J-S39029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

v.

CHRIS ALLEN NEAL,

                            Appellant                No. 1996 MDA 2015


                 Appeal from the PCRA Order November 5, 2015
                in the Court of Common Pleas of Lebanon County
               Criminal Division at Nos.: CP-38-CR-0000465-2012
                            CP-38-CR-0000467-2012


BEFORE: STABILE, J., PLATT, J.*, and STRASSBURGER, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 17, 2016

        Appellant, Chris Allen Neal, appeals from the order denying his

counseled first petition for relief pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541–9546, after a hearing.            On independent

review, we agree with the PCRA court that Appellant’s petition is untimely on

its face with no cognizable exception to the statutory time-bar properly

pleaded and proven. Accordingly, we affirm.

        Appellant and his partner operated Bad Boy[s] Toys stores in

Cumberland, Lancaster, and Lebanon counties, at which they sold synthetic


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*
    Retired Senior Judge assigned to the Superior Court.
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marijuana, “bath salts,”1 designer drugs, and similar products. (See PCRA

Court Opinion, 11/05/15, at 2-3).

        On June 4, 2013, Appellant entered a counseled plea of nolo

contendere at docket no. 467-2012 to two counts of possession with intent

to deliver (PWID), and two counts of conspiracy to commit PWID.2             The

same day, he pleaded nolo contendere at docket no. 465-2012 to one count

of corrupt organizations-employee; one count of conspiracy to commit

corrupt organizations-employee; one count of dealing in proceeds of

unlawful activities; one count of conspiracy to commit dealing in proceeds of

unlawful activities; thirteen counts of PWID; three counts of selling a non-

controlled substance similar to a controlled substance; three counts of
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1
    The DEA explains so-called bath-salts as follows:

              Synthetic stimulants[,] often referred to as “bath salts[,]”
        are from the synthetic cathinone class of drugs. Synthetic
        cathinones are central nervous stimulants and are designed to
        mimic effects similar to those produced by cocaine,
        methamphetamine and MDMA (ecstasy). These substances are
        often marketed as “bath salts,” “research chemicals,” “plant
        food,” “glass cleaner” and labeled “not for human consumption,”
        in order to circumvent application of the Controlled Substance
        Analogue Enforcement Act. Marketing in this manner attempts to
        hide the true reason for the products’ existence—the distribution
        of a psychoactive/stimulant substance for abuse.

Source: U.S. Drug Enforcement Administration Drug Fact Sheet, accessed
April 15, 2016.
2
    35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. § 903(c), respectively.




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knowingly or intentionally manufacturing or distributing a designer drug; and

three counts of delivery or intent to deliver drug paraphernalia.3

       It bears noting that Appellant entered his plea on the eve of trial and

after a jury panel had been selected. (See PCRA Ct. Op., at 3).4

       On September 25, 2013, the court sentenced Appellant under both

dockets to an aggregate term of not less than five nor more than fifteen

years’ incarceration.      (See id.).     No direct appeal followed.   On or about

March 9, 2015, Appellant filed a pro se PCRA petition.            The PCRA court

appointed counsel, who filed an amended petition.

       After a PCRA hearing on August 27, 2015, the PCRA court denied

Appellant’s petition, in an order with accompanying opinion, on November 5,

2015, as untimely. This appeal followed on November 16, 2015.5


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3
  18 Pa.C.S.A. § 911(b)(3), 18 Pa.C.S.A. § 903(c); 18 Pa.C.S.A.
§ 5111(a)(1), 18 Pa.C.S.A. § 903(c); 35 P.S. § 780-113(a)(30); 35 P.S.
§ 780-113(a)(35)(i), 35 P.S. § 780-113(a)(36), and 35 P.S. § 780-
113(a)(33), respectively.
4
   Three of Appellant’s co-defendants had already pleaded guilty, been
sentenced, and were set to testify for the Commonwealth. (See. N.T. Nolo
Contend[e]re Plea, June 4, 2013 [filed 9/18/15], at 4). The trial court
explained the premises and procedure of the nolo plea in great detail and
engaged in an extensive colloquy directly with Appellant before finding his
plea to have been made “freely, intelligently, and voluntarily.” (Id. at 23-
24; see also id. at 6-24).
5
  Appellant filed a concise statement of errors on November 23, 2015. On
November 25, 2015, the PCRA court filed a Rule 1925(a) opinion,
referencing its order and opinion of November 5, 2015. See Pa.R.A.P. 1925.



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      Appellant raises eight overlapping issues on appeal, framed as three

questions, for our review:

            1.   Whether [the] PCRA Court erred when it denied
      Appellant’s Petition as being untimely, where Appellant’s time-
      restraint meets an exception requirement as set forth in 42
      Pa.C.S.A. § 9545(b)(1)(i)-(iii)?

             2. Whether Appellant was denied his constitutionally-
      guaranteed right to due process when he was unlawfully induced
      to plead nolo contendere and therefore could not proceed with a
      trial, where:

               a.   Trial Court placed a three (3) day limit if
         Appellant took his case to trial, thus, causing an undue
         burden on Appellant to present his defense;

                b. Trial Court refused to allow Appellant to present
         relevant, exculpatory evidence in the form of reports, if
         Appellant took his case to trial, where the Commonwealth
         filed a suppression motion on the day of jury selection;

                c. The Commonwealth prevented Appellant from
         calling a key witness, inter alia, Luis Toro by:

                i. Threatening said witness that he would have to
          serve “state time” since he had been given a “sweet deal”
          in exchange for testifying against Appellant, where Mr.
          Toro’s attorney was not present, and where Mr. Toro had
          already been held in the jail beyond his release date.

                ii. Filing a suppression motion on the day of jury
          selection, barring Appellant from calling key witnesses on
          his behalf?

            3. Whether Appellant was denied his constitutionally-
      guaranteed right to due process when Appellant was subject to
      selective prosecution, where the business owners selling
      identical products were not subject to criminal prosecution, but
      rather, given the opportunity to turn-over their products to the
      authorities?

(Appellant’s Brief, at 4-5).

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         In reviewing the propriety of an order granting or denying PCRA relief,

this Court is limited to determining whether the evidence of record supports

the determination of the PCRA court, and whether the ruling is free of legal

error.     See Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003).

Great deference is granted to the findings of the PCRA court, and these

findings will not be disturbed unless they have no support in the certified

record.     See Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super.

2003), appeal denied, 839 A.2d 352 (Pa. 2003).

         However, before we may review Appellant’s claims on the merits, we

must determine if his petition was timely filed. “It is a well-settled principle

of law that if a PCRA petition is untimely filed, a court lacks jurisdiction to

address the claims contained therein.” Commonwealth v. Boyd, 923 A.2d

513, 515 (Pa. Super. 2007), appeal denied, 932 A.2d 74 (Pa. 2007) (citing

Commonwealth v. Gamboa–Taylor, 753 A.2d 780 (Pa. 2000).

         Pursuant to 42 Pa.C.S.A. § 9545(b)(3), “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.”

         [W]hen a PCRA petition is not filed within one year of the
         expiration of direct review, or not eligible for one of the three
         limited exceptions, or entitled to one of the exceptions, but not
         filed within 60 days of the date that the claim could have been
         first brought, the trial court has no power to address the
         substantive merits of a petitioner’s PCRA claims.


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Gamboa-Taylor, supra at 783.

     The PCRA provides three exceptions to the time-bar:

            (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:

                (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.

           (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.C.S.A. § 9545(b)(1), (2). “It is the petitioner’s burden to allege and

prove that one of the timeliness exceptions applies.”      Commonwealth v.

Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916

(2008).

     Here, as already noted, after Appellant entered his nolo pleas, the

court sentenced him on September 25, 2013.          Because he did not file a

direct appeal, his judgment of sentence became final thirty days later, on

October 25, 2013, when the time to file an appeal expired.           Therefore,

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Appellant had one year, or until October 25, 2014, to file a timely PCRA

petition. Accordingly, his instant petition, filed March 9, 2015, is untimely

on its face unless he pleads and proves one of the three statutory exceptions

to the time bar.

      Appellant maintains that he meets an exception to the time-bar. (See

Appellant’s Brief, at 11). Contrary to his contention, none of the claims he

raises satisfy any of the three statutory exceptions. In particular, Appellant

claims newly discovered facts. (See Appellant’s Brief, at 24).

      However, on independent review of Appellant’s somewhat discursive

argument, it becomes evident that the alleged newly discovered facts are no

more, at best, than Appellant’s purportedly evolving perception of the effect

of various evidentiary and length of trial rulings made by the trial court prior

to the plea.    (See e.g., id. at 28) (“Furthermore, the aforementioned

situation [exclusion of police report containing supposed legal conclusions on

key issues of case] is tantamount to newly- or after-discovered evidence as

Appellant was not aware that he was potentially permitted to question [the

police chief] regarding his report, had he opted to take his case to trial.”)

(emphasis added).

      First, it is self-evident that trial court rulings made prior to the plea

were not “unknown” to Appellant, who was present at his own proceedings,

including the pre-trial hearing.   At the very least, e.g., where the claim is

premised on counsel sidebar conferences with the trial judge, if the facts


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were not already known by Appellant, they could have been learned through

the exercise of due diligence by Appellant’s immediate direct inquiry with

plea counsel.

      Furthermore, our Supreme Court has held that “the [after-discovered

facts] exception does not apply where the petitioner merely alleges that

more competent counsel would have presented other claims based on a

better evaluation of the facts available to him or her at the time of trial[.]”

Gamboa-Taylor, supra at 786. (citation omitted).

      Appellant alternatively claims he was “essentially abandoned” by

counsel.     (Appellant’s Brief, at 25) (emphasis added).    Yet, by his own

admission, “[w]hile [p]lea [c]ounsel continually supported Appellant’s

decision to file a PCRA [p]etition, he had never advised Appellant of the

deadline in which the [p]etition must be filed.”      (Id. at 24) (emphasis

added). Neither of these contradictory assertions supports a claim of newly

discovered facts.     Nor are they supported by reference to controlling

authority.

      Appellant argues that because he filed his pro se petition within sixty

days of receiving what he deems to be “final discovery” from plea counsel,

he complied with the sixty-day rule. (Id. at 25). However, Appellant fails to

identify any new facts received by him through this ongoing process which

were not previously known to him or discoverable by the exercise of due

diligence.


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     None of the other various complaints about the pre-trial rulings raise a

cognizable exception to the time-bar. The PCRA court properly determined

that Appellant’s petition was untimely with no statutory exception to the

time-bar proven.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2016




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