J-S63013-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
                                          :
            v.                            :
                                          :
MARK A. PEREZ,                            :
                                          :
                    Appellant             :   No. 162 EDA 2015

                 Appeal from the PCRA Order December 10, 2014,
                   Court of Common Pleas, Montgomery County,
                 Criminal Division at No. CP-46-CR-0007249-2009

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED NOVEMBER 12, 2015

      Appellant, Mark A. Perez (“Perez”), appeals pro se from the order

entered on December 10, 2014 by the Court of Common Pleas of

Montgomery County, Criminal Division, dismissing his second petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

      The trial court summarized the relevant facts and procedural history of

this case as follows:

                On June 20, 2011, in conformance with a
            negotiated guilty plea agreement, [Perez] pled guilty
            to aggravated assault, robbery, theft by unlawful
            taking, burglary and persons not to possess a
            firearm. In return for his guilty plea[, Perez] was
            sentenced to an aggregate term of [fifteen to thirty
            years of] imprisonment.      [Perez] filed a post-
            sentence motion to withdraw his guilty plea, which
            was denied.
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              [Perez] filed a timely direct appeal which was
           rejected by the Pennsylvania Superior Court, and on
           August 14, 2012, [Perez]’s judgment of sentence
           was affirmed. No further appeal was taken.

              On October 16, 2012, [Perez] filed a timely pro se
           PCRA petition.    Counsel was appointed to assist
           [Perez] with his petition. On December 7, 2012,
           PCRA counsel determined that all issue[s] lacked
           merit and submitted a no-merit letter, seeking to
           withdraw.     A pre-dismissal notice was issued in
           compliance with Pa.R.Crim.P. 907. [Perez] exercised
           his right to respond to the notice and filed a motion
           for leave to file an amended PCRA petition.
           Ultimately[,] on January 7, 2013, a final order of
           dismissal was issued, dismissing [Perez]’s PCRA
           petition.

              [Perez] appealed from the final order of dismissal,
           but the appeal was denied on September 13, 2013.
           [Perez] did not pursue a petition for allowance of
           appeal with the Pennsylvania Supreme Court.

               Subsequently, on November 13, 2014, [Perez]
           filed a second PCRA petition, which is the subject of
           this appeal. On November 18, 2014, this [c]ourt
           issued a pre-dismissal notice, notifying [Perez] of
           this [c]ourt’s proposed dismissal due to the untimely
           nature of his second PCRA petition, to which [Perez]
           filed a response.      Thereafter, a final order of
           dismissal was entered. This timely appeal followed.

PCRA Ct. Op., 3/11/15, at 1-2.

     From what we can discern from his pro se appellate brief, Perez raises

four arguments in support of his claim that the trial court abused its

discretion in dismissing his second PCRA petition. See Perez’s Brief at 6-9.

First, Perez argues that the PCRA court erred in not permitting him to

withdraw his guilty plea. Id. at 8. Perez asserts that the PCRA court should



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have permitted him to withdraw his guilty plea because on September 26,

2014, over three years after his guilty plea in this case, the Philadelphia

County Court of Common Pleas vacated a prior, unrelated conviction (“the

Philadelphia conviction”), which the Commonwealth had used against him in

negotiating his sentence in this case. Id. Perez contends that as a result,

he received a longer sentence than he otherwise would have. Id. Second,

in the alternative, Perez argues that the PCRA court erred in failing to credit

the time he served on the Philadelphia conviction to his current sentence of

fifteen to thirty years. See id. at 6-9. Third, Perez contends that the PCRA

court erred by failing to appoint him counsel. See id. Finally, Perez argues

that the PCRA abused its discretion by dismissing his PCRA petition without a

hearing. See id.

      Prior to determining the merits of Perez’s claims, we must determine

whether we have jurisdiction to decide his appeal. “Pennsylvania law makes

clear no court has jurisdiction to hear an untimely PCRA petition.”

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010)

(quoting Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).

A petitioner must file a PCRA petition within one year of the date on which

the petitioner’s judgment became final, unless one of the three statutory

exceptions apply:

            (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



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            Constitution or laws of this Commonwealth or the
            Constitution or laws of the United States;

            (ii) the facts upon which the claim is predicated were
            unknown to the petitioner and could not have been
            ascertained by the exercise of due diligence; or

            (iii) the right asserted is a constitutional right that
            was recognized by the Supreme Court of the United
            States or the Supreme Court of Pennsylvania after
            the time period provided in this section and has been
            held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).     If a petition is untimely, and the

petitioner has not pled and proven any exception, “‘neither this Court nor

the trial court has jurisdiction over the petition.   Without jurisdiction, we

simply do not have the legal authority to address the substantive claims.’”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      Perez’s instant PCRA petition is facially untimely and he does not

contest this determination.     Accordingly, we are without jurisdiction to

decide Perez’s appeal unless he pled and proved one of the three timeliness

exceptions of section 9545(b)(1).    See id.    In the instant PCRA petition,

Perez invoked the timeliness exception set forth in section 9545(b)(1)(ii),

that “the claim is predicated on facts that were unknown to the petitioner

and could not have been discovered with due diligence.” Our Court recently




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provided the following explanation of the timeliness exception of section

9545(b)(1)(ii):

              The timeliness exception set forth in [s]ection
           9545(b)(1)(ii) requires a petitioner to demonstrate
           he did not know the facts upon which he based his
           petition and could not have learned those facts
           earlier   by   the   exercise    of  due    diligence.
           Commonwealth v. Bennett, [] 930 A.2d 1264,
           1271 ([Pa.] 2007). Due diligence demands that the
           petitioner take reasonable steps to protect his own
           interests. Commonwealth v. Carr, 768 A.2d 1164,
           1168 (Pa. Super. 2001). A petitioner must explain
           why he could not have learned the new fact(s)
           earlier with the exercise of due diligence.
           Commonwealth v. Breakiron, [] 781 A.2d 94, 98
           ([Pa.] 2001); Commonwealth v. Monaco, 996
           A.2d 1076, 1080 (Pa. Super. 2010), appeal denied,
           [] 20 A.3d 1210 ([Pa.] 2011). This rule is strictly
           enforced.    Id.    Additionally, the focus of this
           exception “is on the newly discovered facts, not on a
           newly discovered or newly willing source for
           previously known facts.”         Commonwealth v.
           Marshall, [] 947 A.2d 714, 720 ([Pa.] 2008)
           (emphasis in original).

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).

     Here, Perez asserts that this case falls within the timeliness exception

of section 9545(b)(1)(ii) because he could not have learned that the

Philadelphia County Court of Common Pleas vacated his conviction and nolle

prossed the underlying charges until it actually entered the order dismissing

the conviction on September 26, 2014.      Perez’s Brief at 8.   Additionally,

Perez contends that he met the sixty-day requirement by filing the instant

PCRA petition on November 13, 2014. Id.




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      The trial court initially dismissed Perez’s second PCRA petition as

untimely.     PCRA Ct. Op., 3/11/15, at 1.     In its Rule 1925(a) opinion,

however, the trial acknowledged that Perez had properly pled and proved

the timeliness exception of section 9545(b)(1)(ii). 1   See id. at 5-7.   We

agree with the PCRA court that Perez has satisfied the timeliness exception

of section 9545(b)(1)(ii).     The certified record on appeal reflects the

following. The vacateur of Perez’s Philadelphia conviction stemmed from the

arresting officer in that case, Officer Jeffrey Walker (“Officer Walker”),

pleading guilty to robbery and theft. See PCRA Petition, 11/13/14, Exhibit

1. The investigation of those charges revealed that Officer Walker had been

fabricating facts to support affidavits of probable cause for his arrests. See

Id. The investigation also revealed that Officer Walker had planted drugs,

stolen drugs and money, and lied in police paperwork and in court. Id.

      Based upon these findings, the Defender Association of Philadelphia

filed petitions to reopen over 200 convictions, including Perez’s Philadelphia

conviction.    Id.   The Philadelphia District Attorney’s Office and the

Philadelphia Court of Common Pleas agreed that Perez’s Philadelphia

conviction was improper.     Id.   Therefore, on September 26, 2014, the

Philadelphia Court of Common Pleas vacated his conviction and nolle prossed

the charges against him. Id.



1
  The PCRA court ultimately determined that issues Perez raised in his PCRA
petition were meritless. See PCRA Ct. Op., 3/11/14, at 7-10.


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      It is clear from the record that Perez did not know these facts at the

time of his June 20, 2011 guilty plea in this case. Perez would have had no

way of knowing that over three years later, his Philadelphia conviction would

be vacated and the charges dismissed. Additionally, there was no way that

Perez could have known these facts earlier than September 26, 2014,

because that was the date on which the Philadelphia County Court of

Common Pleas vacated his Philadelphia conviction and nolle prossed the

charges underlying that conviction.       Therefore, Perez has satisfied the

requirements of section 9545(b)(1)(ii).

      Furthermore, Perez filed the instant PCRA petition within sixty days of

the date that the claim could have been presented. The Philadelphia Court

of Common Pleas nolle prossed the charges underlying his Philadelphia

conviction on September 26, 2014 and Perez filed this PCRA petition forty-

eight days later on November 13, 2014. Thus, Perez has also satisfied the

requirements of section 9545(b)(2).             Accordingly, because we have

concluded that we have jurisdiction over this appeal, we now turn to the

merits of Perez’s claims.

      We begin by acknowledging that “[o]ur standard of review regarding a

PCRA court’s order is whether the determination of the PCRA court is

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

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). “The




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

findings in the certified record.” Id.

      Perez argues that the PCRA court erred in failing to permit him to

withdraw his guilty plea because the Commonwealth used the now-vacated

Philadelphia conviction in negotiating his sentence in this case, which

resulted in him receiving a longer sentence. See Perez’s Brief at 6-9. We

conclude that Perez has waived this argument for failing to raise it in the

statement of questions involved section of his appellate brief. See Pa.R.A.P.

2116(a) (“No question will be considered unless it is stated in the statement

of questions involved or is fairly suggested thereby.”).       Therefore, this

argument does not entitle Perez to relief.

      Even if Perez had preserved this argument in his Rule 2116(a)

statement, it is still meritless. Section 9543(a)(2) of the PCRA identifies a

petitioner’s burden of proof and pleading requirements to be eligible for

PCRA relief. Section 9543(a)(2) 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:

                                 *        *    *

                  (2) That the conviction or sentence resulted
                  from one or more of the following:

                        (i) A violation of the Constitution of this
                        Commonwealth or the Constitution or
                        laws of the United States which, in the



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                      circumstances of the particular case, so
                      undermined     the     truth-determining
                      process that no reliable adjudication of
                      guilt or innocence could have taken
                      place.

                      (ii) Ineffective assistance of counsel
                      which, in the circumstances of the
                      particular case, so undermined the truth-
                      determining process that no reliable
                      adjudication of guilt or innocence could
                      have taken place.

                      (iii) A plea of guilty unlawfully induced
                      where the circumstances make it likely
                      that    the    inducement   caused    the
                      petitioner to plead guilty and the
                      petitioner is innocent.

                      (iv) The     improper    obstruction by
                      government officials of the petitioner’s
                      right of appeal where a meritorious
                      appealable issue existed and was
                      properly preserved in the trial court.

                      (v) Deleted.

                      (vi) The unavailability at the time of trial
                      of exculpatory        evidence that has
                      subsequently become available and
                      would have changed the outcome of the
                      trial if it had been introduced.

                      (vii) The imposition of a sentence greater
                      than the lawful maximum.

                      (viii) A proceeding in a tribunal without
                      jurisdiction.

42 Pa.C.S.A. § 9543(a)(2).




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      Perez’s argument falls under section 9543(a)(2)(iii), that his guilty

plea was “unlawfully induced where the circumstances make it likely that the

inducement caused the petitioner to plead guilty and the petitioner is

innocent.” Perez, however, has at no point, either before the PCRA court or

on appeal, asserted his innocence. Section 9543(a)(2)(iii) requires such an

assertion.   See 42 Pa.C.S.A. § 9543(a)(2).         Accordingly, Perez’s first

argument is meritless.

      Second, in the alternative, Perez argues that the PCRA court erred in

failing to award him credit on his current sentence for the time he served on

the Philadelphia conviction. See Perez’s Brief at 6-9. Perez contends that

this claim is a challenge to the legality of his sentence and is therefore

cognizable under the PCRA.      See id. at 6.    The Commonwealth argues,

based on Commonwealth v. Heredia, 97 A.3d 392 (Pa. Super. 2014), that

this claim is not cognizable under the PCRA. We agree.

      In Heredia, this Court explained the appropriate procedure for

presenting a sentencing challenge based on credit for time served, as

follows:

                If the alleged error is thought to be the result of
             an erroneous computation of sentence by the Bureau
             of Corrections, then the appropriate vehicle for
             redress would be an original action in the
             Commonwealth Court challenging the Bureau’s
             computation. If, on the other hand, the alleged error
             is thought to be attributable to ambiguity in the
             sentence imposed by the trial court, then a writ of
             habeas corpus ad subjiciendum lies to the trial court



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              for clarification and/or correction of the sentence
              imposed.

                 It [is] only when the petitioner challenges the
              legality of a trial court’s alleged failure to award
              credit for time served as required by law in
              imposing sentence, that a challenge to the
              sentence [is] deemed cognizable as a due process
              claim in PCRA proceedings.

Commonwealth v. Heredia, 97 A.3d 392, 395 (Pa. Super. 2014)

(emphasis added; brackets in original) (quoting Commonwealth v. Perry,

563 A.2d 511, 513 (Pa. Super. 1989)).

       When the trial court imposed Perez’s sentence in the instant matter, it

was not required to grant Perez credit for the time he served on the

Philadelphia conviction, as the Philadelphia conviction had not yet been

dismissed. Therefore, Perez’s sentence was legal at that time the trial court

imposed it.    As such, Perez’s claim is not cognizable under the PCRA and

does not entitle him to relief.2

       Third, Perez argues that the trial court erred by failing to appoint

counsel to represent him for his second PCRA petition. See Perez’s Brief at

6-9.   It is well settled that a criminal defendant is only entitled to the


2
   We note that the Commonwealth Court has exercised original jurisdiction
over claims that a defendant is entitled to time-credit on a current sentence
based on the dismissal of a prior conviction for which the defendant has
already served a sentence. See Gasper v. Commonwealth, Bd. of Prob.
& Parole, 388 A.2d 1139, 1141 (Pa. Cmwlth. 1978) (holding that the period
of time defendant served on sentence that was subsequently dismissed was
properly credited against a later sentence for a different crime and that the
defendant was not entitled to have time on the dismissed sentence credited
against both an earlier sentence for another crime and the later sentence).


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appointment of counsel for his first PCRA petition. See Pa.R.Crim.P. 904(C)

(“when an unrepresented defendant satisfies the judge that the defendant is

unable to afford or otherwise procure counsel, the judge shall appoint

counsel to represent the defendant on the defendant’s first petition for post-

conviction collateral relief.”). Therefore, because this is Perez’s second PCRA

petition, we conclude that the trial court did not abuse its discretion in

declining to appoint him counsel.

      Finally, Perez argues that the PCRA court erred in dismissing his

petition without a hearing. See Perez’s Brief at 8. Our Supreme Court has

held that “a PCRA court must hold a hearing when a PCRA petition raises any

issues of material fact.” Commonwealth v. Marshall, 947 A.2d 714, 723

(Pa. 2008); see also Pa.R.Crim.P. 908(A)(2) (requiring a hearing on a PCRA

petition “when the petition for post-conviction relief or the Commonwealth’s

answer, if any, raises material issues of fact”). “If a PCRA petitioner’s offer

of proof is insufficient to establish a prima facie case, or his allegations are

refuted by the existing record, an evidentiary hearing is unwarranted.”

Commonwealth v. Eichinger, 108 A.3d 821, 849 (Pa. 2014).                  Here,

Perez’s claims do not raise any issues of material fact and the trial court was

able to determine that the issues he raised were meritless based on the

existing record.   Therefore, the trial court did not err by failing to hold a

hearing on Perez’s petition.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/12/2015




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