J-S42029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RONALD CURTIS SEATON

                            Appellant                  No. 575 EDA 2015


                    Appeal from the Order February 3, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0005660-1996


BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                           FILED OCTOBER 15, 2015

        Appellant, Ronald Curtis Seaton, appeals pro se from the February 3,

2015 order dismissing on various grounds, including untimeliness, his first

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.

§§ 9541-9546. After careful consideration, we affirm.

        Based on our review of the certified record, we summarize the relevant

procedural history of this case as follows. On June 26, 1996, the Chester

City Police charged Appellant by criminal complaint with possession of a

controlled substance (cocaine), possession with intent to deliver a controlled

substance (cocaine) (PWID), and possession of drug paraphernalia.1          A

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. §§ 780-113(a)(16), (a)(30), and (a)(32), respectively.
(Footnote Continued Next Page)
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criminal information, detailing the aforementioned charges, was filed on

January 17, 1997. On February 18, 1997, Appellant entered a plea of guilty

to the one count of PWID, and the other counts were nolle prossed.2           On

March 17, 1997, the trial court sentenced Appellant to 11½ to 23 month’s

incarceration. No post-sentence motion or direct appeal was filed.

      Docket entries on the dates of November 4, 2005, and March 20,

2006, reflect the pro se filings of a self-titled “Petition to Withdraw Certain

Facts.”3 Therein, Appellant challenged the validity of his guilty plea due to

the alleged failure of the trial court to advise him of certain rights he waived

by virtue of the plea. Appellant’s Motion to Compel, 3/20/14, Attachment.

No trial court action was taken to address Appellant’s Petition.       Between

November 18, 2010 and December 18, 2013, Appellant filed a number of

requests for transcripts and copies of documents from the certified record.

      On May 29, 2014, Appellant filed a pro se Motion to Compel, seeking

trial court action on his prior Petition to Withdraw Certain Facts. Although

not so titled, the PCRA court determined Appellant’s filings were properly

                       _______________________
(Footnote Continued)

2
  The record indicates this was a negotiated plea, but no written plea
agreement is contained in the record certified to this Court.
3
  The Petition is not included in the certified record from those dates, but a
copy, time stamped March 20, 2006, is attached to Appellant’s May 29, 2014
motion to compel. We accept for the purposes of this appeal, as did the
PCRA court, that November 4, 2005 is the effective filing date of Appellant’s
request for post-conviction collateral relief.



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considered petitions pursuant to the PCRA.4      Accordingly, the PCRA court

appointed counsel to represent Appellant in the PCRA proceedings, including

the filing of any amended PCRA petition.

       On January 13, 2015, Counsel filed an application to withdraw as

counsel together with a no-merit letter in accordance with Pennsylvania v.

Finley, 481 U.S. 551 (1987), and Commonwealth v. Turner, 544 A.2d

927 (Pa. 1988). Therein, Counsel recounted his review of the entire record

and stated his conclusion that relief under the PCRA was not available

because Appellant was no longer serving a sentence in connection with the

underlying case and because Appellant’s request for post-conviction relief

was neither timely under the PCRA nor subject to any of the enumerated

exceptions to the PCRA’s timeliness requirement. No-Merit Letter, 1/13/15,

at 5-6. Specifically, Counsel noted Appellant sought to claim application of

the after-discovered fact exception at 42 Pa.C.S.A. § 9545(b)(ii) by virtue of

his discovery on September 15, 2005, that the records reflected he pled to

PWID when he in fact pled to possession of a controlled substance. Counsel

concluded that the exception did not apply because Appellant could not show

due diligence in discovering the supposed new fact. Id. at 5.

       On January 16, 2015, the PCRA court filed an order granting Counsel’s

application to withdraw as counsel, together with a notice of its intent to
____________________________________________
4
  See Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa. Super. 2013)
(holding that a request for relief that is cognizable under the PCRA must be
treated as a PCRA petition).


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dismiss Appellant’s request for PCRA relief without a hearing pursuant to

Pennsylvania Rule of Criminal Procedure 907. Appellant filed a “Response to

Notice of Intent to Dismiss Without a Hearing” on February 3, 2015.

Therein, Appellant avers that he entered a guilty plea on March 17, 1997 to

the count charging possession of a controlled substance, 35 P.S. § 780-

113(a)(16). Appellant’s Response to Notice of Intent to Dismiss Without a

Hearing, 2/3/15, at 3.   Appellant claims he only became aware that the

record indicated he entered a guilty plea to PWID, 35 P.S. § 780-113(a)(30),

when he was appealing his sentence on a federal drug offense on September

15, 2005. Id. Appellant claims the purportedly erroneous record was relied

upon to wrongly enhance his federal sentence. Id. at 4. Appellant further

asserts that his filing the instant PCRA qualifies under the governmental

interference and after-discovered fact exceptions to the PCRA’s timeliness

requirements, 42 Pa.C.S.A. § 9545(b)(i) and (ii). Id. On February 3, 2015,

the PCRA court dismissed Appellant’s petition without a hearing on the

alternative bases that it was untimely filed, Appellant was not currently

serving the underlying sentence, and Appellant’s claims were without merit.

     On February 27, 2015, Appellant filed a pro se notice of appeal. The

PCRA court, on February 25, 2015, directed Appellant to file a concise

statement of errors complained of on appeal pursuant to Pennsylvania Rule




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of Appellate Procedure 1925(b).5               Appellant filed a timely pro se Rule

1925(b) statement on March 9, 2015.

       On appeal, Appellant raises the following issue for our review.

              [Whether Appellant] sets forth an exception to the
              PCRA time bar (in custody) requirement based on
              newly discovered evidence pursuant to 42 Pa.C.S.A.
              § 9545 (b)(1)(ii)[?]

Appellant’s Brief at i.6

       We briefly note our standard of review in this matter.

              Our standard of review of the denial of a PCRA
              petition is limited to examining whether the court’s
              rulings are supported by the evidence of record and
              free of legal error. This Court treats the findings of
              the PCRA court with deference if the record supports
              those findings. It is an appellant’s burden to
              persuade this Court that the PCRA court erred and
              that relief is due.

Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)

(citation omitted).

       Instantly, the PCRA court dismissed Appellant’s PCRA petition as

untimely. “[I]t is well-settled that … a question of timeliness implicates the

jurisdiction of our Court.”         Commonwealth v. Gandy, 38 A.3d 899,
____________________________________________
5
  The PCRA court had received a copy of Appellant’s pro se notice of appeal
prior to its docketing, resulting in the PCRA court’s issuance of the Rule
1925(b) order two days before the notice of appeal was finally docketed by
the Office of Judicial Support.
6
  Appellant’s brief does not contain a statement of questions involved as
required by Pennsylvania Rules of Appellate Procedure 2111(a)(4), and
2116. The heading to Appellant’s argument section, however, fairly presents
his issue, and we recite it above.


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902 (Pa. Super. 2012) (internal quotation marks and citation omitted),

appeal denied, 49 A.3d 442 (Pa. 2012).                  “Because these timeliness

requirements are mandatory and jurisdictional in nature, no court may

properly disregard or alter them in order to reach the merits of the claims

raised   in   a   PCRA   petition   that   is   filed   in   an   untimely   manner.”

Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa. 2012) (internal quotation

marks and citation omitted).        The PCRA “confers no authority upon this

Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]”

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted).

This is to “accord finality to the collateral review process.”          Id. (citation

omitted). “It is well settled that [a]ny and all PCRA petitions must be filed

[in a timely manner] unless one of three statutory exceptions applies.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061-1062 (Pa. Super. 2011)

(internal quotation marks and citations omitted), appeal denied, 38 A.3d 823

(Pa. 2012). “We have repeatedly stated it is the appellant’s burden to allege

and prove that one of the timeliness exceptions applies.               Whether [the

a]ppellant has carried his burden is a threshold inquiry prior to considering

the merits of any claim.”      Commonwealth v. Edmiston, 65 A.3d 339,

346 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania,

134 S. Ct. 639 (2013).

     The Act provides for the following possible exceptions to the timeliness

requirement.


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            § 9545. Jurisdiction and proceedings

                                       …

            (b) Time for filing petition.—

                   (1) Any petition under this subchapter,
            including a second or subsequent petition, shall be
            [timely] filed … 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).

      Instantly, Appellant’s November 4, 2005 Petition to Withdraw Certain

Facts, treated as a PCRA petition, is facially untimely.      His judgment of

sentence became final on April 16, 1997, the final day he had to file a direct

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appeal. See generally Pa.R.A.P. 903. Therefore, Appellant had until April

16, 1998, one year from that date, to file a timely PCRA petition.       See

generally 42 Pa.C.S.A. § 9545(b)(3). As noted, it is required that Appellant

pleads and proves one of the statutory exceptions to the PCRA’s time limits

to invoke the PCRA or this Court’s jurisdiction to consider his petition. See

Edmiston, supra.

     Appellant argues that, in his response to the PCRA court’s notice of

intent to dismiss, he raised the application of the after-discovered fact

exception to the timeliness requirements of the PCRA under Section

9545(b)(1)(ii). Appellant’s Brief at 4. Specifically, he claims he discovered

through his attorney in a subsequent federal prosecution “that the [Section]

780-113(a)(16) [possession] offense was read to be a conviction for

violation of [Section] 780-113(a)(30), [PWID].”   Id.   Appellant asserts he

filed the instant petition within 60 days of his alleged September 15, 2005

discovery of this new fact.    Id. at 3.   Appellant contends he provided

sufficient proof to warrant a hearing on the issue in the form of conflicting

documents reflecting his plea was to one offense or the other.     Id. at 5,

citing Appellant’s Response to Notice of Intent to Dismiss Without a Hearing,

2/3/15, Exhibits 7-10. Finally, Appellant suggests the sentence he received

on March 17, 1997, supports his contention that the documents in the record

reflecting he pled guilty to PWID are erroneous. Id. Appellant notes he had

a conviction for PWID in 1993, prior to the instant case, which would have


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triggered a mandatory sentence under 18 Pa.C.S.A. § 7508.                 Because he

was sentenced to a lesser term, Appellant contends it follows that he did not

plead guilty to PWID in the instant case.7 Id.

____________________________________________
7
  Although the certified record does not contain a copy of the guilty plea
transcript, the transcript of Appellant’s preliminary hearing indicates that
2.49 grams of cocaine were seized from Appellant’s person at the time of his
arrest. The sentencing statute provides in pertinent part as follows.

              § 7508. Drug trafficking sentencing and penalties

              (a) General rule.--Notwithstanding any other
              provisions of this or any other act to the contrary,
              the following provisions shall apply:

                                               …

                    (3) A person who is convicted of violating
              section 13(a)(14), (30) or (37) of The Controlled
              Substance, Drug, Device and Cosmetic Act where the
              controlled substance is coca leaves or is any salt,
              compound, derivative or preparation of coca leaves
              or is any salt, compound, derivative or preparation
              which is chemically equivalent or identical with any
              of these substances or is any mixture containing any
              of these substances except decocainized coca leaves
              or extracts of coca leaves which (extracts) do not
              contain cocaine or ecgonine shall, upon conviction,
              be sentenced to a mandatory minimum term of
              imprisonment and a fine as set forth in this
              subsection:

                           (i) when the aggregate weight of the
                     compound or mixture containing the substance
                     involved is at least 2.0 grams and less than ten
                     grams; one year in prison and a fine of $5,000
                     or such larger amount as is sufficient to
                     exhaust the assets utilized in and the proceeds
                     from the illegal activity; however, if at the time
                     of sentencing the defendant has been
(Footnote Continued Next Page)

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      The PCRA court concluded Appellant’s underlying factual assertion,

that he pled guilty only to possession of a controlled substance was

unsupported by the record.

             A review of [Appellant’s] actual court documents,
             including, but not limited to his Guilty Plea
             Statement, the relevant Criminal Information … he
             signed further memorializing his plea of guilty, and
             the Certificate of Imposition of Judgment of
             Sentence, patently demonstrate his felony Drug Act
             conviction at bar.   See [Appellant’s] Guilty Plea
             Statement[, 2/18/97, at 3], Criminal Information B,
             1/17/97, and Certificate of Imposition of Judgment
             of Sentence[3/17/97]. These duly executed [trial]
             court documents unquestionably show that on
             February 18, 1997, [Appellant] entered a plea of
             guilty before the Honorable Robert C. Wright to
             Possession with Intent to Deliver a Controlled
             Substance … and resultantly, on March 17, 1997,
             [Appellant] was sentenced to a term of eleven and a
             half (11.5) through twenty-three (23) months[’]
             imprisonment. See [Id.]

                   Based on the [trial] court’s primary records
             relevant to the matter at bar, it is doubtless that
             [Appellant] pled guilty to felonious Possession with
             Intent to Deliver a Controlled Substance … contrary
             to the [Appellant’s] contention that he was convicted
             of misdemeanor Possession of a Controlled
             Substance.
                       _______________________
(Footnote Continued)
                       convicted of another drug trafficking offense:
                       three years in prison and $10,000 or such
                       larger amount as is sufficient to exhaust the
                       assets utilized in and the proceeds from the
                       illegal activity;

                                                    …

18 Pa.C.S.A. § 7508.



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Trial Court Opinion, 3/20/15, at 7-8.

      Based on our thorough review of the extant record, we agree that the

contemporaneous documents, including his signed statement on the Criminal

Information, and his signed and initialed responses to the written guilty plea

statement, clearly demonstrate that Appellant knowingly entered a plea of

guilty to PWID. Specifically, Appellant’s initialed response to paragraph 21

of the guilty plea statement was as follows.

            ADMISSION     OF   GUILT    OR     NO   CONTEST   AND
            PENALTIES

            21.   I understand and agree that I am pleading
                  guilty or nolo contendere to the crimes listed
                  below.    I understand and my lawyer has
                  explained to me the elements of these crimes
                  and the possible penalties for them.         By
                  pleading guilty, I agree and admit that I
                  committed each element of these crimes…. I
                  am pleading guilty … to the following crimes:

                  A)    Possession controlled Substance w/
                        Intent to Deliver, a … felony … and the
                        maximum penalty for this crime is 10 yrs
                        in jail and a $23,000 fine. …

Guilty Plea Statement, 3/17/97, at 3 ¶ 21 (italics indicate handwritten

portions). Similarly, all sentencing documents reflect the applicable charge

was PWID. See Certificate of Imposition of Judgment of Sentence, 3/17/97;

Sentencing Guideline Forms, 3/20/97.

      Appellant’s proffered documentation to the contrary includes “a partial

copy of some type of criminal history erroneously listing his having been


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sentenced on the charge of Possession of a Controlled Substance… as

opposed to [PWID]…” and “a copy of a clerk generated, handwritten

charging sheet from the court file which incorrectly lists [Appellant] as

having been sentenced to Delaware County Prison for the offense of

Possession of a Controlled Substance… rather than [PWID]….”         Trial Court

Opinion, 3/20/15, at 7 n.21, citing Appellant’s Response to Notice of Intent

to Dismiss Without a Hearing, 2/3/15, Exhibits 7, 9.      These documents,

being patently erroneous, cannot constitute an after-discovered “fact” for

the purposes of Section 9545(b)(1)(ii).

                  The timeliness exception set forth in Section
           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.          …
           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.

                 …   In other words, the “new facts” exception
           at:

                 [S]ubsection (b)(1)(ii) has two components,
                 which must be alleged and proved. Namely,
                 the petitioner must establish that: 1) the facts
                 upon which the claim was predicated were
                 unknown and 2) could not have been
                 ascertained by the exercise of due diligence. If
                 the petitioner alleges and proves these two
                 components, then the PCRA court has
                 jurisdiction over the claim under this
                 subsection.

           [Commonwealth v.] Bennett, [] 930 A.2d [1264,]
           1271 ([Pa.] 2007) (internal citations omitted) [].
           Thus, the “new facts” exception at Section

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               9545(b)(1)(ii) does not require any merits analysis
               of an underlying after-discovered-evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176-177 (Pa. Super. 2015)

(some internal quotation marks, citations, emphases, and footnote omitted).

Nor does the sentence Appellant received, even if not in compliance with

Section 7508, invalidate the subject offense to which Appellant pled. 8

          Absent an applicable exception to the one-year time limit to file a

PCRA petition, we conclude the PCRA court and this Court lack jurisdiction to

review Appellant’s claims. See Lopez, supra.9 Accordingly, we affirm the

PCRA court’s February 3, 2015 order dismissing Appellant’s petition for PCRA

relief.

          Order affirmed.




____________________________________________
8
  “[A]lthough illegal sentencing issues cannot be waived, they still must be
presented in a timely PCRA petition.” Taylor, supra at 465 (citation
omitted).
9
  We also agree with the PCRA court that Appellant would be ineligible for
PCRA relief in any event because he is no longer serving the underlying
sentence.      See Trial Court Opinion, 3/20/15, at 10; 42 Pa.C.S.A.
§ 9543(a)(1)(i). Appellant’s reliance on Lackawanna Dist. Atty. v. Coss,
532 U.S. 394 (2001), as establishing a “Coss exception” to the PCRA’s
eligibility requirements is misplaced. In Coss, the United States Supreme
Court explored the “in custody” eligibility parameters of federal habeas
corpus relief involving a federal sentence that includes an enhancement due
to a prior unconstitutional sentence that has fully expired. Id. at 401. It
provides no exception to state rules circumscribing eligibility for post-
conviction relief.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2015




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