Opinion
1141 EDA 2022 J-S17029-24
08-27-2024
COMMONWEALTH OF PENNSYLVANIA v. ANDRE RAYMELLE WATLEY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered March 21, 2022 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0001701-2009
BEFORE: BOWES, J., KING, J., and BENDER, P.J.E.
MEMORANDUM
KING, J.
Appellant, Andre Raymelle Watley, appeals from the order entered in the Northampton County Court of Common Pleas, denying his petition filed under the Post Conviction Relief Act ("PCRA"). We affirm.
A prior panel of this Court set forth the relevant facts and procedural history of this case as follows:
On February 13, 2009, police stopped Appellant's vehicle for speeding. During the stop, police observed a firearm in plain view and removed the occupants from the vehicle. Appellant fled on foot; however, police identified Appellant as the driver of the vehicle, based on a statement by the passenger and receipts found inside the vehicle. Police subsequently arrested Appellant, and the Commonwealth charged him with various firearm, drug, and motor vehicle offenses. On July 15, 2010, the jury convicted Appellant of two counts of firearms not to be carried without a license, and one count each of conspiracy, false identification to law
enforcement authorities, PWID, possession of a controlled substance, possession of a small amount of marijuana, and two summary motor vehicle offenses. The court sentenced Appellant on September 17, 2010, to an aggregate term of one hundred and forty-eight (148) to three hundred (300) months' imprisonment, which included two mandatory minimum sentences pursuant to 42 Pa.C.S.A. § 9712.1. Appellant did not file a direct appeal.
On May 12, 2011, Appellant timely filed a pro se PCRA petition, which resulted in the reinstatement of his direct appeal rights nunc pro tunc on May 27, 2011. That same day, Appellant filed a notice of appeal nunc pro tunc. This Court affirmed the judgment of sentence on November 25, 2013, and our Supreme Court denied allowance of appeal on July 8, 2014. See Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc), appeal denied, 626 Pa. 684, 95 A.3d 277 (2014). Appellant timely filed a pro se PCRA petition on June 2, 2015. The court appointed counsel, who filed an amended PCRA petition on July 10, 2015. The parties proceeded to PCRA hearings on October 9, 2015 and October 30, 2015. On January 27, 2016, the PCRA court determined Appellant's mandatory minimum sentences were unconstitutional pursuant to Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and vacated Appellant's judgment of sentence. The PCRA court denied PCRA relief in all other respects. Appellant timely filed a notice of appeal on February 19, 2016. This Court affirmed on December 29, 2016, and our Supreme Court denied allowance of appeal on June 12, 2017. See Commonwealth v. Watley, 153 A.3d 1034 (Pa.Super. 2016), appeal denied, 641 Pa. 750, 169 A.3d 574 (2017).
On August 4, 2017, the parties appeared for Appellant's resentencing hearing. After an explanation of its reasons for the sentence, the court imposed … an aggregate term of one hundred twenty-four and one-half (124½) to four hundred and twenty-one (421) months' imprisonment.Commonwealth v. Watley, No. 2818 EDA 2017, unpublished memorandum at 2-4 (Pa.Super. filed February 20, 2018), appeal denied, 648 Pa. 661, 194 A.3d 1042 (2018).
On February 20, 2018, this Court affirmed Appellant's new judgment of sentence, and our Supreme Court denied Appellant's petition for allowance of appeal on October 2, 2018. See id. Appellant filed a pro se PCRA petition on August 20, 2021. The court appointed counsel, who filed an amended PCRA petition on November 29, 2021.
On February 10, 2022, the PCRA court conducted a hearing on the timeliness of Appellant's PCRA petition. At the hearing, Appellant testified that he did not receive notice that our Supreme Court denied his petition for allowance of appeal until June 22, 2021. On that date, he received correspondence from his prior appellate counsel, Matthew Deschler, informing him of the Court's decision. In that correspondence, Attorney Deschler included a copy of a letter dated October 22, 2018, which was intended to apprise Appellant of the same information. The letter dated October 22, 2018 was addressed to Appellant but listed an incorrect inmate number. Appellant testified that he did not receive the October 22, 2018 letter, and he did not become aware of the denial of his petition for allowance of appeal until he received Attorney Deschler's letter on June 22, 2021. Appellant testified that he asked his aunt and his friend to reach out to Attorney Deschler in 2020 and 2021 to inquire about the status of his case, prompting Attorney Deschler to send the June 2021 letter.
Attorney Deschler confirmed that the letter he sent on October 22, 2018 contained an incorrect inmate number. Nevertheless, the letter was not returned to him as undelivered, so he assumed that Appellant received the letter. Thereafter, Attorney Deschler did not receive any communication from Appellant directly inquiring about the status of his case or asking Attorney Deschler to take any further steps on his behalf. On May 1, 2020, Attorney Deschler received an e-mail from Appellant's aunt, Karen Burton, stating that she was writing on Appellant's behalf to inquire about the status of Appellant's appeal. Attorney Deschler responded to Ms. Burton on the same day and attached to the e-mail a copy of the letter he mailed to Appellant on October 22, 2018, and the order denying the petition for allowance of appeal. Ms. Burton replied to the e-mail on May 10, 2020, stating that she spoke with Appellant, and he told her that he did not receive any communication from Attorney Deschler regarding the denial of his petition for allowance of appeal. Attorney Deschler did not send another letter to Appellant directly at this point because Ms. Burton indicated that she was e-mailing on Appellant's behalf and was in communication with Appellant. In June of 2021, Appellant's friend reached out to Attorney Deschler on Appellant's behalf, prompting Attorney Deschler to send the June 2021 letter to Appellant.
On February 22, 2022, the PCRA court issued notice of intent to dismiss his petition. On March 21, 2022, the PCRA court dismissed Appellant's PCRA petition as untimely. Appellant filed a timely notice of appeal on April 19, 2022. On April 21, 2022, the court ordered Appellant to file a 1925(b) concise statement of errors complained of on appeal, and Appellant complied on May 11, 2022.
Appellant raises the following issues for our review:
1) Did the [PCRA] court err in denying the right to file substantive PCRA claims, where the evidence reflects that Appellant did not receive notice that his direct appeal of his sentence had been affirmed and the Commonwealth agreed at the evidentiary hearing below that the pro se PCRA Petition was timely filed?
2) Where counsel failed to raise a double jeopardy challenge when Appellant was resentenced, after the [trial] court raised the maximum sentence from 25 to 35 years on resentencing after his initial sentence had been imposed illegally, should this Court modify the sentence to a maximum of 25 since the sentence imposed violated the double jeopardy clause or remand with directions to the [trial] court to do so?
3) Was initial PCRA counsel ineffective for failing to challenge the conviction for the second weapon where it was at the feet of the codefendant where the weapon was at that person's feet in a vehicle?
(Appellant's Brief at 2).
In his first issue, Appellant challenges the PCRA court's finding that Appellant knew the Supreme Court had denied his petition for allowance of appeal on May 10, 2020. Appellant argues that the evidence shows he did not receive Attorney Deschler's October 22, 2018 letter due to the incorrect inmate number, and Attorney Deschler did not send Appellant a second letter until June 2021. Appellant asserts that he did not receive Attorney Deschler's second letter until June 22, 2021, at which point he learned for the first time that the Supreme Court had denied his petition of allowance of appeal. Appellant claims that the mere fact that Attorney Deschler informed Ms. Burton of the denial of his petition for allowance of appeal on May 10, 2020 does not establish that Ms. Burton informed Appellant of this information. Appellant concludes that the court's determination that Appellant failed to establish the timeliness of his PCRA petition is unsupported by the record, and this Court should grant relief. We disagree.
Our standard of review of the denial of a PCRA petition is limited to examining whether the record evidence supports the court's determination and whether the court's decision is free of legal error. Commonwealth v. Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319 (2008). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-conviction court's credibility determination, it is binding on the appellate court. Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011).
The timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the underlying judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence is 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 the review." 42 Pa.C.S.A. § 9545(b)(3).
Generally, to obtain merits review of a PCRA petition filed more than one year after the judgment of sentence became final, the petitioner must allege and prove at least one of the three timeliness exceptions:
(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)(i)-(iii). Further, a PCRA petitioner must file his petition within one year of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).
To satisfy the "newly-discovered facts" timeliness exception set forth in Section 9545(b)(1)(ii), a petitioner must demonstrate that "he did not know the facts upon which he based his petition and could not have learned those facts earlier by the exercise of due diligence." Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015), appeal denied, 633 Pa. 761, 125 A.3d 1197 (2015). Due diligence requires the petitioner to take reasonable steps to protect his own interests. Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001). A petitioner must explain why he could not have learned the new fact(s) earlier with the exercise of due diligence; this rule is strictly enforced. Commonwealth v. Monaco, 996 A.2d 1076 (Pa.Super. 2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011).
Instantly, our Supreme Court denied Appellant's petition for allowance of appeal on October 2, 2018. Thus, Appellant's new judgment of sentence became final 90 days later, on or around December 31, 2018, after expiration of his time to file a petition for writ of certiorari with the United State Supreme Court. See U.S.Sup.Ct.R. 13 (stating petitioner has 90 days to file petition for writ of certiorari with United States Supreme Court); 42 Pa.C.S.A. § 9545(b)(3). As such, Appellant had one year from that date to file a timely PCRA petition from his new judgment of sentence, for claims relating to or arising from his resentencing proceeding. See 42 Pa.C.S.A. § 9545(b)(1). See also Lesko, supra. Appellant did not file the instant PCRA petition until August 20, 2021, which is facially untimely.
We note that "a successful…PCRA petition does not 'reset the clock' for the calculation of the finality of the judgment of sentence for purposes of the PCRA where the relief granted in the first petition neither restored a petitioner's direct appeal rights nor disturbed his conviction, but, rather, affected his sentence only." Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa.Super. 2008). See also Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345 (2011) (explaining that when defendant is granted new sentencing hearing, defendant's original judgment of sentence is final for PCRA timeliness purposes except for matters relating to resentencing). See also Commonwealth v. Walker, No. 110 WDA 2022 (Pa.Super. filed Nov. 29, 2022) (unpublished memorandum), appeal denied, ____ Pa. ____, 300 A.3d 320 (2023) (explaining that current PCRA petition was timely with respect to issues related to resentencing hearing). See also Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this Court filed after May 1, 2019 for their persuasive value). Here, Appellant's new judgment of sentence resulted from a successful PCRA petition regarding only the legality of Appellant's sentence, for which the court awarded relief in the form of resentencing. Thus, Appellant's new judgment of sentence became final for purposes of the PCRA on or around December 31, 2018 only for matters relating to Appellant's resentencing. Regarding any claims that Appellant purported to raise unrelated to his resentencing proceeding, however, Appellant's judgment of sentence became final on or around October 6, 2014, which was 90 days after the Supreme Court denied his petition for allowance of appeal from this Court's decision affirming his original judgment of sentence. See Lesko, supra.
Although Appellant claims that he satisfied the newly discovered facts exception to the PCRA time bar, the PCRA court determined that Appellant failed to file his PCRA petition within one-year of discovering his proffered new fact, as required under 42 Pa.C.S.A. § 9545(b)(2). Specifically, the PCRA court explained:
[W]e find that [Appellant] has failed to meet his burden to establish that he discovered his alleged abandonment by counsel less than one year prior to August 2021, when he filed his pro se petition, or that he exercised due diligence in discovering this alleged fact.
At the hearing, Attorney … Deschler credibly testified that he corresponded with [Appellant] via U.S. Mail in October 2018, notifying [Appellant] that his petition for allowance of appeal before the Pennsylvania Supreme Court had been denied. While Attorney Deschler acknowledged a clerical error in the inmate number written on the envelope in which that correspondence was mailed, he testified that all other identifying information on that envelope was correct, and was not specifically aware that said error resulted in the correspondence being undelivered. Attorney Deschler testified that while he has had correspondence in other
matters at times returned to him as undeliverable, the October 2018 letter directed to [Appellant] was never returned to him as undeliverable. Nevertheless, [Appellant] testified that he did not receive this October 2018 letter. The court found this statement of [Appellant's] to be credible, given that [Appellant] asked [Ms.] Burton, to reach out to Attorney Deschler on his behalf to determine the status of his petition for allowance of appeal in May 2020. Attorney Deschler likewise testified that he was contacted by Ms. Burton via e-mail, and that he replied to her, informing Ms. Burton that the petition for allowance of appeal had been denied, attaching to his reply a copy of the correspondence he had sent to [Appellant] in 2018.
What the court has found not to be credible is [Appellant's] testimony that, after he asked his aunt to reach out to Attorney Deschler, he had no further communication with her regarding the response she had received. In particular, we found this testimony not to be credible after reviewing the e-mail correspondence between Ms. Burton and Attorney Deschler, which [Appellant] attached as an exhibit to his pro se August 2021 petition. That correspondence reveals that Ms. Burton initially e-mailed Mr. Deschler on May [1], 2020, and that he responded to her that same day, attaching the October 2018 correspondence. [On May 10, 2020], Ms. Burton replied to Mr. Deschler in pertinent part as follows: "I spoke with [Appellant] and he said he has never received anything from you regarding the appeal other than the briefing you submitted. ... [Appellant] said he would really appreciate if he can speak with you[.]"
Based upon this evidence, and given the extreme unlikelihood that [Appellant] would not have further inquired of his aunt after asking her to make this contact, we believe that [Appellant] was aware that his petition for allowance of appeal had been denied no later than May 10, 2020. Moreover, … if [Appellant] in fact failed to follow up with his aunt after asking her to contact Attorney Deschler in May 2020, [this] would demonstrate a lack of due diligence on his part. See Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001) (concluding that a defendant's failure to contact his attorney or the clerk of courts to determine the status of his appeal demonstrated a lack of due diligence).
(Rule 907 Notice Opinion, filed 2/22/22, at 4-6).
Notably, the PCRA court did not find credible Appellant's testimony that he only learned about the denial of his petition for allowance of appeal in June 2021. We are bound by the PCRA court's credibility determination in this regard, as it is supported by the record. See Dennis, supra. Additionally, the record provides ample support for the court's timeliness analysis. See Boyd, supra. On this record, we discern no error with the court's determination that Appellant was aware of the denial of his petition for allowance of appeal by May 10, 2020, and as such, had until May 10, 2021 to assert his newly-discovered fact. See 42 Pa.C.S.A. § 9545(b)(2). Therefore, Appellant's petition, which was filed on August 20, 2021, is untimely and the PCRA court properly determined that it lacked jurisdiction to consider Appellant's substantive claims. See Zeigler, supra. Accordingly, we affirm.
Appellant further argues that the court's decision was erroneous because at the beginning of the February 10, 2022 hearing, the Commonwealth indicated that it was willing to stipulate that Appellant's petition satisfied a timeliness exception. Nevertheless, the court did not accept this stipulation and instructed the parties to present evidence to demonstrate that Appellant's petition was timely. In any event, a party cannot concede or stipulate to the court's jurisdiction. See generally Commonwealth v. Perrin, Pa. , 291 A.3d 337 (2023) (stating that parties cannot stipulate to matters affecting jurisdiction of court).
Based on our disposition, we decline to reach Appellant's substantive claims.
Order affirmed.
Judgment Entered.