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[U] Commonwealth v. Batley

Superior Court of Pennsylvania

June 28, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
BRETT A. BATLEY Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
BRETT A. BATLEY Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
BRETT A. BATLEY Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
BRETT A. BATLEY Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered October 12, 2012 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000026-2007, CP-33-CR-0000731-2006, CP-33-CR-0000714-2006, CP-33-CR-0000027-2007

BEFORE: BENDER, J., LAZARUS, J., and STRASSBURGER, J. [*]

MEMORANDUM

LAZARUS, J.

Brett A. Batley appeals from the order of the Court of Common Pleas of Jefferson County dismissing his pro se petition brought pursuant to the Post-Conviction Relief Act ("PCRA").[1] We affirm.

On October 3, 2007, Batley pled guilty to three counts of possession of a controlled substance with intent to deliver, and one count of statutory sexual assault. The court accepted the Commonwealth and Batley's plea agreement of 9-25 years' incarceration. Batley filed a post-sentence motion for a reduction of his sentence on February 22, 2008, which was denied on March 4, 2008.

Batley timely filed his first PCRA petition on October 1, 2008, claiming that the Commonwealth incorrectly calculated his prior record score, [2] and that his counsel was ineffective for failing to object to his sentence or argue for mitigation. See Motion for Post-Conviction Collateral Relief, 10/1/2008, at 3. The court appointed counsel, who subsequently filed a no-merit letter. In the letter, counsel stated that, regardless of whether the prior record score was wrongly calculated, the sentencing guidelines could not supersede the mandatory minimum sentence Batley was required to receive, given his prior conviction for possession with intent to deliver, and the weight of the cocaine he was currently charged with possessing. George N. Daghir, Esquire, No-Merit Letter, 1/8/2009, at 5 (citing 18 Pa.C.S. §7508(c) ("Sentencing guidelines . . . shall not supersede the mandatory sentences provided herein")). He further stated that counsel was not ineffective for failing to challenge the sentence because under the plea agreement, the "[d]efendant received exactly what he bargained for. And by so doing he avoided very harsh jail penalties and other adverse consequences." George N. Daghir, Esquire, No-Merit Letter, 1/8/2009, at 5. The court agreed and dismissed the petition on February 9, 2009.

On June 26, 2009, Batley filed a motion to correct illegal sentence, alleging again that the court sentenced him using a miscalculated prior record score. The court denied the motion on July 1, 2009. Batley appealed, and on March 2, 2010, this Court dismissed the petition for failure to file a brief.

On February 28, 2011, Batley filed a second PCRA petition, alleging his counsel was ineffective for failing to appeal his sentence. See Motion for Post-Conviction Collateral Relief, 2/28/2011, at 3. The petition was denied on March 22, 2011. Batley did not file an appeal.

Batley filed his third PCRA petition on August 28, 2012. In it, he erroneously relied on section 5504(b) of the Judicial Code, 42 Pa.C.S. § 5504(b), which relates to the statute of limitations, and provides that "the time limited by this chapter may be extended to relieve fraud or its equivalent."[3] He then alleged that the Commonwealth committed fraud by illegally changing his prior record score, and that his counsel was ineffective for failing to object to such fraud. Further, Batley claimed that appointed counsel for his first PCRA petition also perpetrated fraud on the court by incorrectly calculating his prior record score. See Motion for Post-Conviction Collateral Relief, 8/28/2012, at 1, 12.

On September 5, 2012, the court filed a notice of intention to dismiss pursuant to Pa.R.Crim.P. 907, finding that by its plain language, section 5504(b) does not apply to criminal or PCRA proceedings. It also found that Batley was not eligible for any of the three exceptions to the PCRA time limitation under section 9545(b)(1)(i)-(iii), and therefore, the claim was untimely. See Notice of Intention to Dismiss PCRA Petition, 9/5/2012, at 1.

On October 12, 2012, the court dismissed the petition and Batley filed a timely notice of appeal, in which he raises the following two claims verbatim:

1. WHETHER THE TRIAL COURT ERRED BY SENTENCING THE APPELLANT TO AN EXCESSIVE AND UNREASONABLE SENTENCE AND IN THE ALTERNATIVE THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT OUT SIDE THE GUIDELINES STANDARDS?
2. WHETHER THE APPELLANT'S FORMER ATTORNEY'S WERE INEFFECTIVE FOR NOT RAISING THESE SENTENCING ISSUES AT ALL?

Appellant's Brief, at 3.

"Our standard of review regarding a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (citations omitted).

Here the record supports the PCRA court's findings and they are free from legal error. The court correctly found that Batley's reliance on section 5504(b) was misplaced because it applies to chapter 55 of the Judicial Code (limitation of time), and not to chapter 95 (PCRA). Further, even if section 5504(b) could somehow be construed to apply to the PCRA, section 5504(b) clearly states that "there shall be no extension of time . . . with respect to any criminal proceeding."

The timeliness requirements for all PCRA petitions are stringent. Section 9545(b) provides:

(b) Time for filing petition.
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, 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.
(3) For purposes of this subchapter, a judgment 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).

After his post-sentence motion for reduction of sentence was denied, Batley did not file any subsequent appeals within the required 30-day period; therefore, his judgment became final on April 3, 2008. See Pa.R.A.P. Rule 903. Accordingly, under section 9545(b)(1), any PCRA claim filed by Batley after April 3, 2009, is untimely, unless he meets one of the three narrow exceptions under section 9545(b)(1)(i)-(iii).

Batley does not qualify under section 9545(b)(1)(i) because he does not allege, and there is no evidence suggesting, that any governmental official interfered with his ability to raise this claim earlier. In fact, as the PCRA court correctly pointed out, Batley made the same allegations in both his first PCRA claim, and in his motion to correct illegal sentence. See Notice of Intention to Dismiss PCRA Petition, 9/5/2012, at 2. Similarly, Batley cannot qualify under section 9545(b)(1)(ii) because he has not alleged any new facts that have not already been alleged. Finally, Batley has not alleged anything that would enable him to qualify under the newly recognized constitutional right exception of section 9545(b)(1)(iii). Therefore, Batley's petition is untimely.

Even if Batley's petition were timely under the PCRA guidelines, both claims would fail. In his first claim, Batley challenges the discretionary aspects of his sentence under 42 Pa.C.S. § 9781(b). See Appellant's Brief, at 8. However, the discretionary aspects of one's sentence can only be challenged by filing a "petition for allowance of appeal . . . to the appellate court that has initial jurisdiction for such appeals." 42 Pa.C.S. § 9781(b). Therefore, a PCRA court is precluded from even considering the issue.

Further, the rules for the eligibility of a PCRA claim require "that the allegation of error has not been previously litigated or waived." 42 Pa.C.S. § 9543(3). One way in which an issue can be previously litigated is when "it [was] raised and decided in a proceeding collaterally attacking the conviction or sentence." 42 Pa.C.S. § 9544(a)(3). Batley's first PCRA petition decided on the merits that any improper calculation of his prior record score was harmless in light of the mandatory minimum sentence he was required to receive. Further, the failure to object to, or argue for the mitigation of his sentence was not ineffective assistance of counsel, in light of the plea agreement reached, and the amount and seriousness of the charges he was facing. Batley's latest PCRA petition does not raise any issues that have not already been litigated and decided on the merits.

Accordingly, we conclude that the PCRA Court did not abuse its discretion or commit an error of law when it denied Batley's request for relief.

Order affirmed.


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