Opinion
J-S60022-15 No. 3605 EDA 2014
11-17-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. RUSSELL WESLEY MOSS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order October 7, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002091-2002
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J. MEMORANDUM BY LAZARUS, J.:
Russell Wesley Moss appeals from the order of the Court of Common Pleas of Delaware County that dismissed his second petition filed pursuant to the Post Conviction Relief Act. After careful review, we affirm.
On direct appeal, this Court summarized the underlying facts of the case as follows:
In 1982, Ellen Lewis was shot and killed by Rodney Griffin. Griffin was subsequently convicted for the murder and sentenced to death. During the investigation . . . Moss was suspected of being involved in the murder; however, prosecutors did not have sufficient evidence to charge [Moss] at that time. During a 1998 PCRA evidentiary hearing in Griffin's case, Griffin confirmed to prosecutors that [Moss] had planned the murder and had hired or chosen him to carry it out. [Moss] was arrested on May 9, 2002, and on July 29, 2003, he entered an open guilty plea to the charges of third degree murder and solicitation to commit
murder. Subsequently, [Moss] was sentenced to a term of 8 to 20 years' imprisonment for third degree murder and to a concurrent term of 5 to 10 years' for solicitation.Commonwealth v. Moss , 3201 EDA 2003, unpublished memorandum at 2 (Pa. Super. filed February 14, 2005).
On direct appeal, Moss raised several issues including a claim that the Commonwealth fraudulently induced him to enter a guilty plea. This Court held that the issue was waived because Moss "never challenged his guilty plea in the trial court before raising it in his Pa.R.A.P. 1925(b) statement." Id. Moss also argued that the trial court breached the terms of his plea agreement when imposing sentence. This Court noted:
Moss, who became a member of the Pennsylvania bar on January 4, 1995 and was disbarred on June 19, 2002, was represented by counsel at trial. On April 26, 2004, the trial court determined that Moss knowingly, intelligently and voluntarily waived his right to counsel and granted Moss' request to represent himself on appeal.
The agreement provided that the Commonwealth would not seek the mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9712, which would otherwise have applied in this case. It is uncontested that the Commonwealth did not seek to have the mandatory minimum sentence imposed; therefore, it did not breach any agreement.Id. at 4-5.
[Moss] also argues that the trial court did not abide by the terms of the agreement by sentencing him to a length of time in excess of the mandatory minimum. The trial court in the instant case specifically noted that it did not impose a mandatory minimum sentence pursuant to Section 9712. Rather, the trial court exercised its discretion in sentencing [Moss] to a term of imprisonment within the statutory limitations for third degree murder and solicitation to murder.
This Court affirmed Moss' judgment of sentence on February 14, 2005, and denied reargument on April 26, 2005. Moss filed a timely pro se PCRA petition on February 23, 2006. The court dismissed the petition on December 28, 2006. Moss filed a timely notice of appeal to this Court on January 9, 2007. This court affirmed the PCRA court's order on October 11, 2007.
On April 19, 2006, the court held a hearing and granted Moss' motion to proceed pro se with respect to his PCRA petition.
On July 21, 2014, Moss filed his second PCRA petition and on September 8, 2014, he filed an amendment to his petition. The court dismissed the PCRA petition on October 8, 2014. Moss filed a timely appeal and on April 6, 2015, the PCRA court filed its Rule 1925(a) opinion in which it explains, inter alia, that Moss is not serving an illegal sentence and is not entitled to relief based on a claim of a newly recognized constitutional right.
In the "statement of questions involved" section of his brief, Moss identifies the following issues for our review verbatim:
[1.] The court[']s inherent authority should have been employed to correct the sentence imposed upon Moss.Appellant's Brief, at v.
[2.] The PCRA court has jurisdiction pursuant to 42 Pa.C.S. § 9545 et seq.
[3.] The state law procedures available deny Moss due process of law, substantively and procedurally.
"Our standard of review regarding a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Garcia , 23 A.3d 1059, 1061 (Pa. Super. 2011) (citations omitted).
Section 9545 of the PCRA provides in relevant part:
(b) Time for filing petition. -
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, 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.
(3) For purposes of this subchapter, a judgment becomes final at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking review.42 Pa.C.S. § 9545(b).
Moss' judgment of sentence became final on May 26, 2005, thirty days after the expiration of the time in which he could seek allowance of appeal in the Pennsylvania Supreme Court. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113. Moss filed the instant petition on July 21, 2014, more than nine years after his judgment of sentence became final.
After careful review of the parties' briefs, the record and the relevant law, we agree with the Honorable George A. Pagano's analysis and affirm on the basis of his opinion. We instruct the parties to attach a copy of Judge Pagano's decision in the event of further proceedings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2015
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