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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
TOREY DOBBIN, : No. 199 MDA 2017
:
Appellant :
Appeal from the PCRA Order, December 28, 2016,
in the Court of Common Pleas of Dauphin County
Criminal Division at Nos. CP-22-CR-0000041-1998,
CP-22-CR-0003983-1997, CP-22-CR-0003984-1997
BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 25, 2017
Torey Dobbin appeals from the December 28, 2016 order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
After careful review, we affirm.
The PCRA court summarized the relevant facts and procedural history
of this case as follows:
[Appellant] pled guilty pursuant to a plea
agreement before th[e trial c]ourt on April 13, 1998.
The guilty plea involved three criminal dockets
[(CP-22-CR-3984-1997, CP-22-CR-3983-1997, and
CP-22-CR-41-1998)] and [appellant] was
subsequently sentenced to seven and one-half (7½)
to twenty (20) years of imprisonment. On June 23,
1 42 Pa.C.S.A. §§ 9541-9546.
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1998, [appellant] was sentenced in Cumberland
County on similar charges.[2]
Years later, [appellant] incurred new charges
for robbery and was sentenced in federal court in
September of 2014. In March of 2015, [appellant]
received an enhanced sentence from the federal
court due to his prior convictions from armed
robbery and burglary in Dauphin County and
Cumberland County. The Third Circuit Court of
Appeals affirmed [appellant’s] federal sentence on
December 4, 2015.
[On May 20, 2015, appellant filed a pro se
PCRA petition and Christopher Wilson, Esquire
(“PCRA counsel”) was appointed to represent him on
June 1, 2015.] On December 2[4], 2015, [PCRA
counsel] filed a [supplemental] PCRA petition on
[appellant’s] behalf alleging that [appellant’s] trial
counsel, Brian Walk, Esquire [(hereinafter, “trial
counsel”)], was ineffective for not seeking to have
[appellant] sentenced on the same day in Dauphin
County and Cumberland County to avoid future
consequences in federal court.
PCRA court opinion, 12/28/16 at 1.
On May 10, 2016, the PCRA court conducted an evidentiary hearing on
appellant’s petition. Following the hearing, the PCRA court entered an order
on December 28, 2016 denying appellant’s petition. In the opinion
accompanying its December 28, 2016 order, the PCRA court noted that it
“questions the timeliness of [appellant’s petition]” but elected to dispose of
appellant’s ineffectiveness claims on the merits. (See id. at 5 n.3).
Appellant filed a timely notice of appeal on January 19, 2017. On
2 The record reflects that appellant did not file a direct appeal from his
judgment of sentence.
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January 26, 2017, the trial court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b), within 21 days. Appellant filed a timely Rule 1925(b)
statement on February 6, 2017. Thereafter, on April 24, 2017, the trial
court filed a one-page “memorandum statement in lieu of opinion” that
indicated that it was relying on the reasoning set forth in its December 28,
2016 opinion.
Appellant raises the following issues for our review:
1. Whether the PCRA Court erred by concluding
that the plea counsel was not ineffective in
[his] failure to coordinate sentences in two
different counties in a way to avoid federal
career offender status and in plea counsel’s
failure to advise [a]ppellant of the
consequences of his plea and immediate
sentencing?
2. Whether the PCRA Court erred by not vacating
the robbery conviction on docket 3984 CR
1997 when no transcript exists of the plea, and
when the evidence shows that the actual guilty
plea colloquy did not contain any robbery
charge[?]
Appellant’s brief at 3.
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
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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. Alderman,
811 A.2d 592, 594 (Pa.Super. 2002), appeal denied, 825 A.2d 1259 (Pa.
2003) (citation omitted). 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 listed in 42 Pa.C.S.A.
§ 9543(a)(2). Further, these issues must be neither previously litigated nor
waived. 42 Pa.C.S.A. § 9543(a)(3).
Preliminarily, we must consider the timeliness of appellant’s PCRA
petition because it implicates the jurisdiction of this court and the PCRA
court. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014)
(citation omitted).
To be timely, a PCRA petition must be filed within
one year of the date that the petitioner’s judgment
of sentence became final, unless the petition alleges
and the petitioner proves one or more of the
following statutory exceptions:
(i) the failure to raise the claim previously
was the result of interference by
government officials with the
presentation of the claim in violation of
the Constitution or laws of this
Commonwealth or the Constitution or
laws of the United States;
(ii) the facts upon which the claim is
predicated were unknown to the
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petitioner and could not have been
ascertained by the exercise of due
diligence; or
(iii) the right asserted is a constitutional right
that was recognized by the Supreme
Court of the United States or the
Supreme Court of Pennsylvania after the
time period provided in this section and
has been held by that court to apply
retroactively.
42 Pa.C.S.A. § 9545(b)(1).
Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008). “[A]n
untimely petition may be received when the petition alleges, and the
petitioner proves, that any of the three limited exceptions to the time for
filing the petition, set forth [in Section 9545] are met.” Lawson, 90 A.3d
at 5 (footnote omitted).
In the instant matter, appellant’s judgment of sentence became final
on July 23, 1998, 30 days after the trial court imposed sentence in
Cumberland County and when the time for filing a direct appeal with this
court expired. See 42 Pa.C.S.A. § 9545(b)(3) (stating, “[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[]”).
Therefore, in order to comply with the filing requirements of the PCRA,
appellant was required to file his petition by July 23, 1999. See
42 Pa.C.S.A. § 9545(b)(1) (stating that all PCRA petitions, including second
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and subsequent petitions, must be filed within one year of when a
defendant’s judgment of sentence becomes final). Appellant’s instant
petition was filed May 20, 2015, nearly 16 years past the deadline, and is
therefore patently untimely. As a result, the PCRA court lacked jurisdiction
to review appellant’s petition, unless appellant alleged and proved one of the
statutory exceptions set forth in Section 9545(b)(1).
Here, our review of the record in this matter reveals that appellant
failed to specifically invoke any of the statutory exceptions to the PCRA
time-bar. Notably, although appellant checked the Section 9545(b)(1)(ii)
“newly-discovered fact” exception box on his May 20, 2015 pro se PCRA
petition, he failed to make any argument whatsoever with regard to this
exception in his December 24, 2015 amended PCRA petition, his
Rule 1925(b) statement, or his appellate brief. (See certified record at
nos. 9, 20, 35.)
Rather, the crux of appellant’s argument on appeal is that his trial
counsel was ineffective in failing to ensure that appellant was sentenced in
both the Cumberland County and Dauphin County matters on the same date,
so as “to avoid federal career offender status[.]” (Appellant’s brief at 3, 11.)
Appellant further contends that the PCRA court erred in failing to vacate his
robbery conviction at CP-22-CR-3984-1997 on the basis that “no robbery
offense [was] found in the guilty plea colloquy.” (Id. at 8, 17.)
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Generally, claims of trial counsel ineffectiveness do not operate as an
independent exception to the one-year jurisdictional time-bar of the PCRA.
See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000)
(holding a claim of ineffective assistance of counsel does not save an
otherwise untimely petition for review on the merits); see also
Commonwealth v. Breakiron, 781 A.2d 94, 97 (Pa. 2001) (allegations of
ineffective assistance of counsel will not circumvent the timeliness
requirement of the PCRA). We recognize that in limited situations where
counsel’s ineffective assistance was tantamount to abandoning his client on
appeal, our supreme court has recognized that a petitioner’s discovery of
this ineffectiveness may form the basis for a claim under the “newly-
discovered fact” exception to the PCRA time-bar. See Commonwealth v.
Bennett, 930 A.2d 1264, 1272-1273 (Pa. 2007). Appellant, however, fails
to allege on appeal that trial counsel’s purported ineffectiveness constituted
an abandonment of counsel. “[I]t is the petitioner’s burden to plead in the
petition and prove that one of the exceptions applies.” Commonwealth v.
Crews, 863 A.2d 498, 501 (Pa. 2004) (citation omitted).
Having found that the instant petition was untimely filed and appellant
has failed to invoke any statutory exception to excuse that untimely filing,
we discern no error on the part of the PCRA court in dismissing appellant’s
PCRA petition.
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Order affirmed.
Gantman, P.J. joins this Memorandum.
Shogan, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2017
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Com. v. Dobbin, T.
Combined Opinion