Com. v. Seaton, R.

J-S42029-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RONALD CURTIS SEATON

Appellant No. 575 EDA 2015

Appeal from the Order February 3, 2015

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0005660-1996

BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED OCTOBER 15, 2015

Appellant, Ronald Curtis Seaton, appeals pro se from the February 3,

2015 order dismissing on various grounds, including untimeliness, his first

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.

§§ 9541-9546. After careful consideration, we affirm.

Based on our review of the certified record, we summarize the relevant

procedural history of this case as follows. On June 26, 1996, the Chester

City Police charged Appellant by criminal complaint with possession of a

controlled substance (cocaine), possession with intent to deliver a controlled

substance (cocaine) (PWID), and possession of drug paraphernalia.1 A

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1

35 P.S. §§ 780-113(a)(16), (a)(30), and (a)(32), respectively.

(Footnote Continued Next Page)

J-S42029-15

criminal information, detailing the aforementioned charges, was filed on

January 17, 1997. On February 18, 1997, Appellant entered a plea of guilty

to the one count of PWID, and the other counts were nolle prossed.2 On

March 17, 1997, the trial court sentenced Appellant to 11½ to 23 month’s

incarceration. No post-sentence motion or direct appeal was filed.

Docket entries on the dates of November 4, 2005, and March 20,

2006, reflect the pro se filings of a self-titled “Petition to Withdraw Certain

Facts.”3 Therein, Appellant challenged the validity of his guilty plea due to

the alleged failure of the trial court to advise him of certain rights he waived

by virtue of the plea. Appellant’s Motion to Compel, 3/20/14, Attachment.

No trial court action was taken to address Appellant’s Petition. Between

November 18, 2010 and December 18, 2013, Appellant filed a number of

requests for transcripts and copies of documents from the certified record.

On May 29, 2014, Appellant filed a pro se Motion to Compel, seeking

trial court action on his prior Petition to Withdraw Certain Facts. Although

not so titled, the PCRA court determined Appellant’s filings were properly

_______________________

(Footnote Continued)

2

The record indicates this was a negotiated plea, but no written plea

agreement is contained in the record certified to this Court.

3

The Petition is not included in the certified record from those dates, but a

copy, time stamped March 20, 2006, is attached to Appellant’s May 29, 2014

motion to compel. We accept for the purposes of this appeal, as did the

PCRA court, that November 4, 2005 is the effective filing date of Appellant’s

request for post-conviction collateral relief.

-2-

J-S42029-15

considered petitions pursuant to the PCRA.4 Accordingly, the PCRA court

appointed counsel to represent Appellant in the PCRA proceedings, including

the filing of any amended PCRA petition.

On January 13, 2015, Counsel filed an application to withdraw as

counsel together with a no-merit letter in accordance with Pennsylvania v.

Finley, 481 U.S. 551 (1987), and Commonwealth v. Turner, 544 A.2d

927 (Pa. 1988). Therein, Counsel recounted his review of the entire record

and stated his conclusion that relief under the PCRA was not available

because Appellant was no longer serving a sentence in connection with the

underlying case and because Appellant’s request for post-conviction relief

was neither timely under the PCRA nor subject to any of the enumerated

exceptions to the PCRA’s timeliness requirement. No-Merit Letter, 1/13/15,

at 5-6. Specifically, Counsel noted Appellant sought to claim application of

the after-discovered fact exception at 42 Pa.C.S.A. § 9545(b)(ii) by virtue of

his discovery on September 15, 2005, that the records reflected he pled to

PWID when he in fact pled to possession of a controlled substance. Counsel

concluded that the exception did not apply because Appellant could not show

due diligence in discovering the supposed new fact. Id. at 5.

On January 16, 2015, the PCRA court filed an order granting Counsel’s

application to withdraw as counsel, together with a notice of its intent to

____________________________________________

4

See Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa. Super. 2013)

(holding that a request for relief that is cognizable under the PCRA must be

treated as a PCRA petition).

-3-

J-S42029-15

dismiss Appellant’s request for PCRA relief without a hearing pursuant to

Pennsylvania Rule of Criminal Procedure 907. Appellant filed a “Response to

Notice of Intent to Dismiss Without a Hearing” on February 3, 2015.

Therein, Appellant avers that he entered a guilty plea on March 17, 1997 to

the count charging possession of a controlled substance, 35 P.S. § 780-

113(a)(16). Appellant’s Response to Notice of Intent to Dismiss Without a

Hearing, 2/3/15, at 3. Appellant claims he only became aware that the

record indicated he entered a guilty plea to PWID, 35 P.S. § 780-113(a)(30),

when he was appealing his sentence on a federal drug offense on September

15, 2005. Id. Appellant claims the purportedly erroneous record was relied

upon to wrongly enhance his federal sentence. Id. at 4. Appellant further

asserts that his filing the instant PCRA qualifies under the governmental

interference and after-discovered fact exceptions to the PCRA’s timeliness

requirements, 42 Pa.C.S.A. § 9545(b)(i) and (ii). Id. On February 3, 2015,

the PCRA court dismissed Appellant’s petition without a hearing on the

alternative bases that it was untimely filed, Appellant was not currently

serving the underlying sentence, and Appellant’s claims were without merit.

On February 27, 2015, Appellant filed a pro se notice of appeal. The

PCRA court, on February 25, 2015, directed Appellant to file a concise

statement of errors complained of on appeal pursuant to Pennsylvania Rule

-4-

J-S42029-15

of Appellate Procedure 1925(b).5 Appellant filed a timely pro se Rule

1925(b) statement on March 9, 2015.

On appeal, Appellant raises the following issue for our review.

[Whether Appellant] sets forth an exception to the

PCRA time bar (in custody) requirement based on

newly discovered evidence pursuant to 42 Pa.C.S.A.

§ 9545 (b)(1)(ii)[?]

Appellant’s Brief at i.6

We briefly note our standard of review in this matter.

Our standard of review of the denial of a PCRA

petition is limited to examining whether the court’s

rulings are supported by the evidence of record and

free of legal error. This Court treats the findings of

the PCRA court with deference if the record supports

those findings. It is an appellant’s burden to

persuade this Court that the PCRA court erred and

that relief is due.

Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)

(citation omitted).

Instantly, the PCRA court dismissed Appellant’s PCRA petition as

untimely. “[I]t is well-settled that … a question of timeliness implicates the

jurisdiction of our Court.” Commonwealth v. Gandy, 38 A.3d 899,

____________________________________________

5

The PCRA court had received a copy of Appellant’s pro se notice of appeal

prior to its docketing, resulting in the PCRA court’s issuance of the Rule

1925(b) order two days before the notice of appeal was finally docketed by

the Office of Judicial Support.

6

Appellant’s brief does not contain a statement of questions involved as

required by Pennsylvania Rules of Appellate Procedure 2111(a)(4), and

2116. The heading to Appellant’s argument section, however, fairly presents

his issue, and we recite it above.

-5-

J-S42029-15

902 (Pa. Super. 2012) (internal quotation marks and citation omitted),

appeal denied, 49 A.3d 442 (Pa. 2012). “Because these timeliness

requirements are mandatory and jurisdictional in nature, no court may

properly disregard or alter them in order to reach the merits of the claims

raised in a PCRA petition that is filed in an untimely manner.”

Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa. 2012) (internal quotation

marks and citation omitted). The PCRA “confers no authority upon this

Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]”

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted).

This is to “accord finality to the collateral review process.” Id. (citation

omitted). “It is well settled that [a]ny and all PCRA petitions must be filed

[in a timely manner] unless one of three statutory exceptions applies.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061-1062 (Pa. Super. 2011)

(internal quotation marks and citations omitted), appeal denied, 38 A.3d 823

(Pa. 2012). “We have repeatedly stated it is the appellant’s burden to allege

and prove that one of the timeliness exceptions applies. Whether [the

a]ppellant has carried his burden is a threshold inquiry prior to considering

the merits of any claim.” Commonwealth v. Edmiston, 65 A.3d 339,

346 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania,

134 S. Ct. 639 (2013).

The Act provides for the following possible exceptions to the timeliness

requirement.

-6-

J-S42029-15

§ 9545. Jurisdiction and proceedings

…

(b) Time for filing petition.—

(1) Any petition under this subchapter,

including a second or subsequent petition, shall be

[timely] filed … 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.

…

42 Pa.C.S.A. § 9545(b).

Instantly, Appellant’s November 4, 2005 Petition to Withdraw Certain

Facts, treated as a PCRA petition, is facially untimely. His judgment of

sentence became final on April 16, 1997, the final day he had to file a direct

-7-

J-S42029-15

appeal. See generally Pa.R.A.P. 903. Therefore, Appellant had until April

16, 1998, one year from that date, to file a timely PCRA petition. See

generally 42 Pa.C.S.A. § 9545(b)(3). As noted, it is required that Appellant

pleads and proves one of the statutory exceptions to the PCRA’s time limits

to invoke the PCRA or this Court’s jurisdiction to consider his petition. See

Edmiston, supra.

Appellant argues that, in his response to the PCRA court’s notice of

intent to dismiss, he raised the application of the after-discovered fact

exception to the timeliness requirements of the PCRA under Section

9545(b)(1)(ii). Appellant’s Brief at 4. Specifically, he claims he discovered

through his attorney in a subsequent federal prosecution “that the [Section]

780-113(a)(16) [possession] offense was read to be a conviction for

violation of [Section] 780-113(a)(30), [PWID].” Id. Appellant asserts he

filed the instant petition within 60 days of his alleged September 15, 2005

discovery of this new fact. Id. at 3. Appellant contends he provided

sufficient proof to warrant a hearing on the issue in the form of conflicting

documents reflecting his plea was to one offense or the other. Id. at 5,

citing Appellant’s Response to Notice of Intent to Dismiss Without a Hearing,

2/3/15, Exhibits 7-10. Finally, Appellant suggests the sentence he received

on March 17, 1997, supports his contention that the documents in the record

reflecting he pled guilty to PWID are erroneous. Id. Appellant notes he had

a conviction for PWID in 1993, prior to the instant case, which would have

-8-

J-S42029-15

triggered a mandatory sentence under 18 Pa.C.S.A. § 7508. Because he

was sentenced to a lesser term, Appellant contends it follows that he did not

plead guilty to PWID in the instant case.7 Id.

____________________________________________

7

Although the certified record does not contain a copy of the guilty plea

transcript, the transcript of Appellant’s preliminary hearing indicates that

2.49 grams of cocaine were seized from Appellant’s person at the time of his

arrest. The sentencing statute provides in pertinent part as follows.

§ 7508. Drug trafficking sentencing and penalties

(a) General rule.--Notwithstanding any other

provisions of this or any other act to the contrary,

the following provisions shall apply:

…

(3) A person who is convicted of violating

section 13(a)(14), (30) or (37) of The Controlled

Substance, Drug, Device and Cosmetic Act where the

controlled substance is coca leaves or is any salt,

compound, derivative or preparation of coca leaves

or is any salt, compound, derivative or preparation

which is chemically equivalent or identical with any

of these substances or is any mixture containing any

of these substances except decocainized coca leaves

or extracts of coca leaves which (extracts) do not

contain cocaine or ecgonine shall, upon conviction,

be sentenced to a mandatory minimum term of

imprisonment and a fine as set forth in this

subsection:

(i) when the aggregate weight of the

compound or mixture containing the substance

involved is at least 2.0 grams and less than ten

grams; one year in prison and a fine of $5,000

or such larger amount as is sufficient to

exhaust the assets utilized in and the proceeds

from the illegal activity; however, if at the time

of sentencing the defendant has been

(Footnote Continued Next Page)

-9-

J-S42029-15

The PCRA court concluded Appellant’s underlying factual assertion,

that he pled guilty only to possession of a controlled substance was

unsupported by the record.

A review of [Appellant’s] actual court documents,

including, but not limited to his Guilty Plea

Statement, the relevant Criminal Information … he

signed further memorializing his plea of guilty, and

the Certificate of Imposition of Judgment of

Sentence, patently demonstrate his felony Drug Act

conviction at bar. See [Appellant’s] Guilty Plea

Statement[, 2/18/97, at 3], Criminal Information B,

1/17/97, and Certificate of Imposition of Judgment

of Sentence[3/17/97]. These duly executed [trial]

court documents unquestionably show that on

February 18, 1997, [Appellant] entered a plea of

guilty before the Honorable Robert C. Wright to

Possession with Intent to Deliver a Controlled

Substance … and resultantly, on March 17, 1997,

[Appellant] was sentenced to a term of eleven and a

half (11.5) through twenty-three (23) months[’]

imprisonment. See [Id.]

Based on the [trial] court’s primary records

relevant to the matter at bar, it is doubtless that

[Appellant] pled guilty to felonious Possession with

Intent to Deliver a Controlled Substance … contrary

to the [Appellant’s] contention that he was convicted

of misdemeanor Possession of a Controlled

Substance.

_______________________

(Footnote Continued)

convicted of another drug trafficking offense:

three years in prison and $10,000 or such

larger amount as is sufficient to exhaust the

assets utilized in and the proceeds from the

illegal activity;

…

18 Pa.C.S.A. § 7508.

- 10 -

J-S42029-15

Trial Court Opinion, 3/20/15, at 7-8.

Based on our thorough review of the extant record, we agree that the

contemporaneous documents, including his signed statement on the Criminal

Information, and his signed and initialed responses to the written guilty plea

statement, clearly demonstrate that Appellant knowingly entered a plea of

guilty to PWID. Specifically, Appellant’s initialed response to paragraph 21

of the guilty plea statement was as follows.

ADMISSION OF GUILT OR NO CONTEST AND

PENALTIES

21. I understand and agree that I am pleading

guilty or nolo contendere to the crimes listed

below. I understand and my lawyer has

explained to me the elements of these crimes

and the possible penalties for them. By

pleading guilty, I agree and admit that I

committed each element of these crimes…. I

am pleading guilty … to the following crimes:

A) Possession controlled Substance w/

Intent to Deliver, a … felony … and the

maximum penalty for this crime is 10 yrs

in jail and a $23,000 fine. …

Guilty Plea Statement, 3/17/97, at 3 ¶ 21 (italics indicate handwritten

portions). Similarly, all sentencing documents reflect the applicable charge

was PWID. See Certificate of Imposition of Judgment of Sentence, 3/17/97;

Sentencing Guideline Forms, 3/20/97.

Appellant’s proffered documentation to the contrary includes “a partial

copy of some type of criminal history erroneously listing his having been

- 11 -

J-S42029-15

sentenced on the charge of Possession of a Controlled Substance… as

opposed to [PWID]…” and “a copy of a clerk generated, handwritten

charging sheet from the court file which incorrectly lists [Appellant] as

having been sentenced to Delaware County Prison for the offense of

Possession of a Controlled Substance… rather than [PWID]….” Trial Court

Opinion, 3/20/15, at 7 n.21, citing Appellant’s Response to Notice of Intent

to Dismiss Without a Hearing, 2/3/15, Exhibits 7, 9. These documents,

being patently erroneous, cannot constitute an after-discovered “fact” for

the purposes of Section 9545(b)(1)(ii).

The timeliness exception set forth in Section

9545(b)(1)(ii) requires a petitioner to demonstrate

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. …

Additionally, the focus of this exception is on the

newly discovered facts, not on a newly discovered or

newly willing source for previously known facts.

… In other words, the “new facts” exception

at:

[S]ubsection (b)(1)(ii) has two components,

which must be alleged and proved. Namely,

the petitioner must establish that: 1) the facts

upon which the claim was predicated were

unknown and 2) could not have been

ascertained by the exercise of due diligence. If

the petitioner alleges and proves these two

components, then the PCRA court has

jurisdiction over the claim under this

subsection.

[Commonwealth v.] Bennett, [] 930 A.2d [1264,]

1271 ([Pa.] 2007) (internal citations omitted) [].

Thus, the “new facts” exception at Section

- 12 -

J-S42029-15

9545(b)(1)(ii) does not require any merits analysis

of an underlying after-discovered-evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176-177 (Pa. Super. 2015)

(some internal quotation marks, citations, emphases, and footnote omitted).

Nor does the sentence Appellant received, even if not in compliance with

Section 7508, invalidate the subject offense to which Appellant pled. 8

Absent an applicable exception to the one-year time limit to file a

PCRA petition, we conclude the PCRA court and this Court lack jurisdiction to

review Appellant’s claims. See Lopez, supra.9 Accordingly, we affirm the

PCRA court’s February 3, 2015 order dismissing Appellant’s petition for PCRA

relief.

Order affirmed.

____________________________________________

8

“[A]lthough illegal sentencing issues cannot be waived, they still must be

presented in a timely PCRA petition.” Taylor, supra at 465 (citation

omitted).

9

We also agree with the PCRA court that Appellant would be ineligible for

PCRA relief in any event because he is no longer serving the underlying

sentence. See Trial Court Opinion, 3/20/15, at 10; 42 Pa.C.S.A.

§ 9543(a)(1)(i). Appellant’s reliance on Lackawanna Dist. Atty. v. Coss,

532 U.S. 394 (2001), as establishing a “Coss exception” to the PCRA’s

eligibility requirements is misplaced. In Coss, the United States Supreme

Court explored the “in custody” eligibility parameters of federal habeas

corpus relief involving a federal sentence that includes an enhancement due

to a prior unconstitutional sentence that has fully expired. Id. at 401. It

provides no exception to state rules circumscribing eligibility for post-

conviction relief.

- 13 -

J-S42029-15

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/15/2015

- 14 -