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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NON-PRECEDENTIAL DECISION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 ...

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