J-A01040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                   v.

MARC C. DRAPER

                         Appellant                  No. 3019 EDA 2014


               Appeal from the PCRA Order October 20, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0736231-1984


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                         FILED MARCH 18, 2016

     Marc C. Draper appeals from the order of the Court of Common Pleas

of Philadelphia County denying his third petition filed under the Post-

Conviction Relief Act, 42 Pa.C.S. §§ 9541-46 (“PCRA”). We affirm.

     On February 26, 1986, Draper entered a negotiated guilty plea to one

count each of second-degree murder, robbery, and criminal conspiracy. The

charges stemmed from an incident where Draper and a co-defendant,

Terrance Williams, robbed the victim, beat him with a tire iron and socket

wrench, and doused him with gasoline and lit his body on fire at a

Philadelphia cemetery.    The Honorable David N. Savitt accepted Draper’s

plea and sentenced him to life imprisonment for murder, and to a concurrent

term of imprisonment of five to ten years’ incarceration for conspiracy. No



*Former Justice specially assigned to the Superior Court.
J-A01040-16



further penalty was imposed for robbery. Draper did not seek to withdraw

his guilty plea or file a direct appeal.

      In May 2000, Draper filed his first PCRA petition, which the PCRA court

dismissed     as   untimely.     On    appeal,   this   Court   affirmed.   See

Commonwealth v. Draper, 809 A.2d 955 (Pa. Super. 2002) (unpublished

memorandum).        On October 31, 2003, Draper filed a second untimely

petition, which the PCRA court dismissed on January 14, 2004. On appeal,

this Court affirmed.    See Commonwealth v. Draper, 867 A.2d 644 (Pa.

Super. 2004) (unpublished memorandum).

      Draper filed a pro se PCRA petition, his third, on September 6, 2012.

He subsequently retained counsel, who, after seeking an extension, filed an

amended petition on April 22, 2013. The Commonwealth filed a motion to

dismiss.    The PCRA court filed a notice of intent to dismiss pursuant to

Pa.R.Crim.P. 907, and on October 21, 2014, the court dismissed Draper’s

third PCRA petition as untimely.

      Draper raises the following issues for our review:

           1. Did the PCRA court err when the court dismissed
           [Draper’s] PCRA petition because [Draper] demonstrated
           he met one or more exceptions to the time bar?

           2. Did the PCRA court err when the court dismissed
           [Draper’s] petition because plea counsel was ineffective for
           advising [Draper] he had a right to parole when no such
           right existed?

           3. Did the PCRA court err when the court dismissed
           [Draper’s] petition because [Draper’s] right to due process
           was violated when he entered a plea that was unknowing,
           unintelligent, and involuntary?

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       Draper argues plea counsel was ineffective and caused him to enter an

unknowing, unintelligent and involuntary plea. He claims he was “promised”

that his life sentence would be commuted after fifteen years.

       Notably, Andrea Foulkes, the prosecutor in the Williams case, testified

at co-defendant Williams’ September 20, 2012 PCRA hearing.                    This

testimony is included in the record herein as an exhibit to Draper’s April 18,

2013 Amended PCRA Petition.             Foulkes testified with respect to Draper’s

statement that he was told at the time of his guilty plea that he “would be

eligible for parole after about 15 years[.]” PCRA Hearing-Commonwealth v.

Williams, 9/20/12, at 17.           She also testified with respect to Draper’s

statement, “The trial prosecutor [Foulkes] wrote a letter to the Parole Board

explaining my cooperation.”1              Asked whether she agreed with these

statements, Foulkes stated:

____________________________________________


1
 The letter, addressed to the Pennsylvania Board of Probation and Parole
and dated June 23, 1988, provides:

       Re: Inmate Marc Draper

       To Whom It May Concern:

       At the request of the family of the above-name inmate, I am
       submitting the following information to them with instructions to
       forward it to you if and when this prisoner becomes eligible for
       parole or commutation of sentence.

       Marc Draper was the co-defendant of Terrance Williams and,
       with Williams, conspired and acted to abduct, rob and beat to
       death 56-year old Amos Norwood, inside the Ivy Hill Cemetery in
       the Mt. Airy section of Philadelphia. After tying the victim with
(Footnote Continued Next Page)


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J-A01040-16


                       _______________________
(Footnote Continued)

      his own clothes and beating him with car tools, the co-
      defendants took his money, credit cards, and car, [and] obtained
      more money and jewelry with the stolen goods in Atlantic City
      and Philadelphia. Their spree was ended when credit card calls
      were traced by police to a third man who assisted the killers in
      obtaining these credit card benefits.

      Mr. Draper was arrested in his home and Williams fled the
      jurisdiction upon issuance of warrants. On the day of his arrest,
      Mr. Draper completely and thoroughly confessed his participation
      in this hideous crime without any promise or benefits offered to
      him. In addition, he volunteered additional information about
      his co-defendant’s responsibility for the murder of 53 year-old
      Herbert Hamilton in West Philadelphia six months earlier, which
      led to the arrest of Williams on that previously unsolved case.
      Draper offered to cooperate fully with the investigation and to
      testify truthfully in the prosecution of Williams, in both homicide
      cases, resulting in Williams’ conviction in the earlier killing of
      murder in the third degree (Williams’ defense was that the killing
      was provoked by homosexual advances of the victim), and a
      verdict of murder in the first degree with the penalty of death by
      the jury in the Norwood case. In addition, Draper agreed to
      plead guilty to murder in the second degree, knowing that it
      brought a mandatory life sentence, without any promise of
      leniency or early release.

      Although the heinous nature of the underlying crime cannot be
      minimized in any way, Mr. Draper has attempted to compensate
      significantly for his role in this matter. While it is true that he
      has benefitted by avoiding the death penalty for himself, I was
      well aware that during the pendency of prosecutions against
      Williams, Mr. Draper was visited regularly in Holmesburg prison
      by Williams himself, at the gates of Draper’s protective custody
      area, and by friends of Williams’ inside Draper’s cell. Thus, Mr.
      Draper’s security in prison was never certain, yet he continued
      to see that justice was served in all matters in which he had
      information or connection.

      I never had any reason to doubt Mr. Draper’s veracity and he
      never declined to answer the most difficult questions about his
      own culpability. Williams sent Mr. Draper letters in prison with
      alternative stories to feed the authorities and the court about
(Footnote Continued Next Page)


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J-A01040-16


      There are two kinds of things that a prosecutor could do. One is
      a prosecutor can simply recount to the Parole Board what
      somebody has done, and that’s a historical account of what they
      have done and it’s a truthful account. The other is whether or
      not a prosecutor would actively ask the Parole Board to consider
      parole or – it’s really commutation in a life sentence. It’s not
      really parole. Consider commutation at an earlier point than a
      defendant might just apply for commutation of sentence in the
      ordinary course, whether they cooperated or not. So Mr. Draper
      had the same rights as any other life prisoner to apply at some
      point in the future for commutation of sentence. He could do
      that whether he cooperated or didn’t cooperate.           He could
      always do that. A prisoner can do that and a lot of whether a
      sentence is commuted has as much to do with who is the
      governor and what the Parole Board looks like or the Board of
      Pardons or whatever board is considering the commutation. So
      Mr. Draper was in no different position in that respect than any
      other lifer. . . . I have to think that I did or someone did say to
      him that at some time if he were to apply in the future for
                       _______________________
(Footnote Continued)

      their criminal activities. Mr. Draper passed that correspondence
      on to his father, a Philadelphia police officer, with instructions to
      give them to the prosecutor in preparation for trial. Those
      letters, in addition to his oral testimony, established a
      compelling case against Williams, who had a frightening history
      for violent crimes.

      Therefore, it is proper for you to consider the cooperation of this
      inmate when determining his eligibility for parole or
      commutation at some future date. That I provide you with the
      particulars of Mr. Draper’s cooperation was the only benefit or
      promise conveyed to him in exchange for his complete truthful
      cooperation. I hope this information will be useful in your
      evaluations.

      /s/ Andrea G. Foulkes, ADA, Homicide Unit

      bcc: Mr. George Draper

Amended PCRA            Petition,   4/18/13,      Exhibit   C   (Foulkes   Letter,
6/23/1988).



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J-A01040-16


      commutation, that we would tell the Parole Board historically
      what he did, that that would happen, but that we would not do
      anything to expedite the time . . . No one promised him he
      would get paroled at any point. No one promised that. A
      prisoner could apply for it, but he would never – we never
      promised him that he would get parole and I colloquied him on
      many occasions under oath that he understood that life meant
      life and that we were not doing anything more for him about
      changing that number and now he said – then he says: “I was
      just testifying as I was told to.” No one told him how to testify
      at all. [With respect to his statement:] “They kept telling me
      that they would take care of it after I testified against Terry.” I
      guess he’s referring to getting paroled. Clearly that was never
      stated. . . . No one said anybody would take care of anything
      after he testified against Terry. The only thing that was
      conveyed to him that if he sometime in the future 30 years, 20
      years – in fact, I seem to recall that back in the day, life
      prisoners might start making application for commutation if it
      was to be considered in possibility 20 years or 30 years. That
      doesn’t mean it would be granted, it may never be granted, but
      whether they cooperated or not, they might do that, and what I
      said to him is if and when he should ever go through that
      process, we would let the Parole Board know that what he had
      done in this case, period.

Id. at 17-22 (emphasis added). The court questioned Foulkes regarding the

benefit Draper received in exchange for testifying “against his friend from

the third grade[.]” Foulkes stated: “Well, his deal was that he could plead to

second[-degree murder] . . . in terms of if someday down the road he

applies for commutation with no expedited date in mind, that he might get a

little better consideration than someone who had a first-degree conviction.”

Id. at 29.

      On cross-examination, the following exchange occurred with respect to

the letter to the Parole Board:




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J-A01040-16


     Q:   And also he would tell the Parole Board down the road that
     he cooperated? It’s not just a second versus first; right? It’s I
     cooperated?

     A:    Absolutely correct, and he could have done that and the
     Parole Board could have asked the District Attorney’s Office at
     that point, well, what did that cooperation entail and someone in
     the District Attorney’s Office, probably not me because it would
     be so long, I didn’t expect to be around now, that someone
     would have to answer that question, which was the reason that
     when I got a call from George Draper who was Mr. Draper’s
     father about two years after the conviction and he said, you
     know, you’re probably not going to be in the DA’s Office many
     years down the road when this comes up, can you write a letter
     that you send to me that I can hold for my son and I will tell you
     that I kept a copy of the letter with the inscription of what I did
     with this letter, sent original and one copy to Mr. George Draper
     and I put the address of where I sent it and I kept it in a file that
     I took with me and I turned over to the District Attorney just last
     week. . . . . Two years after the letter was sent to Mr. Draper, I
     got a correspondence from an attorney for Marc Draper named
     John Manos who asked me, he said, “I’m attempting to assist
     the family of Marc Draper to continue his rehabilitation while in
     prison and when commutation or parole may become feasible to
     assist in that matter also.” So he was asking me –

           THE COURT: If he could use your letter.

     A:     If he could use my letter. So I wrote him back and I said
     that it may be used with my permission to the Board at such
     time, but[,] and it was with this understanding[,] I gave a letter
     to George Draper in 1988 since there was no guarantee I would
     still be in the District Attorney’s Office at the time that such
     application might be considered, but then I said, “As I am sure
     you are aware, we made no promises to Marc that we could or
     would intervene to speed up the process of the Board’s
     consideration of such an application.” So that if Mr. Draper is to
     be believed that I was in some kind of – doing some kind of
     secret deal, I surely would not have said that to his own lawyer
     four years after the fact because there would be no need to do
     that. That’s why I wanted to make sure that Mr. Manos knew
     that all along the line as [to] Mr. Draper, either he had a
     misunderstanding in the beginning, but it was corrected and he
     said over and over again under oath on the record that he

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J-A01040-16


     understood that a life sentence was a life sentence and that
     we were not going to do anything to speed up or expedite any
     commutation of his sentence. . . . As soon as at the earliest
     point that I had any inkling that Mr. Draper was under the
     impression from his attorney that this commutation process if it
     ever happens could happen as soon as ten years and that we
     would do something to make that happen, I corrected it. I
     wanted to make sure that he understood that that was not the
     case, it was never the deal it as not the promise and it wouldn’t
     happen.

Id. at 29-33, 59 (emphasis added).

     When reviewing denial of PCRA relief, we will not disturb the court’s

findings if they are supported by the record and free of legal error.

Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010).

Further, we grant great deference to the factual findings of the PCRA court,

and we will not disturb those findings unless they have no support in the

record. Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011).

However,   we   afford   no   such   deference   to   its   legal   conclusions.

Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011);

Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119, 1124 (2007).

Where the petitioner raises questions of law, our standard of review is de

novo and our scope of review plenary. Commonwealth v. Colavita, 993

A.2d 874, 886 (Pa. 2010).

     A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.”    Commonwealth v. Copenhefer, 941 A.2d


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646, 648 (Pa. 2007) (citations and footnote omitted).       A judgment of

sentence 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).

     Here, Draper’s judgment of sentence became final on March 24, 1986,

when his time for filing a direct appeal expired.   Therefore, he had until

March 24, 1987, to file a timely PCRA petition. As noted above, Draper filed

the instant serial petition on April 22, 2013, over twenty-five years later,

and is patently untimely.

     An untimely petition renders this Court without jurisdiction to afford

relief. Commonwealth v. Gandy, 38 A.3d 899 (Pa. Super. 2012).

     [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.


Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011), citing

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


     Draper attempts to place this claim within the “newly recognized

constitutional right” exception to the PCRA time bar.    See 42 Pa.C.S. §

9545(b)(1)(iii). He claims that the United States Supreme Court’s decisions

in Missouri v. Frye, 132 S. Ct. 1399 (2012) and Lafler v. Cooper, 132 S.


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J-A01040-16



Ct. 1376 (2012) created a newly recognized constitutional right that was

held to be retroactive.     As the trial court pointed out, neither Frye nor

Lafler is retroactive, nor is either case factually similar to Draper’s case.

       In Frye, the Court held that defense counsel has a duty to

communicate to defendant the written plea offers from the prosecutor that

are favorable to the accused.       In Frye, those offers would have either

recommended a lesser sentence than the four-year maximum sentence for

the charged felony offense of driving with a revoked license, or would have

allowed defendant to plead guilty to a misdemeanor, before the offers

expired. Frye, 132 S. Ct. at 1408. Here, Draper makes no allegations that

his plea counsel failed to communicate a plea offer from the prosecution.

Rather, he claims a promise was made to him, that his life sentence would

be commuted after fifteen years, and that this promise induced him to enter

a negotiated guilty plea.    However, no record of such a promise exists.

Accordingly, Frye does not provide Draper with an exception to the time

bar.

       In Lafler, the Court held the petitioner was prejudiced by counsel’s

deficient performance in advising the petitioner to reject the plea offer and

go to trial.   Lafler, 132 S. Ct. 1376.    Unlike Lafler, here Draper did not

reject a plea offer and proceed to trial, but entered a favorable guilty plea

and now claims that he did so because his plea counsel provided ineffective




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assistance during the plea-bargaining process.2          Thus, the facts of the

instant case render Lafler inapposite.
____________________________________________


2
    At the guilty plea colloquy, the following exchange took place:

        THE COURT: Now, I understand and Miss Foulkes has indicated
        that this is a negotiated plea, and she has indicated on the
        record that the negotiations are that she is asking this Court to
        accept the plea to murder in the second degree, and she is
        asking this Court to accept the plea as to guilty to robbery and
        conspiracy, and that she will ask the court to sentence you to life
        imprisonment for second degree.          She suggests that the
        sentence for robbery merges so that there will not be an
        increased sentence, and she suggests that the Court sentence
        the defendant to five to ten years for conspiracy but that this be
        concurrent, which means that the sentence be served at the
        same time as the life sentence is being served, and that is the
        extent of the negotiations. Is that your understanding of it?

        THE DEFENDANT: Yes.

                                          ***

        THE COURT:     Mr. Draper, there were no other promises
        made to you, were there?

        THE DEFENDANT: No.

        THE COURT:      And no one else said they would make any
        other recommendations. Is that correct?

        THE DEFENDANT: Yes.

        THE COURT:      Has anyone promised you anything other
        than what I have just set forth?

        THE DEFENDANT: No.

                                          ***

        THE COURT:          I am going to accept the plea. I want to tell
        you this so it’s crystal clear, there is little question in my mind
        that this case, if this case was tried before a jury as the Willliams
(Footnote Continued Next Page)


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      Moreover, this Court has recently concluded that neither Frye nor

Lafler created a new constitutional right. In Commonwealth v. Feliciano,

69 A.3d 1270, 2013 (Pa. Super. 2013), we stated:

      “The right to effective assistance of counsel during the plea
      bargaining process has been recognized for decades.”
      Commonwealth v. Lewis, 2013 PA Super 62, 63 A.3d 1274,
      1280 (Pa. Super. 2013) (citing Hill v. Lockhart, [supra];
      Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176
      L.Ed.2d 284 (2010) (“Before deciding whether to plead guilty, a
      defendant is entitled to the effective assistance of competent
      counsel.”)). . . . It is apparent that neither Frye nor Lafler
      created a new constitutional right. Instead, these decisions
      simply applied the Sixth Amendment right to counsel, and the
      Strickland test for demonstrating counsel’s ineffectiveness, to
      the particular circumstances at hand.

Feliciano,    69       A.3d   at   1276–77       (footnote   omitted).   See   also

Commonwealth v. Hernandez, 79 A.3d 649 (Pa. Super. 2013).

      We conclude, therefore, that because both Lafler and Frye are

factually distinct from the case before us, and do not recognize a new

constitutional right, Draper’s attempt to satisfy the PCRA’s “newly recognized
                       _______________________
(Footnote Continued)

      case was or a waiver, that you could very easily be found guilty
      of murder in the first degree, and I would not speculate as to
      whether the sentence would be death or life imprisonment
      because I really don’t have before me at this point any
      information concerning whether there were aggravating
      circumstances other than what appears [from] the record. . . . I
      want to make it clear that you could be found guilty, could easily
      be found guilty of first-degree murder, and that the possibility of
      a death penalty is certainly within the realm of contemplation.


N.T. Guilty Plea, 2/21/1986, at 14-15 (emphasis added).



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J-A01040-16



constitutional right” exception fails.         Foulke’s testimony, and her letter to

the Board of Probation and Parole, do not, as Draper argues, “demonstrate

that   [he]   was    deceived     by   off-the-record   promises[,]”   nor   does   it

“corroborate[ his] claim [that] the Commonwealth wrongfully induced his

plea through illusory promises.” Appellant’s Brief, at 12. We are unable to

conclude that Draper’s claim that he was “promised” that his sentence of life

imprisonment meant eligibility for parole after serving 15 years, or that he

entered his plea based on the Commonwealth’s representations that he

would not serve a life sentence, are supported in the record.3               Burkett,

supra.     Despite Draper’s claim that this was a “material term” to his plea

agreement, there is neither mention of it during the guilty plea colloquy nor

evidence of it anywhere in the record. Thus, the PCRA court did not err in

finding that no exception to the time-bar applied, and the court properly

dismissed Draper’s petition as untimely.

       Order affirmed.




____________________________________________


3
   Draper testified at the PCRA hearing that Kenneth Dixon, Esquire,
represented him early in the case, prior to his guilty plea hearing. He stated
that Dixon and Foulkes told him he would get paroled. PCRA Hearing,
9/20/12, at 194. At the guilty plea hearing, Draper was represented by
Harry Seay. When asked if Attorney Seay ever said anything about parole,
Draper responded, “I might have said two words to Harry Seay.” Id.
Attorney Dixon passed away in 1996.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2016




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