J-S65004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

JAMES LEE A/K/A JAMES LENEGAN,

                       Appellant                 No. 183 EDA 2014


         Appeal from the PCRA Order Entered January 10, 2014
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0905921-2005

COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

JAMES LENEGAN,

                       Appellant                 No. 368 EDA 2015


         Appeal from the PCRA Order Entered February 2, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-1300588-2006

BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY BENDER, P.J.E.:               FILED NOVEMBER 10, 2015

     Appellant, James Lee (a.k.a. James Lenegan), appeals from two orders

entered in separate criminal cases, both of which denied his identical
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petitions for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546.1 For the following reasons, we affirm both orders.

       The PCRA court set forth the facts of Appellant’s cases, as follows:

             On December 16, 2004, Ray Longstreath, the owner of
       Northeast Fence and Iron Works, a Philadelphia business,
       reported a burglary at his company. Several items were stolen,
       including credit cards. On the same day, [Appellant] used one of
       the stolen credit cards to charge $1,158.04 worth of goods and
       services (N.T. 3/8/07, 16-17).

             On January 21, 2005, at 12:30 a.m., police responded to
       an activated silent alarm at a commercial building located at
       9999 Gantry Road in Northeast Philadelphia. Upon arrival, they
       saw [A]ppellant, wearing a full ski mask and dark clothing from
       head to toe, near the front door of the building. When he saw
       the police, he immediately headed for his car. The officers
       approached him and asked him what he was doing. Appellant
       claimed that he was a security guard for the property and that
       “people” were attempting to steal batteries from the rear of the
       building. When the officers inquired as to [A]ppellant’s employer
       and its address, he was unable to provide any answers. Their
       suspicions aroused, the officers telephoned the owner of the
       property, Chris Henry, and asked him if he had any security
       personnel working there. Mr. Henry confirmed that he did not
       (N.T. 3/8/07, 11-13).

             As the police stood with [A]ppellant in front of the building,
       waiting for Mr. Henry to arrive, they heard the sound of a radio
       coming from his person.       When one of the officers asked
       [A]ppellant what the noise was, he replied, “I don’t know what
       you’re talking about.” A subsequent search of [A]ppellant’s
       person yielded a police radio and a crowbar. When Mr. Henry
       arrived, he inspected the building with the police officers. They
       discovered pry marks on the front door. The crime scene unit
       made a casting of these marks[,] which established that they
       had been made by the crowbar recovered from [A]ppellant’s
____________________________________________


1
 This Court granted Appellant’s petition for consolidation of his two appeals
by per curiam order dated March 30, 2015.



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      person. There was also damage to a door on the side of the
      building[,] which cost $268.57 to repair (N.T. 3/8/07, 13-14).

            Mr. Henry told the police that he had never seen
      [A]ppellant before and obviously had not authorized him to enter
      the building. Appellant provided the police with a false name
      and identification.   From his car, the police recovered an
      assortment of tools and bolt cutters and a two-way radio (N.T.
      3/8/07, 12, 14-15).

PCRA Court Opinion (PCO), 2/25/15, at 2-3.

      Based on these facts, Appellant was charged with various offenses in

two separate cases, one stemming from his stealing credit cards from Mr.

Longstreath’s business (CP-51-CR-1300588-2006; Superior Court docket

number 368 EDA 2015), and the other from his attempted burglary of Mr.

Henry’s building (CP-51-CR-0905921-2005; Superior Court docket number

183 EDA 2014).     On March 8, 2007, Appellant entered negotiated guilty

pleas in both cases. Specifically, in the case docketed by this Court at 368

EDA 2015, Appellant pled guilty to forgery and access device fraud; in the

case docketed by this Court at 183 EDA 2014, Appellant pled guilty to

attempted burglary and possessing an instrument of crime. That same day,

Appellant received a negotiated, aggregate sentence of 2½ to 10 years’

incarceration.

      In the case docketed at 368 EDA 2015, Appellant did not file a direct

appeal and, therefore, his judgment of sentence became final on April 7,

2007, at the expiration of the thirty day time period for seeking review with

this Court.   See 42 Pa.C.S. § 9545(b)(3) (stating judgment of sentence

becomes final at the conclusion of direct review or the expiration of the time


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for seeking the review); Pa.R.A.P. 903(a) (directing that a notice of appeal

to Superior Court must be filed within 30 days after the entry of the order

from which the appeal is taken).

        In the case docketed at 183 EDA 2014, however, Appellant filed a

timely post-sentence motion to withdraw his guilty plea, contending that he

had not received proper credit for time served. On December 18, 2007, that

motion was denied by operation of law. Appellant timely appealed, and on

July 13, 2009, this Court vacated his judgment of sentence and remanded

“for a hearing limited to [determining] whether Appellant is entitled to any

credit for time served in the instant case.”    Commonwealth v. Lenegan

A/K/A James Lee, No. 222 EDA 2008, unpublished memorandum at 9 (Pa.

Super. filed July 13, 2009). On June 16, 2010, the trial court conducted that

hearing, after which it “re-imposed the same sentence and directed that

[A]ppellant was to be given time credit on both cases from the date of

sentence.” PCO at 2. Appellant did not file an appeal from the re-imposition

of his sentence and, therefore, that judgment of sentence became final on

July 16, 2010. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a).

        On July 6, 2010, Appellant filed identical pro se PCRA petitions in both

cases.    Counsel was appointed and filed an amended petition on July 24,

2012.     In August of 2013, the Commonwealth filed a motion to dismiss

Appellant’s petition in each of his two cases. On December 12, 2013, the

PCRA court issued Pa.R.Crim.P. 907 notices of its intent to dismiss both of




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Appellant’s petitions.    Appellant did not respond to the Rule 907 notice in

either case.

        On January 10, 2014, the PCRA court dismissed Appellant’s petition in

the case docketed at 183 EDA 2014.          Appellant filed a timely notice of

appeal. Due to a clerical error, the court’s order dismissing Appellant’s PCRA

petition in the case docketed at 368 EDA 2015 was not filed until February 2,

2015.     Appellant filed a timely notice of appeal in that case, as well.

Appellant also timely complied, in both cases, with the PCRA court’s orders

to file Pa.R.A.P. 1925(b) concise statements of errors complained of on

appeal. Those concise statements are identical. As mentioned, supra, this

Court consolidated Appellant’s two appeals at his request.          Herein, he

presents the following issues for our review:
        1. Did the PCRA court err in dismissing Appellant’s PCRA Petition
        because Appellant should have been allowed to withdraw his
        guilty plea because the plea was unlawfully induced by trial
        counsel who was ineffective and erroneously advised Appellant
        that his sentence would commence when Appellant’s bail had
        been revoked?

        2. Did the PCRA court err in dismissing Appellant’s PCRA Petition
        because trial counsel was ineffective for failing to object and
        move to withdraw Appellant’s guilty plea and have the matter
        transferred to another judge for disposition because the
        prosecutor made sentencing recommendations despite having
        agreed not to do so in the plea agreement that the prosecutor
        entered into with Appellant and was Appellant’s first
        PCRA/appellate counsel ineffective for failing to raise this claim
        in his amended Petition, in a post-sentence Motion, and on direct
        appeal?

Appellant’s Brief at 4.




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      This Court’s standard of review regarding an order denying a petition

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

by the evidence of record and is free of legal error.     Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified

record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

      Initially, we address the Commonwealth’s argument that Appellant’s

petition filed in the case docketed at 368 EDA 2015 is untimely, as the

timeliness of a petition implicates our jurisdiction and may not be altered or

disregarded in order to address the merits of the claims raised therein.

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating the

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded to address the merits of the petition); Commonwealth v.

Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding the Superior

Court lacks jurisdiction to reach merits of an appeal from an untimely PCRA

petition). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (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:


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            (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)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, in the case docketed at 368 EDA 2015, Appellant’s judgment of

sentence became final on April 7, 2007, and thus, he had until April 7, 2008,

to file a timely petition. Consequently, his July 6, 2010 petition is facially

untimely and, for this Court to have jurisdiction to review the merits thereof,

Appellant must prove that he meets one of the exceptions set forth in 42

Pa.C.S. § 9545(b). Our review of Appellant’s pro se petition, as well as his

amended petition, confirms that Appellant did not present any argument

regarding the applicability of a timeliness exception.   Instead, he asserted

that his guilty plea was unlawfully induced, and that his plea counsel acted

ineffectively. Appellant does not argue, let alone prove, that either of these

claims satisfies one of the exceptions set forth in section 9545(b)(1).

Accordingly, we agree with the Commonwealth that Appellant’s petition in


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the case docketed at 368 EDA 2015 is untimely and, as such, we affirm the

PCRA court’s order denying it.

      However, because Appellant’s petition in the case docketed at 183 EDA

2014 was filed less than one month after he was resentenced in that case,

that petition is timely. Accordingly, we will consider the merits of Appellant’s

arguments as they pertain to his guilty plea in that case.

      As set forth above, Appellant alleges in his first issue that his “plea

was unlawfully induced by trial counsel who was ineffective and erroneously

advised Appellant that his sentence would commence when Appellant’s bail

had been revoked.”     Appellant’s Brief at 9 (bold and underline emphasis

omitted; italicized emphasis added). At the start of his argument in support

of this issue, Appellant states that his guilty plea was unlawfully induced

“because his attorney[] advised him that the sentences imposed upon him

would commence on the day bail was revoked.”            Appellant’s Brief at 9.

Thus, it would seem that Appellant is alleging that his plea counsel rendered

ineffective representation, which resulted in his plea being unlawfully

induced.

      However, Appellant goes on to aver that, “[i]nstead of complying with

the agreement, the trial court directed that Appellant’s sentence commence

on the date [that] sentence was imposed.”       Id. (emphasis added). Then,

Appellant devotes the majority of his argument to discussing case law

involving the Commonwealth’s breach of a plea agreement, maintaining that

“it is beyond cavil that a defendant is entitled under the PCRA to withdraw a

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guilty    plea   upon   proving   that   the   Commonwealth   breached   a    plea

agreement.”       Id. at 12 (citations omitted; emphasis added).         Finally,

Appellant concludes his argument by stating:

                In the matter sub judice, Appellant clearly did not receive
         the benefit of the bargain he believed he struck with the
         prosecutor in exchange for his guilty plea. Even a cursory
         reading of the guilty plea and sentencing hearing transcripts
         clearly demonstrates that promises were made, understandings
         were forged, and an agreement was reached by and between []
         Appellant and the Commonwealth and that the Commonwealth
         breached that agreement by failing to insure that Appellant’s
         sentences commenced on the date bail was revoked. Appellant
         asserts that he is innocent and only pleaded guilty because of
         that inducement.     Thus, it is clear that this claim entitles
         Appellant to PCRA relief and he requests that this Court remand
         for a new trial.

Id. at 13 (emphasis added).

         To the extent that Appellant presents his first issue as an ineffective

assistance of counsel claim, the following standard applies:

         To prevail on his ineffectiveness claims, Appellant must plead
         and prove, by a preponderance of the evidence, three elements:
         (1) the underlying legal claim has arguable merit; (2) counsel
         had no reasonable basis for his action or inaction; and (3)
         Appellant suffered prejudice because of counsel's action or
         inaction. Commonwealth v. Steele, 599 Pa. 341, 961 A.2d
         786, 796 (2008) (citing Commonwealth v. Pierce, 515 Pa.
         153, 527 A.2d 973 (1987)). With regard to the second, i.e., the
         “reasonable basis” prong, we will conclude that counsel's chosen
         strategy lacked a reasonable basis only if Appellant proves that
         “an alternative not chosen offered a potential for success
         substantially greater than the course actually pursued.”
         Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060,
         1064 (2006) (citation omitted). To establish the third, i.e., the
         prejudice prong, Appellant must show that there is a reasonable
         probability that the outcome of the proceedings would have been
         different but for counsel's action or inaction. Commonwealth v.
         Dennis, 597 Pa. 159, 950 A.2d 945, 954 (2008).

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Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011)

      Here, Appellant has failed to discuss, let alone prove, any of the

above-stated prongs for demonstrating counsel’s ineffectiveness. Moreover,

he does not explain how counsel’s purported ineffectiveness caused him to

enter an involuntary or unknowing plea. See Commonwealth v. Barndt,

74 A.3d 185, 192 (Pa. Super. 2013) (“Allegations of ineffectiveness in

connection with the entry of a guilty plea will serve as a basis for relief only

if the ineffectiveness caused the defendant to enter an involuntary or

unknowing plea.”) (citation omitted).         Therefore, to the extent that

Appellant’s first issue implicates a challenge to plea counsel’s representation,

he is not entitled to relief.

      Additionally, while Appellant provides a one-sentence statement

suggesting that the trial court violated his plea agreement by failing to credit

Appellant for time served beginning when his bail was revoked, Appellant

asserted this same argument on direct appeal.          See Lenegan A/K/A

James Lee, No. 222 EDA 2008, unpublished memorandum at 5 (“Appellant

insists the parties agreed his sentence would begin to run from the date the

court had revoked bail; nevertheless, the court ordered Appellant’s sentence

to commence from the date of sentencing. … Appellant argues he did not

receive the sentence he negotiated, and his guilty plea was involuntary.”).

As discussed supra, after assessing the merits of Appellant’s argument, this

Court remanded for the trial court to conduct a hearing, which it did.

Following that hearing, the court imposed the same sentence and again

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directed that Appellant’s sentence began on the date he was initially

sentenced, i.e. March 8, 2007.           Because Appellant did not file a second

direct appeal challenging the court’s decision regarding credit for time

served, Appellant has waived this cursory allegation of trial court error for

our review.2     42 Pa.C.S. § 9543(a)(4); see also 42 Pa.C.S. § 9543(a)(3)

(stating that to be eligible for relief, a PCRA petitioner must prove “[t]hat the

allegation of error has not been previously litigated or waived”); 42 Pa.C.S.

§ 9544(b) (directing that “an issue is waived if the petitioner could have

raised it but failed to do so before trial, at trial, during unitary review, on

appeal or in a prior state post[-]conviction proceeding”).

       The same is true for Appellant’s assertion that the Commonwealth

breached the plea agreement, thereby permitting Appellant to withdraw his

guilty plea.    Initially, the two principal cases on which Appellant relies to

support this argument are direct appeal cases, not appeals from the denial

of PCRA petitions. See Commonwealth v. Williams, 481 A.2d 1230 (Pa.

Super. 1984); Commonwealth v. West, 378 A.2d 1289 (Pa. Super. 1977).

Here, however, Appellant did not assert this claim on direct appeal, he also

did not raise it in an appeal following his resentencing, and he does not

allege that his attorney’s failure to do so was unreasonable. Accordingly, we


____________________________________________


2
  Appellant also fails to argue, let alone prove, “[t]hat the failure to litigate
this issue … on direct appeal could not have been the result of any rational,
strategic or tactical decision by counsel.” 42 Pa.C.S. § 9543(a)(4).



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conclude that this claim is also waived. See 42 Pa.C.S. §§ 9543(a)(3) and

(4); 9544(b). Accordingly, none of the arguments presented in Appellant’s

first issue warrant relief.

      In Appellant’s second issue, he contends that trial counsel was

ineffective for failing to move to withdraw his plea “after the guilty plea court

breached the plea agreement [Appellant] made with the prosecution

whereby the prosecutor agreed that Appellant’s sentence would commence

on the date Appellant’s bail was revoked.” Appellant’s Brief at 14. Appellant

provides no citation to the record to support his claim that “the prosecutor

entered a plea agreement that called for Appellant’s sentence to commence

on the date bail was revoked.”     Id. at 15.   Indeed, the record belies this

assertion. At the start of the guilty plea hearing, Appellant’s counsel and the

prosecutor stated the terms of the negotiated plea agreement.          See N.T.

Plea, 3/8/07, at 2-3.     At no point did either party indicate that the plea

encompassed an agreement as to the date on which Appellant’s sentence

would begin.     Later, the court reiterated the agreed upon sentence, and

asked Appellant if that sentence comported with his understanding of the

plea agreement. Id. at 7. Appellant replied that it did. Id.

      We acknowledge that immediately thereafter, Appellant asked “when

the time would start[,]” and his defense counsel misinformed him that his

sentence would commence “from the time his bail was revoked.” N.T. Plea

at 7. However, the Commonwealth made no comment during this exchange,

and the question and answer between Appellant and his counsel does not

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convince us that Appellant bargained for his sentence to begin on the date

his bail was revoked. Accordingly, the record does not support Appellant’s

contention that this was a term of his negotiated plea agreement that the

Commonwealth and/or the trial court violated. Thus, Appellant’s claim that

counsel was ineffective for failing to file a motion to withdraw his guilty plea

based on this purported violation of his plea agreement lacks arguable merit.

       In sum, Appellant’s petition in the case docketed at 368 EDA 2015 is

untimely and he has not pled or proven the applicability of any timeliness

exception. As such, we affirm the PCRA court’s order denying the petition in

that case. In the case docketed at 183 EDA 2014, we conclude that neither

of Appellant’s two PCRA issues warrants relief. Accordingly, the court also

did not err in denying his petition in that case.3

       Order affirmed.




____________________________________________


3
  We note that the PCRA court offered slightly different (and additional)
reasons for rejecting Appellant’s claims. However, “this Court may affirm
the decision of the PCRA [c]ourt if it is correct on any basis.”
Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000) (citing
Commonwealth v. Pursell, 749 A.2d 911, 917 (Pa. 2000);
Commonwealth v. Ahlborn, 683 A.2d 632, 641 n.14 (Pa. Super. 1996)).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2015




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