Com. v. Joiner, B.

Opinion

J-S62042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

BLAKE EDWARD JOINER

Appellant No. 922 WDA 2015

Appeal from the Order April 2, 2015 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000390-1997; CP-17-CR-0000391-1997

BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

JUDGMENT ORDER BY GANTMAN, P.J.: FILED OCTOBER 15, 2015

Appellant, Blake Edward Joiner, appeals from the order entered in the

Clearfield County Court of Common Pleas, that denied his filing which he

designated as a “post-sentence motion nunc pro tunc.” On April 23, 1998,

Appellant pled guilty to multiple counts of rape and corruption of minors.

The court initially sentenced Appellant on August 18, 1998, to an aggregate

term of incarceration of five years to life. Appellant filed a notice of appeal,

and this Court vacated the judgment of sentence and remanded for

resentencing. See Commonwealth v. Joiner, 739 A.2d 588 (Pa.Super.

1999) (unpublished memorandum). Following resentencing, Appellant filed

another direct appeal, and this Court again vacated the judgment of

sentence and remanded for resentencing. See Commonwealth v. Joiner, _____________________________

*Retired Senior Judge assigned to the Superior Court. J-S62042-15

758 A.2d 721 (Pa.Super. 2000) (unpublished memorandum). On remand,

the trial court resentenced Appellant on July 18, 2000, to an aggregate term

of five to twenty years’ incarceration, followed by twenty-five years of

probation. Appellant did not file another direct appeal. During the ensuing

fourteen years, Appellant filed multiple petitions under the Post Conviction

Relief Act (“PCRA”),1 all of which were denied. On March 27, 2015,

Appellant pro se filed what he called a “post-sentence motion nunc pro

tunc,” which the court denied on April 2, 2015. Appellant filed a timely pro

se notice of appeal on April 27, 2015. Appellant subsequently filed a

voluntary concise statement of errors complained of on appeal, pursuant to

Pa.R.A.P. 1925(b).

Generally, “a written post-sentence motion shall be filed no later than

10 days after imposition of sentence.” Pa.R.Crim.P. 720(A)(1). An

exception to the ten-day deadline might apply where the defendant files a

post-sentence motion based on after-discovered evidence. See Pa.R.Crim.P.

720(C); Commonwealth v. Trinidad, 96 A.3d 1031 (Pa.Super. 2014),

appeal denied, ___ Pa. ___, 99 A.3d 925 (2014). “[A]fter-discovered

evidence discovered after completion of the direct appeal process should be

raised in the context of the PCRA.” Pa.R.Crim.P. 720 Comment. A PCRA

petition must be filed within one year of the date the underlying judgment

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.

-2- J-S62042-15

becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final at

the conclusion of direct review or at the expiration of time for seeking

review. 42 Pa.C.S.A. § 9545(b)(3). Under the “new facts” exception to the

PCRA’s timeliness requirements, the petitioner must plead and prove: “[T]he

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). Instantly, Appellant’s judgment of sentence

became final on August 17, 2000, upon expiration of the time to file an

appeal with this Court. See Pa.R.A.P. 903(a). His direct appeal process has

concluded, so Appellant must bring any claim of after-discovered evidence

via a PCRA petition. See Pa.R.Crim.P. 720 Comment. As a PCRA petition,

Appellant’s filing is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).

Moreover, the United States Supreme Court’s decision in Alleyne v. United

States, ___ U.S. ___, 133 S. Ct. 2151, 186 L.Ed.2d 314 (2013), does not

constitute a “new fact” under Section 9545(b)(1)(ii). See Commonwealth

v. Watts, 611 Pa. 80, 23 A.3d 980 (2011) (stating judicial determinations

are not “facts” within meaning of Section 9545(b)(1)(ii)).2 Thus, the trial

court properly denied relief.

Order affirmed. ____________________________________________

2 Under the same logic, the Alleyne decision is not “evidence” in the context of Rule 720(C). See Commonwealth v. Small, 559 Pa. 423, 741 A.2d 666 (1999), cert. denied, 531 U.S. 829, 121 S.Ct. 80, 148 L.Ed.2d 42 (describing requirements of after-discovered evidence exception).

-3- J-S62042-15

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/15/2015

-4-