J-S73005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

                 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, J., DUBOW, J., and STRASSBURGER*, J.

DISSENTING MEMORANDUM BY OLSON, J.:                  FILED MARCH 23, 2018

      As I am unable to agree with my learned colleagues’ construction and

application of the newly discovered facts exception set forth at 42 Pa.C.S.A.

§ 9545(b)(1)(ii), I am compelled to dissent.

      Appellant concedes that the instant Post-Conviction Relief Act (PCRA)

petition is untimely. Nevertheless, he asserts, and the Majority agrees, that

“finding out that the [Department of Corrections (DOC)] could not implement

the sentence imposed by the trial court constituted a newly-discovered fact.”

See Majority Memorandum at 5-7. The Majority’s conclusion is contrary to

the statutory language and interpretive case law relating to § 9545(b)(1)(ii).

      I briefly recite the statutory provisions that govern this case.

      The PCRA’s timeliness requirement is mandatory and jurisdictional
      in nature and [no] court may [] ignore it in order to reach the
      merits of the petition. [Commonwealth v. Brown, 943 A.2d

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* Retired Senior Judge assigned to the Superior Court.
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       264, 267 (Pa. 2008).] A PCRA petition, including a second or
       subsequent petition, [must] be filed within “one year of the date
       of the judgment becomes final, unless the petition alleges and the
       petitioner proves that” one of the following three exceptions
       applies:

           (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.

       42 Pa.C.S.A. § 9545 (b)(1). A PCRA petition invoking one of the
       three above exceptions must “be filed within 60 days of the date
       the claim could have been presented.” 42 Pa.C.S.A. § 9545
       (b)(2).

PCRA Court Opinion, 4/19/17, at 2-3.

       Appellant’s contention is that the newly discovered fact exception found

at § 9545(b)(1)(ii) should apply in this case. Specifically, Appellant claims

that he first learned that the sentence he received at docket no. 3139 CR 2015

was illegal under 61 Pa.C.S.A. § 6138(a)(5)(i)1 when he received his DC16E


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1 Section 6138 provides that Appellant’s new sentence at docket no. 3139 CR
2015 could not run concurrently with the time he owed on state parole. In
relevant part, it states:




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status summary on or around September 8, 2016. Appellant’s Brief at 12.

Appellant relies on the decision of this Court in Commonwealth v. Kelly, 136

A.3d 1007 (Pa. Super. 2016) as support for his claim.

       Our Supreme Court recently stated that the timeliness exception for

newly discovered facts “requires that the ‘facts' upon which such a claim is

predicated must not have been known to appellant, nor could they have been

ascertained by due diligence.” Commonwealth v. Chmiel, 2017 WL

5616233, *5 (Pa. 2017), quoting, Commonwealth v. Lambert, 884 A.2d

848, 852 (Pa. 2005).         The Court further clarified that, “to fall within this

exception, the factual predicate of the claim must not be of public record and

must not be facts that were previously known but are now presented through

a newly discovered source.”            Chmiel, 2017 WL 5616233, *5, quoting,

Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013).

       Appellant is not entitled to relief under the present circumstances. Two

factual components underlie Appellant’s current claim. The first is his status

as a parolee at the time of sentencing and the second is the application of

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       (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.A. § 6138(a)(5)(i).


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§ 6138(5)(i) to the sentence imposed by the trial court. Appellant concedes

his awareness of his status as a parolee as of the date the trial court imposed

its sentence; hence, this “fact” cannot be considered “newly discovered” on

September 8, 2016. The application of § 6138(a)(5)(i) also cannot serve as

the basis for relief in this case. Section 6138(a)(5)(i) was in effect at the time

Appellant received his sentence, when he was represented by counsel. Thus,

its application as a public law was ascertainable through reasonable diligence.

See Commonwealth v. Shiloh, 170 A.3d 553, 558-559 (Pa. Super. 2017)

(presumption that public records cannot serve as newly discovered facts

applies where petitioner is represented by counsel). Appellant cannot invoke

§ 9545(b)(1)(ii) by relying upon facts that were either known to him or

ascertainable through due diligence.

      Kelly does not alter this assessment. In that case, Kelly, who was on

state parole, pled guilty to several offenses in exchange for a negotiated

sentence, including a specific effective date for his new sentence. Kelly, 136

A.3d at 1010. While incarcerated, Kelly learned that the effective date of his

new sentence would be nearly two years later because of the application of

§ 6138(a)(5)(i). Id. at 1011. As a result, Kelly filed a timely petition for

collateral relief alleging that counsel was ineffective for negotiating a plea that

was unenforceable and that the sentence he received pursuant to the plea

was illegal. Id. at 1012. We granted relief on both grounds, finding that

counsel’s knowledge of the Parole Act was deficient and that the sentence




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imposed by the court was unlawful because it violated § 6138(a)(5)(i). Id. at

1014.

        Kelly, in fact, supports my view that Appellant’s claim lacks merit. In

reviewing Kelly’s timely petition, we said that plea counsel was ineffective

because counsel failed to apply § 6138(a)(5)(i), an existing provision of the

Parole Act, to the sentencing circumstances that confronted a known parolee.

We also said that the sentence Kelly received was illegal because

§ 6138(a)(5)(i) placed Kelly’s negotiated sentence beyond the power of the

trial court to impose. The same circumstances are present in the instant case

and Appellant’s subsequent discovery does not convert known and/or

knowable facts into unknown ones.           Put differently, even if Appellant

possesses valid claims centered on counsel’s ineffectiveness and the illegality

of his sentence, he has come forward with no new facts to establish jurisdiction

before the PCRA court. See Commonwealth v. Lesko, 15 A.3d 345, 367

(Pa. 2011) (“the fact that a petitioner's claims are couched in terms of

ineffectiveness will not save an otherwise untimely petition from the

application of the time restrictions of the PCRA”); see also Commonwealth

v. Holmes, 933 A.2d 57, 60 (Pa. 2007) (“Although legality of sentence is

always subject to review within the PCRA, claims must still first satisfy the

PCRA's time limits or one of the exceptions thereto[.]”) (citation omitted).

        The Majority’s effort to shoehorn this case into the newly discovered

facts exception found at § 9545(b)(1)(ii) is unpersuasive. The Majority faults

the PCRA court for its suggestion that § 6138(a)(5)(i) constitutes the newly

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discovered fact. See Majority Memorandum at 5. Instead, the Majority cites

the DOC’s September 8, 2016 sentence status summary as the relevant “new”

fact because it informed Appellant of his maximum date. Id. In my view, the

information conveyed in the document – Appellant’s maximum date – is not a

“fact” but simply a calculation that relies exclusively on the application of

§ 6138(a)(5)(i) to a known parolee receiving a sentence.             Since all of this

baseline information was known or knowable at the time of Appellant’s

counseled sentencing proceeding, it does not trigger the exception at

§ 9545(b)(1)(ii). The DOC’s September 8, 2016 communication is nothing

more than a newly discovered source of known or available facts.

       I also cannot agree with the Majority’s declaration that the DOC’s

calculation    constituted     a    newly      discovered   fact   for   purposes   of

§ 9545(b)(1)(ii) because “[Appellant] did not know this information” 2 and plea

counsel, the district attorney, and the trial court were unaware of the need to

consider § 6138(a)(5)(i) in fixing punishment for a known parolee such as

Appellant. See Majority Memorandum at 6. I am inclined to agree that these

regrettable circumstances engender a measure of sympathy for Appellant,

particularly since he would be entitled to relief if he had asserted his

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2 This is a questionable assertion under the circumstances. Appellant admits
that he knew he was on parole at the time of sentencing. Therefore, the only
other information he needed to reach the same conclusion as the DOC was
the application of § 6138(a)(5)(i), which was clearly in the public domain and
ascertainable through reasonable diligence at the time of Appellant’s
counseled sentencing proceeding.


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ineffectiveness and legality of sentence claims in a timely manner.

Nevertheless, no amount of misfeasance by bench and bar, nor shock,

surprise, disappointment, or dismay on the part of a petitioner, can overcome

the clear statutory command that only newly discovered and previously

unavailable     facts     trigger    the       timeliness   exception   set   forth   at

§ 9545(b)(1)(ii). See Lesko, supra.; see also Holmes, supra. Because

the Majority effectively treats counsel’s ineffectiveness as grounds for invoking

the newly discovered facts exception, it is unsurprising there is no case law to

support its reading of § 9545(b)(1)(ii).3

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3 The Majority relies on Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017)
to suggest that Appellant was entitled to a hearing to determine whether he
could have discovered § 6138(a)(5)(i) in the prison law library. See Majority
Memorandum at 6 n.4. Burton, however, is distinguishable and has only
questionable application under the present circumstances.

Shawn Burton and Melvin Goodwine were tried together in the Court of
Common Pleas of Allegheny County. On September 28, 1993, Burton was
convicted of first-degree murder and conspiracy and received mandatory life
imprisonment; Goodwine was convicted of conspiracy and received five to ten
years’ incarceration. On May 30, 2013, Burton received a letter from an
attorney with the Pennsylvania Innocence Project enclosing an expungement
motion filed by Goodwine on July 29, 2009. Goodwine’s motion asserted that
he committed the killing in self-defense, that he was told not to raise that
defense at trial, and that an innocent man had been imprisoned for a crime
that he committed. Citing receipt of Goodwine’s expungement motion on May
30, 2013, Burton filed a PCRA petition on July 11, 2013 alleging that
Goodwine’s motion contained newly discovered facts under § 9545(b)(1)(ii).
In considering whether Burton acted diligently in the four years that passed
between Goodwine’s 2009 filing and Burton’s 2013 petition for collateral relief,
our Supreme Court held that the presumption that public information cannot
be deemed unknown for purposes of § 9545(b)(1)(ii) should not be applied to
pro se incarcerated petitioners. Burton, 158 A.3d at 638.



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       Because Appellant’s claims were patently untimely, and not subject to a

statutory exception to the PCRA’s timeliness requirements, I would hold that

the PCRA court correctly dismissed Appellant’s petition for lack of jurisdiction.

Thus, I respectfully dissent.




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There are substantial and compelling differences between Burton and the
present case. Burton argued that the public record presumption should not
apply where an incarcerated, pro se prisoner failed to act sooner on
information that did not exist until 16 years after his conviction and long after
he lost the benefit of counsel. In this case, however, there is no dispute that
Appellant had the assistance of counsel at his sentencing hearing when all of
the facts needed to establish the unenforceability of the negotiated sentence
(i.e., Appellant’s parole status and § 6138(a)(5)(i)) were known or readily
obtainable. In Burton, then, the contested issue centered upon whether the
petitioner acted diligently in acquiring previously unavailable facts alleged in
Goodwine’s expungement papers. Here, the dispute focuses on whether
DOC’s September 8, 2016 communication contained any “new” facts at all, or
whether it should simply be viewed as a newly acquired source of known or
ascertainable facts. Since I do not believe that DOC conveyed any “new”
facts, I would not reach the issue of whether Appellant acted diligently in filing
the instant petition.

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