his status
as a parolee at the time of sentencing and the second is the application of
____________________________________________
(5) If a new sentence is imposed on the parolee, the service of
the balance of the term originally imposed by a Pennsylvania court
shall precede the commencement of the new term imposed in the
following cases:
(i) If a person is paroled from a State correctional institution
and the new sentence imposed on the person is to be served
in the State correctional institution.
61 Pa.C.S.A. § 6138(a)(5)(i).
-3-
J-S73005-17
§ 6138(5)(i) to the sentence imposed by the trial court. Appellant concedes
his awareness of his status as a parolee as of the date the trial court imposed
its sentence; hence, this “fact” cannot be considered “newly discovered” on
September 8, 2016. The application of § 6138(a)(5)(i) also cannot serve as
the basis for relief in this case. Section 6138(a)(5)(i) was in effect at the time
Appellant received his sentence, when he was represented by counsel. Thus,
its application as a public law was ascertainable through reasonable diligence.
See Commonwealth v. Shiloh, 170 A.3d 553, 558-559 (Pa. Super. 2017)
(presumption that public records cannot serve as newly discovered facts
applies where petitioner is represented by counsel). Appellant cannot invoke
§ 9545(b)(1)(ii) by relying upon facts that were either known to him or
ascertainable through due diligence.
Kelly does not alter this assessment. In that case, Kelly, who was on
state parole, pled guilty to several offenses in exchange for a negotiated
sentence, including a specific effective date for his new sentence. Kelly, 136
A.3d at 1010. While incarcerated, Kelly learned that the effective date of his
new sentence would be nearly two years later because of the application of
§ 6138(a)(5)(i). Id. at 1011. As a result, Kelly filed a timely petition for
collateral relief alleging that counsel was ineffective for negotiating a plea that
was unenforceable and that the sentence he received pursuant to the plea
was illegal. Id. at 1012. We granted relief on both grounds, finding that
counsel’s knowledge of the Parole Act was deficient and that the sentence
-4-
J-S73005-17
imposed by the court was unlawful because it violated § 6138(a)(5)(i). Id. at
1014.
Kelly, in fact, supports my view that Appellant’s claim lacks merit. In
reviewing Kelly’s timely petition, we said that plea counsel was ineffective
because counsel failed to apply § 6138(a)(5)(i), an existing provision of the
Parole Act, to the sentencing circumstances that confronted a known parolee.
We also said that the sentence Kelly received was illegal because
§ 6138(a)(5)(i) placed Kelly’s negotiated sentence beyond the power of the
trial court to impose. The same circumstances are present in the instant case
and Appellant’s subsequent discovery does not convert known and/or
knowable facts into unknown ones. Put differently, even if Appellant
possesses valid claims centered on counsel’s ineffectiveness and the illegality
of his sentence, he has come forward with no new facts to establish jurisdiction
before the PCRA court. See Commonwealth v. Lesko, 15 A.3d 345, 367
(Pa. 2011) (“the fact that a petitioner's claims are couched in terms of
ineffectiveness will not save an otherwise untimely petition from the
application of the time restrictions of the PCRA”); see also Commonwealth
v. Holmes, 933 A.2d 57, 60 (Pa. 2007) (“Although 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 thereto[.]”) (citation omitted).
The Majority’s effort to shoehorn this case into the newly discovered
facts exception found at § 9545(b)(1)(ii) is unpersuasive. The Majority faults
the PCRA court for its suggestion that § 6138(a)(5)(i) constitutes the newly
-5-
J-S73005-17
discovered fact. See Majority Memorandum at 5. Instead, the Majority cites
the DOC’s September 8, 2016 sentence status summary as the relevant “new”
fact because it informed Appellant of his maximum date. Id. In my view, the
information conveyed in the document – Appellant’s maximum date – is not a
“fact” but simply a calculation that relies exclusively on the application of
§ 6138(a)(5)(i) to a known parolee receiving a sentence. Since all of this
baseline information was known or knowable at the time of Appellant’s
counseled sentencing proceeding, it does not trigger the exception at
§ 9545(b)(1)(ii). The DOC’s September 8, 2016 communication is nothing
more than a newly discovered source of known or available facts.
I also cannot agree with the Majority’s declaration that the DOC’s
calculation constituted a newly discovered fact for purposes of
§ 9545(b)(1)(ii) because “[Appellant] did not know this information” 2 and plea
counsel, the district attorney, and the trial court were unaware of the need to
consider § 6138(a)(5)(i) in fixing punishment for a known parolee such as
Appellant. See Majority Memorandum at 6. I am inclined to agree that these
regrettable circumstances engender a measure of sympathy for Appellant,
particularly since he would be entitled to relief if he had asserted his
____________________________________________
2 This is a questionable assertion under the circumstances. Appellant admits
that he knew he was on parole at the time of sentencing. Therefore, the only
other information he needed to reach the same conclusion as the DOC was
the application of § 6138(a)(5)(i), which was clearly in the public domain and
ascertainable through reasonable diligence at the time of Appellant’s
counseled sentencing proceeding.
-6-
J-S73005-17
ineffectiveness and legality of sentence claims in a timely manner.
Nevertheless, no amount of misfeasance by bench and bar, nor shock,
surprise, disappointment, or dismay on the part of a petitioner, can overcome
the clear statutory command that only newly discovered and previously
unavailable facts trigger the timeliness exception set forth at
§ 9545(b)(1)(ii). See Lesko, supra.; see also Holmes, supra. Because
the Majority effectively treats counsel’s ineffectiveness as grounds for invoking
the newly discovered facts exception, it is unsurprising there is no case law to
support its reading of § 9545(b)(1)(ii).3
____________________________________________
3 The Majority relies on Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017)
to suggest that Appellant was entitled to a hearing to determine whether he
could have discovered § 6138(a)(5)(i) in the prison law library. See Majority
Memorandum at 6 n.4. Burton, however, is distinguishable and has only
questionable application under the present circumstances.
Shawn Burton and Melvin Goodwine were tried together in the Court of
Common Pleas of Allegheny County. On September 28, 1993, Burton was
convicted of first-degree murder and conspiracy and received mandatory life
imprisonment; Goodwine was convicted of conspiracy and received five to ten
years’ incarceration. On May 30, 2013, Burton received a letter from an
attorney with the Pennsylvania Innocence Project enclosing an expungement
motion filed by Goodwine on July 29, 2009. Goodwine’s motion asserted that
he committed the killing in self-defense, that he was told not to raise that
defense at trial, and that an innocent man had been imprisoned for a crime
that he committed. Citing receipt of Goodwine’s expungement motion on May
30, 2013, Burton filed a PCRA petition on July 11, 2013 alleging that
Goodwine’s motion contained newly discovered facts under § 9545(b)(1)(ii).
In considering whether Burton acted diligently in the four years that passed
between Goodwine’s 2009 filing and Burton’s 2013 petition for collateral relief,
our Supreme Court held that the presumption that public information cannot
be deemed unknown for purposes of § 9545(b)(1)(ii) should not be applied to
pro se incarcerated petitioners. Burton, 158 A.3d at 638.
-7-
J-S73005-17
Because Appellant’s claims were patently untimely, and not subject to a
statutory exception to the PCRA’s timeliness requirements, I would hold that
the PCRA court correctly dismissed Appellant’s petition for lack of jurisdiction.
Thus, I respectfully dissent.
____________________________________________
There are substantial and compelling differences between Burton and the
present case. Burton argued that the public record presumption should not
apply where an incarcerated, pro se prisoner failed to act sooner on
information that did not exist until 16 years after his conviction and long after
he lost the benefit of counsel. In this case, however, there is no dispute that
Appellant had the assistance of counsel at his sentencing hearing when all of
the facts needed to establish the unenforceability of the negotiated sentence
(i.e., Appellant’s parole status and § 6138(a)(5)(i)) were known or readily
obtainable. In Burton, then, the contested issue centered upon whether the
petitioner acted diligently in acquiring previously unavailable facts alleged in
Goodwine’s expungement papers. Here, the dispute focuses on whether
DOC’s September 8, 2016 communication contained any “new” facts at all, or
whether it should simply be viewed as a newly acquired source of known or
ascertainable facts. Since I do not believe that DOC conveyed any “new”
facts, I would not reach the issue of whether Appellant acted diligently in filing
the instant petition.
-8-