Opinion
J-S22025-18 No. 3077 EDA 2017
08-14-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. MARK WILLIAM SMITH Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order entered August 25, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0001278-2014 BEFORE: BENDER, P.J.E., STABILE, and PLATT, JJ MEMORANDUM BY STABILE, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Mark William Smith, appeals from the August 25, 2017 order dismissing his petition pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541-46. We affirm.
Appellant, while on parole from a state correctional institution on another offense, pled guilty to two counts of theft by unlawful taking, 18 Pa.C.S.A. § 3921(a). On June 9, 2014, the trial court imposed concurrent sentences of one to three years of incarceration, and Appellant's parole was revoked. In these circumstances, statutory law provides for Appellant's new sentence to commence at the conclusion of the old one:
(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:
61 Pa.C.S.A. § 6138(a)(5). Section 6138(a)(5) undisputedly applies here. Despite this, the trial court noted in its sentencing order that Appellant's theft sentences should run concurrently to the sentence for the prior offense. On September 19, 2015, Appellant submitted an inquiry to the parole board regarding his theft sentence. On September 21, 2015, the Parole Board informed Appellant that the sentence would not commence until he completed his current sentence. Appellant filed a grievance with the Department of Corrections on December 21, 2015 and received a response the next day informing him that the theft sentences would not commence until the prior sentence was complete.(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.
Appellant did not file a direct appeal, and therefore his sentence became final on July 9, 2014. He filed the instant petition, his first, on August 2, 2016, well outside of the PCRA's one-year deadline. 42 Pa.C.S.A. § 9545(b)(1) ("Any petition under this subchapter [...] shall be filed within one year of the date the judgment becomes final[.]"). On August 25, 2017, the PCRA court entered the order on appeal, dismissing the petition as untimely.
The August 2, 2016 filing was titled "Motion for Verification of Sentence." The trial court correctly treated the filing as a PCRA petition. See 42 Pa.C.S.A. § 9542 ("The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis.").
On review, we must determine whether the record supports the PCRA court's findings and whether the court's ruling is free of legal error. Commonwealth v. Edmiston , 65 A.3d 339, 345 (Pa. 2013), cert. denied , 571 U.S. 1026 (2013). Appellant concedes that his petition is facially untimely, but he argues his petition meets the PCRA's timeliness exceptions because (1) his failure to file within the one-year deadline was the result of government interference and (2) because the petition is based on a newly discovered fact. See 42 Pa.C.S.A. § 9545(b)(1)(i-ii). Appellant bears the burden of pleading and proving the applicability of one of these exceptions. Commonwealth v. Dickerson , 900 A.2d 407, 410 (Pa. Super. 2006), appeal denied , 911 A.2d 933 (Pa. 2006).
We first consider Appellant's reliance on the governmental interference exception to the PCRA's time bar. He claims the Commonwealth committed governmental interference in negotiating and inducing a plea that violated § 6138(a)(5). The trial court correctly observed that Appellant does not raise a cognizable claim of government interference. Rather, he raises a veiled claim of his own plea counsel's ineffective assistance. In essence, Appellant argues plea counsel was ineffective for advising him to accept a plea bargain that stipulated to concurrent sentences in violation § 6138(a)(5).
The PCRA provides that "'government officials' shall not include defense counsel, whether appointed or retained." 42 Pa. C.S.A. § 9545(b)(4); Commonwealth v. Wharton , 886 A.2d 1120, 1127 (Pa. 2005). Appellant's reliance on plea counsel's advice cannot constitute governmental interference, nor can his ignorance of § 6138(a)(5), the statute that governed the commencement of his sentence. See Commonwealth v. Baldwin , 789 A.2d 728, 731 (Pa. Super. 2001) (noting that ignorance of the law does not excuse an untimely PCRA petition), appeal denied , 863 A.2d 1141 (Pa. 2004).
Moreover, the record does not support Appellant's argument that he was promised that his theft sentences would run concurrently to the prior sentence. At the plea hearing, defense counsel stated: "I've explained to him that it's our intention for it to run concurrent, but it's really up to the parole board as to whether they want to do that." N.T. Guilty Plea, 6/9/14, at 10. The trial court also advised Appellant that it could not tell the parole board what to do. Id. For all of the foregoing reasons, Appellant's governmental interference argument fails.
Next, we consider Appellant's claim that his petition rests on a newly discovered fact. Our courts may entertain an otherwise untimely petition if "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)(1)(ii). A petitioner relying on a PCRA timeliness exception must file the petition "within 60 days of the date the claim could have been presented." 42 Pa.C.S.A. § 9545(b)(2). We have already explained that § 6138(a)(5) was on the books when Appellant pled guilty, and we do not believe his ignorance of that statute excuses compliance with the PCRA time bar. Furthermore, as noted above, Appellant was notified in September and December of 2015 that his theft sentences would not commence until he completed the prior sentence. His August 2, 2016 petition did not meet the 60-day deadline of § 9545(b)(2). Appellant has failed to prove the applicability of § 9545(b)(1)(ii).
Finally, Appellant argues that the trial court has inherent authority, under Commonwealth v. Holmes , 93 A.2d 57 (Pa. 2007), to correct an illegal sentence. In Holmes , our Supreme Court held that trial courts retain inherent authority to correct patent and obvious mistakes in sentencing orders. Holmes does not help Appellant here because a correction to the sentencing order would not work in his favor. Appellant is not serving an illegal sentence. Rather, his theft sentences are running consecutive to the prior sentence, exactly as the law requires. Assuming arguendo that the sentencing court committed a patent and obvious mistake, a correction would avail Appellant nothing. In essence, Appellant seeks to enforce an unlawful plea bargain. He cites no law that entitles him to that relief. Had Appellant raised this issue earlier he could have, at most, withdrawn his guilty plea.
Furthermore, Appellant fails to acknowledge that in Commonwealth v. Jackson , 30 A.3d 516, 521 (Pa. Super. 2011), this Court refused to hold that Holmes creates a collateral remedy that is not subject to the PCRA's jurisdictional timeliness requirements. In other words, the trial court's inherent authority to correct obvious mistakes does not outlast the PCRA's time bar. Appellant's final argument lacks merit.
In summary, we have concluded that each of Appellant's arguments lacks merit. We therefore affirm the order dismissing his PCRA petition as untimely.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/14/18