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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KURT MICHAEL DANYSH, : No. 1068 MDA 2016
:
Appellant :
Appeal from the Order Entered May 31, 2016,
in the Court of Common Pleas of Susquehanna County
Criminal Division at No. CP-58-CR-0000132-1996
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 27, 2017
Kurt Michael Danysh appeals pro se from the PCRA court’s May 31,
2016 order indicating that it lacked jurisdiction to grant or deny his
January 15, 2010 “Motion for Modification of Sentence (nunc pro tunc) on
Ground of After-Discovered Evidence,” and his subsequent March 30, 2015
“Addendum” thereto. Appellant was sentenced on November 20, 1997, and
his filing was, in actuality, an untimely serial petition brought under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.1 After careful
review, we affirm.
* Former Justice specially assigned to the Superior Court.
1
Pennsylvania courts have consistently held that “the PCRA is intended to be
the sole means of achieving post-conviction relief.” Commonwealth v.
Taylor, 65 A.3d 462, 465 (Pa.Super. 2013). See also Commonwealth v.
Jackson, 30 A.3d 516, 521 (Pa.Super. 2011), appeal denied, 47 A.3d 845
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The relevant facts and extensive procedural history of this case were
summarized by a prior panel of this court, and need not be reiterated here.
See Commonwealth v. Danysh, 988 A.2d 717 (Pa.Super. 2009)
(unpublished memorandum at 1-3). In sum, on October 9, 1997, appellant
entered a negotiated guilty plea to third-degree murder2 after he admitted to
shooting his father in the back of the head and stealing $31 from him. The
trial court sentenced appellant on November 20, 1997, to an aggregate term
of 22½ to 60 years’ imprisonment. On April 7, 1999, a panel of this court
affirmed appellant’s judgment of sentence, and appellant did not file a
petition for allowance of appeal with our supreme court. See
Commonwealth v. Danysh, 738 A.2d 1049 (Pa.Super. 1999) (unpublished
memorandum).
Thereafter, appellant embarked on what this court characterized as “a
decade long odyssey in pursuit of post-sentence relief, pro se as well as
counseled.” See Commonwealth v. Danysh, 113 A.3d 341 (Pa.Super.
2014), appeal denied, 632 Pa. 668 (Pa. 2015) (unpublished memorandum
(Pa. 2012) (stating that, “any petition filed after the judgment of sentence
becomes final will be treated as a PCRA petition[]”); Commonwealth v.
Grafton, 928 A.2d 1112, 1114-1115 (Pa.Super. 2007) (holding that motion
to modify sentence was appropriately reviewed as a PCRA petition);
Commonwealth v. Evans, 866 A.2d 442, 443-444 (Pa.Super. 2005)
(holding that under certain circumstances, an untimely post-sentence motion
may be considered a PCRA petition).
2
18 Pa.C.S.A. § 2502(c). The record reflects that appellant also entered an
open guilty plea to one count of robbery, 18 Pa.C.S.A. § 3701.
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at 2.) Ultimately, on May 31, 2016, the PCRA court entered an order that
indicated that it was without jurisdiction to grant or deny relief on appellant’s
motion to modify his sentence, and effectively disposed of the instant serial
petition. Appellant filed a timely pro se notice of appeal from this order on
June 30, 2016. The PCRA court did not order appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). On September 21, 2016, the PCRA court filed a
three-page “Statement in Lieu of an Opinion,” concluding that appellant’s
PCRA petition was untimely and that it “is without jurisdiction to either grant
or deny [appellant’s] Motion for Modification of Sentence (Nunc Pro Tunc)
on Ground of After-Discovered Evidence.” (PCRA court “Statement in Lieu of
an Opinion,” 9/21/16 at 3.)3
On appeal, appellant challenges the PCRA court’s determination that it
lacked jurisdiction to address his January 15, 2010 motion to modify his
sentence and subsequent March 30, 2015 addendum to said motion.
(Appellant’s brief at 2.) Appellant contends that he is entitled to an
exception to the PCRA time-bar on the basis of after-discovered evidence;
namely, that pharmaceutical company Eli Lilly concealed that one of the side
effects of Prozac was aggressive and violent behavior. (Id. at 10.)
Appellant maintains that his sentence should be modified based on this
3
We note that the PCRA court’s September 21, 2016 “Statement in Lieu of
an Opinion” does not contain pagination; however, for the ease of our
discussion, we have assigned each page a corresponding number.
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after-discovered mitigating evidence. (Id. at 11-14.) For the following
reasons, we disagree.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in
the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.
2014) (citations omitted). “This Court grants great deference to the findings
of the PCRA court, and we will not disturb those findings merely because the
record could support a contrary holding.” Commonwealth v. Hickman,
799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).
Initially, our review of appellant’s petition reveals that he has failed to
raise a cognizable claim under the PCRA. In order to be eligible for PCRA
relief, a defendant must plead and prove by a preponderance of the
evidence that his conviction or sentence arose from one or more of the
errors set forth in 42 Pa.C.S.A. § 9543(a)(2)(i)-(viii).
Instantly, appellant’s allegations concerning the court’s purported
refusal to modify his sentence based on after-discovered mitigating evidence
does not fall within any of the cognizable bases for relief under
Section 9543(a)(2) of the PCRA. See Commonwealth v. Fowler, 930 A.2d
586, 593 (Pa.Super. 2007), appeal denied, 944 A.2d 756 (Pa. 2008)
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(holding that challenges to the discretionary aspects of a sentence, such as
those presented here, are not cognizable under the PCRA). Nor does
appellant challenge the legality of his sentence or contend that the sentence
imposed exceeded the lawful maximum. Accordingly, we agree that the
PCRA court is without jurisdiction in this matter.
Additionally, even if appellant had raised a legality of sentence claim, it
would still have to be brought in a timely PCRA petition. See
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (although legality
of sentence is always subject to review within PCRA, claims must still first
satisfy the PCRA’s time limits or a statutory exception).
All PCRA petitions, including second and subsequent petitions, must be
filed within one year of when a defendant’s judgment of sentence becomes
final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of the time for seeking the review.” Id. § 9545(b)(3). If a PCRA
petition is untimely, a court lacks jurisdiction over the petition.
Commonwealth v. Callahan, 101 A.3d 118, 120-121 (Pa.Super. 2014).
Here, it is undisputed that appellant’s instant petition is patently
untimely. As noted, appellant was sentenced to an aggregate term of 22½
to 60 years’ imprisonment on November 20, 1997. On April 7, 1999, a
panel of this court affirmed appellant’s judgment of sentence. See
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Commonwealth v. Danysh, 738 A.2d 1049 (Pa.Super. 1999) (unpublished
memorandum). Thus, appellant’s judgment of sentence became final on
May 7, 1999, 30 days after this court affirmed the judgment of sentence,
and appellant failed to seek leave to appeal to the Pennsylvania Supreme
Court. See Pa.R.A.P. 1113(a); 42 Pa.C.S.A. § 9545(b) (providing “a
judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review[]”). Appellant filed the instant serial PCRA petition on January 15,
2010, and amended it on March 30, 2015. As a result, the PCRA court
lacked jurisdiction to review appellant’s petition, unless appellant alleged
and proved one of the statutory exceptions to the time bar, as set forth in
Section 9545(b)(1). See Commonwealth v. Lawson, 90 A.3d 1, 5
(Pa.Super. 2014).
The three exceptions to the PCRA time-bar are as follows:
“(1) interference by government officials in the presentation of the claim;
(2) newly discovered facts; and (3) an after-recognized constitutional right.”
Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012),
citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Appellant bears the burden of
pleading and proving the applicability of any exception. 42 Pa.C.S.A.
§ 9545(b)(1). In addition, a petition invoking any of the timeliness
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exceptions must be filed within 60 days of the date the claim first could have
been presented. Id. § 9545(b)(2).
Here, our review of the record reveals that appellant failed to present
his “after-discovered evidence” exception within 60 days of the date the
claim could have been presented. Appellant acknowledges that he became
aware of the possible violent side effects of Prozac as early as January 5,
2005, and therefore, he was required to raise this claim within 60 days of
that date. See 42 Pa.C.S.A. § 9545(b)(2); see also “Motion for Modification
of Sentence (nunc pro tunc) on Ground of After-Discovered Evidence,”
1/15/10; appellant’s brief at 20. He failed to do so. Accordingly, appellant’s
claim, even if cognizable under the PCRA, would be waived.
For all of the foregoing reasons, we find that the PCRA court lacked
jurisdiction to consider the merits of appellant’s petition. Accordingly, we
affirm the May 31, 2016 order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2017
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