J-S14040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    THOMAS CALDWELL                            :
                                               :
                       Appellant               :   No. 1516 EDA 2017

                   Appeal from the PCRA Order April 25, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0404851-2002


BEFORE:      OTT, J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY RANSOM, J.:                                FILED APRIL 26, 2018

        Appellant, Thomas Caldwell, appeals from the order entered April 25,

2017, denying as untimely his first petition for collateral relief filed under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        In its opinion, the PCRA court fully and correctly sets forth the relevant

facts and procedural history of this case. See PCRA Court Opinion (PCO),

6/29/17, at 1-2. For the convenience of the reader, we briefly note that, on

October 21, 2003, Appellant pleaded guilty to robbery and criminal

conspiracy,1 committed while Appellant was on parole,2 and he was sentenced

to four to ten years of incarceration. In November 2016, Appellant pro se filed


____________________________________________


1   18 Pa.C.S. § 3701 and § 903, respectively.
2 A parole violation was pending at the time Appellant pleaded guilty in the
current matter.


*    Retired Senior Judge assigned to the Superior Court.
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a PCRA petition; following notice pursuant to Pa.R.Crim.P. 907, the PCRA court

dismissed Appellant’s PCRA petition as untimely in April 2017. This appeal

followed.

       Appellant raises the following issues for our review:

       I.     Did the PCRA court err when it ruled that Appellant’s PCRA
       petition was untimely, when in fact Appellant had pled and proved
       that he is entitled to this otherwise untimely petition based on
       newly discovered evidence, evidence that if presented at the time
       of sentencing would have changed the outcome of his sentencing,
       and would have entitled him to a lesser sentence?

       II.   Is Appellant serving an illegal sentence because his plea
       agreement is being breached? Specifically, has the sentencing
       court imposed a sentence that it knew or should have known,
       could not be enforced? and, therefore, does it constitute an
       agreement that is illegal in that it violates the spirit and intent in
       which it was given entitling Appellant to the specific performance
       of the agreement?

       III. Did defense counsel render ineffective assistance of counsel
       when he knew or should have known that the sentencing
       agreement that he compelled Appellant to enter into was an illegal
       and unlawful sentence?

Appellant’s Brief at 4.3

       In reviewing an appeal from the denial of PCRA relief, “this Court is

limited to ascertaining whether the evidence supports the determination of

the PCRA court and whether the ruling is free of legal error.” Commonwealth

v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted).


____________________________________________


3  In November 2017, the Commonwealth requested an extension of time to
file a brief with this Court. On November 30, 2017, we granted the
Commonwealth’s request and ordered that it must file its brief by January 26,
2018. As of the date of this memorandum, the Commonwealth has failed to
file a brief.

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        Appellant first contends:

        The PCRA court err when it ruled that Appellant’s PCRA petition
        was untimely, when in fact Appellant had pled and proved that he
        is entitled to this otherwise untimely petition based on newly
        discovered evidence, evidence that if presented at the time of
        sentencing would have changed the outcome of his sentencing,
        and would have entitled him to a lesser sentence.

Appellant’s Brief at 8.

        The   timeliness     of   a   post-conviction   petition   is   jurisdictional.

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

Generally, a petition for relief under the PCRA must be filed within one year

of the date the judgment of sentence is final, unless the petition alleges and

the petitioner proves one of the three exceptions to the time limitations for

filing the petition set forth in Section 9545(b) of the statute. See 42 Pa.C.S.

§ 9545(b).4


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4   The three exceptions to the timeliness requirement are:

        (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. § 9545(b)(1).

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      Here, the PCRA court concluded that it lacked jurisdiction over

Appellant’s PCRA petition due to Appellant’s untimeliness and to his failure to

satisfy an exception to the PCRA’s time bar. After a thorough review of the

record, Appellant’s brief, the applicable law, and the well-reasoned opinion of

the Honorable Scott DiClaudio, we agree that Appellant has failed to establish

any exceptions to the PCRA’s jurisdictional time bar. The PCRA court opinion

properly disposed of that question, as follows:

      In the instant matter, Appellant’s sentence became final on
      November 20, 2003, thirty days after Appellant was sentenced, as
      he did not file a timely post-sentence motion or a timely direct
      appeal. However, Appellant filed his pro se PCRA petition on
      November 29, 2016, over thirteen years after his sentence
      became final. Therefore, facially, the Appellant’s petition is
      untimely absent a valid PCRA timeliness exception asserted within
      60 days of the date the claim could have been presented.

      Appellant untenably asserted the after-discovered fact timeliness
      exception in lodging his PCRA claims of ineffectiveness of counsel
      and sentence illegality. The after-discovered “fact” upon which
      Appellant relies is the contention that, upon his inquiry to the
      prison in 2016, he was first informed that his guilty plea sentence
      would commence after he served his parole violation sentence, as
      opposed to on October 21, 2003, the effective date of sentencing.
      Appellant asserts that the court commitment paperwork noted
      that the effective date of sentencing was October 21, 2003, and
      therefore, serving his parole violation sentence prior to his guilty
      plea sentence served as an illegal sentence and that his counsel
      was ineffective for failing to advise him of this sentencing
      sequence.

      Prior to entering a guilty plea in 2003, Appellant signed a guilty
      plea colloquy acquiescing that his guilty plea was not negotiated,
      that there was no agreement as to Appellant’s sentence, that he
      was on parole and that the plea conviction would serve as a parole
      violation. Therefore, Appellant was aware of the possibility of
      serving an additional parole violation sentence in 2003 and his
      2016 PCRA filing is exceedingly untimely.


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      Assuming arguendo that Appellant’s counsel did not advise him
      that Appellant would have to serve his parole violation sentence
      prior to his new sentence, and that the prison’s 2016 disclosure
      constitutes . . . an after-discovered fact as it does not pertain to
      the determination of Appellant’s guilt or innocence, Appellant
      could have ascertained this information by the exercise of due
      diligence at the time of his parole violation hearing which occurred
      years prior to the filing of his PCRA petition in 2016.
      Consequently, Appellant failed to aver and prove a delineated
      statutory timeliness exception within 60 days of the date the claim
      could have been presented. Moreover, Appellant filed his PCRA
      petition on November 29, 2016, exceeding sixty days from the
      date the prison communicated with the Appellant on
      September 28, 2016 discussing the sentencing issue.

PCO at 4-5. Thus, there is no merit to the first issue Appellant has raised on

appeal.

      As we conclude that Appellant’s PCRA petition was untimely, we lack

jurisdiction to consider Appellant’s remaining issues.    See Hernandez, 79

A.3d at 651. Having discerned no abuse of discretion or error of law, we affirm

the order below.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/18




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