J-S79019-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT J. DUNSTON
Appellant No. 3293 EDA 2013
Appeal from the PCRA Order November 8, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1200471-2005
BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 08, 2015
Appellant, Robert J. Dunston, appeals from the order entered on
November 8, 2013, dismissing his first petition filed under the Post-
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court has ably summarized the underlying facts and
procedural posture of this case. As the PCRA court explained:
[M.A. was born in 1985. In 1991, M.A.] was a foster child
and was placed in the home of Appellant’s mother, Vendetta
Stephens. Eventually the family [moved to a home in
Philadelphia, where M.A.] lived with Stephens, her sons
[(Appellant and Sherrod)], and two other foster children.
[M.A.] testified that when she was ten [] years old,
Stephens took Sherrod to a show, leaving Appellant to
watch over [M.A.] and the other two foster children. On
that occasion, Appellant took [M.A.] into his room and told
her that they were going to play a game and that [M.A.]
could not tell anyone about it. He then instructed her to lie
on the floor and not move, whereupon he pulled [M.A.’s]
pants down, put his penis between her thighs, and
ejaculated. [M.A.] testified that Appellant repeated this act
*Retired Senior Judge assigned to the Superior Court.
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approximately [ten] times between the time she was ten []
and [11] years old. She [testified] that while the family was
asleep, Appellant came into her room she shared with the
other foster child, picked her up, and carried her to his
bedroom where he repeated his assault. . . .
[M.A.] testified that at age [12,] Appellant began inserting
his penis into her vagina. She [testified] that Appellant
repeated a similar pattern of awakening her at night,
carrying her downstairs, either to his bedroom or to the
basement, placing her onto the bed or on the floor, and
putting his penis into her vagina. She further [testified]
that there were occasions when Appellant inserted his penis
into her vagina [that Appellant] would ask that she grab his
scrotum. [Appellant] also asked that she suck his nipples. .
..
[M.A.] described another occasion after a fire occurred at
the family home necessitating [that the family] relocate[] to
the Adams Mark Hotel for three months. There, Appellant
took [M.A.] to his room, pulled her onto the bed, and
inserted his penis into her vagina. . . .
[M.A. testified] that Appellant penetrated her vagina with
his penis from [the time she was 12 years old] until the
time she left foster care [at 13 years of age]. [M.A.
testified] that she did not report the incidents to Appellant’s
mother because she was afraid that she would not be
believed and [that] Appellant’s mother would believe
Appellant. She testified that she did not report [the abuse]
to her teacher because she felt shame.
[M.A.] left the [Stephens’] home in December [] 1998 and
went to live with her mother. Shortly thereafter, when
[M.A.] was approximately 15 years old, she reported the
incidents to her mother. [M.A.] later told her boyfriend . . .
of the incidents, and . . . , in 2005, [M.A.], then 19 years
old, reported [the abuse] to the police.
...
[In September 2005,] Appellant was arrested and charged
with rape and related offenses. On February 29, 2008,
following a jury trial [where Appellant was represented by
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Gerald Ingram, Esquire (hereinafter “Attorney Ingram”)], . .
. Appellant was found guilty of [rape by forcible compulsion,
indecent assault, endangering the welfare of a child, and
corruption of minors][1] and[,] on January 16, 2009[,
Appellant] was sentenced to [serve] a term of [six-and-one-
half to 13 years in prison].
...
On February 13, 2009[,] the [trial c]ourt granted [Attorney
Ingram’s] motion to withdraw and[, on February 20, 2009,]
new counsel was [] appointed. [New counsel was Salvator
Adamo, Esquire (hereinafter “Attorney Adamo”). In the trial
court’s appointment order, the trial court declared that
Appellant’s appeal rights had been reinstated and that
Attorney Adamo had 30 days from the date he was
appointed to file a notice of appeal]. No notice of appeal
was filed.
On April 27, 2011[, Attorney Adamo] filed the instant
[PCRA] petition . . . alleging [that he was ineffective] for
failing to file a direct appeal [on Appellant’s behalf]. [New]
PCRA counsel was [] appointed and[,] on May 1, 2012[,
PCRA counsel filed an amended] PCRA petition. [Within
Appellant’s PCRA petition, Appellant claimed that Attorney
Adamo was ineffective for failing to file a direct appeal on
his behalf. Further, with respect to the issue of the
timeliness of Appellant’s PCRA petition, Appellant claimed
that he first learned that Attorney Adamo failed to file a
direct appeal on April 27, 2011 – when Attorney Adamo
filed a PCRA petition and “asserted his own ineffectiveness
for failing to file a timely notice of appeal.”]
PCRA Court Opinion, 4/29/14, at 1-3 (internal citations omitted) (some
internal capitalization omitted).
____________________________________________
1
18 Pa.C.S.A. §§ 3121(a)(1), 3126(a)(7), 4304(a), and 6301(a),
respectively.
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On April 15, 2013, the PCRA court held a hearing on Appellant’s PCRA
petition. The hearing was limited in scope and was focused upon the issue
of whether Appellant’s PCRA petition was timely.
During the PCRA hearing, Attorney Adamo testified that – although he
did not file a direct appeal on Appellant’s behalf – Appellant knew, in April
2009, that a notice of appeal had not been filed in his case.2 Attorney
Adamo testified:
Q: Now, [Attorney] Adamo, at some point in time did you
become aware that while you were working on this appeal
there had, in fact, never been a notice of appeal filed within
the required 30 days?
A: Yes. I became aware April 19th 2011[,] when I received
a letter from the disciplinary board. And at that point in
time I learned that a notice of appeal wasn’t filed. I also
learned in the disciplinary complaint that [Appellant] was
aware that [the] notice of appeal wasn’t filed in April, 2009,
approximately two months after my appointment.
...
Q: Once you received this letter that [Appellant] had
contacted the disciplinary board, and as a result they
contacted you, laid out a history of the case which included
the fact that [Appellant] ha[d] been notified by a letter as
early as April 22nd of 2009, that is, approximately four
months after he was sentenced, that no direct appeal ha[d]
been filed, what, if any, action did you take?
A: I filed a PCRA [petition] trying to get his appellate rights
reinstated and a motion to withdraw.
____________________________________________
2
Again, Attorney Adamo was appointed on February 20, 2009 – 34 days
after Appellant was sentenced in the matter.
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...
Q: [Are] there any other circumstances surrounding your
representation of [Appellant] in filing his PCRA [petition]
that you think needs to be brought to the [PCRA c]ourt’s
attention?
A: Had [Appellant] advised me when he became aware in
April 2009 that a notice of appeal wasn’t filed, I would have
filed a PCRA [petition] to have the appellate rights
reinstated. There’s no question about that. Within a year.
He sat back on his hands and then filed this grievance, and
it’s dumbfounding. Because it’s common knowledge in
prison that you have to file a notice of appeal to have your
appeal go forward.
N.T. PCRA Hearing, 4/15/13, at 13-15.
On November 8, 2013, the PCRA court dismissed Appellant’s PCRA
petition, because the petition was untimely and did not satisfy any of the
statutory exceptions to the one-year time-bar. Trial Court Order, 11/8/13,
at 1; see also Trial Court Order, 10/1/13, at 1. Appellant filed a notice of
appeal and now raises the following claim to this Court:
The PCRA court erred by denying [Appellant] PCRA relief
and he is entitled to file an appeal nunc pro tunc because
[Appellant’s] amended PCRA petition is not untimely, the
PCRA court had jurisdiction to decide this amended PCRA
petition and [Appellant] is entitled to an exception to the
one year filing requirement pursuant to 42 Pa.C.S.A.
§ 9545(b)(1)(ii).
Appellant’s Brief at 3.
We conclude that the PCRA court properly dismissed Appellant’s
untimely PCRA petition.
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As our Supreme Court has held, we “review an order granting or
denying PCRA relief to determine whether the PCRA court’s decision is
supported by evidence of record and whether its decision is free from legal
error.” Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003).
The PCRA contains a jurisdictional time-bar, which is subject to limited
statutory exceptions. This time-bar demands that “any PCRA petition,
including a second or subsequent petition, [] be filed within one year of the
date that the petitioner’s judgment of sentence becomes final, unless [the]
petitioner pleads [and] proves that one of the [three] exceptions to the
timeliness requirement . . . is applicable.” Commonwealth v. McKeever,
947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further,
since the time-bar implicates the subject matter jurisdiction of our courts,
we are required to first determine the timeliness of a petition before we
consider the underlying claims. Commonwealth v. Yarris, 731 A.2d 581,
586 (Pa. 1999). Our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. See, e.g.,
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
(stating that “given the fact that the PCRA's timeliness
requirements are mandatory and jurisdictional in nature, no
court may properly disregard or alter them in order to reach
the merits of the claims raised in a PCRA petition that is
filed in an untimely manner”); Commonwealth v. Fahy,
737 A.2d 214, 220 (Pa. 1999) (holding that where a
petitioner fails to satisfy the PCRA time requirements, this
Court has no jurisdiction to entertain the petition). [The
Pennsylvania Supreme Court has] also held that even where
the PCRA court does not address the applicability of the
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PCRA timing mandate, th[e court would] consider the issue
sua sponte, as it is a threshold question implicating our
subject matter jurisdiction and ability to grant the requested
relief.
Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).
In the case at bar, Appellant’s judgment of sentence became final on
March 23, 2009, which was 31 days after Appellant’s direct appeal rights
were reinstated and the court-ordered time for filing a notice of appeal to
this Court expired. See Trial Court Order, 2/13/09, at 1 (“[Appellant’s]
appeal rights . . . are reinstated . . . and [] appellate counsel [must] file
notice of appeal in this court within [30] days from the date of his/her
appointment”) (internal capitalization omitted); Docket Entry, 2/20/09, at 1
(entry of appearance by Attorney Adamo). Appellant then had until March
23, 2010 to file a timely PCRA petition. 42 Pa.C.S.A. § 9545(b). As
Appellant did not file his current petition until April 27, 2011, the current
petition is facially untimely and the burden thus fell upon Appellant to plead
and prove that one of the enumerated exceptions to the one-year time-bar
applied to his case. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to properly invoke a
statutory exception to the one-year time-bar, the PCRA demands that the
petitioner properly plead all required elements of the relied-upon exception).
Here, Appellant claims that he invoked the “after-discovered facts”
exception to the time-bar. This statutory exception provides:
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
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date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
...
(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[.]
...
(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.
42 Pa.C.S.A. § 9545(b).
The PCRA’s after-discovered facts exception permits the filing of a
petition outside of the one-year time-bar if the petitioner pleads and proves
that 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.” 42 Pa.C.S.A. § 9545(b)(1)(ii). Our Supreme Court has explained
that the after-discovered facts exception “does not require any merits
analysis of the underlying claim. Rather, the exception merely requires that
the ‘facts’ upon which such a claim is predicated must not have been known
to appellant, nor could they have been ascertained by due diligence.”
Commonwealth v. Bennett, 930 A.2d 1264, 1271 (Pa. 2007) (internal
quotations and citation omitted), quoting Commonwealth v. Lambert, 884
A.2d 848, 852 (Pa. 2005).
Within Appellant’s PCRA petition, Appellant claimed that Attorney
Adamo was ineffective for failing to file a direct appeal on his behalf.
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Further, according to Appellant, his PCRA petition satisfies the “after-
discovered facts” exception to the one-year time-bar because it was not until
April 27, 2011 that he first learned Attorney Adamo had failed to file the
notice of appeal. See Appellant’s Brief at 24. Therefore, according to
Appellant, since he filed his PCRA petition on April 27, 2011, his petition is
timely under 42 Pa.C.S.A. § 9545(b)(1)(ii). Id.
Appellant’s claim fails, as it is belied by the record. Indeed, Attorney
Adamo specifically testified that Appellant “became aware in April 2009
that a notice of appeal wasn’t filed” – and that Appellant failed to take any
action on this knowledge until 2011. N.T. PCRA Hearing, 4/15/13, at 13-15
(emphasis added). The PCRA court dismissed Appellant’s PCRA petition as
untimely and, thus, credited Attorney Adamo’s PCRA hearing testimony.
Trial Court Order, 11/8/13, at 1; see also Trial Court Order, 10/1/13, at 1.
Therefore, since Appellant knew, in April 2009, of the facts upon which
he bases his ineffective assistance of counsel claim – and since Appellant did
not file his PCRA petition until April 2011 – Appellant’s attempt to satisfy the
PCRA’s “after-discovered facts” exception fails.
In conclusion, Appellant has failed to prove a valid exception to the
PCRA’s one-year time-bar. As such, Appellant’s petition is time-barred and
our “courts are without jurisdiction to offer [Appellant] any form of relief.”
Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). We
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thus affirm the PCRA court’s order, dismissing Appellant’s PCRA petition as
untimely.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/2015
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