J-S84039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

ALISHA GAMBRELL

                             Appellant                No. 1419 EDA 2016


                    Appeal from the PCRA Order May 6, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                                   at No(s):
                            CP-51-CR-0014053-2012
                            CP-51-CR-0015283-2012

BEFORE: OLSON, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 23, 2017

        Appellant, Alisha Gambrell, appeals from the order of the Philadelphia

County Court of Common Pleas dismissing her first Post Conviction Relief

Act1 (“PCRA”) petition as untimely.      Appellant asserts she established that

she timely filed her PCRA petition after discovering a previously unknown

collateral consequence of her guilty plea. We are constrained to affirm.

        The PCRA court summarized the facts underlying Appellant’s conviction

as follows:

               In regards to CP-51-CR-0014053-2012, on January 31,
           2012, at six-thirty in the evening Philadelphia Police
           officers responded to a radio call for a person with a
           weapon at the Dynamic Dollar Store. When police arrived,
           [Appellant] claimed she was assaulted by the store

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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           manager     (“Complainant”).      Upon    reviewing    the
           surveillance video, the police placed [Appellant] under
           arrest. Later when police interviewed Complainant, he
           stated that [Appellant] was shopping with her nine-year-
           old daughter when [Appellant] took a wallet from the store
           and put it inside her purse, then switched the belongings
           from her old wallet into her new wallet. The Complainant
           approached [Appellant] and asked if she was going to pay
           for the wallet. At this point [Appellant] denied taking
           anything and became more aggressive and eventually left
           the store. [Appellant] returned a few minutes later and
           continued to yell at Complainant.      [Appellant] started
           knocking over displays and merchandise. [Appellant] then
           grabbed Complainant by the collar and began pulling him
           toward the front of the store.       [Appellant] punched
           Complainant in the face knocking off his glasses.
           Complainant then punched [Appellant] who then let
           Complainant go. [Appellant] then left the store for a
           second time.

           [Appellant] was arrested and charged with[, inter alia,
           simple assault,2 terroristic threats,3 and possession of an
           instrument of crime.4]

              In regards to CP-51-CR-0015283-2012, on November
           10, 2012, Complainant and his brother were in Room 706
           of the Criminal Justice Center for the purposes of testifying
           against [Appellant].      While in the courtroom, the
           Complainant heard [Appellant] refer to him and his brother
           using profanity. The Complainant then went and sat on
           the other side of the courtroom but again heard
           [Appellant] state “P***y, I’ll see you outside again. I
           know where you are at.” The Complainant stated that
           [Appellant] was verbally abusive, referring to them as
           motherf**ers and heard [Appellant] speak of the store
           [he] owns, the Dynamic Dollar where the assault occurred.
           As a result of this incident, [Appellant] was arrested and

2
    18 Pa.C.S. § 2701(a).
3
    18 Pa.C.S. § 2706(a)(1).
4
    18 Pa.C.S. § 907(a).



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           charged with[, inter alia, retaliation against a witness or
           victim5 and harassment.6]

PCRA Ct. Op., 7/19/16, at 1-2 (record citations omitted).

        On January 17, 2013, Appellant pleaded guilty at CP-51-CR-0014053-

2012 to terroristic threats, possession of an instrument of crime, and simple

assault. On May 23, 2013, Appellant entered into a negotiated guilty plea at

CP-51-CR-0015283-2012 to one count of retaliation against a witness or

victim and one count of harassment. Immediately thereafter, the trial court

sentenced Appellant at both dockets to an aggregate term of time served to

twenty-three     months     of   imprisonment   and   a   consecutive    five-year

probationary term. Appellant was paroled that same day and did not file a

post-sentence motion or a direct appeal. Appellant was represented by Mary

T. Maran, Esq. (“plea counsel”).

        On June 1, 2015, William Christopher Montoya, Esq., filed a PCRA

petition asserting that plea counsel failed to inform Appellant that her guilty

pleas would result in the loss of her nursing certification. PCRA Pet., 6/1/15,

at 2.    On November 19, 2015, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss the petition as untimely.       The notice was

docketed as an order denying the petition as untimely. Appellant filed a pro




5
    18 Pa.C.S. § 4953(a).
6
    18 Pa.C.S. § 2709(a)(4).



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se notice of appeal on November 24, 2015, but discontinued the appeal on

December 17, 2015.

      On February 24, 2016, Attorney Montoya filed an amended PCRA

petition. In that petition, Attorney Montoya averred that “[i]nto her second

year of probation[, Appellant] became aware her employment opportunities

in nursing were impacted as she could not get certified.”    Am. PCRA Pet.,

2/24/16, at 1.    Attorney Montoya stated that “on or about August 2014,”

Appellant “addressed the court” and the court appointed him as PCRA

counsel.7 Id. However, “during the beginning of 2015,” Attorney Montoya

suffered a family medical emergency, which “was not totally resolved until

late May 2015.”    Id.   Attorney Montoya suggested that he “did not file a

timely petition due to his personal issues and filed the late petition on June

1, 2015.” Id. at 2. On May 4, 2016, Attorney Montoya filed a “corrected

amended petition” that contained the same allegations as the February 24,

2016 petition.

      On May 6, 2016, the PCRA court dismissed Appellant’s petition

following a conference on the record.     Present counsel, Daniel A. Alvarez,

Esq., timely filed a notice of appeal for Appellant and complied with the

court’s order to submit a Pa.R.A.P. 1925(b) statement.      The court filed a

responsive Rule 1925(a) opinion concluding that Appellant’s initial June 1,


7
 The record does not contain an order appointing Attorney Montoya, nor
was such an order docketed.



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2015 petition was untimely filed.        Specifically, the court determined the

collateral consequences of her plea could have been discovered within the

one-year PCRA time bar and that Appellant did not establish due diligence.

PCRA Ct. Op. at 5-6.

         Appellant raises the following issue for review:

            Did the PCRA [c]ourt err in dismissing [A]ppellant’s PCRA
            [p]etition without a hearing and determining that [her]
            PCRA [p]etition was not timely filed despite the fact that
            according to 42 Pa.C.S. § 9545(b)(1)(ii) and 42 Pa.C.S. §
            9545(b)(2), [her] PCRA [p]etition was timely filed because
            of newly-discovered facts, and because [she] actually
            moved to withdraw her pleas within the one year time
            period?

Appellant’s Brief at 4.

         Appellant presents two arguments in support of her claim. First, she

asserts that she discovered the collateral consequences of her plea before

the one-year PCRA time bar expired. She avers:

            On or about October 22, 2013, [A]ppellant was made
            aware that her guilty pleas affected her employment and
            medical certification as a [certified nursing assistant].
            Appellant immediately informed the PCRA [c]ourt of her
            desire to withdraw her guilty pleas. On or about this date
            the PCRA [c]ourt appointed PCRA counsel, Christopher
            Montoya, Esq. to represent [A]ppellant in filing a PCRA
            petition. Due to PCRA counsel’s family medical issues, this
            was not done until June 1, 2015.

Id. at 6. Appellant attaches to her appellate brief a letter informing her that

she could no longer be employed due to her plea.            App. A to Appellant’s

Brief.    That letter was dated October 22, 2013, approximately six months

after her conviction. Id. Additionally, Appellant’s brief includes an affidavit


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in which Appellant asserts that after receiving that letter, she “immediately

went to the court house and spoke with [the trial judge] in regards to [her]

negotiated guilty plea . . . [and] was sent directly over to [Attorney

Montoya’s] office to start the process for a[ ] PCRA.” App. B to Appellant’s

Brief. She notes that at the time of her conviction, she was also attending

school “to become a Licensed Practical Nurse.” Id. The affidavit was dated

August 16, 2015, approximately one month after Attorney Montoya filed the

initial PCRA petition in this matter, but approximately seven months before

Attorney Montoya filed the amended PCRA petition. Id.

      Second, Appellant contends that even if she discovered the collateral

consequences of her plea more than one year after her conviction became

final, Attorney Montoya’s family emergency was a circumstance over which

she had no control. Appellant suggests that she exercised due diligence by

contacting the trial court and then contacting Attorney Montoya. Appellant’s

Brief at 12.

      Following our review, we discern no basis to upset the PCRA court’s

determination that the instant petition was not timely filed. Specifically, we

conclude that Appellant’s allegation that she discovered the adverse effects

of her plea were waived and, in any event, would not alter the underlying

determination that Appellant failed to plead a PCRA time-bar exception.

      The standard for reviewing an order dismissing a PCRA petition is

whether the PCRA court’s determinations are supported by the evidence of



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record and are free of legal error.      Commonwealth v. Halley, 870 A.2d

795, 799 n.2 (Pa. 2005).       The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

        It is well-settled that the timeliness of a PCRA petition is jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a PCRA petition must be filed within one year of the date the

judgment is final unless the petition alleges, and the petitioner proves, a

timeliness exception under 42 Pa.C.S. § 9545(b)(1)(i), (ii), or (iii). 8         42

Pa.C.S. § 9545(b)(1).       A PCRA petition invoking one of these statutory

exceptions must “be filed within 60 days of the date the claims could have


8
    The exceptions to the timeliness requirement are:

           (i) the failure to raise the claim previously was the result
           of interference of 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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).




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been presented.”    See 42 Pa.C.S. § 9545(b)(2); Hernandez, 79 A.3d at

652.

       Under Section 9545(b)(1)(ii), the petitioner must establish that the

facts upon which the claim are predicated were unknown to her and that she

could not have ascertained the facts earlier despite the exercise of due

diligence. Commonwealth v. Bennett, 930 A.2d 1264, 1270 (Pa. 2007).

The determination of timeliness does not require a merits analysis. Id. at

1271. However, the exception to the PCRA’s time bar must be pleaded in

the petition, and may not be raised for the first time on appeal.

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see

also Pa.R.A.P. 302(a).

       Instantly, Appellant’s May 23, 2013 judgment of sentence became

final on Monday, June 24, 2013, when the thirty-day period for filing an

appeal to this Court expired.    See 42 Pa.C.S. § 9545(b)(3); see also 1

Pa.C.S. § 1908; Pa.R.A.P. 903(a). Thus, Appellant had until June 24, 2014

to file a facially timely PCRA petition.   Because Appellant filed the instant

petition on June 1, 2015, Appellant bore the burden of pleading and proving

that one of the enumerated exceptions applied. See Hernandez, 79 A.3d

at 652.

       Although Appellant first claims that she became aware of the collateral

consequences of her plea when she was terminated as a certified nursing

assistant in October 2013, she did not present this information to the PCRA



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court in the first instance.   To the contrary, Attorney Montoya’s amended

petition asserted that Appellant was “unaware of the impact on her

certification until on or around August 2014,” and did not include the

attachments presented to this Court.       See, e.g., Am. PCRA Pet. at 2.

Moreover, Appellant was present at the May 6, 2016 conference regarding

her petition and did not offer this information. Thus, Appellant has waived

this claim as a basis for relief. Burton, 936 A.2d at 525; see also Pa.R.A.P.

302(a).

      In any event, the allegation that Appellant was terminated as a

certified nursing assistant in October 2013, based on her conviction, belies

her second argument that she acted diligently.        Because Appellant was

terminated as a certified nursing assistant, she was placed on notice that her

conviction could affect her plans to become a licensed practical nurse.

Moreover, as the PCRA court observed, the fact that a nursing candidate

must submit to criminal background checks and could be adversely affected

by a conviction is a matter of regulation and may be readily discovered. In

light of the foregoing, we conclude that Appellant cannot demonstrate due

diligence when discovering information that her conviction could result in the

termination of her employment as a certified nursing assistant or hamper

her advancement in nursing. Thus, no relief is due.

      Order affirmed.




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      Judge Solano joins the memorandum.   Judge Olson concurs in the

result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/23/2017




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