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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DANA EVERETT YOUNG :
:
Appellant : No. 1119 EDA 2018
Appeal from the PCRA Order March 22, 2018
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000560-1983,
CP-39-CR-0000561-1983,
CP-39-CR-0000614-1983
BEFORE: PANELLA, J., PLATT, J., and STRASSBURGER, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 07, 2018
Dana Young appeals, pro se, from the order dismissing his petition for
writ of habeas corpus as an untimely Post Conviction Relief Act (PCRA)
petition. Young argues his imprisonment is illegal due to: (1) Commonwealth
references to photographic arrays at trial; (2) improper joinder of the trials on
his charges; (3) the Commonwealth’s allegedly improper ex parte
communication with a witness; (4) the presence of an allegedly unqualified
juror on his jury; and (4) his appellate counsel constructively abandoning him
on direct appeal. We conclude the court properly treated Young’s petition as
____________________________________________
Retired Senior Judge assigned to the Superior Court.
J-S57005-18
a PCRA petition. Additionally, the court properly found no exception to the
PCRA’s time-bar applied. We therefore affirm.
Way back in 1983, a jury convicted Young of multiple crimes arising
from separate knifepoint sexual assaults of two women. The court sentenced
him to an aggregate term of imprisonment of twenty-one to forty-two years.
In his direct appeal, Young alleged his trial counsel was ineffective for
failing to object to the joinder of his trials. This Court determined the appeal
was actually a petition pursuant to the Post Conviction Hearing Act (PCHA),
the predecessor to the PCRA. We therefore remanded the appeal to the trial
court for further proceedings. The PCHA court found trial counsel was not
ineffective, and dismissed the petition.
Young sought allowance to file an appeal nunc pro tunc. The petition
was ultimately denied. Young appealed the denial, but subsequently withdrew
the appeal.
In the intervening years, Young has filed no less than seven PCRA
petitions. The latest was dismissed as untimely in 2009. Perhaps sensing a
theme in the repeated dismissals of his PCRA petitions, Young switched gears.
He has since filed three pro se motions for habeas corpus relief. His first and
second habeas corpus motions were treated as PCRA petitions and dismissed
as untimely. See Commonwealth v. Young, No. 1668 EDA 2016 (Pa. Super.
filed April 13, 2017) (unpublished memorandum).
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This appeal concerns his third motion for habeas corpus relief, filed
December 19, 2017. The PCRA court once again treated the motion as a PCRA
petition, and finding it untimely, dismissed it. This appeal followed.
Young contends the court improperly treated his petition as a PCRA
petition. If “a defendant’s post-conviction claims are cognizable under the
PCRA, the common law and statutory remedies now subsumed by the PCRA
are not separately available to the defendant.” Commonwealth v. Hall, 771
A.2d 1232, 1235 (Pa. 2001) (citations omitted). It is well settled that the PCRA
subsumes the remedy of habeas corpus when the PCRA offers a remedy. See
Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007). “[A] defendant
cannot escape the PCRA time-bar by titling his motion as a writ of habeas
corpus.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013)
(footnote omitted). And the PCRA offers a remedy to prisoners who claim they
are wrongly convicted. See Commonwealth v. Peterkin, 722 A.2d 638, 640
(Pa. 1998). All of Young’s substantive claims challenge the propriety of the
truth-determining process supporting his conviction. See Appellant’s Reply
Brief, at 1 (“He is raising a challenge to his criminal proceedings as unfair in
violation of due process.”) Thus, the court properly treated his petition as a
PCRA petition.
The court found Young’s petition untimely. Generally, the PCRA grants
jurisdiction to hear a collateral attack on a conviction only if a petition is filed
in the year after the judgment of sentence becomes final. See
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Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012). The judgment of
sentence is final when the petitioner’s direct appeal rights have been
exhausted. See id., at 17. After the expiration of the one-year period, a
petitioner must plead and prove one of three enumerated exceptions to the
time-bar to establish jurisdiction under the PCRA. See id.
A panel of this Court found Young’s eighth PCRA petition, styled as his
second motion for habeas corpus relief, filed February 8, 2016, untimely. See
Young, No. 1668 EDA 2016, at 6. Thus, unless Young can establish an
exception to the timeliness requirement, the court had no jurisdiction to
entertain his petition.
Young only presents one possible argument that his petition is timely
under the PCRA: that all prior counsel were ineffective. However, ineffective
assistance of prior counsel, by itself, does not qualify as an exception to the
PCRA’s time-bar. See Commonwealth v. Gamboa-Taylor, 753 A.2d 780,
785 (Pa. 2000). Thus, the PCRA court properly dismissed Young’s motion.
Order affirmed.
Judge Strassburger joins the memorandum.
Judge Platt did not participate in the consideration or decision of this
case.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/18
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