Com. v. Arrington, J.

• Court: Superior Court of Pennsylvania
• Decided: October 19, 2023
• Docket: 1202 WDA 2022
• Status: Unpublished

Opinion

J-S28010-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES KENNETH ARRINGTON JR. : : Appellant : No. 1202 WDA 2022

Appeal from the PCRA Order Entered August 31, 2022 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001694-2018

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED: October 19, 2023

James Kenneth Arrington Jr. appeals from the order dismissing his third,

pro se petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. The PCRA court found that Arrington’s petition was

untimely and failed to meet one of the enumerated exceptions to timeliness

provided by the PCRA. After careful review, we affirm, based on our conclusion

that Arrington’s petition is patently untimely and fails to plead and prove an

exception to the PCRA’s timeliness requirement.

In 2020, Arrington pleaded guilty to possession of a mix of heroin and

fentanyl with the intent to deliver and criminal use of a communication facility.

The court sentenced him to 27 to 54 months’ incarceration. Arrington did not

file a direct appeal.

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* Former Justice specially assigned to the Superior Court. J-S28010-23

Arrington filed a first, timely PCRA petition on July 10, 2020, claiming

that pursuant to his negotiated guilty plea, his sentence was to run

concurrently with his sentence for a parole violation. See PCRA Petition,

7/10/20, at 4. Counsel was appointed and filed a supplemental PCRA petition.

After a hearing, the PCRA court entered an order clarifying that Arrington’s

sentence in this matter began to run on January 9, 2020, and he was to

receive credit for any time served. See Order, 12/9/20.

Arrington filed a second PCRA petition on June 1, 2021, claiming his

sentence was illegal because it was entered without his presence, that his

guilty plea was involuntary, and that PCRA counsel was ineffective. See PCRA

Petition, 6/1/21, at 5. The PCRA court denied the petition and Arrington

appealed to this Court. On appeal, this Court determined that the PCRA court’s

December 4, 2020 order was merely a clarification of Arrington’s sentence and

did not alter the deadline for filing a timely PCRA petition. See

Commonwealth v. Arrington, 937 WDA 2021 (Pa. Super. filed March 23,

2022) (unpublished memorandum). Therefore, Arrington’s second PCRA

petition was untimely and this Court, lacking jurisdiction to address the merits,

affirmed the PCRA court’s order. See id. at 7.

Arrington filed the instant PCRA petition on July 25, 2022. The pro se

petition sought to advance claims of plea counsel’s ineffectiveness for

negotiating an illegal sentence. See PCRA Petition, 7/25/22, at 6-24. The

PCRA court dismissed Arrington’s petition as untimely, with no applicable

exception to the PCRA’s time-bar. See Order, 8/1/22. Further, the PCRA court

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noted that Arrington’s claims were addressed in his prior PCRA. See id.

Arrington filed this timely appeal.

When we review an order dismissing a PCRA petition we determine

whether the decision is supported by the record and free of legal error. See

Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super. 2016). Here, the

PCRA court determined it lacked jurisdiction to consider Arrington’s petition

because the petition was untimely and failed to prove an exception to the

timeliness provision of the PCRA. See Order, 8/1/22.

A PCRA petition must be filed within the one-year period immediately

following the date on which the judgment of sentence becomes final. See

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). This

time-bar implicates our jurisdiction, and we may not ignore it to assess the

merits of a petition. See id. A judgment of sentence becomes final when the

direct review is complete or the time for seeking direct review expires. See

id.

Our review of the record reflects that Arrington’s judgment of sentence

was imposed on January 9, 2020. Arrington’s judgment of sentence became

final on Monday, February 10, 2020, when his time to file a direct appeal

expired. See Pa.R.Crim.P. 720(A)(3) (providing for 30 days to file a direct

appeal in the absence of a timely post-sentence motion); Commonwealth v.

Koeck, 520 A.2d 53, 54-55 (Pa. Super. 1987) (applying rules of construction

where last day of period fell on day where court was only open for half of the

day). The instant PCRA petition, filed on July 25, 2022, is patently untimely.

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Nevertheless, a petitioner may overcome the time-bar when they allege

in their petition and prove one of three exceptions. See Hernandez, 79 A.3d

649, 651 (Pa. Super. 2013). These exceptions include: that the claim was not

raised previously due to interference by government officials; that the

petitioner previously did not know, and could not have known through due

diligence, the facts of the claim earlier; and that the petitioner is asserting a

right which has been recognized since the judgment of sentence became final

and has been held to apply retroactively. See 42 Pa.C.S.A. § 9545 (b)(1)(i)-

(iii).

Here, Arrington briefly mentions timeliness and although he does not

cite to the correct section of the PCRA, he claims a miscarriage of justice has

occurred, violating his constitutional rights. See PCRA petition, 7/25/22, at 3.

On appeal, Arrington seeks to invoke the newly discovered fact exception to

the timeliness requirement. See Appellant’s Brief at 2. Arrington claims that

the Commonwealth’s brief to this Court in his prior PCRA, agreeing that his

sentence was illegal, constitutes a newly discovered fact. See id. at 3. In fact,

Arrington first claimed that his sentence was illegal in his first PCRA petition,

filed July 10, 2020. See PCRA Petition, 7/10/20, at 8.

Arrington claims that under Commonwealth v. Kelley, since his

sentence is illegal, the PCRA’s time-bar must be waived. See 136 A.3d 1007

(Pa. Super. 2016). In Kelley, this Court held that plea counsel was ineffective

for negotiating a sentence with a specific start date without properly advising

his client of the statutory sequence for serving a revocation sentence and a

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new sentence under Section 6138 of the Parole Act. See id. at 1014. The

Parole Act provides, in relevant part: “[i]f a new sentence is imposed …, the

service of the balance of the term originally imposed … shall precede the

commencement of the new term imposed … [i]f 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”. 61 Pa.C.S.A. §

6138(a)(5)(1). Under this statutory authority, Arrington’s “new state sentence

simply cannot be served concurrently with his state parole violation

sentence[.]” Duncan v. Pa. Department of Correction, 137 A.3d 575, 576

(Pa. 2016). And contrary to Arrington’s claim, the petitioner in Kelley was

litigating an ineffective assistance of counsel claim in a first, timely PCRA. See

136 A.3d 1007,1010-11 (Pa. Super. 2016). An illegality of sentence claim does

not overcome the PCRA’s time-bar. See Commonwealth v. Holmes, 933

A.2d 57, 60 (Pa. Super. 2007).

Arrington’s jurisdictional claims do not fall under any of the three

enumerated exceptions to the PCRA’s time-bar and the PCRA court correctly

determined it lacked jurisdiction over Arrington’s petition. See

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).

Order affirmed.

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10/19/2023

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