Commonwealth v. Descardes

J-E04005-13

2014 PA Super 210

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

CLAUDE DESCARDES,

Appellee No. 2836 EDA 2010

Appeal from the Order September 24, 2010 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000617-2006

BEFORE: BENDER, P.J., FORD ELLIOTT, P.J.E., BOWES, PANELLA, DONOHUE, SHOGAN, LAZARUS, OLSON, and WECHT, JJ.

CONCURRING AND DISSENTING OPINION BY BOWES, J.: Filed: September 23, 2014 Ultimately, I agree with the learned majority that Appellee is not

entitled to withdraw his plea, whether it be under the PCRA statute or the ancient common law writ of error coram nobis. I dissent, however, from the

coram nobis to achieve review of his untimely ineffective assistance of counsel claim. In my view, the majority fails to appreciate the interplay between PCRA review and coram nobis under the unusual circumstances of this case, and confuses ineligibility for relief under the PCRA with a lack of cognizability in the claim review, see Commonwealth v. Haun, 32 A.3d 697 (Pa. 2011), I am compelled to write further.

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I begin by noting that although coram nobis still exists in Pennsylvania under extremely limited circumstances, it does not generally apply where a defendant is raising an allegation of ineffective assistance of counsel. While I do not disagree that coram nobis may be an available form of relief in a future case involving a new constitutional right declared retroactively applicable where a defendant is no longer serving a sentence, and the right involved is sufficiently important to justify overlooking finality concerns, neither this Court nor the Pennsylvania Supreme Court has confronted such common law coram nobis jurisprudence is as extensive as federal coram nobis law, it ignores both the intent and the language of the PCRA statute, pre-PCRA interpretation.1

Traditionally, a writ of error coram nobis where facts exist extrinsic of the record, unknown and unknowable by the exercise of diligence at the time of its rendition, and which would, if known, have prevented the judgment either in its entirety or in the form in which it was

Commonwealth v. Harris, 41 A.2d 688, 690 (Pa. 1945). ____________________________________________

1 For a quality discussion of the difference in federal coram nobis jurisprudence and the common law writ, see Trujillo v. Nevada, 310 P.3d 594 (Nev. 2013). That case discusses whether a defendant could use coram nobis to raise a Padilla claim under Nevada law.

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Phrased differently, where a defendant alleged an error of fact and not law and no fault could be imputed to the court in pronouncing its judgment, coram nobis was available. Id. The Harris Court delineated several examples when coram nobis applied, stating,

In a criminal prosecution where the accused was forced through well founded fears of mob violence to plead guilty, it has been considered that he is entitled to relief through the writ, and the judgment of conviction may be set aside and a new trial granted. The writ has been held to lie to correct such an error of fact as the conviction of a slave as a free person.

Id.

Thus, at common law, coram nobis existed only to remedy errors of or in the facts. See Harris, supra; Commonwealth v. Morrison, 44 A.2d common law writ, the purpose of which is to bring before a court a judgment previously rendered by it for review or modification, on account of some error of fact and not of law affecting the validity and regularity of the (italics in original); Commonwealth v. Fiore, 665 A.2d 1185, 1189-1190

(Pa.Super. 1995).2 Certainly, this case does not involve a factual mistake. ____________________________________________

2 I am cognizant that the United States Supreme Court in Fiore v. White,

have entitled him to relief, was premised on a new rule of law that was not retroactive. However, the rule in question was not a new rule of law. See Fiore v. White, 757 A.2d 842 (Pa. 2000).

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However, Pennsylvania law, prior to the passage of the PCRA, expanded coram nobis to some limited matters of law. See Commonwealth v. Sheehan, 285 A.2d 465 (Pa. 1971); Commonwealth v. Fay, 439 A.2d 1227 (Pa.Super. 1982). The Sheehan Court first determined that the Postto the PCRA, did not abolish coram nobis. It then relied on the far broader federal applicability of coram nobis fashioned by United States v. Morgan, 346 U.S. 502 (1954), wherein the High Court held that the denial of counsel could be remedied via coram nobis following the expiration of the

See id Morgan noted that cora[m] nobis as applied in American jurisdictions had not been confined

Sheehan extended coram nobis in Pennsylvania to matters of errors in process; specifically, where a defendant was entirely denied his right to counsel. But see Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013) (returning to the Harris standard). Sheehan, however, does not mean that non-retroactive

coram nobis in Pennsylvania.

shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram

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nobis

Id. This latter portion of the statute is no longer constitutionally sound in at least the deportation context. Padilla v. Kentucky, 130 S.Ct. 1473 (2010); see also Commonwealth v. Masker, 34 A.3d 841 (Pa.Super. 2011) (Bowes, J., concurring and dissenting).3

Our Supreme Court has interpreted the sole means language to explain that the PCRA is the only method of obtaining collateral review when the claim being raised is cognizable under the PCRA. Commonwealth v. Eller, 807 A.2d 838, 842 843 (Pa. 2002); Commonwealth v. Lantzy, 736 A.2d 564, 569 Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa.Super. 2004) (citation

e cognizable under the PCRA, ____________________________________________

3 Where a person is contesting his conviction or sentence based on the ineffective assistance of counsel, premised on advice relative to a collateral consequence, he is not actually seeking direct relief from that collateral consequence. Rather, he is seeking relief on his underlying conviction, which indirectly would affect the collateral consequence in question. For example, a defendant who loses his firearm rights as a result of a conviction is not directly seeking to restore his firearm rights when he asserts counsel was ineffective for not informing him of this consequence. Instead, the defendant is seeking relief from his actual conviction. Phrased differently, a defendant cannot petition the court to reinstate his firearm rights via a PCRA petition, but he can challenge his conviction, though he will not be entitled to relief. Commonwealth v. Abraham, 62 A.3d 343 (Pa. 2012).

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the common law and statutory remedies now subsumed by the PCRA are not

Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001).4

When examining whether a claim is cognizable under the PCRA, our Supreme Court has looked only to three requirements. First, the petitioner must be convicted of a crime under the laws of this Commonwealth. See In the Interest of A.P., 617 A.2d 764 (Pa.Super. 1992), affirmed, 639 A.2d 1181 (Pa. 1994) (claim not cognizable under the PCRA because juvenile was not convicted of a crime but was rather adjudicated delinquent). Second, enumerated reasons set forth in the PCRA. See Commonwealth v. Judge, 916 A.2d 511, 518 (Pa. 2007) (claim not cognizable under the PCRA because circumstances, the petitioner must be serving a period of imprisonment, probation, and/or parole to permit the filing of a PCRA petition. See ____________________________________________

4 Our Supreme Court resulted in some confusion. In some situations, like the one in the case at bar, our High Court has used the term to refer to a claim being encompassed by the PCRA. In other situations, the Court has used the term to refer to a petitioner being entitled to relief on a claim. For example, it has held that previously litigated and waived claims are not cognizable, however, this obviously does not mean that such claims can be brought outside the PCRA. Thus, it is necessary to examine the context in which our Supreme Court used the term to determine its meaning.

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Commonwealth v. Stock, 679 A.2d 760, 761 (Pa. 1996) (claim not cognizable under the PCRA because the defendant was only sentenced to pay a fine).

If all three requirements are present, our Supreme Court has consistently concluded that the claim is cognizable under the PCRA and, therefore, common law remedies are not available to the petitioner. Our Supreme Court does not consider the underlying merit of a particular claim in determining whether a claim is cognizable under the PCRA. Thus, the scope of cognizable claims under the PCRA extends far beyond meritorious claims. See Commonwealth v. West, 938 A.2d 1034, 1044 (Pa. 2007) ( range of claims for which a petitioner is no longer eligible for relief. Cf. Commonwealth v. Matin, 832 A.2d 1141, 1142 1143 (Pa.Super. 2003) petitioner was ineligible for relief because he was no longer serving a sentence).5 ____________________________________________

5 Under the PCRA, even a petitioner with a meritorious retroactive claim would not be entitled to relief if he fails to bring his claim within 60 days of the new ruling. See 42 Pa.C.S. § 9545 (b)(2). This is further proof that, given the importance accorded to statutory deadlines and eligibility requirements under the PCRA, the merit of a particular claim, in and of itself, plays little dispositive role in determining whether a claim for collateral relief may proceed.

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In short, a claim is cognizable under the PCRA if it contests the effectiveness of counsel during the plea process, trial, sentencing, appeal, or PCRA review. 42 Pa.C.S. § 9543. Concomitantly, a person who can no longer file a timely petition or who is no longer serving a sentence is conviction, or the effectiveness of counsel, he cannot achieve a different form of collateral relief. See Turner, supra; Commonwealth v. Ahlborn, 699 A.2d 718 (Pa. 1997); Commonwealth v. Williams, 977 A.2d 1174 (Pa.Super. 2009); Pagan, supra; Commonwealth v. Hayes, 596 A.2d 195 (Pa.Super. 1991) (en banc).

An ineffectiveness claim pertaining to deportation can be pursued under the PCRA statute because all constitutional ineffectiveness claims are cognizable under the PCRA. Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126 (Pa. 2001); see also Commonwealth v. Escobar, 70 A.3d 838 (Pa.Super. 2013) (defendant sentenced post-Padilla and raising deportation ineffectiveness claim in PCRA); Commonwealth v. McDermitt, 66 A.3d 810 (Pa.Super. 2013) (addressing within PCRA a deportation ineffectiveness claim where defendant pled guilty and was sentenced pre-Padilla); Commonwealth v. Ghisoiu, 63 A.3d 1272 (Pa.Super. 2013) (deportation ineffectiveness claim cognizable under PCRA where defendant pled guilty pre-Padilla and sentenced post-Padilla);

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Commonwealth v. Wah, 42 A.3d 335 (Pa.Super. 2012) (deportation ineffectiveness claim addressed in PCRA context where defendant pled and was sentenced post-Padilla); Commonwealth v. Garcia, 23 A.3d 1059 (Pa.Super. 2011) (defendant sentenced pre-Padilla and raised deportation ineffectiveness claim in PCRA petition, which was considered untimely).6

Indeed, even in Commonwealth v. Frometa, 555 A.2d 92 (Pa. 1989), abrogated by Padilla, supra, our Supreme Court did not find that the deportation ineffectiveness claim therein was not cognizable. Rather, the court determined that the person was not entitled to relief because counsel could not be ineffective for not advising his client about a collateral consequence of his plea. See also Commonwealth v. Abraham, 62 A.3d 343 (Pa. 2012) (ruling that collateral consequence doctrine still applies outside of deportation and concluding that counsel was not ineffective for ____________________________________________ 6

separate analyses for deportation ineffectiveness claims. Defendants sentenced post-Padilla who raise deportation ineffectiveness claims must raise the issue in a timely PCRA petition. A person still serving his sentence who was sentenced pre-Padilla must allege a deportation ineffectiveness claim in a PCRA petition. That petition must be timely without utilizing Padilla as a timeliness exception. Finally, defendants sentenced pre- Padilla, who are no longer serving a sentence, can raise a deportation ineffectiveness issue via coram nobis, but the defendant is not entitled to relief. This result ignores the legislative intent and original meaning of the PCRA statute and unnecessarily complicates the issue. Indeed, the majority fails to acknowledge the numerous cases in which this Court has treated a deportation ineffectiveness claim as cognizable under the PCRA.

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failing to advise his client about the loss of a pension as a result of his convictions, but not holding that ineffectiveness claim was non-cognizable).

Since all constitutional ineffectiveness claims relating to a conviction or the sentencing process can be entertained under the PCRA, see Goldberg, supra That Appellee is no longer serving a sentence and that he could not have achieved relief before his sentence expired does not result in a cognizable claim becoming non-cognizable, thereby allowing him to seek coram nobis relief. Such a finding is directly refuted by the PCRA statute.

The legislature was certainly aware at the time it passed the PCRA statute that coram nobis could apply to those not serving a sentence since this was established law. That it expressly provided that the PCRA subsumes coram nobis, and that one is ineligible for relief under the PCRA if no longer serving a sentence, unequivocally indicates that post-conviction claim were to be reviewed under the PCRA.

In Pagan, supra, this Court expressly addressed the issue of whether coram nobis was available as a remedy outside the PCRA where the petitioner was no longer serving his sentence. We noted that the statute states that a person is ineligible for PCRA relief if he is not currently serving a sentence for the crime in question or serving a sentence that must expire before the petitioner begins serving his disputed sentence. 42 Pa.C.S.

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§ 9543(a)(1)(i), (iii). We held that where the underlying substantive claim is encompassed by the PCRA, i.e., cognizable, coram nobis will not lie.

Ahlborn, supra collateral consequences flowing from a conviction will not provide the

Pagan, supra at 1233. Here, Appellee was no longer serving his one-year probationary sentence at the time he filed his petition. Thus, by its plain terms, Appellee was not eligible for PCRA relief. Ahlborn, supra; Hayes, supra; Williams, supra; Matin, supra; Commonwealth v. Fisher, 703 A.2d 714 (Pa.Super. 1997).7 ____________________________________________

7 A petitioner also must timely file a PCRA petition in order to be eligible for PCRA relief. The fact that a petitioner can no longer timely file a PCRA petition does not automatically mean that he may seek collateral relief via an alternative means; otherwise, the PCRA time-bar would prove meaningless. See Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998); Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013). Instantly, Appellee did not timely file his petition, but did allege a timeliness exception, namely, that the United States Supreme Court in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), established a new constitutional rule of law and held its

however, because the United States Supreme Court held in Chaidez v. United States, 133 S.Ct. 1103 (2013), that Padilla does not apply retroactively.

While Appellee accurately recognizes that this Court can grant broader retroactivity to a decision rendered by the United States Supreme Court, Danforth v. Minnesota, 552 U.S. 264 (2008); Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), this legal principle offers no comfort to

exception, the High Court that hands down the new rule must declare its decision retroactive. Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Footnote Continued Next Page)

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Recently, the Pennsylvania Supreme Court in Turner, supra, rejected an as-applied due process challenge to the PCRA statutory requirement that the defendant be serving her sentence at the time relief is granted. It also

coram nobis relief. In Turner, the defendant filed a timely petition. However, her two-year probationary sentence expired before the PCRA court awarded her a new trial. The PCRA court determined that to deny relief violated due process. The Supreme Court reversed, concluding that she could have sought relief on direct appeal via the Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003) exception.

claim was cognizable under the PCRA and that she could not seek relief outside the statute. The Turner Court noted that coram nobis was not available since ineffectiveness claims

_______________________ (Footnote Continued)

(Pa. 2002). Thus, Appellee is not entitled to PCRA relief because the PCRA court lacked jurisdiction to afford relief. See Taylor, supra.

In this respect, however, the majority does not confront the fact that, outside of the PCRA arena, this Court may grant broader retroactive effect to a decision of the United States Supreme Court. By deciding that coram nobis applies, the majority opens the door to potential retroactive application of Padilla, irrespective of Chaidez. Hence, it is legally erroneous for the majority to say that Chaidez is binding on the issue of retroactivity once it determines that the PCRA is inapplicable. Indeed, retroactivity is not a constitutional issue and is grounded in state law. See Danforth, supra. It

States Supreme Court retroactivity decision would control. The majority neglects to discuss why, once it decided that the PCRA is inapplicable, Padilla is not retroactive under state retroactivity principles. As recently as Cunningham, supra, our Supreme Court has noted that federal retroactivity analysis may be ill-fitting for purposes of state collateral review.

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are cognizable under the PCRA and do not fit within the purview of coram nobis. Compare Commonwealth v. Brown, 943 A.2d 264, 277 (Pa. 2008) (Baer, J., dissenting).

Simply put, so long as the issue could have been leveled in a PCRA petition, i.e., an ineffectiveness claim, the person is foreclosed from seeking relief via a common law writ, even though PCRA relief is no longer available or the person was not entitled to a remedy under the statute. Cf. Pagan, supra at 1233. I recognize that this case does not present a typical ineffectiveness claim and implicates additional concerns involving Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), and Commonwealth

, 880 A.2d 597 (Pa. 2005). While those concerns have subsequently been ameliorated by Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), that decision could not have benefited Appellee. him to be able to pursue PCRA relief in a timely fashion. First, as court sentenced Appellee a Grant, supra, any ineffectiveness claim likely had to be deferred until PCRA review. But see Bomar, supra; see also Turner, supra. Nevertheless, his short sentence virtually ensured that he would be ineligible for PCRA relief. Moreover, the Supreme Court in , supra, expressly declined to allow

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a short sentence exception to Grant and permit defendants to raise ineffectiveness claims on direct appeal.

Further, while Appellee could have sought review under Bomar at the time of his conviction, the governing precedent in this Commonwealth was Frometa, supra. That decision precluded finding plea counsel ineffective based on failing to inform a client about potential deportation consequences. However, presenting a claim and being able to achieve relief are distinct. for relief and the lack of entitlement to a remedy under the PCRA with the cognizability of his ineffectiveness issue. Obviously, the fact that a person wishing to challenge his conviction is no longer serving a sentence or cannot timely file a PCRA petition does not render his underlying claims non-cognizable. See Turner, supra; Ahlborn, supra; Pagan, supra; Hall, supra, at 1235. In addition, simply because the ineffectiveness claim would have been meritless at the time it was raised does not translate into the issue becoming non-cognizable. Indeed, if this were the case, then countless ineffectiveness claims that are raised in PCRA petitions would be able to be raised in a coram nobis petition.

Phrased differently, although Frometa would have precluded relief on petition, that does not mean he could not have advanced this claim under the PCRA. I provide an example to illustrate. Currently, counsel cannot be

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ineffective for failing to present a diminished capacity defense where the defendant asserts he is innocent. Commonwealth v. Gibson, 951 A.2d 1110 (Pa. 2008). That fact does not mean that a defendant can raise the issue outside the PCRA because it would not entitle him to a remedy. Since conviction, post-conviction relief must be sought via the PCRA. Cf. Commonwealth v. Chester, 733 A.2d 1242, 1251 (Pa. 1999), abrogated on other ground by Grant, supra cognizable under the PCRA they will be addressed solely within the context of the PCRA, and any remedy to be afforded petitioner must be within the

Our Supreme Court has never permitted extra-PCRA review of claims that were non-meritorious when the petitioner was eligible for PCRA relief but which became meritorious at a later date. Instead, such claims must be reviewed under the PCRA framework. Accordingly, the fact that Appellee could not present a meritorious claim when he was eligible for relief does not mean that his claim falls outside of the PCRA. In this case, Appellee was convicted of crimes under the laws of this Commonwealth. His claim - then and now - has always been one of the seven enumerated claims set forth in the PCRA, i.e., ineffective assistance of counsel. See 42 Pa.C.S. § 9543(a)(2)(ii); see also Escobar, supra; McDermitt, supra; Ghisoiu, supra; Wah, supra

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of imprisonment, probation or parole for the crime; (ii) awaiting execution of a sentence of death for the crime; or (iii) serving a sentence which must Pa.C.S. § 9543(a)(1)(i-iii). Accordingly, he is no longer eligible for relief under the PCRA.8 Id.

This construction is consistent with both our Supreme Court and the

Hall, supra at 1235 (internal quotation marks an to a bifurcated system of post-conviction review, in which certain claims for relief are considered under the PCRA, while other claims for relief are

Id. at 1235-1236 (internal quotation marks and citation omitted). Our Supreme Court has rebuked attempts by this Court to permit such bifurcated review. See id. entitled to seek collateral relief outside the PCRA because a subsequent change in the law recognized the validity of his ineffective assistance claim, is flawed when examined under the guise of the PCRA and erects the very

type of bifurcated review which our Supreme Court has previously forbidden. ____________________________________________

8 deportation is frivolous.

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Consider an example in which the Supreme Court of the United States or Pennsylvania adopts a new rule of constitutional law that is deemed worthy of retroactive application. A petitioner benefitting from the new decision comes forward with a claim for collateral relief. In such a case, the ensuing change in the legal landscape would permit an otherwise time-barred PCRA claim so long as the petitioner requests relief within 60 days of the new opinion. See 42 Pa.C.S. §§ 9545(b)(1)(iii), 9545(b)(2). Nevertheless, the petitioner would be ineligible for PCRA relief if he were no longer serving a sentence. See 42 Pa.C.S. § 9543(a)(1)(i-iii). In these circumstances, the notwithstanding the recently bolstered merit of his contentions.

By allowing Appellee to pursue coram nobis relief outside of the PCRA,

-conviction options in a situation where his ineffective assistance claim is untimely and he is ineligible for PCRA relief because he is no longer serving a sentence. In

eligibility requirements of the PCRA and thus represents an unwarranted 9 departure fro

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9 While in this case the majority decision does not result in Appellee being handed a classic Pyrrhic victory, id est, a victory obtained at such a cost that it outweighs the benefit , __ A.3d __, __ (Pa. 2014) (filed August 18, 2014) (Castille, C.J., concurring). Thus, the (Footnote Continued Next Page)

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I pronouncements, the PCRA process is the sole means of collaterally contesting a conviction by raising ineffectiveness issues, including matters relating to deportation. Turner, supra; Hall, supra Assembly intended that claims that could be brought under the PCRA must

Ahlborn, supra at 720-721; Haun, supra at 699 sole original)); see also Pagan, supra at 1233 coram nobis relief does not become available merely because the PCRA refuses to remedy a petitioner's grievance; rather, we look at the claims original); cf. Hayes, supra at 199 conviction relief under the PCRA to individuals who at the time of filing for PCRA relief are serving a sentence of imprisonment, probation or parole for a conviction, regardless of the collateral criminal consequences from the

In sum, the majority decision creates bifurcated review, and, by conflating a lack of entitlement to relief with cognizability, unnecessarily expands coram nobis

_______________________ (Footnote Continued)

Commonwealth, though winning this case, actually is an aggrieved party. See Commonwealth v. Robinson, 837 A.2d 1157, 1160-61 & n.7 (Pa. 2003).

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case does not fit within the narrow parameters of coram nobis, and since he was not entitled to PCRA relief because he was no longer serving his sentence and his petition was untimely, I agree that the court below erred.

Judge Olson joins the Concurring and Dissenting Opinion.

Judge Donohue Concurs in the Result in the Concurring and Dissenting Opinion.

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