J-S02029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

DAMIAN A. LAYTON

                         Appellant                 No. 1879 EDA 2016


                   Appeal from the PCRA Order May 9, 2016
              In the Court of Common Pleas of Delaware County
              Criminal Division at No: CP-23-CR-0004081-2005


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.

MEMORANDUM BY STABILE, J.:                         FILED APRIL 11, 2017

      Appellant, Damian A. Layton, appeals from the May 9, 2010 order

entered in the Court of Common Pleas of Delaware County (“PCRA court”)

denying his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

      This Court previously summarized the factual history of the matter as

follows.

            In December 2004, Newtown Township Police Detective
      John Newell received information from a confidential informant
      that the occupants of 2405 Peoples Street, Chester,
      Pennsylvania, were selling cocaine from inside of the residence.
      The informant indicated that “Larry” and “Damian” were selling
      cocaine, and that the informant had purchased cocaine at the
      residence. This purchase took place two weeks prior to the date
      that police applied for a search warrant of the premises. In
      addition, Detective Newell conducted a controlled purchase of
      narcotics, using the same informant, within 48 hours of the
      application for the search warrant.
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             On April 1, 2005, police executed a search warrant at the
       Peoples Street residence.         Police Detective Christopher
       Sponaugle proceeded to the second floor of the residence, where
       he observed [Appellant] and co-defendant Kenneth Byrd
       (“Byrd”) run out of a bedroom and move rapidly into the
       bathroom, closing the door behind them. Detective Sponaugle
       and two other officers tried to force the door open. During this
       time, Detective Sponaugle heard the sound of a flushing toilet.
       When the door finally opened, Detective Sponaugle observed
       [Appellant] standing and Byrd squatting next to the toilet.
       According to Detective Sponaugle, both [Appellant] and Byrd
       were wet, a sandwich bag was floating in the toilet, white
       powder residue was on the bathroom floor and there was an
       odor of cocaine in the bathroom.           [Appellant] and Byrd
       subsequently were placed under arrest.

            After a bench trial, the trial court convicted [Appellant] of
       the above described offenses.[1] The trial court subsequently
       sentenced [Appellant] to an aggregate prison term of 54-108
       months.

Commonwealth v. Layton, 504 EDA 2007, Unpublished Memorandum at

1-2 (Pa. Super. filed Feb. 2, 2009).           This Court affirmed the judgment of

sentence on February 2, 2009.             See id.     Following a PCRA petition to

reinstate his appellate rights nunc pro tunc, our Supreme Court denied

Appellant’s    petition    for   allowance      of   appeal   on   June   22,   2010.

Commonwealth v. Layton, 997 A.2d 1176 (Pa. 2010).                          Therefore,

Appellant’s judgment of sentence became final on September 20, 2010.


____________________________________________


1
   Appellant was convicted of possession of a controlled substance,
possession of a controlled substance with the intent to deliver, possession of
drug paraphernalia, and conspiracy to possess a controlled substance with
the intent to deliver. 35 P.S. § 780-113(a)(16), (30), (32); 18 Pa.C.S.A. §
903.




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        Appellant filed a pro se PCRA petition on March 22, 2011. The PCRA

court appointed counsel, and counsel filed a Turner/Finley2 no-merit letter

contemporaneously with an application to withdraw.               The PCRA court

dismissed Appellant’s PCRA petition on March 8, 2012.            Appellant filed a

notice of appeal, and this Court affirmed the PCRA court’s dismissal on

August 15, 2014.

        On October 24, 2014, Appellant filed a second pro se PCRA petition,

the instant petition, asserting an ineffective assistance of counsel claim. The

Commonwealth filed a response on February 13, 2015, and Appellant filed a

reply on February 23, 2015.             The Commonwealth filed a supplemental

response on March 4, 2015.         On August 5, 2015, Appellant filed a petition to

amend his PCRA petition to assert an Alleyne3 claim. On August 7, 2015,

the PCRA court appointed Scott Galloway, Esquire, as counsel for Appellant

after determining that an evidentiary hearing on Appellant’s petition was

necessary. Counsel filed an amended PCRA petition on November 5, 2015.

        An evidentiary hearing was held on January 22, 2016, during which

the PCRA court heard testimony from Mary Mann, Esquire, Lawrence Narcisi,

Esquire, Elliot Cohen, Esquire, and Appellant.            On January 28, 2016,

Appellant and the Commonwealth filed a written stipulation as to the
____________________________________________


2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
    United States v. Alleyne, 133 S.Ct. 2151 (2013).




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testimony of Rob Levant, Esquire, from a PCRA hearing on September 7,

2010.4      On May 9, 2016, the PCRA court entered an order denying

Appellant’s PCRA petition. Appellant filed a timely notice of appeal on June

6, 2016, and a concise statement on July 11, 2016. The PCRA court issued

an opinion on September 7, 2016.

       Appellant raises a sole issue on appeal.

       I.     Was the [PCRA] court in error for denying the amended
              post conviction relief act petition alleging ineffectiveness
              on the part of trial counsel for not conveying an offer to
              [Appellant] prior to the commencement of trial[.]

Appellant’s Brief at 4.

       First, we must address whether the PCRA court had jurisdiction to

reach the merits of Appellant’s petition.         This Court “may sua sponte

consider whether we have jurisdiction to consider the merits of the claims

presented.”     See Commonwealth v. Harris, 114 A.3d 1, 6 (Pa. Super.

2015) (citation omitted). Moreover, “[w]hen a PCRA court lacks jurisdiction

to consider the merits of a petition, we likewise lack jurisdiction to consider

an appeal from disposition of the petition.”           Id. (citation omitted).

Applicable to the matter sub judice, in order for a PCRA court to have

jurisdiction, the petition must “be filed within one year of the date the

judgment becomes final, unless the petition alleges and the petitioner

____________________________________________


4
  This testimony occurred during a hearing on Appellant’s co-defendant
Kenneth Byrd’s PCRA petition.



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proves that . . . 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[.]” 42 Pa.C.S.A. § 9545(b).

       While Appellant’s petition is facially untimely, he pled an exception to

the timeliness requirement.         Specifically, that he was unaware of the plea

offer until April 2013.5 When reviewing an order denying a PCRA petition,

this Court “must determine whether the ruling of the PCRA court is

supported by the record and is free of legal error.            The PCRA court’s

credibility determinations, when supported by the record are binding on this

Court.” Commonwealth v. Spotz, 18 A.3d 244 , 259 (Pa. 20101) (citing

Commonwealth v. Johnson, 966 A.2d 523, 532, 539 (Pa. 2009);

Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008)).

       The PCRA court held a hearing and found the testimony of Mary Mann,

Esquire, Lawrence Narcisi, Esquire, and the stipulation entered into on

January 28, 2016, in which Rob Levant, Esquire, “stated he specifically

recalled that an offer was conveyed to [Appellant] and Kenneth Byrd in the

courtroom” to be credible.         Trial Court Order, 5/9/2016.   The trial court

“found that a plea offer was made, and that a plea offer was conveyed to


____________________________________________


5
  As Appellant’s first PCRA petition was on appeal at the time he discovered
this information, he was unable to file a second PCRA petition until the first
petition had been resolved. See Commonwealth v. Lark, 746 A.2d 585,
588 (Pa. 2000).




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[Appellant] in this case by counsel.”    Id.   As this Court is bound by the

credibility determinations of the PCRA court, and the determinations are

supported by the record, we find that while Appellant properly pled a

timeliness exception, he failed to prove such exception.     The PCRA court,

having found that the plea offer was conveyed to Appellant well before April

2013, was without jurisdiction to address the merits of Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2017




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