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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                     v.

JOEL A. JAMES

                          Appellant                No. 1698 EDA 2016


                    Appeal from the PCRA Order May 4, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0004093-2011


BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                     FILED DECEMBER 27, 2016

      Appellant, Joel A. James, appeals from the order denying his petition

for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

      The PCRA court summarized the relevant facts and procedural history

as follows.

            On November 21, 2011, [James] entered into a negotiated
      guilty plea to a Pharmacy Act Violation for obtaining drugs by
      fraud (M3). The sentencing judge . . . sentenced [James]
      pursuant to the plea agreement, 2-12 months of incarceration.
      The minimum sentence was to be served on electronic home
      monitoring, with the remaining balance of the sentence to be
      supervised by the Substance Abuse Unit of the Delaware County
      Department of Probation and Parole. As no appeal was filed, the
      judgment of sentence became final on December 21, 2011.

           [James] was found to be in violation of his parole and a
      Gagnon II hearing was conducted on December 14, 2012.
      [James] was ordered to serve his full back time with immediate
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      parole, and to complete outpatient treatment. . . . [James]
      completed serving his sentence on this matter in 2013. . . .

            In August of 2015, counsel for [James] filed “Motion for
      Nunc Pro Tunc Reconsideration of Sentence.” Counsel alleged
      that as a result of his plea in 2011, [James] was being detained
      by immigration authorities and faced deportation. [The PCRA
      court] conducted oral argument on October 2, 2015, and denied
      the motion via [o]rder on October 16, 2015.

             On November 2, 2015, [James filed] a pro se PCRA
      petition alleging that counsel was ineffective for failing to notify
      him of the possible immigration consequences as a result of
      entering the negotiated guilty plea on November 21, 2011. [The
      PCRA court] appointed PCRA counsel who filed an amended
      petition on February 8, 2016. The Commonwealth filed its
      response on February 17, 2016, arguing that the petition was
      untimely and that [James] had completed his sentence and thus
      is not eligible for relief under the [PCRA].

PCRA Court Opinion, 7/7/16. The PCRA court adopted both of the

Commonwealth’s arguments and denied James’s petition. This timely appeal

followed.

      On appeal, James contends that he asserted a valid claim and

therefore the PCRA court erred in dismissing his PCRA petition. See

Appellant’s Brief, at 10. Specifically, James alleges that based upon the

United States Supreme Court’s ruling in Padilla v. Kentucky, 599 U.S. 356

(2010), his guilty plea counsel rendered ineffective assistance because

counsel failed to inform him of the potential immigration consequences of his

guilty plea. See id. at 9.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is


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supported by the evidence of record and is free of legal error. See

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. See Commonwealth v. Carr, 768 A.2d

1164, 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold

a hearing on the petition if the PCRA court determines that petitioner’s claim

is patently frivolous and is without a trace of support in either the record or

from other evidence. See Commonwealth v. Jordan, 772 A.2d 1011, 1014

(Pa. Super. 2001).

         Prior to addressing James’s substantive claim, we must first determine

whether the PCRA court correctly dismissed James’s petition without a

hearing based upon its conclusions that: 1) it lacked jurisdiction to entertain

James’s pro se PCRA petition; and 2) that James’s petition was untimely

filed.

         Eligibility for relief under the PCRA is governed by 42 Pa.C.S.A. §

9543, which provides:

         (a) General rule.- To be eligible for relief under this subchapter,
         the petitioner must plead and prove by a preponderance of the
         evidence all of the following:

               (1) That the petitioner has been convicted of a crime under
               the laws of this Commonwealth and is:

                     (i) currently serving a sentence of imprisonment,
                     probation or parole for the crime;

                     (ii) awaiting execution of a sentence of death for the
                     crime; or

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                  (iii) serving a sentence which must expire before the
                  person may commence serving the disputed
                  sentence.

See also Commonwealth v. Descardes, 136 A.3d 493, 501-503 (Pa.

2016).

      James does not meet any of the three eligibility requirements. He

completed his sentence in 2013. He is therefore ineligible for PCRA relief.

See Commonwealth v. Turner, 80 A.3d 754, 767 (Pa. 2013) (“[O]ur

legislature chose not to create any statutory entitlement to collateral review

for defendants who have completed their sentences.”)

      James contends that because he is being detained at an Immigration,

Customs, and Enforcement center as a result of his guilty plea, he has not

yet   completed   his   sentence.   However,   this   argument   is   woefully

underdeveloped and James does not support his argument with any case

law. Therefore, we will not consider it. See, e.g., Banfield v. Cortes, 110

A.3d 155, 176 n. 11 (Pa. 2015) (citation omitted) (“[w]here an appellate

brief fails to provide any discussion of a claim without citation to relevant

authority or fails to develop the issue in any other meaningful fashion

capable of review, that claim is waived”).

      Further, we note that even if we were to find that James was eligible

to file for PCRA relief, the PCRA court would have been correct in denying

James’s petition as untimely. The timeliness of a post-conviction petition is

jurisdictional. See Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa.

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Super. 2013). Generally, a petition for relief under the PCRA must be filed

within one year of the date the judgment is final, unless the petition alleges

and proves an exception to the time for filing the petition. See 42 Pa.C.S.A.

§ 9545(b)(1)(i)-(iii). A PCRA petition invoking one of those statutory

exceptions must “be filed within sixty days of the date the claims could have

been presented.” Hernandez, 79 A.3d at 651-652 (citing 42 Pa.C.S.A. §

9545(b)(2)). Exceptions to the time bar must be pled in the petition, and

may not be raised for the first time on appeal. See Commonwealth v.

Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a)

(providing that issues not raised before the lower court are waived and

cannot be raised for the first time on appeal).

       James’s judgment of sentence became final on December 21, 2011,

when the thirty-day time period for filing an appeal to this Court expired.

See 42 Pa.C.S.A. § 9545(b)(3). Therefore, James needed to file the petition

at issue by December 20, 2012 in order for it to be timely. 1 He filed the

instant petition almost three years later; it is patently untimely unless James

has satisfied the burden of pleading and proving one of the timeliness

exceptions.

       Though James argues in his appellate brief that his PCRA petition

meets the newly discovered constitutional right exception because of the
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1
 The year 2012 was a leap year. Therefore, December 20, 2012 constitutes
one year from the date James’s judgment of sentence was finalized.



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United States Supreme Court’s ruling in Padilla, he failed to even plead this

exception in either his PCRA petition or in his amended PCRA petition. By

failing to plead this exception in his petition, he has waived all claims that an

enumerated exception applies to his PCRA petition. See Burton, 936 A.2d at

525; Pa.R.A.P. 302(a).

      In sum, James was ineligible to file for PCRA relief. and even if he was

eligible for relief, his PCRA petition was untimely, and he waived any

exception to the timeliness requirements of the PCRA. Thus, the PCRA court

properly concluded that it lacked jurisdiction and correctly denied James’s

post-conviction relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2016




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