J-S73005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JOSHUA MICHA GIANQUITTO                 :
                                         :
                   Appellant             :   No. 849 MDA 2017

                 Appeal from the PCRA Order May 8, 2017
             in the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0003139-2015

BEFORE:   OLSON, DUBOW, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED MARCH 23, 2018

     Joshua Micha Gianquitto (Appellant) appeals from the order entered on

May 8, 2017, which denied his petition filed pursuant to the Post-Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.    Upon review, we vacate the

order and remand for proceedings consistent with this memorandum.

     On July 22, 2015, Appellant pled guilty to one count of flight to avoid

apprehension. Appellant requested that the trial court sentence him to one-

to-two years of incarceration and that the sentence run concurrently to his

two-to-four year parole-revocation sentence at docket number 3043 CR 2012.

The trial court agreed and sentenced Appellant accordingly.      See N.T.,

7/22/2015, at 4.   Appellant did not file a post-sentence motion or direct

appeal.

     On September 8, 2016, Appellant received notice from the Department

of Corrections (DOC) that his maximum date was April 30, 2018. The DOC


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* Retired Senior Judge assigned to the Superior Court.
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notice showed that Appellant’s sentences were being run consecutively, rather

than concurrently. Thus, on September 19, 2016, Appellant pro se sent a

motion to the trial court requesting that it order the DOC to comply with the

July 22, 2015 sentencing order.1           The trial court denied that motion the

following day.

       On November 9, 2016, Appellant filed a pro se PCRA petition. Appellant

recognized that the petition was filed untimely.2 However, he claimed that

the September 8, 2016 letter from the DOC met the newly-discovered facts

exception to the timeliness requirements. See 42 Pa.C.S. § 9545(b)(1)(ii)

(“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 … the facts upon

which the claim is predicated were unknown to the petitioner and could not

____________________________________________


1 We observe that any document filed after a judgment of sentence becomes
final should be treated as a PCRA petition. See Commonwealth v. Jackson,
30 A.3d 462 (Pa. Super. 2011) (noting because the PCRA is intended to be
the sole source of post-conviction relief, a motion to correct an illegal
sentence, filed after a criminal judgment has become final, is properly
addressed as a PCRA petition). Thus, the trial court should have treated this
motion as a PCRA petition.

2 “For purposes of [the PCRA], 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.” 42 Pa.C.S. § 9545(b)(3). Thus, Appellant’s
judgment of sentence became final on August 21, 2015, and he had one year,
or until August 21, 2016 to file a timely PCRA petition.




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have been ascertained by the exercise of due diligence.”). In addition, on

September 27, 2016, the DOC informed Appellant that “according to

Pennsylvania law, [Appellant] must serve [his] backtime first. This means

that [the sentences] cannot be served concurrently even if the judge states

so.”3 PCRA Petition, 9/9/2016, at Exhibit E.

       The PCRA court appointed counsel, and she filed an amended PCRA

petition asserting Appellant’s newly-discovered fact as an exception to the

timeliness requirements and requesting that Appellant be permitted to

withdraw his guilty plea. The Commonwealth filed a response, and on April

20, 2017, the PCRA court issued a notice pursuant to Pa.R.Crim.P. 907 of its

intention to dismiss Appellant’s petition without a hearing. The PCRA court

concluded that it lacked jurisdiction to consider Appellant’s petition because

the newly-discovered fact did not satisfy the requirements of the PCRA. On

May 8, 2017, the PCRA court dismissed Appellant’s petition. Appellant timely


____________________________________________


3 The DOC has set forth a correct assessment of Pennsylvania law, which
provides the following:

       (5) If a new sentence is imposed on the parolee, the service of
       the balance of the term originally imposed by a Pennsylvania court
       shall precede the commencement of the new term imposed in the
       following cases:

         (i) If a person is paroled from a State correctional institution
         and the new sentence imposed on the person is to be served
         in the State correctional institution.

61 Pa.C.S. § 6138(a)(5)(i).


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filed a notice of appeal, and both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

      On appeal, Appellant argues the PCRA court erred in concluding that it

lacked jurisdiction to entertain Appellant’s PCRA petition. Appellant’s Brief at

8. Specifically, Appellant argues that the September 8, 2016 sentence status

summary from the DOC satisfies the newly-discovered facts exception. Id. at

9.

      We begin our review by noting the relevant legal principles.        “This

Court’s standard of review regarding an order dismissing a petition under the

PCRA is whether the determination of the PCRA court is supported by evidence

of record and is free of legal error.” Commonwealth v. Weatherill, 24 A.3d

435, 438 (Pa. Super. 2011).       Any PCRA petition, including second and

subsequent petitions, must either (1) be filed within one year of the judgment

of sentence becoming final, or (2) plead and prove a timeliness exception. 42

Pa.C.S. § 9545(b).    The statutory exception relevant to this appeal is the

newly-discovered facts exception which requires proof that “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.”            42 Pa.C.S.

§ 9545(b)(1)(ii). Furthermore, the petition “shall be filed within 60 days of

the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Both Appellant’s September 19, 2016 motion and his November 9, 2016

PCRA petition are facially untimely, as his judgment of sentence became final

on August 21, 2015. However, Appellant asserts that his finding out that the

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DOC could not implement the sentence imposed by the trial court constituted

a newly-discovered fact.

       In response, the PCRA court offered the following.

              [Appellant] bases the assertion of a newly[-]discovered fact
       on the sentence status summary he received informing him that
       the concurrent sentence was illegal under 61 Pa.C.S. []
       § 6138(a)(5)(i). Learning of a state statute does not constitute
       the discovery of a new fact because the statute is law and not fact.
       … Additionally, [Appellant] could have discovered the law and
       status of his sentence with the exercise of due diligence. The law
       was public and in effect at the time [Appellant] was sentenced and
       [Appellant] could have discovered its existence with research at
       the prison’s law library. [Appellant] could have also requested a
       summary of his sentence status a significant amount of time
       before he actually did so. … With the exercise of due diligence
       [Appellant] could have become aware of the law and the need to
       serve the time owed for state parole and filed a timely PCRA
       petition. [Appellant] did not do so.

PCRA Court Opinion, 4/20/2017, at 3.

       In reaching these conclusions, the PCRA court erred in a number of

respects. First, Appellant is not asserting, as the PCRA court suggests, that

the newly-discovered fact is the statute that renders his sentence illegal.

Instead, Appellant asserts that the newly-discovered fact was the September

8, 2016 sentence status summary, which informed him of his maximum date.

Upon further inquiry, Appellant learned that there was a statute that

prevented the DOC from implementing his sentencing order as written.4

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4 In Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017), our Supreme
Court held specifically that “the presumption that information which is of public
record cannot be deemed ‘unknown’ for purposes of subsection 9545(b)(1)(ii)



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According to Appellant, he did not know this important information,5 and thus

it was newly discovered for the purposes of the exception.

       Moreover, not only did Appellant discover a new fact, but he also

established that he acted with due diligence.

       Due diligence demands the petitioner to take reasonable steps to
       protect [his] own interests. This standard, however, entails
       neither perfect vigilance nor punctilious care, but rather it requires
       reasonable efforts by a petitioner, based on the particular
       circumstances, to uncover facts that may support a claim for
       collateral relief. Thus, the due diligence inquiry is fact-sensitive
       and dependent upon the circumstances presented. A petitioner
       must explain why she could not have learned the new fact earlier
       with the exercise of due diligence.

Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa. Super. 2017) (internal

citations and quotation marks omitted).

       Instantly, Appellant was satisfied with the sentence that was imposed,

and did not become dissatisfied until the DOC informed him it could not

implement the trial court’s order. If neither Appellant’s counsel nor the trial

court knew it was recommending and imposing a sentence that could not be

implemented, Appellant acted reasonably under the circumstances by not

conducting research into a sentence with which he was pleased. Moreover,

____________________________________________


does not apply to pro se prisoner petitioners.” Thus, the PCRA court was
required to conduct a hearing into whether Appellant could have discovered
this information in the prison law library as the PCRA court suggests.

5In fact, Appellant’s plea counsel, the district attorney, and the trial court also
did not know this information.




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Appellant had no reason to request a summary from the DOC.6 However,

once Appellant learned that his sentences were not to run concurrently as

imposed, he filed both a motion and PCRA petition.             These facts satisfy

Appellant’s due diligence requirement.

       In addition, Appellant filed both a pro se motion and PCRA petition within

the 60-day timeframe required by 42 Pa.C.S. § 9545(b)(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[.]”). Appellant received a

letter from the Department of Corrections on September 8, 2016, and the 60th

day thereafter is November 7, 2016.              Appellant’s motion was filed was

September 19, 2016 and Appellant’s PCRA petition was docketed on

November 9, 2016.         “[T]he prisoner mailbox rule provides that a pro se

prisoner’s document is deemed filed on the date he delivers it to prison

authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa.

Super. 2011).      Because November 8, 2016 was Election Day, there is no

question that Appellant delivered his pro se PCRA petition to prison authorities

by November 7, 2016. Thus, Appellant has satisfied 42 Pa.C.S. § 9545(b)(2)

with respect to both filings.


____________________________________________


6 According to the PCRA court, it is “hard to believe that an incarcerated
individual would not know [his] exact release date or would at least inquire
within a year of incarceration as to when [he] would be released.” PCRA Court
Opinion, 4/20/2017, at 3 n. 1. However, to the extent the PCRA court believed
Appellant did not act with due diligence, it should have held a hearing to reach
that conclusion.

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      Based on the foregoing, Appellant has pled and proven the newly-

discovered facts exception to the PCRA timeliness requirements. Therefore,

the PCRA court erred in concluding that it lacked jurisdiction to entertain

Appellant’s PCRA petition. Accordingly, we vacate the order of the PCRA court

and remand for proceedings to consider the petition on its merits. In doing

so, the trial court should consider that its sentencing order is being overruled

by the DOC, an issue that has recently arisen in the Commonwealth Court.

      [I]n Kerak v. Pennsylvania Board of Probation and Parole,
      [153 A.3d 1154 (Pa. Cmwlth. 2016) (en banc), the
      Commonwealth Court] addressed whether the Board [of Probation
      and Parole] erred in recalculating a parolee’s maximum date by
      not giving the parolee credit based on a sentencing judge’s order,
      pursuant to a plea agreement under the Post Conviction Relief Act,
      that indicated that the parties intended “to permit the instant
      sentence to be served concurrently with a state probation/parole
      violation [Kerak] is currently serving [on his original aggravated
      assault conviction] without violating the provisions of [Section
      6138(a) of the ... Code].” Kerak, [153 A.3d at 1136] (footnote
      omitted). Relying on Section 6138(a)(5) of the Code, [and other
      case law], a majority of this [the Commonwealth Court] affirmed
      the Board’s decision not to run the parolee’s new sentence
      concurrently with his backtime for his original sentence,
      “notwithstanding the [sentencing judge’s] order to the contrary”
      and in recalculating the parolee’s new maximum date without
      giving the parolee credit based on the ordered concurrent
      sentences. [Id. at 1141.] Kerak analyzes the case law the Board
      relies upon here to argue that it was permissible for the Board to
      not credit Heidelberg’s original sentence for time served on his
      new sentence even though common pleas sentenced him to
      concurrent sentences, and its holding represents the current view
      of a majority of this Court. We are bound by Kerak, and,
      notwithstanding common pleas’ order directing concurrent
      sentences, we are required to find no error in the Board’s decision,
      pursuant to Section 6138(a)(5) of the Code, not to credit
      Heidelberg with the requested 304 days.




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Heidelberg v. Pennsylvania Bd. of Prob. & Parole, __ A.3d __, 2017 WL

242769, at *5 (Pa. Cmwlth. 2017).

     In   both   Kerak   and   Heidelberg,    Commonwealth       Court   judges

expressed their concerns about this situation.        In Kerak, Judge Cohn

Jubelirer, joined by Judge McCullough, dissented writing:

     I disagree with the Majority’s approval of an executive branch
     agency’s authority, here, the Pennsylvania Board of Probation and
     Parole (Board), to ignore key provisions of an unappealed final
     order issued by a court.       Under our constitutional system,
     executive branch agencies must comply with final orders of a court
     until a court corrects or amends that order, even if agency officials
     believe the order does not comply with the law. … If the
     government agency is aggrieved by the illegal sentence, it is the
     agency’s responsibility to seek the appropriate form of relief.
     Unless and until a court grants relief and modifies the sentence,
     the Board must comply with the sentencing order.

153 A.3d at 1142, 1145 (Cohn Jubelirer, J. dissenting).

     In Heidelberg, Judge Cosgrove agreed with the dissent in Kerak and

added:

     Separation of powers principles demand unfettered executive
     respect for the decisions of the judiciary. … This is most especially
     true in a case such as this where the order involves the imposition
     of a sentence. There is no judicial action more intimate or
     impactful than the sentencing decision. … Yet Kerak, and now the
     present decision, reduce that most significant of judicial actions to
     a mere footnote in the hands of an executive agency. I cannot
     think of a greater insult to judicial independence than to subject a
     judge’s sentencing decision to the approval or rejection of another
     branch of government.

Heidelberg, 2017 WL 242769, at *7 (Cosgrove, J. dissenting).




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      While the case law at this juncture supports the actions of the DOC,

there appears to be legitimate disagreement about whether such actions are

constitutional.

      Based on the foregoing, we vacate the order of the PCRA court and

remand for proceedings consistent with this memorandum.

      Order vacated. Case remanded. Jurisdiction relinquished.

      Judge Dubow joins the memorandum.

      Judge Olson files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/23/2018




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