Com. v. Stains, L.

• Court: Superior Court of Pennsylvania
• Decided: June 27, 2024
• Docket: 331 MDA 2023
• Status: Unpublished

Opinion

J-A02030-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LOREN RYAN STAINS : : Appellant : No. 331 MDA 2023

Appeal from the PCRA Order Entered January 11, 2023 In the Court of Common Pleas of Fulton County Criminal Division at No(s): CP-29-CR-0000009-2014

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LOREN RYAN STAINS : : Appellant : No. 719 MDA 2023

Appeal from the PCRA Order Entered January 11, 2023 In the Court of Common Pleas of Fulton County Criminal Division at No(s): CP-29-CR-0000010-2014

BEFORE: NICHOLS, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY KING, J.: FILED JUNE 27, 2024

Appellant, Loren Ryan Stains, appeals from the order entered in the

Fulton County Court of Common Pleas, denying as untimely his petition filed

under the Post Conviction Relief Act (“PCRA”).1 We affirm.

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1 42 Pa.C.S.A. §§ 9541-9546. J-A02030-24

The relevant facts and procedural history of this case are as follows.

Appellant pled guilty at two dockets to possession with intent to deliver a

controlled substance “(PWID”) and delivery of a controlled substance on April

15, 2014. On July 1, 2014, the trial court sentenced Appellant to 11½ to 23

months’ incarceration and 24 months’ probation on the delivery of a controlled

substance conviction, and 48 months’ probation to be served consecutively on

the PWID conviction. On December 1, 2014, Appellant was granted parole.

On March 13, 2015, while on parole, Appellant was arrested and charged

with possession of a controlled substance and public intoxication. (See

Notification of Violation of Probation or Parole, filed 4/6/2015, at 1). The court

conducted a Gagnon I2 hearing on April 1, 2015. (Id. at 2). On May 26,

2015, Appellant waived his right to a Gagnon II hearing and admitted that

he was arrested and charged with new criminal offenses. The court found

Appellant in violation of the terms of his parole and probation. On November

3, 2015, Appellant was resentenced to 9 to 24 months’ incarceration on the

delivery of a controlled substance conviction, and 12 to 36 months’

incarceration to be served consecutively for the PWID conviction. Appellant

2 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

See also Commonwealth v. Ferguson, 761 A.2d 613 (Pa.Super. 2000) (explaining that when parolee or probationer is detained pending revocation hearing, due process requires determination at pre-revocation hearing (Gagnon I hearing) of probable cause to believe violation was committed; upon finding of probable cause, second, more comprehensive hearing (Gagnon II hearing) follows before court makes final revocation decision).

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did not file a motion to reconsider or appeal his revocation sentence.

On August 8, 2022, Appellant filed a pro se PCRA petition, claiming that

his revocation sentence was illegal under Commonwealth v. Simmons, 262

A.3d 512 (Pa.Super. 2021) (en banc).3 The court appointed counsel, who filed

a Turner/Finley4 no merit letter and a motion to withdraw on September 12,

2022. On December 1, 2022, the court granted counsel’s motion to withdraw

and issued a Pa.R.Crim.P. 907 notice of intent to dismiss the petition without

a hearing. Appellant filed a pro se response to the Rule 907 notice on

December 27, 2022. On January 11, 2023, the court dismissed Appellant’s

PCRA petition as untimely. Appellant timely appealed.5 On February 28,

3 In Simmons, this Court held that a trial court may not anticipatorily revoke

probation when a defendant commits a violation of his supervision while on parole but before the probationary period has begun. In so holding, the Simmons Court overturned prior caselaw which had permitted this practice.

4 See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

5 Appellant submitted a pro se notice of appeal dated and postmarked on February 8, 2023. Pursuant to the prisoner mailbox rule, Appellant’s filing was timely. See Commonwealth v. DiClaudio, 210 A.3d 1070 (Pa.Super. 2019) (explaining that prisoner mailbox rule provides that pro se prisoner’s document is deemed filed on date he delivers it to prison authorities for mailing). Nevertheless, Appellant failed to file separate notices of appeal at each underlying docket number in violation of Commonwealth v. Walker, 646 Pa. 456, 185 A.3d 969 (2018). On April 28, 2023, this Court directed Appellant to file amended notices of appeal at each trial court docket number. See Commonwealth v. Young, 280 A.3d 1049, 1057 (Pa.Super. 2022) (holding that if timely appeal is erroneously filed at one docket, appellate court may permit appellant to correct error). Appellant filed amended notices of appeal at both trial court dockets on May 10, 2023.

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2023, the court ordered Appellant to file a Pa.R.A.P. concise statement of

matters complained of on appeal, and Appellant timely complied on March 23,

2023. On May 19, 2023, this Court consolidated the appeals sua sponte.

Appellant raises the following issues for our review:

Did the [PCRA] court misapply the statutory authority to violate Appellant’s probation sentences that didn’t yet commence?

Was counsel ineffective for failing to pursue the letter of the law and ensure that Appellant was properly represented during his probation revocation and resentencing?

Did the [PCRA] court have statutory authority to revoke Appellant’s terms of consecutive probations prior to the actual start thereof; including subject matter jurisdiction at that time to revoke and resentence Appellant?

Does Appellant have a legal right to pursue a legal remedy to correct the miscarriage of justice, and seek to have the lawful sentence applied as it should’ve been initially?

(Appellant’s Brief at 5).

Preliminarily, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008),

cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009).

Pennsylvania law makes clear that no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837

A.2d 1157 (2003). The PCRA requires a petition, including a second or

subsequent petition, to be filed within one year of the date the underlying

judgment 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

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the Supreme Court of the United States and the Supreme Court of

Pennsylvania, or at the expiration of time for seeking 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). Additionally, 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). Generally, “a claim of ineffective assistance of

counsel does not provide an exception to the PCRA time bar.”

Commonwealth v. Sims, 251 A.3d 445, 448 (Pa.Super. 2021), appeal

denied, ___ Pa. ___, 265 A.3d 194 (2021).

To meet the “newly discovered facts” timeliness exception set forth in

Section 9545(b)(1)(ii), a petitioner must demonstrate that “he did not know

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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). To satisfy the newly-recognized

constitutional right exception under Section 9545(b)(1)(iii), the petitioner

must plead and prove: “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 provided in this section,” and “the right ‘has

been held’ by ‘that court’ to apply retroactively.” Commonwealth v. Miller,

102 A.3d 988, 994 (Pa.Super. 2014) (citation and brackets omitted). “[A]

new rule of constitutional law is applied retroactively to cases on collateral

review only if the United States Supreme Court or our Supreme Court

specifically holds it to be retroactively applicable to those cases.” Id. at 995

(citations omitted).

Instantly, Appellant’s judgment of sentence became final on December

3, 2015, upon expiration of the 30-day period to file a direct appeal in this

Court. See Pa.R.A.P. 903(a). Thus, Appellant had until December 3, 2016 to

file a timely PCRA petition. Appellant filed the current PCRA petition on August

8, 2022, which is facially untimely. See 42 Pa.C.S.A. § 9545(b)(1). Although

Appellant purports to challenge the legality of his sentence, which is not

subject to waiver, he must still raise the issue in a timely PCRA petition or

satisfy one of the timeliness exceptions. See Commonwealth v. Fowler,

930 A.2d 586, 592 (Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d

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756 (2008) (stating: “[A]lthough legality of sentence is always subject to

review within the PCRA, claims must still first satisfy the PCRA’s time limits or

one of the exceptions thereto”).

In his brief, Appellant vaguely attempts to invoke the newly discovered

facts and the newly recognized constitutional right exceptions to the PCRA

time bar, based on this Court’s decision in Simmons. Nevertheless, judicial

decisions do not constitute a “new fact” for purposes of the time-bar

exception. See Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980 (2011)

(explaining subsequent decisional law does not constitute new “fact” per

Section 9545(b)(1)(ii)).

Additionally, the Simmons decision does not establish a newly

recognized constitutional right as defined by Section 9545(b)(1)(iii).

Significantly, “[o]ur ruling in Simmons was not held to be retroactive and,

even if it had been, it still could not satisfy the timeliness exception of section

9545(b)(1)(iii) because it was not a decision by our Supreme Court or the

United States Supreme Court.” Commonwealth v. Frye, Nos. 493 EDA

2023, 494 EDA 2023, 2023 WL 7549295 at *3 (Pa.Super. filed Nov. 14, 2023)

(unpublished memorandum).6 We observe that our Supreme Court reviewed

the issue in Simmons in Commonwealth v. Rosario, ___ Pa. ___, 294 A.3d

338 (2023). Although the Rosario Court upheld Simmons, the Court did not

6 See 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).

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state that its holding applied retroactively. See id. See also

Commonwealth v. Wells, No. 2786 EDA 2022 (Pa.Super. filed Nov. 20,

2023) (unpublished memorandum) (holding PCRA court did not err in

dismissing appellant’s petition as untimely; Rosario has not been held to

apply retroactively). Further, the Court’s decision in Rosario turned on

statutory, not constitutional, grounds. See In re Donahue, No. 1304 WDA

2023 (Pa.Super. filed May 13, 2024) (unpublished memorandum) (explaining

that Rosario did not announce new constitutional right; moreover, it has not

been held to apply retroactively; thus, appellant has not pled or proven

exception to PCRA time-bar). Therefore, Appellant has failed to prove an

exception to the PCRA time-bar, and the PCRA court lacked jurisdiction to

consider Appellant’s claims. See Robinson, supra. Accordingly, we affirm

the PCRA court’s denial of Appellant’s petition as untimely.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 06/27/2024

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