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[U] Commonwealth v. Torres

Superior Court of Pennsylvania

February 12, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ANGEL TORRES Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order April 23, 2013 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000050-2011

BEFORE: MUNDY, J., WECHT, J., and FITZGERALD, J. [*]

MEMORANDUM

MUNDY, J.

Appellant, Angel Torres, appeals from the April 23, 2013 order dismissing as untimely his petitions filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The PCRA court summarized the relevant facts and procedural history of this case as follows.

On March 30, 2011, pursuant to a negotiated plea agreement with the Commonwealth, [Appellant] pled guilty to one (1) count of Criminal Attempt/ Theft by Deception1 and one (1) count of Criminal Conspiracy/Theft by Deception.2 The guilty pleas stemmed from [Appellant]'s actions on September 1, 2010, when, according to the Criminal Information and Criminal Complaint, he and co-conspirator Daniel Figueroa entered All County Coins at 450 East Cumberland Street, Lebanon and presented several pieces of gold jewelry to the store clerk. The clerk tested the items with a bottle of gold testing acid and found them to be gold. The clerk then left the counter area and observed [Appellant] take the bottle of gold testing acid from the counter and replace it with a similar bottle that did not contain gold testing solution. Because the clerk had been warned by police of similar scams in the area, the clerk locked the doors and phoned the police. When the police arrived, they found Daniel Figueroa to have in his possession four pieces of gold-colored jewelry which were not gold but were nonetheless labeled "14 kt." Had the items been tendered to the clerk for sale, they would have tested as gold with the substituted testing solution and netted [Appellant] and his co-conspirator $ 2, 800.00.
At the time of his plea, the charges to which [Appellant] pled guilty each carried a maximum sentence of seven (7) years and a fine of $ 15, 000[.00]. The standard range of the sentencing guidelines for each offense called for a minimum sentence of 12-18 months. [Appellant]'s negotiated plea agreement with the Commonwealth called for an aggregate sentence of one (1) year to a maximum of three (3) to five (5) years, with the [trial c]ourt to set the maximum within the agreed upon range.
At sentencing on April 27, 2011, th[e trial c]ourt, with the benefit of a presentence investigation report detailing a prior record spanning over twenty-nine years, sentenced [Appellant] to concurrent state terms of one (1) to five (5) years imprisonment and fines of $300 on each count. At the time of his sentence, [Appellant] was advised [of] his right to appeal his judgment of sentence within thirty (30) days, by May 27, 2011. [Appellant] did not pursue an appeal.
On August 2, 2012, [Appellant] filed a pro se [PCRA petition] with th[e PCRA c]ourt. The pro se Petition asserted that [Appellant] was unlawfully induced by plea counsel to plead guilty to an illegal sentence and that plea counsel was ineffective for having [Appellant] plead guilty to an illegal sentence. The Petition further argued that [Appellant] only became aware that his sentence was illegal on June 15, 2012.
On August 6, 2012, the [PCRA c]ourt appointed counsel for [Appellant] and issued a Rule upon the Commonwealth as to why a hearing should not be held. The Commonwealth filed its response on September 6, 2012.
On January [8], 2013, th[e PCRA c]ourt issued an Order, pursuant to Pa.R.Crim.P. 907(1), indicating the [PCRA c]ourt's intention to dismiss [Appellant]'s claim for relief without a hearing. The Order noted that the [Appellant]'s Petition was untimely on its face. Although [Appellant]'s pro se petition made a vague reference to "after-discovered evidence" and seemed to link that phrase to his assertion that he only realized his sentence was illegal on June 15, 2012, [the PCRA court] noted he had not pled the existence of any specific newly discovered fact regarding his sentence that was unknown to him and could not have been obtained through the exercise of due diligence prior to May 27, 2012. Thus[, the PCRA court] found that [Appellant] had failed to plead and to prove an exception to the timeliness requirements of 42 Pa.C.S.A. § 9545(b)(1). Th[e PCRA c]ourt's January [8], 2013 Order also noted that, even if [Appellant]'s petition had been timely, his underlying claims for relief-- an illegal sentence and unlawful inducement and ineffective assistance on the part of plea counsel --were devoid of specificity and lacked merit based upon the record of the case.
1 18 Pa.C.S.A. § 901(a)/18 Pa.C.S.A. § 3922(a)(1).
2 18 Pa.C.S.A. § 903(a)(1)/18 Pa.C.S.A. § 3922(a)(1). PCRA Court Opinion, 4/23/13, at 1-5 (some ...

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