Com. v. Draper, M.

J-A01040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARC C. DRAPER

Appellant No. 3019 EDA 2014

Appeal from the PCRA Order October 20, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0736231-1984

BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED MARCH 18, 2016

Marc C. Draper appeals from the order of the Court of Common Pleas

of Philadelphia County denying his third petition filed under the Post-

Conviction Relief Act, 42 Pa.C.S. §§ 9541-46 (“PCRA”). We affirm.

On February 26, 1986, Draper entered a negotiated guilty plea to one

count each of second-degree murder, robbery, and criminal conspiracy. The

charges stemmed from an incident where Draper and a co-defendant,

Terrance Williams, robbed the victim, beat him with a tire iron and socket

wrench, and doused him with gasoline and lit his body on fire at a

Philadelphia cemetery. The Honorable David N. Savitt accepted Draper’s

plea and sentenced him to life imprisonment for murder, and to a concurrent

term of imprisonment of five to ten years’ incarceration for conspiracy. No

*Former Justice specially assigned to the Superior Court.

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further penalty was imposed for robbery. Draper did not seek to withdraw

his guilty plea or file a direct appeal.

In May 2000, Draper filed his first PCRA petition, which the PCRA court

dismissed as untimely. On appeal, this Court affirmed. See

Commonwealth v. Draper, 809 A.2d 955 (Pa. Super. 2002) (unpublished

memorandum). On October 31, 2003, Draper filed a second untimely

petition, which the PCRA court dismissed on January 14, 2004. On appeal,

this Court affirmed. See Commonwealth v. Draper, 867 A.2d 644 (Pa.

Super. 2004) (unpublished memorandum).

Draper filed a pro se PCRA petition, his third, on September 6, 2012.

He subsequently retained counsel, who, after seeking an extension, filed an

amended petition on April 22, 2013. The Commonwealth filed a motion to

dismiss. The PCRA court filed a notice of intent to dismiss pursuant to

Pa.R.Crim.P. 907, and on October 21, 2014, the court dismissed Draper’s

third PCRA petition as untimely.

Draper raises the following issues for our review:

1. Did the PCRA court err when the court dismissed

[Draper’s] PCRA petition because [Draper] demonstrated

he met one or more exceptions to the time bar?

2. Did the PCRA court err when the court dismissed

[Draper’s] petition because plea counsel was ineffective for

advising [Draper] he had a right to parole when no such

right existed?

3. Did the PCRA court err when the court dismissed

[Draper’s] petition because [Draper’s] right to due process

was violated when he entered a plea that was unknowing,

unintelligent, and involuntary?

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Draper argues plea counsel was ineffective and caused him to enter an

unknowing, unintelligent and involuntary plea. He claims he was “promised”

that his life sentence would be commuted after fifteen years.

Notably, Andrea Foulkes, the prosecutor in the Williams case, testified

at co-defendant Williams’ September 20, 2012 PCRA hearing. This

testimony is included in the record herein as an exhibit to Draper’s April 18,

2013 Amended PCRA Petition. Foulkes testified with respect to Draper’s

statement that he was told at the time of his guilty plea that he “would be

eligible for parole after about 15 years[.]” PCRA Hearing-Commonwealth v.

Williams, 9/20/12, at 17. She also testified with respect to Draper’s

statement, “The trial prosecutor [Foulkes] wrote a letter to the Parole Board

explaining my cooperation.”1 Asked whether she agreed with these

statements, Foulkes stated:

____________________________________________

1

The letter, addressed to the Pennsylvania Board of Probation and Parole

and dated June 23, 1988, provides:

Re: Inmate Marc Draper

To Whom It May Concern:

At the request of the family of the above-name inmate, I am

submitting the following information to them with instructions to

forward it to you if and when this prisoner becomes eligible for

parole or commutation of sentence.

Marc Draper was the co-defendant of Terrance Williams and,

with Williams, conspired and acted to abduct, rob and beat to

death 56-year old Amos Norwood, inside the Ivy Hill Cemetery in

the Mt. Airy section of Philadelphia. After tying the victim with

(Footnote Continued Next Page)

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_______________________

(Footnote Continued)

his own clothes and beating him with car tools, the co-

defendants took his money, credit cards, and car, [and] obtained

more money and jewelry with the stolen goods in Atlantic City

and Philadelphia. Their spree was ended when credit card calls

were traced by police to a third man who assisted the killers in

obtaining these credit card benefits.

Mr. Draper was arrested in his home and Williams fled the

jurisdiction upon issuance of warrants. On the day of his arrest,

Mr. Draper completely and thoroughly confessed his participation

in this hideous crime without any promise or benefits offered to

him. In addition, he volunteered additional information about

his co-defendant’s responsibility for the murder of 53 year-old

Herbert Hamilton in West Philadelphia six months earlier, which

led to the arrest of Williams on that previously unsolved case.

Draper offered to cooperate fully with the investigation and to

testify truthfully in the prosecution of Williams, in both homicide

cases, resulting in Williams’ conviction in the earlier killing of

murder in the third degree (Williams’ defense was that the killing

was provoked by homosexual advances of the victim), and a

verdict of murder in the first degree with the penalty of death by

the jury in the Norwood case. In addition, Draper agreed to

plead guilty to murder in the second degree, knowing that it

brought a mandatory life sentence, without any promise of

leniency or early release.

Although the heinous nature of the underlying crime cannot be

minimized in any way, Mr. Draper has attempted to compensate

significantly for his role in this matter. While it is true that he

has benefitted by avoiding the death penalty for himself, I was

well aware that during the pendency of prosecutions against

Williams, Mr. Draper was visited regularly in Holmesburg prison

by Williams himself, at the gates of Draper’s protective custody

area, and by friends of Williams’ inside Draper’s cell. Thus, Mr.

Draper’s security in prison was never certain, yet he continued

to see that justice was served in all matters in which he had

information or connection.

I never had any reason to doubt Mr. Draper’s veracity and he

never declined to answer the most difficult questions about his

own culpability. Williams sent Mr. Draper letters in prison with

alternative stories to feed the authorities and the court about

(Footnote Continued Next Page)

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There are two kinds of things that a prosecutor could do. One is

a prosecutor can simply recount to the Parole Board what

somebody has done, and that’s a historical account of what they

have done and it’s a truthful account. The other is whether or

not a prosecutor would actively ask the Parole Board to consider

parole or – it’s really commutation in a life sentence. It’s not

really parole. Consider commutation at an earlier point than a

defendant might just apply for commutation of sentence in the

ordinary course, whether they cooperated or not. So Mr. Draper

had the same rights as any other life prisoner to apply at some

point in the future for commutation of sentence. He could do

that whether he cooperated or didn’t cooperate. He could

always do that. A prisoner can do that and a lot of whether a

sentence is commuted has as much to do with who is the

governor and what the Parole Board looks like or the Board of

Pardons or whatever board is considering the commutation. So

Mr. Draper was in no different position in that respect than any

other lifer. . . . I have to think that I did or someone did say to

him that at some time if he were to apply in the future for

_______________________

(Footnote Continued)

their criminal activities. Mr. Draper passed that correspondence

on to his father, a Philadelphia police officer, with instructions to

give them to the prosecutor in preparation for trial. Those

letters, in addition to his oral testimony, established a

compelling case against Williams, who had a frightening history

for violent crimes.

Therefore, it is proper for you to consider the cooperation of this

inmate when determining his eligibility for parole or

commutation at some future date. That I provide you with the

particulars of Mr. Draper’s cooperation was the only benefit or

promise conveyed to him in exchange for his complete truthful

cooperation. I hope this information will be useful in your

evaluations.

/s/ Andrea G. Foulkes, ADA, Homicide Unit

bcc: Mr. George Draper

Amended PCRA Petition, 4/18/13, Exhibit C (Foulkes Letter,

6/23/1988).

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commutation, that we would tell the Parole Board historically

what he did, that that would happen, but that we would not do

anything to expedite the time . . . No one promised him he

would get paroled at any point. No one promised that. A

prisoner could apply for it, but he would never – we never

promised him that he would get parole and I colloquied him on

many occasions under oath that he understood that life meant

life and that we were not doing anything more for him about

changing that number and now he said – then he says: “I was

just testifying as I was told to.” No one told him how to testify

at all. [With respect to his statement:] “They kept telling me

that they would take care of it after I testified against Terry.” I

guess he’s referring to getting paroled. Clearly that was never

stated. . . . No one said anybody would take care of anything

after he testified against Terry. The only thing that was

conveyed to him that if he sometime in the future 30 years, 20

years – in fact, I seem to recall that back in the day, life

prisoners might start making application for commutation if it

was to be considered in possibility 20 years or 30 years. That

doesn’t mean it would be granted, it may never be granted, but

whether they cooperated or not, they might do that, and what I

said to him is if and when he should ever go through that

process, we would let the Parole Board know that what he had

done in this case, period.

Id. at 17-22 (emphasis added). The court questioned Foulkes regarding the

benefit Draper received in exchange for testifying “against his friend from

the third grade[.]” Foulkes stated: “Well, his deal was that he could plead to

second[-degree murder] . . . in terms of if someday down the road he

applies for commutation with no expedited date in mind, that he might get a

little better consideration than someone who had a first-degree conviction.”

Id. at 29.

On cross-examination, the following exchange occurred with respect to

the letter to the Parole Board:

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Q: And also he would tell the Parole Board down the road that

he cooperated? It’s not just a second versus first; right? It’s I

cooperated?

A: Absolutely correct, and he could have done that and the

Parole Board could have asked the District Attorney’s Office at

that point, well, what did that cooperation entail and someone in

the District Attorney’s Office, probably not me because it would

be so long, I didn’t expect to be around now, that someone

would have to answer that question, which was the reason that

when I got a call from George Draper who was Mr. Draper’s

father about two years after the conviction and he said, you

know, you’re probably not going to be in the DA’s Office many

years down the road when this comes up, can you write a letter

that you send to me that I can hold for my son and I will tell you

that I kept a copy of the letter with the inscription of what I did

with this letter, sent original and one copy to Mr. George Draper

and I put the address of where I sent it and I kept it in a file that

I took with me and I turned over to the District Attorney just last

week. . . . . Two years after the letter was sent to Mr. Draper, I

got a correspondence from an attorney for Marc Draper named

John Manos who asked me, he said, “I’m attempting to assist

the family of Marc Draper to continue his rehabilitation while in

prison and when commutation or parole may become feasible to

assist in that matter also.” So he was asking me –

THE COURT: If he could use your letter.

A: If he could use my letter. So I wrote him back and I said

that it may be used with my permission to the Board at such

time, but[,] and it was with this understanding[,] I gave a letter

to George Draper in 1988 since there was no guarantee I would

still be in the District Attorney’s Office at the time that such

application might be considered, but then I said, “As I am sure

you are aware, we made no promises to Marc that we could or

would intervene to speed up the process of the Board’s

consideration of such an application.” So that if Mr. Draper is to

be believed that I was in some kind of – doing some kind of

secret deal, I surely would not have said that to his own lawyer

four years after the fact because there would be no need to do

that. That’s why I wanted to make sure that Mr. Manos knew

that all along the line as [to] Mr. Draper, either he had a

misunderstanding in the beginning, but it was corrected and he

said over and over again under oath on the record that he

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understood that a life sentence was a life sentence and that

we were not going to do anything to speed up or expedite any

commutation of his sentence. . . . As soon as at the earliest

point that I had any inkling that Mr. Draper was under the

impression from his attorney that this commutation process if it

ever happens could happen as soon as ten years and that we

would do something to make that happen, I corrected it. I

wanted to make sure that he understood that that was not the

case, it was never the deal it as not the promise and it wouldn’t

happen.

Id. at 29-33, 59 (emphasis added).

When reviewing denial of PCRA relief, we will not disturb the court’s

findings if they are supported by the record and free of legal error.

Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010).

Further, we grant great deference to the factual findings of the PCRA court,

and we will not disturb those findings unless they have no support in the

record. Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011).

However, we afford no such deference to its legal conclusions.

Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011);

Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119, 1124 (2007).

Where the petitioner raises questions of law, our standard of review is de

novo and our scope of review plenary. Commonwealth v. Colavita, 993

A.2d 874, 886 (Pa. 2010).

A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.” Commonwealth v. Copenhefer, 941 A.2d

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646, 648 (Pa. 2007) (citations and footnote omitted). A judgment of

sentence 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 the

review.” 42 Pa.C.S. § 9545(b)(3).

Here, Draper’s judgment of sentence became final on March 24, 1986,

when his time for filing a direct appeal expired. Therefore, he had until

March 24, 1987, to file a timely PCRA petition. As noted above, Draper filed

the instant serial petition on April 22, 2013, over twenty-five years later,

and is patently untimely.

An untimely petition renders this Court without jurisdiction to afford

relief. Commonwealth v. Gandy, 38 A.3d 899 (Pa. Super. 2012).

[W]hen a PCRA petition is not filed within one year of the

expiration of direct review, or not eligible for one of the three

limited exceptions, or entitled to one of the exceptions, but not

filed within 60 days of the date that the claim could have been

first brought, the trial court has no power to address the

substantive merits of a petitioner’s PCRA claims.

Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011), citing

Commonwealth v. Gamboa-Taylor, 753 A.2d 780 (Pa. 2000).

Draper attempts to place this claim within the “newly recognized

constitutional right” exception to the PCRA time bar. See 42 Pa.C.S. §

9545(b)(1)(iii). He claims that the United States Supreme Court’s decisions

in Missouri v. Frye, 132 S. Ct. 1399 (2012) and Lafler v. Cooper, 132 S.

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Ct. 1376 (2012) created a newly recognized constitutional right that was

held to be retroactive. As the trial court pointed out, neither Frye nor

Lafler is retroactive, nor is either case factually similar to Draper’s case.

In Frye, the Court held that defense counsel has a duty to

communicate to defendant the written plea offers from the prosecutor that

are favorable to the accused. In Frye, those offers would have either

recommended a lesser sentence than the four-year maximum sentence for

the charged felony offense of driving with a revoked license, or would have

allowed defendant to plead guilty to a misdemeanor, before the offers

expired. Frye, 132 S. Ct. at 1408. Here, Draper makes no allegations that

his plea counsel failed to communicate a plea offer from the prosecution.

Rather, he claims a promise was made to him, that his life sentence would

be commuted after fifteen years, and that this promise induced him to enter

a negotiated guilty plea. However, no record of such a promise exists.

Accordingly, Frye does not provide Draper with an exception to the time

bar.

In Lafler, the Court held the petitioner was prejudiced by counsel’s

deficient performance in advising the petitioner to reject the plea offer and

go to trial. Lafler, 132 S. Ct. 1376. Unlike Lafler, here Draper did not

reject a plea offer and proceed to trial, but entered a favorable guilty plea

and now claims that he did so because his plea counsel provided ineffective

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assistance during the plea-bargaining process.2 Thus, the facts of the

instant case render Lafler inapposite.

____________________________________________

2

At the guilty plea colloquy, the following exchange took place:

THE COURT: Now, I understand and Miss Foulkes has indicated

that this is a negotiated plea, and she has indicated on the

record that the negotiations are that she is asking this Court to

accept the plea to murder in the second degree, and she is

asking this Court to accept the plea as to guilty to robbery and

conspiracy, and that she will ask the court to sentence you to life

imprisonment for second degree. She suggests that the

sentence for robbery merges so that there will not be an

increased sentence, and she suggests that the Court sentence

the defendant to five to ten years for conspiracy but that this be

concurrent, which means that the sentence be served at the

same time as the life sentence is being served, and that is the

extent of the negotiations. Is that your understanding of it?

THE DEFENDANT: Yes.

***

THE COURT: Mr. Draper, there were no other promises

made to you, were there?

THE DEFENDANT: No.

THE COURT: And no one else said they would make any

other recommendations. Is that correct?

THE DEFENDANT: Yes.

THE COURT: Has anyone promised you anything other

than what I have just set forth?

THE DEFENDANT: No.

***

THE COURT: I am going to accept the plea. I want to tell

you this so it’s crystal clear, there is little question in my mind

that this case, if this case was tried before a jury as the Willliams

(Footnote Continued Next Page)

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Moreover, this Court has recently concluded that neither Frye nor

Lafler created a new constitutional right. In Commonwealth v. Feliciano,

69 A.3d 1270, 2013 (Pa. Super. 2013), we stated:

“The right to effective assistance of counsel during the plea

bargaining process has been recognized for decades.”

Commonwealth v. Lewis, 2013 PA Super 62, 63 A.3d 1274,

1280 (Pa. Super. 2013) (citing Hill v. Lockhart, [supra];

Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176

L.Ed.2d 284 (2010) (“Before deciding whether to plead guilty, a

defendant is entitled to the effective assistance of competent

counsel.”)). . . . It is apparent that neither Frye nor Lafler

created a new constitutional right. Instead, these decisions

simply applied the Sixth Amendment right to counsel, and the

Strickland test for demonstrating counsel’s ineffectiveness, to

the particular circumstances at hand.

Feliciano, 69 A.3d at 1276–77 (footnote omitted). See also

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

We conclude, therefore, that because both Lafler and Frye are

factually distinct from the case before us, and do not recognize a new

constitutional right, Draper’s attempt to satisfy the PCRA’s “newly recognized

_______________________

(Footnote Continued)

case was or a waiver, that you could very easily be found guilty

of murder in the first degree, and I would not speculate as to

whether the sentence would be death or life imprisonment

because I really don’t have before me at this point any

information concerning whether there were aggravating

circumstances other than what appears [from] the record. . . . I

want to make it clear that you could be found guilty, could easily

be found guilty of first-degree murder, and that the possibility of

a death penalty is certainly within the realm of contemplation.

N.T. Guilty Plea, 2/21/1986, at 14-15 (emphasis added).

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constitutional right” exception fails. Foulke’s testimony, and her letter to

the Board of Probation and Parole, do not, as Draper argues, “demonstrate

that [he] was deceived by off-the-record promises[,]” nor does it

“corroborate[ his] claim [that] the Commonwealth wrongfully induced his

plea through illusory promises.” Appellant’s Brief, at 12. We are unable to

conclude that Draper’s claim that he was “promised” that his sentence of life

imprisonment meant eligibility for parole after serving 15 years, or that he

entered his plea based on the Commonwealth’s representations that he

would not serve a life sentence, are supported in the record.3 Burkett,

supra. Despite Draper’s claim that this was a “material term” to his plea

agreement, there is neither mention of it during the guilty plea colloquy nor

evidence of it anywhere in the record. Thus, the PCRA court did not err in

finding that no exception to the time-bar applied, and the court properly

dismissed Draper’s petition as untimely.

Order affirmed.

____________________________________________

3

Draper testified at the PCRA hearing that Kenneth Dixon, Esquire,

represented him early in the case, prior to his guilty plea hearing. He stated

that Dixon and Foulkes told him he would get paroled. PCRA Hearing,

9/20/12, at 194. At the guilty plea hearing, Draper was represented by

Harry Seay. When asked if Attorney Seay ever said anything about parole,

Draper responded, “I might have said two words to Harry Seay.” Id.

Attorney Dixon passed away in 1996.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/18/2016

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