Com. v. Naples. D.

J-S27012-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOMINIC NAPLES :
:
Appellant : No. 3649 EDA 2016

Appeal from the PCRA Order October 19, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0701681-2001,
CP-51-CR-0706161-2001, CP-51-CR-0712461-2001,
CP-51-CR-0906271-2001

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY SHOGAN, J.: FILED JULY 19, 2018

Appellant, Dominic Naples, appeals pro se from the order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541–9546. We affirm.

In Appellant’s direct appeal nunc pro tunc, we summarized the initial

procedural history:

On July 10, 2001, Appellant entered an open plea of nolo
contendere in the matter designated CP 0011-0832, on the charge
of Arson.[1] On October 3, 2001, he also entered a plea of nolo
contendere in the matter designated [CP 51-CR-0701681-2001,
CP-51-CR-0706161-2001] to two counts of Aggravated Assault,
Escape, and Burglary. Finally, on April 16, Appellant entered an
Open Guilty Plea in the matter designated [CP-51-CR-0712461-
____________________________________________

1 The direct appeal nunc pro tunc encompassed Appellant’s plea to arson.
The arson charge is not at issue in Appellant’s current PCRA petition.
Commonwealth Brief at 2.
J-S27012-18

2001] and [CP-51-CR-0906271-2001], to Rape, Attempted Rape,
two counts of Involuntary Deviate Sexual Intercourse [(“IDSI”)],
two counts of Corrupting of the Morals of a Minor and Kidnapping.
Following an evaluation by the Sexual Offenders Assessment
Board . . . , it was determined that Appellant did not meet the
criteria to be classified as a Sexually Violent Predator . . . , and on
August 20, 2002, Appellant was sentenced . . . to an aggregate
term of twenty-two (22) to forty-five (45) years of incarceration.

Commonwealth v. Naples, 931 A.2d 50, 1983 EDA 2005 (Pa. Super. 2007)

(unpublished memorandum at 1–2). Appellant did not file a direct appeal. On

July 1, 2003, he filed his first PCRA petition. Appointed counsel filed an

Amended Petition and a Supplemental Amended Petition, following which the

PCRA court granted Appellant’s request to reinstate his post-sentence rights

nunc pro tunc on February 10, 2005. Appellant filed post-sentence motions

nunc pro tunc, which were denied, followed by a notice of appeal nunc pro

tunc. We affirmed Appellant’s judgment of sentence on June 13, 2007, and

our Supreme Court denied further review on December 18, 2007. Id., appeal

denied, Commonwealth v. Naples, 939 A.2d 890, 329 EAL 2007 (Pa. 2007).

Appellant timely filed a PCRA petition on July 16, 2008.2 The PCRA court

appointed counsel, who filed amended and supplemental amended PCRA

petitions. Following an evidentiary hearing, the PCRA court dismissed

____________________________________________

2 Because Appellant’s first PCRA petition resulted in the restoration of his
direct appeal rights, the second PCRA petition properly was treated as his first
petition. See Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super.
2013) (“[W]hen a PCRA petitioner’s direct appeal rights are reinstated nunc
pro tunc in his first PCRA petition, a subsequent PCRA petition will be
considered a first PCRA petition for timeliness purposes.”).

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Appellant’s PCRA petition on June 8, 2012. Appellant filed a timely appeal to

this Court. We affirmed the dismissal of Appellant’s PCRA petition on

September 24, 2013, and our Supreme Court denied further review.

Commonwealth v. Naples, 87 A.3d 390, 1842 EDA 2012 (Pa. Super. 2013)

(unpublished memorandum), appeal dismissed, Commonwealth v. Naples,

92 A.3d 811, 640 EAL 2013 (Pa. 2014).

Appellant filed the instant pro se PCRA petition, effectively his second,

on July 14, 2014. He filed a pro se supplemental petition on March 18, 2015,

and after obtaining leave of court, a pro se supplemental amended petition on

March 1, 2016. Inexplicably, the PCRA court appointed counsel, 3 who

ultimately filed, on July 28, 2016, a petition to withdraw as counsel and a no-

merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc). The PCRA court agreed with counsel that the PCRA petition was

untimely and no exceptions applied and issued a notice of intent to dismiss

the petition without a hearing pursuant to Pa.R.Crim.P. 907. Order, 9/19/16.

____________________________________________

3 Counsel need not have been appointed in this second PCRA proceeding, as
this is not a first-time petition in which Appellant has a rule-based right to
counsel. See Pa.R.Crim.P. 904(C) (“[T]he judge shall appoint counsel to
represent the defendant on the defendant’s first petition for post-conviction
collateral relief.”)(emphasis added); Commonwealth v. Figueroa, 29 A.3d
1177, 1181 (Pa. Super. 2011) (it is undisputed that first-time PCRA petitioners
have a rule-based right to counsel).

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Appellant filed responses to the PCRA court’s Rule 907 notice on October 14,

2016, and October 19, 2016. Response, 10/14/16; Response, 10/19/16. The

PCRA court granted counsel’s request to withdraw as counsel and dismissed

the PCRA petition on October 19, 2016. Order, 10/19/16. Appellant filed a

timely notice of appeal;4 both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

We summarized the facts of the crimes in the nunc pro tunc direct

appeal, as follows:

The facts underlying the instant cases are as follows: . . .
Appellant . . . cut the gas line directly linked to the stove in his
apartment, which caused a massive explosion and fire, and
$54,000 worth of property damage. [CP 51-CR-0701681-2001,
and CP-51-CR-0706161-2001] involve Appellant’s attempted
escape from his preliminary hearing and subsequent assault of
two law enforcement officers. [CP-51-CR-0906271-2001]
____________________________________________

4 On June 21, 2017, the Superior Court Prothonotary issued a rule to show
cause why the appeal should not be quashed, noting that the PCRA court
entered four separate orders dismissing the PCRA petition, and Appellant, on
November 15, 2016, filed one pro se notice of appeal listing four trial court
docket numbers. Appellant filed two responses. Thereafter, on August 21,
2017, this Court filed a per curiam order stating, in part, that the amended
notices of appeal attached to Appellant’s pro se Motion for Permission to File
Amended Notice of Appeal were “hereby accepted” and directing our
Prothonotary to forward copies of the amended notices of appeal to the PCRA
court and Office of Judicial Records. Order, 8/21/17.

For the reasons stated in Appellant’s response, and in light of the filing
of the amended notices of appeal, we conclude the appeal properly is before
us. We further note that Commonwealth v. Walker, 2018 WL 2448643,
___ A.3d ___ (Pa. 2018)(filed June 1, 2018), where our Supreme Court held
that a single notice of appeal does not suffice for appeals from multiple
dockets, is not applicable. The Walker Court held that its decision shall apply
prospectively, and it was filed ten months after this Court’s acceptance of the
amended notices of appeal in this case.

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involved Appellant’s luring of the nine year old victim into an
abandoned factory. Once inside, Appellant had the victim take off
her clothes and he removed his own pants. Appellant then laid on
top of the nine-year-old and attempted to place his penis into her
vagina. Finally, [CP-51-CR-0712461-2001] involved the [r]ape of
the twelve-year-old victim. Appellant was a friend of the victim’s
brother, and while driving the girl to school, Appellant drove to a
secluded path and attempted to kiss her. When the victim
refused, Appellant threatened her that he had a razor, and
proceeded to place his penis into her anus.

Naples, 1983 EDA 2005 (unpublished memorandum at 2).

Preliminarily, we note that Appellant has failed to comply with our

appellate rules in a significant way. “Appellate briefs must conform materially

to the requirements of the Pennsylvania Rules of Appellate Procedure, and this

Court may quash or dismiss an appeal if the defect in the brief is substantial.”

Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super. 2017);

Pa.R.A.P. 2101. “Although this Court is willing to construe liberally materials

filed by a pro se litigant, a pro se appellant enjoys no special benefit.

Accordingly, pro se litigants must comply with the procedural rules set forth

in the Pennsylvania Rules of the Court.” Id.

Appellant’s brief fails to comply with Pa.R.A.P. 2116(a). That rule

requires a Statement of Questions Involved, and notably, demands that “[n]o

question will be considered unless it is stated in the statement of questions

involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a). Despite this

admonition, we have chosen to overlook the defect in this case and consider

the claims that we are able to discern from the argument section of Appellant’s

brief.

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When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)). This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016). The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).

In order to be considered timely, a first, or any subsequent PCRA

petition, must be filed within one year of the date the petitioner’s judgment

of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). The PCRA’s time-for-

filing requirements are mandatory and jurisdictional in nature, and a court

may not ignore them in order to reach the merits of the petition.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). For purposes

of the PCRA, a judgment of sentence “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.” 42 Pa.C.S. § 9545(b)(3).

As noted supra, when a PCRA petitioner’s direct appeal rights are

reinstated nunc pro tunc in his first PCRA petition, as here, a subsequent PCRA

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petition will be considered a first PCRA petition for timeliness purposes.

Turner, 73 A.3d at 1286. In effect, the time for filing a PCRA petition is

“restarted.” Id. Here, we affirmed Appellant’s judgment of sentence in his

nunc pro tunc appeal on June 13, 2007, and the Pennsylvania Supreme Court

denied further review on December 18, 2007. Naples, 1983 EDA 2005

(unpublished memorandum), appeal denied, Naples, 329 EAL 2007. The time

for seeking review in the Supreme Court of the United States expired on March

18, 2008,5 ninety days after the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal on December 18, 2007. 42 Pa.C.S.

§ 9545(b)(3); U.S.Sup.Ct.R. 13. Thus, Appellant’s judgment of sentence

became final on March 18, 2008, and in order to be timely under the PCRA,

Appellant was required to file his PCRA petition on or before March 18, 2009.

Because Appellant did not file the instant PCRA petition until July 14, 2014,

more than six years after his judgment of sentence became final, the petition

is patently untimely.

If a petitioner does not file a timely PCRA petition, his petition

nevertheless may be received under three limited exceptions to the timeliness

____________________________________________

5 The ninetieth day fell on Sunday, March 17, 2008; however, when the last
day of any time period referred to in a statute falls on a Sunday, we omit that
day from the computation. 1 Pa.C.S. § 1908. Commonwealth v. Davis, 86
A.3d 883 (Pa. Super. 2014).

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requirements of the PCRA. 42 Pa.C.S. § 9545(b)(1). 6 If a petitioner asserts

one of these exceptions, he must file his petition within sixty days of the date

that the exception could be asserted. 42 Pa.C.S. § 9545(b)(2). In order to

be entitled to the exceptions to the PCRA’s one-year filing deadline, “the

petitioner must plead and prove specific facts that demonstrate his claim was

raised within the sixty-day time frame” under section 9545(b)(2).

Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2001).

Appellant first attempts to raise legality challenges to his sentences.

Appellant’s Brief at 14–20. “[A] legality of sentence claim may nevertheless

be lost should it be raised . . . in an untimely PCRA petition for which no time-

bar exception applies. . . .” Commonwealth v. Miller, 102 A.3d 988, 995

(Pa. Super. 2014). Appellant initially avers that the sentencing orders conflict

____________________________________________

6 The 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)(i), (ii), and (iii).

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with the trial court’s statements at the sentencing hearing, and he did not

realize the trial court had not imposed mandatory minimum sentences.

Appellant’s Brief at 14.

We reject his claim that this qualifies as a previously unknown fact.

Appellant’s Brief at 14. The sentencing transcript and the sentencing orders

are part of the original record and could have been reviewed in the past

sixteen years since the entry of his pleas in 2001 and subsequent sentencing.

Thus, Appellant could have ascertained any such claim by the exercise of due

diligence. 42 Pa.C.S. § 9545(b)(1)(ii). This contention does not provide a

basis for overcoming the untimeliness of his PCRA petition because it is

apparent from the sixteen-year delay that Appellant failed to seek out the

information in a duly diligent manner. See Commonwealth v. Robinson,

___ A.3d ___, 2018 PA Super 109, *8 (Pa. Super. filed May 2, 2018) (en banc)

(“Due diligence demands that the petitioner take reasonable steps to protect

his own interests.”).

Moreover, Appellant acknowledges that the transcript “reads as

described” by the PCRA court, but he fails to identify where such reference

can be found. Appellant’s Brief at 14. “It is an appellant’s duty to ensure that

the certified record is complete for purposes of review.” Commonwealth v.

Reed, 971 A.2d 1216, 1219 (Pa. 2009). It is not this Court’s responsibility to

comb through the record seeking the factual underpinnings of a claim.

Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014). In

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addition, this Court has stated that a “[f]ailure to ensure that the record

provides sufficient information to conduct a meaningful review constitutes

waiver of the issue sought to be reviewed.” Commonwealth v. Lopez, 57

A.3d 74, 82 (Pa. Super. 2012). This issue is waived, and even if not waived,

for reasons cited above, it lacks merit.

Appellant’s second and third claims, regarding the propriety of his

sentences for burglary and escape, Appellant’s Brief at 16–18, and the

applicability of Alleyne v. United States, 570 U.S. 99 (2013) to his case,

Appellant’s Brief at 19–20, were addressed by the PCRA court in its Pa.R.A.P.

1925(a) opinion. In disposing of these claims, we rely on the PCRA court’s

rationale as if it were our own.

Appellant’s fourth claim suggests that “the ADA at the PCRA evidentiary

hearing[7] committed fraud when it presented false evidence. . . .” Appellant’s

Brief at 21. Appellant fails to assert applicability of an exception to the PCRA

time bar. Moreover, Appellant has failed to include any references or citations

to the notes of testimony from any evidentiary hearing or citations to relevant

case law in support of his claim. Id. Indeed, Appellant fails even to identify

the “false evidence” to which he refers. For these reasons, we conclude that

the issue is waived. See Commonwealth v. Fransen, 42 A.3d 1100, 1116

____________________________________________

7 We assume Appellant is referencing the evidentiary hearing relating to his
prior PCRA petition, because the instant PCRA petition was dismissed without
a hearing.

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J-S27012-18

n.14 (Pa. Super. 2012) (citing Commonwealth v. Einhorn, 911 A.2d 960,

970 (Pa. Super. 2006)) (concluding, inter alia, that a claim is waived for failure

to direct this Court’s attention to that part of the record substantiating it); see

also Pa.R.A.P. 2119(c) (“If reference is made to . . . any other matter

appearing in the record, the argument must set forth, in immediate connection

therewith, or in a footnote thereto, a reference to the place in the record where

the matter referred to appears.”). As noted supra, this Court will not comb

through the record seeking the factual underpinnings of a claim. Samuel,

102 A.3d at 1005.

Appellant’s final issue suggests the PCRA court erred in dismissing his

PCRA petition without a hearing. In particular, he complains as follows:

In Appellant[’]s petition, he stated that his appellate
attorney, Mr. John Cotter, asked Appellant if he would like his file
returned at the conclusion of his representation. Appellant,
believing that Mr. Cotter would merely be returning the file that
he himself had provided Mr. Cotter, agreed. When the parcel
arrived at the State Correctional Institute at Fayette, the
authorities at the institution told Appellant that he could not have
this parcel for security reasons due to it containing computer
disks, metal clips, etc. The institution gave Appellant two options:
Ship or destroy. Appellant only had one person he could send it
to, so he sent it to his Uncle. Appellant’s uncle refused to return
this parcel to Appellant despite Appellant[’]s multiple requests. As
Appellant had no idea of what was in this parcel, and because Mr.
Cotter ignored all of Appellant’s inquiries, Appellant was without
any recourse in getting this material.

Appellant’s Brief at 22–23.

Appellant suggests the PCRA court “did not consider the facts as set

forth by Appellant in consideration of the question as to if Appellant met one

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of the exceptions for the PCRA time bar.” Appellant’s Brief at 23. Appellant

does not identify to which exception of the PCRA time bar he is referring. We

determine that it qualifies for none. The issue has no merit.

We conclude that the PCRA court properly dismissed Appellant’s PCRA

petition without a hearing. For the reasons stated herein, and in reliance on

the PCRA court’s opinion,8 we affirm the untimeliness of Appellant’s petition

and the absence of applicability of any exception. Because Appellant’s PCRA

petition was untimely and no exceptions apply, the PCRA court lacked

jurisdiction to address the claims presented and grant relief.

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (PCRA

court lacks jurisdiction to hear untimely petition). Likewise, we lack the

authority to address the merits of any substantive claim raised in the PCRA

petition. See Commonwealth v. Bennett 930 A.2d 1264, 1267 (Pa. 2007)

(“Jurisdictional time limits go to a court’s right of competency to adjudicate a

controversy.”).

Order affirmed.

____________________________________________

8 We direct the parties to attach a copy of the PCRA court’s opinion in the
event of future proceedings in this matter.

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J-S27012-18

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/19/18

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 Circulated 06/28/2018 03:12 PM
FILED
JAN i 8 2017
IN THE COURT OF COMMON PLEAS
Appeals/Post il'lal
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA Office of JudlclaJ Recore
TRIAL DIVISION - CRIMINAL SECTION

COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0701681-2001
CP-51-CR-0706161-2001
v. CP-51-CR-0712461-2001
CP-51-CR-0906271-2001

DOMINC NAPLES SUPERIOR COURT
NO. 3649 EDA 2016

MAZZOLA, WILLIAM, J.
OPINION PURSUANT TO PA.R.A.P. 1925(a)
--
. . ,}�,,. . .,
0:8EJl5MBER /C'
This is a prose appeal from the denial of the defendant Dominic Naples' third petition

for relief under the Post Conviction Relief Act, 42 Pa.CS.§ 9541 et seq., hereinafter the PCRA.

In his Statement of Errors Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), he states the

issues in much the same ways he stated his underlying allegations in support of his claim of

ineffective assistance of prior counsel, which will be set forth and discussed in detail infra. In

that discussion, however, it will become abundantly clear that the present petition was untimely

filed, no exceptions to the PCRA timely filing requirements apply, and those underlying claims

are completely meritless or have been previously litigated or waived, with the exception of his

one claim that he is serving an illegal sentence pursuant to, inter alia, the decision in Alleyne v.

United States, 133 S.Ct. 2151, 186 L.Ed2d 314 (2013), which proscribed certain mandatory

minimum sentencing statutes and rendered a number of Pennsylvania's unconstitutional. But

even if those rulings were in effect at the time he was sentenced, he would still not be entitled to

any relief because he was not, in fact, given any mandatory sentences.

The histories of his cases and his present proceeding were thoroughly set forth in the

courts' opinions in his previous appeals and his latest appointed PCRA counsel's letter brief filed

in the present one in compliance with the ruling in Pennsylvania v. Finley, 481 US. 551, 107

1
S.Ct. 1990, 95 L.Ed2d 539 (1987), which was that appointed counsel in postconviction

proceedings could withdraw after having reviewed the trial court record, consulted with the

petitioner, and written to the trial court to inform it that there was no arguable basis for collateral

relief and to request permission to do so. In its opinion in the appeal from the dismissal of the

defendant's second PCRA petition, this Court addressed it as if it was his first, but in his actual

first PCRA petition he requested and had been granted reinstatement of his post sentence motion

rights following which his nunc pro tune post sentence motion was denied, and his judgment of

sentence was affirmed in the ensuing direct appeal. Thus, in its Pa.R.A.P. 1925(a) opinion filed

in his appeal of the denial of his last previous PCRA petition the PCRA court referred to it as his

second, and in the Finley letter counsel referred to the one presently at issue as his third.

Appellant, Dominic Naples, appeals from the June 8, 2012 order, dismissing
his petition filed pursuant to the [PCRA]. After careful review, we affirm on the
basis of the well-reasoned PCRA court opinion.

The relevant facts, as set forth by a prior panel of this Court on direct appeal,
are as follows.

CP 0011-0832 involved an [a]rson committed by [Appellant]
whereby he cut the gas line directly linked to the stove in his
apartment, which caused a massive explosion and fire, and $54,000
worth of property damage. CP 0107-0168 & 0616 involve[d]
[Appellant's] attempted escape from his preliminary hearing and
subsequent assault of two law enforcement officers. CP 0109-0627
involved [Appellant's] luring of [the] nine[-Jyear[-Jold [victim] into
an abandoned factory. Once inside, [Appellant] had the victim take
off herclothes and he removed his own pants. [Appellant] then laid
on top of the nine-year-old and attempted to place his penis into her
vagina. Finally, CP 0107-1246 involved the [r]ape of a twelve-year-
old [victim]. [Appellant] was a friend of the [victim's] brother, and
while driving the girl to school, [Appellant] drove to a secluded path
and attempted to kiss her. When [the victim] refused, [Appellant]
threatened her that he had a razor, and proceeded to put his penis in
her anus.

Commonwealth v. Naples, 931 A.2d 50 (Pa.Super.2007) (unpublished
memorandum at 2), appeal denied, 939 A.2d 890 (Pa.2007) ...

2
 The PCRA court summarized the pertinent procedural history of this case as
follows.
[Appellant] had entered a negotiated plea of nolo contendere to a
charge of arson on July 10, 2001 (case no. CP-51-CR-1108321-
2000), open pleas of nolo contendere to charges of aggravated
assault (two counts), escape and burglary on October 3, 2001 (cases
no.CP-51-CR-0701681 & 0706161-2001), and open guilty pleas
to rape and related charges on April 16, 2002 ( cases numbered in the
above caption), arising out of separate and unconnected incidents,
except that the assault related charges arose from [Appellant's]
attempt to escape at his preliminary hearing in the arson case. The
cases were consolidated for sentencing pursuant to Pa. R. Crim. P.
701. On August 20, 2002, [Appellant] was found not to qualify as a
Sexually Violent Predator (SVP) and was sentenced to four
concurrent terms of incarceration amounting to an aggregate of ten
(10) to twenty (20) years for the charges in the two rape cases, and
to additional concurrent terms for the other charges to run
consecutively thereto, one being the negotiated sentence for the
arson, aggregating to twenty-two (22[Yi]) to forty-five (45) years.
Though the record is a little unclear in some places where the
pleadings or evidence refer to all of the five cases and seven
sentences, it will be seen that the present proceedings are solely
directed to the aggregate sentences for the two rape cases. While all
of [Appellant's] pleas and judgments of sentence were challenged in
the post sentence motion and included in the direct appeal, here
[Appellant] only requested resentencing for those rape charges.

Following sentencing, [Appellant] filed a "Motion to Withdraw
and Vacate Guilty Plea" prose on August 26, 2002, which was
dismissed by operation oflaw on December 30, 200[2], and no
appeal was filed. In [said motion], [Appellant] claimed that his
pleas were not intentional, knowing or voluntary, that he was led to
believe by the [trial] court and his counsel that he would enter
them in exchange for unspecified other charges being dismissed,
but they were not, and he did not understand that by entering them
he would be unable to appeal from the denial of his motion to
suppress or obtain a trial de novo. However, it was subsequently
ruled in the appeal that his pleas were intentional, knowing and
voluntary and that he was advised of the affects his pleas would
have on his appeal rights, and all other charges to which he did not
plea were dropped and there was no motion to suppress, and none
of those were included in this PCRA proceeding. [Appellant] filed
his first PCRA petition prose on June 1, 2003, new counsel, [John
P. Cotter, Esquire (Attorney Cotter),] was appointed who filed an
amended and a supplemental amended petition [on June 21, 2004
and August 17, 2004, respectively], and his post sentence rights
were reinstated in February of 2005.

3
 On February 11, 2005, Appellant filed timely post-sentence motions nunc pro
tune, which were denied by the trial court on June 28, 2005. Appellant subsequently
appealed, and on June 13, 2007, this Court affirmed Appellant's judgment of
sentence. See Naples, supra. Thereafter, Appellant filed a petition for allowance of
appeal that was denied by our Supreme Court on December 18, 2007. Id.

On July 16, 2008, Appellant filed a timely pro se PCRA petition raising, inter
alia, claims of ineffective assistance of trial and appellate counsel. Elayne C.
Bryn, Esquire (Attorney Byrn) was appointed to represent Appellant, and filed
amended and supplemental amended PCRA petitions on Appellant's behalf on
October 21, 2009, and January 6, 2011, respectively. On June 7, 2012, the PCRA
court commenced evidentiary hearings on Appellant's petition.

Following a two-day hearing, the PCRA court dismissed Appellant's petition
by order dated June 8, 2012. This timely appeal followed on June 29, 2012.

On appeal, Appellant raises the following issues for our review.

I. [Whether] [a]ppellate counsel was ineffective in failing to
properly comply with Pa.R.A.P. 2119(/) and Pa.R.A.P. 1925(b)
which resulted in a waiver of a meritorious sentencing issue[?]

II. [Whether] [t]rial was ineffective for not adequately
communicating a plea offer of 5 to 15 years[?]

Commonwealth v. Naples, 87 A. 3d 390 (unpublished memorandum) ( citations to the record and

footnote omitted), No. 1842 EDA 2012, 2013 WL 11254723 at *1-2 (Pa.Super. 2013) (decided

September, 24, 2013), reargumeni denied Dec. 5, 2013, appeal denied, 625 Pa. 658, 92 A. 3d 811

(2014).1 The appeal was denied on May 21, 2014, and the defendant did not seek further review.

He commenced the present proceedings by filing a prose petition on July 14, 2014. He

filed a prose supplemental petition on March 18, 2015, and after being granted leave to further

supplement it, he filed a pro se "Supplemental-Amended" petition on March 1, 2016. In the

meantime, the court had appointed James R. Lloyd III as counsel who filed the Finley letter brief

on July 28, 2016. In it counsel stated that he had reviewed all of the defendant's PCRA filings

and other records and communicated with the defendant extensively regarding his claims and,

1 The arson case is not included in the present proceedings.

4
after he presented a thorough factual and legal review and discussion of them, he concluded:

Undersigned counsel has conducted a thorough, independent review of the trial,
sentencing, direct appellate, and PCRA records in this matter in an effort to identify
any potentially meritorious claim under the PCRA. However, in light of the totality
of the circumstances, and applicable law, the undersigned concludes that any
reviewing court applying Pennsylvania law would hold that petitioner's allegations
regarding the claims discussed herein do not warrant relief under the PCRA.

A careful review of the record and controlling law leads me to conclude that
there are no other issues that possess arguable merit. For the reasons set forth
supra, I respectfully submit that I am unable to ethically file an amended petition
on Mr. Naples' behalf because the petition at issue is not timely filed and no
exception to the jurisdictional time bar applies.

The court unreservedly agreed with counsel's assessment, issued a Pa.RiCrtm.P, 907 notice of

intention to dismiss based upon it on September 19th, to which the defendant responded pro se on

October 14th and 19th, which only consisted of reassertions of his belief in the meritoriousness of

all of his claims and a denunciation of counsel's Finley assessment, the court formally dismissed

the petition on the latter date, and this appeal followed on November 15th.

In the present prose petition, in the eligibility-for-relief section of the commonly used

prison supplied PCRA petition form he employed, the defendant checked off the boxes listing the

claims being presented as constitutional law violations, ineffective assistance of counsel and an

unlawfully induced plea of guilty, but the stated factual bases for them were that "The mandatory

minimum sentence(s) as applied to my cases have been ruled unconstitutional; The Alford plea

tendered was unknowing and unintelligent due to there being no factual basis for plea [sic]; the

Courts [sic] statement it did not know what an Alford Plea was." He is not eligible for relief on

the latter two bases because, of course, the claim of a legally faulty plea was previously litigated

and adversely ruled upon in his direct appeal, and, therefore cannot be a basis in support of an

illegal sentence claim. "Further, Appellant must demonstrate that the issues raised in his PCRA

petition have not been previously litigated or waived, and that 'the failure to litigate the issue

5
prior to or during trial or on direct appeal could not have been the result of any rational strategic

or tactical decision by counsel.' [Commonwealth v.] Washington, [592 Pa. 689,] 927 A.2d [586

(2007)] at 593 (citing 42 Pa.CS. §§ 9543(a}(3), (4))." Commonwealth v. Steele, 599 Pa. 341,

961 A.2d 786, 796 (2008). His supplemental petition consisted of a garrulous twenty page

history of his cases and a convoluted legal discussion of why his sentences were illegal. He

alleged that "The Commonwealth gave notice within the Bill of Information, the Arraignment,

and at Sentencing; that it was proceeding under the Mandatory Minimum statute at 42 Pa.C.S.A.

Section 9718(A)(l) and (2) for the charges found at CP-51-CR-0712461-2001 and CP-5 l-CR-

0906271-2001." The former included the rape and IDSI and the latter the attempted rape and

IDSI. However, at the time of his sentencing,§§ 9718(A)(l) and (2) provided for minimums and

maximums of five to ten years, which is what the prosecutor did request the court to impose, and

which had been adjudicated constitutional (Commonwealth v. Chmiel, 416 Pa. Super. 235, 610

A.2d 1058, 1061 (1992), appeal denied, 535 Pa. 613, 629 A.2d 1376 (1993), cert. denied, Chmiel

v. Pennsylvania, 510 US. 1013, 114 S. Ct. 605, 126 L. Ed. 2d 569 (1993)). The court, however,

sentenced him to ten to twenty for each offense, based on aggravating factors, and without any

reference to the mandatories, which, coincidently, the statute presently does provide but which

has been declared unconstitutional (Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016)) based

uponAlleyneandApprendiv. New Jersey, 530 U.S. 466, 1208.Ct. 2348, 147 L.Ed2d435

(2000). He then noted that his appointed trial counsel had filed a motion to preclude application

of the mandatory minimum sentencing statutes because they were unconstitutional which was

not ruled upon. It was not ruled upon because it became moot once the sentencing court opted

not to apply any mandatories. The only thing relevant to the present illegal sentence claim was

the citation to the Alleyne decision, and other cases applying it, in which the Court

6
 ... held that any fact that, by law, increases the penalty for a crime must be treated
as an element of the offense, submitted to a jury, rather than a judge, and found
beyond a reasonable doubt See Alleyne, - US. at--, 133 S. Ct. at 2163. The
effect was to invalidate a range of Pennsylvaniasentencing statutes predicating
mandatory minimum penalties upon non-elemental facts and requiring such facts to
be determined by a preponderance of the evidence at sentencing. See, e.g.,
Commonwealth v. Hopkins, -Pa.--,--, 117 A.3d 247, 262 (2015) (holding
that Section 6317 of the Crimes Code, 18 Pa.CS.§ 6317-which predicates a
mandatory minimum sentence [for violations of drug laws in drug-free school
zones] upon a fact to be determined by a preponderance at sentencing-was
constitutionally infirm, under Alleyne).

Commonwealth v. Washington, 142 A.3d 810, 812 (Pa. 2016) (holding that defendant not entitled

to relief from judgment which became final prior to the Alleyne and Apprendi decisions which

encompassed sentences under 42 Pa. CS § 97 l 2(a) requiring imposition of a mandatory

minimum sentence for crimes of violence involving the visible possession of a firearm placing a

victim in fear of death or serious bodily injury ruled unconstitutional in Commonwealth v.

Valentine, 101 A.3d 801, 2014 Pa. Super. 220 (2014)). The Court also ruled that those decisions

did not apply retroactively.

There is no question that this Court has had some difficulty defining the
contours of "illegality" in the abstract for purposes of the issue preservation
doctrine. Any remaining uncertainty in this regard, however, does not affect our
analysis, above and below. Again, if a new constitutional rule does not apply, it
cannot render an otherwise final sentence illegal.

Id at 815 citation and footnote omitted). Thus, his claims that the ruling in Alleyne is

retroactively applicable and in light of which he is serving an unconstitutional mandatory

minimum sentence are patently incorrect. "We hold that Alleyne does not apply retroactively to

cases pending on collateral review, and that Appellant's judgment of sentence, therefore, is not

illegal on account of Alleyne." (Id at 820), and, again, he was not given any mandatory

sentences. The amended petition consisted of an even more verbose diatribe of seventy-six

pages, again challenging the legality of his sentences on the same bases. In the Finley brief,

counsel amply categorized all of his claimed bases as:

7
 • in light of, inter alia, the [Alleyne decision], petitioner is serving an illegal,
unconstitutional mandatory minimum sentence;
• petitioner's pleas were not knowing, intelligent and voluntary because there was no
factual basis for the pleas;
• C.F. will testify that petitioner never attempted to rape her;
• the sentences imposed for the charges of burglary and escape are illegal because
a sentence cannot be imposed for the crime of burglary and the crime which one
intended to commit upon entering the property burglarized;
• the Third Petition is timely because it asserts a newly recognized constitutional right
as a result of the Alleyne decision;
• the ADA at the PCRA evidentiary hearing committed "fraud" while arguing that
the Third Petition should be dismissed;
• the sentences for rape and IDSI are illegal insofar as they arise from a "single
act of penetration" and are required to merge;
• the trial court did not have jurisdiction to accept petitioner's plea on the
Attempted Rape case because petitioner, aged 18 years and 3 months at the time
the crime was committed, was on juvenile probation at that time and less than 21
years of age;
• that petitioner's pleas on the Assault and Escape cases were unlawfully procured
by fraud through the Commonwealth because the ADA agreed to downgrade the
aggravated assault charges in each case from 1st degree felonies to 2nd degree
felonies, but the aggravated assaults were already graded as 2nd degree felonies.
Petitioner claims that this claim is timely because 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 as the necessary paperwork was in the possession
of petitioner's uncle for 14 years but petitioner had a falling out with his uncle
after requesting that those documents be sent to him by Attorney Cotter.

Giving the defendant the benefit of the doubt, the court assumes that the last sentence was his

attempt to meet one of the exceptions to the timely filing requirements of the PCRA, that" ... the

failure to raise the claim previously was [because] 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 ... " (§ 9545(b)(l)(ii)), and was intended by him to be applicable to all of the stated

bases for the claim, and that the mandatory sentencing claim is, though disjointly stated, that his

prior counsel rendered ineffective assistance in failing to object to, and otherwise challenge the

legality of, his sentences. His attempt to meet the timeliness exception with regard to that claim

is that Alleyne represented a subsequently recognized retroactive constitutional right under §

9545(b)(l)(iii), he was not entitled to file a third PCRA petition asserting a claim based upon it

8
until the completion of his appeal from the denial of his previous petition, and he filed the

present petition within sixty days of the denial of his request for allocatur as allowed by§

9545(b)(2). With regard to all of the other stated bases for the claim, they can be summarily

disposed ofby simply noting that they were completely unsupported by any citations to any

evidence, either of record or not, were either previously litigated or waived, and are patently

frivolous on their face. If any of his prior counsel failed to assert those bases at sentencing or in

the direct appeal they should have been asserted in his prior PCRA proceedings, and if they were

not, they have been waived. It is not necessary to ascertain which. "Appellant cannot obtain

post conviction review of claims previously litigated on appeal by presenting new theories of

relief to support the previously litigated claims. Commonwealth v. Stokes, 576 Pa. 299, 304-05,

839 A.2d 226, 229 (2003)." Commonwealth v. Brown, 582 Pa. 461, 872 A. 2d I I 39, I I 45 (2005).

In addition, in view of the extensive history of the litigation in his cases, Finley counsel's

assessment of his unascertainable facts allegation is suitably germane:

[The] facts [with regard to the falling out with his uncle] are not sufficient to
successfully invoke the time bar exception under§ 9545(b)(l)(ii). Petitioner filed
not one, but two, timely pro se PCRA petitions. He was represented by two
different court appointed attorneys with respect to each PCRA petition. Both
attorneys communicated with petitioner and filed amended petitions on behalf of
petitioner. Notably, the document at issue - i.e., the criminal complaint - was in the
possession of the first of these attorneys, Attorney Cotter, according to the Third
Petition. Further, at the conclusion of his representation of petitioner, Attorney
Cotter forwarded the necessary documents and his entire file to petitioner's family
member at petitioner's direction. Accordingly, the criminal complaint could []
have been found, and this claim ascertained, by the exercise of due diligence. This
fact is fatal to a claim that the time bar exception of§ 954S(b)(l)(ii) is applicable to
the matter sub judice.

Thus, the only issue that actually needs to be addressed here is the only newly raised basis for the

present ineffective assistance claim, the ruling in Alleyne and its applicability.

This Court addressed the burdens of pleading and proof borne by PCRA petitioners, the

standards trial courts are to employ in assessing and ruling upon their claims, and the courts'

9
scope and standard of review with regard to the those evaluations in its memorandum in the

previous appeal, and its and the PCRA court's evaluations and rulings on the underlying claims

therein are also relevant to the present issue.

"Our review of a PCRA court's decision is limited to examining whether the
PCRA court's findings of fact are supported by the record, and whether its
conclusions oflaw are free from legal error." Commonwealth v. Koehler, 36 A.3d
121, 131 (Pa.2012) (citation omitted). "[Our] scope ofreview is limited to the
findings of the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the PCRA court level." Id In order to be
eligible for PCRA relief, a petitioner must plead and prove by a preponderance of
the evidence that his conviction or sentence arose from one or more of the errors
listed at 42 Pa. CS.A. § 9543(a)(2). These issues must be neither previously
litigated nor waived. 42 Pa.CS.A.§ 9543(a)(3). "The PCRA court's credibility
determinations, when supported by the record, are binding on this Court."
Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa.2011) (citation omitted).
"However, this Court applies a de novo standard of review to the PCRA court's
legal conclusions." Id.

As noted, Appellant argues his appellate counsel was ineffective for failing to
properly raise a challenge to the discretionary aspects of sentencing for appellate
review [and] his trial counsel ... by failing to properly convey to him the
Commonwealth's plea offer of five to 15 year's imprisonment.

To prevail on a claim of ineffective assistance of counsel under the PCRA, a
petitioner must plead and prove by a preponderance of the evidence that counsel's
ineffectiveness "so undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place." 42 Pa.CS.A.§
9543(a)(2)(ii). A petitioner must establish "(I) the underlying legal issue has
arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3)
Appellant was prejudiced by counsel's act or omission." Koehler, supra at 132,
citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa.1987). "Counsel is
presumed to be effective and Appellant has the burden of proving otherwise."
Commonwealth v. Rivers, 786 A.2d 923, 927 (Pa.2001) (citations omitted).
Furthermore, "[ijf an appellant fails to prove by a preponderance of the evidence
any of the ... prongs, the Court need not address the remaining prongs of the test."
Commonwealth v. Fitzgerald, 979 A. 2d 908, 911 (Pa.Super. 2009), appeal denied,
990A.2d 727 (Pa.2010).

In the instant matter, the PCRA court authored an extensive, 22-page opinion
that thoroughly analyzed Appellant's ineffectiveness claims and concluded they
were either waived or devoid of merit. Upon careful review of the record, including
the parties' respective briefs and the applicable law, and in light of this Court's
scope and standard ofreview, we agree with the PCRA court's determinations.

10
 Specifically, we agree with the PCRA court that Appellant's contention his
appellate counsel was ineffective for failing to properly raise a challenge to the
discretionary aspects of sentencing is waived. As recognized by the PCRA court,
the record clearly indicates that Appellant waived said claim by (1) failing to
specify in his Pa.R.A.P. l 925(b) statement how prior counsel purportedly was
ineffective; (2) failing to adequately develop this claim in his pleadings; and (3)
failing to properly develop this claim on appeal by including discussion and
citation and relevant authorities in his brief.

Moreover, we discern no error on the part of the PCRA court in concluding that
Appellant's claim his trial counsel was ineffective for failing to convey a plea offer
was meritless, as the record indicates that counsel did, in fact, convey the
Commonwealth's offer to him. As the PCRA court noted in its opinion, "the issue
boiled down to simply whether the [PCRA] court believed the offer had not been
conveyed to [Appellant], and [the PCRA court] ruled that it could not accept that
allegation and denied the petition." It is well settled that counsel cannot be deemed
ineffective for failing to raise a claim that is devoid of merit. Koehler, supra;
accord Commonwealth v. Lawrence, 960 A.2d 473, 478 (Pa.Super.2008), appeal
denied, 980 A. 2d 606 (Pa. 2009).

Lastly, we note that although Appellant's brief raises two distinct claims of
ineffective assistance of trial and appellate counsel, it fails, in large part, to
demonstrate that counsel's purported ineffectiveness "so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could have
taken place." 42 Pa. CS.A.§ 9543(a)(2)(ii).

Accordingly, we conclude the October 4, 2012 opinion of the PCRA court
comprehensively discusses and properly disposes of Appellant's ineffective
assistance of counsel claims. Therefore, we adopt said opinion as our own for
purposes of this appellate review, and affirm the PCRA court's June 8, 2012 order.

Naples, supra, WL at *2-4 (citations to record omitted). The Court then reproduced the PCRA

court's opinion in its entirety, it's above concise summation of which will suffice for present

purposes. Judge Bowes filed a concurring memorandum agreeing with the majority that the

defendant was not entitled to relief but disagreeing with its and the PCRA court's rationale

pertaining to the waiver of his discretionary sentencing ineffectiveness claim by failing to

adequately present it in his pleadings, Pa.R.A.P. J925(b) Statement and brief, believing instead

that he" ... adequately alerted the PCRA court and this Court of his position that counsel was

ineffective in failing to secure review of his outside the guideline range sentence based on its

11
alleged unreasonable excessiveness where the court purportedly did not consider mitigating

evidence." id. at * 18. Her Honor then conducted an analysis of that claim under the standards

regarding PCRA review as set forth by the majority and PCRA court and concluded:

In the context of a discretionary sentencing ineffectiveness claim, unlike the
failure to file a requested discretionary appeal, actual prejudice requires that the
underlying sentencing issue entitle the petitioner to relief. Commonwealth v.
Jones, 942 A.2d 903 (Pa.Super.2008); Commonwealth v. Lawrence, 960 A.2d 473
(Pa.Super.2008); see also Commonwealth v. Reaves, 923 A.2d 1119 (Pa.2007)
(holding that the failure to preserve a sentencing issue in a post-sentence motion
or at sentencing requires a showing of prejudice in the nature of a reasonable
probability that the outcome of the sentencing would have been different). In this
regard, Appellant cannot establish that had counsel properly preserved and
presented a claim that his sentence was unreasonably excessive in light of the trial
court's failure to consider mitigating factors, he would have been entitled to re-
sentencing.

Instantly, the court had the benefit of a pre-sentence report. Therefore, we are
required to presume all sentencing factors were properly weighed. See
[Commonwealth v.] Macias, [968 A.2d 773, 776 (Pa .Super.2009)], at 778; Jones,
supra; Commonwealth v. Rhoades, 8 A.3d 912, 919 (Pa.Super.2010) (when the
sentencing court has the benefit of a pre-sentence report it is assumed that the
court weighed the appropriate considerations along with mitigating statutory
factors). It is apparent that the sentencing court reviewed Appellant's pre-sentence
report and was aware of the mitigating issues; it simply chose not to accord them
greater weight than other sentencing factors. See Commonwealth v. Pittman, 737
A.2d 732 (Pa.Super.1999); Rhoades, supra. Since the court adequately considered
the pertinent sentencing factors and merely weighed them in a manner
inconsistent with Appellant's desires, I agree he cannot prove prejudice. See
Macias, supra at 778.

Id. at *22-23, following which the Judge added her agreement with the PCRA court's and the

majority's findings that plea counsel testified that he did relay the plea offer at issue to the

defendant, the PCRA court found plea counsel to have been credible and the defendant not, and

that the dispositions entered by them were sound. id. at *23.

All of those previous analyses apply equally to the present claim by simply changing the

adjective "discretionary" to "legality" as applied to the aspects of the defendant's sentences. It is

unnecessary to reconduct such an analysis in any more detail because his third petition was

12
untimely, none of the PCRA timeliness exceptions apply, and the Alleyne decision would not

apply to his sentences if it wasn't or they did, even ifhe had been given mandatory sentences.

The defendant correctly pointed out that Alleyne was decided on June 17, 2013, while the appeal

of the disposition of his second petition was pending, he was thereby prohibited from filing

another PCRA claim based upon Alleyne until that appeal's conclusion, and he filed the present

third petition less than 60 days after allocator was denied with respect to that appeal, which does

present a colorable claim that a timeliness exception may have been applicable.

(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:
***
(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.CS.§ 9545(b). "We now hold that when an appellant's PCRA appeal is pending before a

court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending

PCRA petition by the highest state court in which review is sought, or upon the expiration of the

time for seeking such review." Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585, 588 (2000).

However, the defendant would not have gotten sixty days from the denial of his request for

permission to appeal from the affirmance of the denial of his second PCRA petition within which

to raise a sentencing issue based on Alleyne; he only would have gotten sixty days from the date

on which his judgment became final, which was ninety days after his petition for allowance of

appeal from the affirmance of his sentence of judgment in the direct appeal was denied by our

Supreme Court on December 18, 2007. That would not have availed him anyway because

Alleyne wasn't decided until over six years later, before which the mandatory sentences were not

13
illegal. "Appellant did not preserve any challenge to his mandatory minimum sentence, his jury

trial rights, or the constitutionality of§ 9712.1 [mandatory minimum sentences for certain drug

offenses committed with firearms], likely because similar challenges had been rejected based on

prior United States Supreme Court decisions." Commonwealth v. Watley, 2013 PA Super 303,

81A.3d108, 117 (2013), appeal denied, 626 Pa. 684, 95 A. 3d 2 77 (2014). Nor can the

defendant depend on his argument that an illegal sentencing claim cannot be waived.

In the case sub judice, Appellant was sentenced on July 18, 2005. This Court
affirmed the judgment of sentence on October 23, 2007, and our Supreme Court
denied allocator on May 8, 2008. Appellant did not seek a writ of certiorari from
the United States Supreme Court. Therefore, Appellant's judgment of sentence
became final on August 6, 2008, when the period for Appellant to file a petition
for a writ of certiorari expired. See 42 Pa.CS.A.§ 9545(b)(3) (stating, "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] ]"); US. Sup.Ct.
R. 13(1) (stating "a petition for a writ of certiorari to review a judgment in any
case ... is timely when it is filed with the Clerk of this Court within 90 days after
entry of the judgment[ ]"). Therefore, Appellant had until August 6, 2009 to
timely file his PCRA petition. As Appellant filed the instant petition on August 8,
2013, it was patently untimely because it was filed more than four years past the
deadline. However, Appellant avers that the time-bar exception at Section
9545(b)(1)(iii) applies in this case. Specifically, Appellant avers that the United
States Supreme Court's decision in Alleyne announced a new constitutional right
that applies retroactively.
***
Even assuming that Alleyne did announce a new constitutional right, neither our
Supreme Court, nor the United States Supreme Court has held that Alleyne is to be
applied retroactively to cases in which the judgment of sentence had become final.
This is fatal to Appellant's argument regarding the PCRA time-bar. This Court has
recognized that a new rule of constitutional law is applied retroactively to cases on
collateral review only if the United States Supreme Court or our Supreme Court
specifically holds it to be retroactively applicable to those cases. Commonwealth v.
Phillips, 31 A.3d 317, 320 (Pa.Super.2011), appeal denied, 615 Pa. 784, 42 A.3d
1059(2012), citing Tyler v. Cain, 533 US. 656, 663, 121 S.Ct. 2478, 150L.Ed2d
632 (2001); see also, e.g., Commonwealth v. Taylor, 933 A.2d 1035, 1042
(Pa.Super.2007) (stating, "for purposes of subsection (iii), the language 'has been
held by that court to apply retroactively' means the court announcing the rule must
have also ruled on the retroactivity of the new constitutional right, before the
petitioner can assert retroactive application of the right in a PCRA petition[ ]"),
appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008). Therefore, Appellant has failed
to satisfy the new constitutional right exception to the time-bar.

14
 We are aware that an issue pertaining to Alleyne goes to the legality of the
sentence. See Commonwealth v. Newman, 99 A.3d 86 90 (Pa.Super.2014) (en
1

bane) (stating, "a challenge to a sentence premised upon Alleyne likewise
implicates the legality of the sentence and cannot be waived on appeal[]"). It is
generally true that "this Court is endowed with the ability to consider an issue of
illegality of sentence sua sponte." Commonwealth v. Orellana, 86 A.3d 877, 883
n. 7 (Pa.Super.2014) (citation omitted). However, in order for this Court to
review a legality of sentence claim, there must be a basis for our jurisdiction to
engage in such review. See Commonwealth v. Borovichka, 18 A.3d 1242, 1254
(Pa.Super.2011) (stating, "[a] challenge to the legality of a sentence ... may be
entertained as long as the reviewing court has jurisdiction[]") (citation omitted).
As this Court recently noted, "[t]hough not technically waivable, a legality [of
sentence] claim may nevertheless be lost should it be raised ... in an untimely
PCRA petition for which no time-bar exception applies, thus depriving the court
of jurisdiction over the claim." Seskey, supra at 242. As a result, the PCRA court
lacked jurisdiction to consider the merits of Appellant's second PCRA petition, as
it was untimely filed and no exception was proven. See [Commonwealth v.]
Fears, [624 Pa. 446, 86 A.3d 795, 803 (2014),] [Commonwealth v.] Lawson, [90
A.3d 1 (Pa.Super.2014)].

Commonwealth v. Miller, 2014 PA Super 214, 102 A.3d 988, 993, 995-96 (2014), reargument

denied Dec. 5, 2014 (citations to record and footnotes omitted). See also Commonwealth v.

Seskey, 2014 PA Super 27, 86 A.3d 237, 241, reargument denied (Apr. 21, 2014), appeal denied,

627 Pa. 765, 101 A.3d 103 (2014) (" 'Though not technically waivable, a legality [of sentence]

claim may nevertheless be lost should it be raised for the first time in an untimely PCRA petition

for which no time-bar exception applies, thus depriving the court of jurisdiction over the claim.'

Commonwealth v. Slotcavage, 939 A.2d 901, 903 (Pa.Super.2007) (citing Commonwealth v.

Fahy. 558 Pa. 313, 737 A.2d 214, 223 (1999) ('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.')"); Commonwealth v. Cristina, 2015 PA Super 74, 114 A.3d 419, 423

(2015), reversed on other grounds, 131 A.3d 482 (per curiam) (Pa. 2016)2 ("The time-bar is

2 "The Petition for Allowance of Appeal is GRANTED on the issue of whether Petitioner's sentence violates the
prohibition against mandatory life sentences for juvenile offenders announced by the Supreme Court of the United
States [and whether that ruling] must be applied retroactively by the States .. ." Id. 13 l A.3d at 483. On remand, the
Court ruled that Cristina was clearly entitled to resentencing because in another case it had specifically ruled that the
rule prohibiting mandatory life sentences for juvenile offenders was to be applied retroactively. Commonwealth v.

15
jurisdictional in nature and, thus, the PCRA court lacks jurisdiction to entertain the Petition, let

alone any amendment thereto.") Thus, since none of defendant's trial, direct appeal or prior

PCRA counsel had any legal basis to object to, challenge on appeal, or submit a PCRA claim

based on Alleyne or mandatory sentences, none of them can be faulted for failing to raise what

would clearly have been a meritless claim.

Finley counsel's assessments of some of the other claims in the defendant's pro se

submissions bear noting.

The Escape case is part of the current PCRA petitions being pursued by
petitioner. It is alleged that petitioner assaulted two police officers as he attempted
to escape from custody during his preliminary hearing with respect to the Arson
case. The hearing was being conducted at the courtroom in the police district ... It
is alleged that petitioner fled from the police district-while handcuffed- and ran
into a nearby occupied residence where he was caught in an upstairs bedroom.
***
... A brief analysis of several of the substantive claims raised by petitioner seems
to indicate that, to the extent that the claims of illegal imposition of various
sentences are meritorious, petitioner has not suffered prejudice, or this court may
correct any patent errors.

Petitioner seeks post-conviction relief because he claims that in light of, inter
alia, [Alleyne, he] is serving an illegal, unconstitutional mandatory minimum
sentence. However, petitioner was not sentenced to any mandatory minimum
sentences. The mandatory minimum referenced by the ADA at sentencing was 5
to 10 years imprisonment for the Rape and Attempted Rape cases. However, the
court imposed sentences of 10 to 20 years imprisonment on the relevant charges
and, therefore, did not impose any mandatory minimum sentences subsequently
invalidated by Alleyne.

Petitioner seeks post-conviction relief because he claims that C.F. will testify that
petitioner never attempted to rape her. Petitioner has not communicated with C.F.
since she provided victim impact testimony at the sentencing hearing in 2002. [31

Petitioner seeks post-conviction relief because he claims that the sentences
imposed for the charges of burglary and escape are illegal because a sentence
cannot be imposed for the crime of burglary and the crime which one intended to
commit upon entering the property burglarized. Section 3502 of the Crimes Code

Cristina (memorandum not reported in A.3d), No. 601 WDA 2013, 2016 WL 1757237 at *3 (Pa.Super. 2016). Here,
of course, there is no doubt that Alleyne does not apply retroactively.
3 The court would also note that her
testimony did not contribute to the defendant's convictions. He pled guilty to
the charges and whether or not she would have so testified at sentencing is totally irrelevant at this point.

16
 provides that "A person may not be sentenced both for burglary and for the offense
which it was his intent to commit after the burglarious entry or for an attempt to
commit that offense, unless the additional offense constitutes a felony of the first or
second degree." Here, separate sentences were imposed for burglary and escape,
however, the sentences are of identical length and were ordered to run concurrently.
To the extent that this was an error, this court has the power to amend its records,
correct mistakes, or correct defects in the record even after 30 days have lapsed
since the entry of an order. Commonwealth v. Cole, 263 A.2d 339 (Pa. 1970);
Commonwealth v. Klein, 781 A.2d 1133 (Pa. 2001); Commonwealth v. Holmes, 933
A.2d 57 (Pa. 2007). Thus, under the foregoing authority, this honorable court could
correct the patent defects in the sentencing order without assuming jurisdiction
under the provisions of the PCRA - jurisdiction which is lacking in this case.

Petitioner seeks post-conviction relief because he claims that the sentences
imposed for the charges of rape and IDSI are illegal insofar as they arise from a
"single act of penetration" and are therefore required to merge. Even assuming
arguendo that the sentences are required to merge, in these matters separate
sentences were imposed for (attempted) rape and IDSI, however, the sentences
are of identical length and were ordered to run concurrently with respect to each
victim. To the extent that this was an error, this court has the power to amend its
records, correct mistakes, or correct defects in the record even after 30 days have
lapsed since the entry of an order.

Petitioner seeks post-conviction relief because he claims that the trial court
did not have jurisdiction to accept petitioner's plea on the Attempted Rape case
because petitioner, aged 18 years and 3 months at the time the crime was
committed, was on juvenile probation at that time and less than 21 years of age.
While it is true that the juvenile justice system of the Court of Common Pleas
retained jurisdiction to provide treatment, rehabilitation and supervision to
petitioner, the Criminal Division of the Court of Common Pleas possessed
concurrent jurisdiction over petitioner with respect to the crimes committed after
his 18th birthday.

The court believes counsel having referred to a court's power to correct the record to have been

an abundance of caution. Aside from the fact that any claim of counsel ineffectiveness in failing

to raise such sentencing issues should have been raised in his previous PCRA proceeding and

were, thus, waived, while the defendant did enter the burglary victim's residence in continuance

of his escape, the escape was not "the crime which [he] intended to commit upon entering the

property burglarized." He had already committed the escape when he assaulted two police

officers and ran out of the police administration building to elude lawful custody; even though

17
..
his entry was an attempt to continue that escape, the crime he intended to commit upon entering

the property was obviously to avoid recapture and could possibly have been any number of

others, one being perhaps to acquire something to use as a weapon to further facilitate his escape.

In any event, the Commonwealth was not required to prove any intended crime.

Under Pennsylvania law the crime of burglary is defined as an unauthorized
entry with the intent to commit a crime after entry. 18 Pa. C. S. § 3 5 0 2;
Commonwealth v. Wilamowski, 534 Pa. 373, 633 A.2d 141 (1993). The intent to
commit a crime after entry may be inferred from the circumstances surrounding
the incident. Commonwealth v. Hardick, 475 Pa. 475, 380 A.2d 1235 (1977);
Commonwealth v. Wilamowski, 534 Pa. 373, 633 A.2d 141 (1993). This intent
may be inferred from actions as well as words. However, actions must bear a
reasonable relation to the commission of a crime.
***
Once Appellant has entered the private residence by criminal means we can
infer that Appellant intended a criminal purpose based upon the totality of the
circumstances. . ..
***
Accordingly, we hold that in order to secure a conviction for burglary, the
Commonwealth is not required to allege or prove what particular crime Appellant
intended to commit after his forcible entry into the private residence ....

Commonwealth v. Alston, 539 Pa. 202, 651 A.2d 1092, 1094-95 (1994). Therefore, the sentences

for those admittedly temporally concurrent but legally separate criminal acts were not illegal. As

for the rape, attempted rape and the two IDSis, the defendant was given a single sentence for

those charges, the former for the kidnapping as well, in addition to separate sentences for two

charges of corruption of the morals of a miner. Therefore, the crimes for which he claims he was

sentenced illegally were, in fact, merged.

On bill O 107-1246, which involves three felonies [ against BC], a Rape,
I.D.S.I., Kidnapping and Corruption of the Morals of a Minor - - on the three
felonies, the Rape, I.D.S.I., and Kidnapping, he's sentenced to 20 years ....
***
The total effect of that is that based upon the Complaints of [CF], he's doing
10 to 20 years. When he finishes that, based upon the Complaints of [BC], he'll
be doing 10 to 20 years ...

Notes of Testimony, Deferred Sentencing, August 20, 2002, pp. 57, 58. In any event, it can be

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proper for a court to issue separate sentences for rape and ISDI.

InBlockburgerv. United States, 284 U.S. 299, 304, 52S.Ct. 180, 182, 76L.Ed.
306, 309 (1932), the Supreme Court set forth the definitive test for determining
when conduct in violation of more than one statute must be treated as the "same
offense" for double jeopardy purposes: "The applicable rule is that where the same
act or transaction constitutes a violation of two distinct statutory provisions, the test
to be applied to determine whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does not." That is, more than
one offense may be found and punished in any given act or transaction only where
each offense requires proof of an element not contained in the other(s). Id [Sale of
morphine hydrochloride not in or from original stamped package, and without
written order, held two separate offenses, although transaction was same].
***
... "The assumption underlying the rule is that Congress ordinarily does not
intend to punish the same offense under two different statutes. Accordingly,
where two statutory provisions proscribe the 'same offense,' they are construed
not to authorize cumulative punishments in the absence of a clear indication of
contrary legislative intent." Whalen v. United States, 445 U.S. 684, 691-92, 100
S.Ct. 1432, 1437-38, 63 L.Ed.2d 715, 723-24 (1980) (emphasis added) [single,
undifferentiated act of possessing one gun supported two discrete sentences for
separate firearms violations without offending double jeopardy].

Where ... a legislature specifically authorizes cumulative
punishment under two statutes, regardless of whether those two
statutes proscribe the "same" conduct under Blockburger, a
court's task of statutory construction is at an end and the
prosecutor may seek and the trial court or jury may impose
cumulative punishment under such statutes in a single trial.

Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679, 74 L.Ed.2d 535,
544 (1983) (emphasis added) [being sentenced for both robbery in first degree and
armed criminal action did not violate double jeopardy where Missouri legislature
intended that punishment for both violations be cumulative].
***
... Commonwealth v. Wojciechowski, 285 Pa.Super. 1, 9, 426 A.2d 674, 678
(1981) (allocatur denied) (separate sentences for rape, involuntary deviate sexual
intercourse, indecent assault, and unlawful restraint based on single sexual attack
were warranted; "[i]t is unthinkable that a woman, once having been raped, is in
the position where her attacker can then abuse her in any other fashion sexually ...
without incurring further sanctions for these separate and distinct crimes");
accord, Commonwealth v. Pifer, 284 Pa.Super. 170, 425 A.2d 757 (1981).

Commonwealth v. Williams, 344 Pa. Super. 108, 496 A.2d 31, 36, 37, 42 (1985) (en bane).

Counsel correctly cited the principle that "Because in both of these cases the errors in question

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'
'
.
were patent, we determine that the trial courts had jurisdiction to correct the [illegal] sentences."

Holmes, supra, A. 2d at 58 (2007). Here, however, there were no defects to correct. Wherefore,

the court's denial of the defendant's third PCRA petition should be affirmed.

BY THE COURT:

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