J-S14040-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS CALDWELL :
:
Appellant : No. 1516 EDA 2017
Appeal from the PCRA Order April 25, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0404851-2002
BEFORE: OTT, J., McLAUGHLIN, J., and RANSOM*, J.
MEMORANDUM BY RANSOM, J.: FILED APRIL 26, 2018
Appellant, Thomas Caldwell, appeals from the order entered April 25,
2017, denying as untimely his first petition for collateral relief filed under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In its opinion, the PCRA court fully and correctly sets forth the relevant
facts and procedural history of this case. See PCRA Court Opinion (PCO),
6/29/17, at 1-2. For the convenience of the reader, we briefly note that, on
October 21, 2003, Appellant pleaded guilty to robbery and criminal
conspiracy,1 committed while Appellant was on parole,2 and he was sentenced
to four to ten years of incarceration. In November 2016, Appellant pro se filed
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1 18 Pa.C.S. § 3701 and § 903, respectively.
2 A parole violation was pending at the time Appellant pleaded guilty in the
current matter.
* Retired Senior Judge assigned to the Superior Court.
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a PCRA petition; following notice pursuant to Pa.R.Crim.P. 907, the PCRA court
dismissed Appellant’s PCRA petition as untimely in April 2017. This appeal
followed.
Appellant raises the following issues for our review:
I. Did the PCRA court err when it ruled that Appellant’s PCRA
petition was untimely, when in fact Appellant had pled and proved
that he is entitled to this otherwise untimely petition based on
newly discovered evidence, evidence that if presented at the time
of sentencing would have changed the outcome of his sentencing,
and would have entitled him to a lesser sentence?
II. Is Appellant serving an illegal sentence because his plea
agreement is being breached? Specifically, has the sentencing
court imposed a sentence that it knew or should have known,
could not be enforced? and, therefore, does it constitute an
agreement that is illegal in that it violates the spirit and intent in
which it was given entitling Appellant to the specific performance
of the agreement?
III. Did defense counsel render ineffective assistance of counsel
when he knew or should have known that the sentencing
agreement that he compelled Appellant to enter into was an illegal
and unlawful sentence?
Appellant’s Brief at 4.3
In reviewing an appeal from the denial of PCRA relief, “this Court is
limited to ascertaining whether the evidence supports the determination of
the PCRA court and whether the ruling is free of legal error.” Commonwealth
v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted).
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3 In November 2017, the Commonwealth requested an extension of time to
file a brief with this Court. On November 30, 2017, we granted the
Commonwealth’s request and ordered that it must file its brief by January 26,
2018. As of the date of this memorandum, the Commonwealth has failed to
file a brief.
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Appellant first contends:
The PCRA court err when it ruled that Appellant’s PCRA petition
was untimely, when in fact Appellant had pled and proved that he
is entitled to this otherwise untimely petition based on newly
discovered evidence, evidence that if presented at the time of
sentencing would have changed the outcome of his sentencing,
and would have entitled him to a lesser sentence.
Appellant’s Brief at 8.
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA must be filed within one year
of the date the judgment of sentence is final, unless the petition alleges and
the petitioner proves one of the three exceptions to the time limitations for
filing the petition set forth in Section 9545(b) of the statute. See 42 Pa.C.S.
§ 9545(b).4
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4 The three exceptions to the timeliness requirement are:
(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. § 9545(b)(1).
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Here, the PCRA court concluded that it lacked jurisdiction over
Appellant’s PCRA petition due to Appellant’s untimeliness and to his failure to
satisfy an exception to the PCRA’s time bar. After a thorough review of the
record, Appellant’s brief, the applicable law, and the well-reasoned opinion of
the Honorable Scott DiClaudio, we agree that Appellant has failed to establish
any exceptions to the PCRA’s jurisdictional time bar. The PCRA court opinion
properly disposed of that question, as follows:
In the instant matter, Appellant’s sentence became final on
November 20, 2003, thirty days after Appellant was sentenced, as
he did not file a timely post-sentence motion or a timely direct
appeal. However, Appellant filed his pro se PCRA petition on
November 29, 2016, over thirteen years after his sentence
became final. Therefore, facially, the Appellant’s petition is
untimely absent a valid PCRA timeliness exception asserted within
60 days of the date the claim could have been presented.
Appellant untenably asserted the after-discovered fact timeliness
exception in lodging his PCRA claims of ineffectiveness of counsel
and sentence illegality. The after-discovered “fact” upon which
Appellant relies is the contention that, upon his inquiry to the
prison in 2016, he was first informed that his guilty plea sentence
would commence after he served his parole violation sentence, as
opposed to on October 21, 2003, the effective date of sentencing.
Appellant asserts that the court commitment paperwork noted
that the effective date of sentencing was October 21, 2003, and
therefore, serving his parole violation sentence prior to his guilty
plea sentence served as an illegal sentence and that his counsel
was ineffective for failing to advise him of this sentencing
sequence.
Prior to entering a guilty plea in 2003, Appellant signed a guilty
plea colloquy acquiescing that his guilty plea was not negotiated,
that there was no agreement as to Appellant’s sentence, that he
was on parole and that the plea conviction would serve as a parole
violation. Therefore, Appellant was aware of the possibility of
serving an additional parole violation sentence in 2003 and his
2016 PCRA filing is exceedingly untimely.
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Assuming arguendo that Appellant’s counsel did not advise him
that Appellant would have to serve his parole violation sentence
prior to his new sentence, and that the prison’s 2016 disclosure
constitutes . . . an after-discovered fact as it does not pertain to
the determination of Appellant’s guilt or innocence, Appellant
could have ascertained this information by the exercise of due
diligence at the time of his parole violation hearing which occurred
years prior to the filing of his PCRA petition in 2016.
Consequently, Appellant failed to aver and prove a delineated
statutory timeliness exception within 60 days of the date the claim
could have been presented. Moreover, Appellant filed his PCRA
petition on November 29, 2016, exceeding sixty days from the
date the prison communicated with the Appellant on
September 28, 2016 discussing the sentencing issue.
PCO at 4-5. Thus, there is no merit to the first issue Appellant has raised on
appeal.
As we conclude that Appellant’s PCRA petition was untimely, we lack
jurisdiction to consider Appellant’s remaining issues. See Hernandez, 79
A.3d at 651. Having discerned no abuse of discretion or error of law, we affirm
the order below.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/18
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