IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA C R I M I N A L

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1 Commonwealth v. Smith No Knisely, J. August 28, 2013 Criminal Law Post Conviction Relief Act (PCRA) Serial PCRA Petition Jurisdiction Timeliness Ineffective Assistance of Counsel Pa.R.Crim.P. 907 Notice. The letter Defendant received regarding his return to state prison for a parole hearing does not constitute newly discovered evidence because it is the routine procedure of the Board of Probation and Parole; therefore, there is no exception to the time bar. As he was sentenced to more than two years of imprisonment, the Pennsylvania Board of Probation and Parole has exclusive authority to determine parole, which makes a PCRA petition inappropriate.

2 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA C R I M I N A L COMMONWEALTH OF PENNSYLVANIA v. Nos GERALD L. SMITH Rule 907 Notice BY KNISELY, J. August 28, 2013 Before the Court is Defendant s petition seeking relief pursuant to the Post Conviction Relief Act ( PCRA ). 1 Upon review of the petition, the Court is satisfied that Defendant s petition is untimely and Defendant is not entitled to PCRA relief. The Court submits this Notice, pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure, of its intent to dismiss Defendant s petition without a hearing. Defendant s petition will be dismissed without a hearing unless Defendant amends his petition within 20 days and provides a reviewable basis for relief. On August 19, 2006, Defendant was charged with possession with intent to distribute cocaine 2, criminal conspiracy/possession with intent to distribute 3, and possession of drug paraphernalia 4. On October 25, 2010, Defendant entered guilty pleas on all three counts and was sentenced. The Court imposed a sentence of four to ten years for the possession with intent to distribute cocaine and two and a half to five years for the criminal conspiracy to possess with intent to distribute cocaine. These sentences were concurrent to each other and to the federal sentence defendant was currently serving Pa.C.S.A P.S (a)(30) (1978) Pa.C.S.A. 903(a)(1) P.S (a)(32) (1978). 2

3 After being sentenced on October 25, 2010, Defendant filed no direct appeal to the Superior Court. On March 1, 2012, Defendant received correspondence from the Pennsylvania Board of Probation and Parole informing him that after his release from the federal authorities, he will be returned to a Pennsylvania State Correction Institution and afforded a parole hearing. Until that time, Pennsylvania would be keeping a detainer on Defendant to assure his return to a State Correctional Institution. On April 27, 2012, Defendant filed the instant PCRA petition, pro se. On May 4, 2012, counsel was appoint to represent Defendant and was granted leave until July 2, 2012 to file an amended petition. After a conflict of interest arose, new counsel was appointed on December 27, 2012 and the Court granted leave until August 27, 2013 to file an amended petition. The amended petition was filed July 29, A PCRA petition must be filed within one year of the date petitioner s judgment of sentence becomes final unless he pleads and proves one of the enumerated exceptions. 5 A judgment becomes final at the conclusion of direct review, or at the expiration of time for seeking the review. 6 The PCRA s timeliness requirements are jurisdictional in nature and a court may not address the merits of an untimely filed PCRA petition. Commonwealth v. Copenhefer, 596 Pa. 104, 108, 941 A.2d 646, (2007). The court is precluded from addressing the merits of a petition that does not invoke one of the statutorily enumerated exceptions. Commonwealth v. Wilson, 824 A.2d 331, 333(Pa.Super. 2003). Further, even if a petition is entitled to one of the enumerated exceptions, but is not filed within 60 days of the date the claim could have been first brought, the court may not address the merits of the petition. Id Pa.C.S.A. 9545(b)(1) Pa.C.S. 9545(b)(3). 3

4 The Pennsylvania Board of Probation and Parole has exclusive authority to determine parole when the offender is sentenced to a maximum term of imprisonment of two or more years, as is the case with this defendant. Commonwealth v. Camps, 772 A.2d 70, 74 (Pa. Super. 2001)(citing Commonwealth v. McMaster, 730 A.2d 524 (1999)). Furthermore, it is well settled that the Commonwealth Court maintains exclusive jurisdiction over appeals from administrative parole orders; therefore, a PCRA petition is not the appropriate avenue for challenging a determination of the Parole Board. Commonwealth v. Camps, 772 A.2d 70, 74-5 (Pa. Super. 2001)(citing Commonwealth v. Legrande, 389 Pa. Super. 457, 567 A.2d 693, (1989)). Here, Defendant was sentenced on October 25, From that date, he had thirty days to appeal to the Superior Court. After those thirty days, his time to seek review expired and, under the PCRA statute, his judgment became final. From the time his judgment became final on November 24, 2010, Defendant had one year to file his PCRA petition. The letter he received regarding his return to state prison for a parole hearing does not constitute newly discovered evidence because it is the routine procedure of the Board of Probation and Parole. Defendant s state sentence is running concurrently to the federal sentence, as agreed to in the plea agreement. Nothing has changed since the time of his sentencing; thus Defendant has no valid exception to the time bar. Defendant filed his PCRA petition on April 27, 2012, outside of the one year deadline. Therefore, Defendant s petition is time barred. Defendant pled guilty in reliance on the fact that his federal and state sentences would run concurrently. There was no ineffective assistance of counsel. Defendant s state sentence was to run concurrently with his federal sentence; it is, in fact, running concurrently with his federal sentence. Defendant merely needs to return to the state prison for a parole hearing, which 4

5 is a routine process that adds no time to his sentence. As he was sentenced to more than two years of imprisonment, the Pennsylvania Board of Probation and Parole has exclusive authority to determine parole. Commonwealth v. Camps, 772 A.2d 70, 74 (Pa. Super. 2001)(citing Commonwealth v. McMaster, 730 A.2d 524 (1999)). When a defendant seeks to appeal from administrative parole orders, the Commonwealth Court has exclusive jurisdiction and a PCRA petition is inappropriate. Commonwealth v. Camps, 772 A.2d 70, 74-5 (Pa. Super. 2001)(citing Commonwealth v. Legrande, 389 Pa. Super. 457, 567 A.2d 693, (1989)). Therefore, the Post-Conviction Relief Act can provide no relief to Defendant on this issue. Defendant is not entitled to post-conviction relief, and no purpose would be served by any further proceedings. Defendant is hereby provided notice of this Court s intent to dismiss his petition without a hearing. Defendant may respond within twenty (20) days from the date of this Notice to demonstrate that he is entitled to relief under the PCRA. Accordingly, I enter the following 5

6 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA C R I M I N A L COMMONWEALTH OF PENNSYLVANIA v. Nos GERALD L. SMITH ORDER AND NOW, this day of August, 2013, upon consideration of Petitioner Gerald L. Smith s Petition for Post Conviction Collateral Relief, it is hereby ORDERED and DECREED that the Petition is denied. Petitioner is hereby given notice that the Court, pursuant to Pa.R.Crim.P. 907, intends to dismiss his Post Conviction Collateral Relief Petition without a hearing unless Petitioner shall, within twenty (20) days of the date of this Order and Notice, show good cause why the petition should not be dismissed. BY THE COURT HOWARD F. KNISELY JUDGE ATTEST Copies to R. Russell Pugh, Esquire Craig Stedman, District Attorney Gerald L. Smith, (via certified mail, return receipt requested)

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