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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KIRK N. DUNSON, :
:
Appellant : No. 3560 EDA 2017
Appeal from the PCRA Order October 27, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0812071-2004
BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.
MEMORANDUM BY BOWES, J.: FILED JANUARY 24, 2019
Kirk N. Dunson appeals pro se from the order that dismissed his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
Appellant was convicted of various crimes in 2006 and sentenced to
twenty-five to fifty years of imprisonment. Following a nunc pro tunc direct
appeal, Appellant’s judgment of sentence became final in early 2011, after
this Court affirmed and our Supreme Court denied his petition for allowance
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1 Appellant purported to appeal from the September 22, 2017 notice of intent
to dismiss his petition without a hearing pursuant to Pa.R.Crim.P. 907.
However, pursuant to Pa.R.A.P. 905, we treat his appeal as having been filed
from the subsequent order dismissing the petition, and have amended the
caption accordingly. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after
the announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”);
Commonwealth v. Swartzfager, 59 A.3d 616, 618 n.3 (Pa.Super. 2012)
(applying Pa.R.A.P. 905(a)(5) to appeal from 907 notice when petition was
dismissed subsequent to the notice of appeal).
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of appeal. Commonwealth v. Dunson, 11 A.3d 1023 (Pa.Super. 2010)
(unpublished memorandum), appeal denied, 13 A.3d 475 (Pa. 2010).
Appellant’s first, timely PCRA petition following the nunc pro tunc direct
appeal, which involved challenges to his sentence and counsel’s failure to raise
them, was dismissed as meritless, and this Court affirmed. Commonwealth
v. Dunson, 120 A.3d 380 (Pa.Super. 2015),
The petition that is the subject of the instant appeal was filed on March
28, 2017. The Commonwealth moved to dismiss it as untimely, the PCRA
court issued notice of its intent to do so, and the petition was dismissed by
order of October 27, 2017. The PCRA court ordered Appellant to file a
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and Appellant filed a timely statement. To this Court, Appellant presents
vague questions concerning the legality and discretionary aspects of his
sentence. Appellant’s brief at 6.2
We begin with the legal principles relevant to our review. “Our standard
of review for issues arising from the denial of PCRA relief is well-settled. We
must determine whether the PCRA court’s ruling is supported by the record
and free of legal error.” Commonwealth v. Johnson, 179 A.3d 1153, 1156
(Pa.Super. 2018) (internal quotation marks omitted). Further, “[i]t is an
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2 Appellant’s brief has a main body with inaccurate pagination, and an
attachment entitled “Memorandum of Law in Support of Facts of P.C.R.A.
Petition.” We utilize “Appellant’s brief” to indicate citations to the former, and
“Appellant’s memorandum of law” to cite to the latter.
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appellant’s burden to persuade us that the PCRA court erred and that relief is
due.” Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012).
As noted, the PCRA court dismissed Appellant’s petition as untimely.
“The PCRA’s time restrictions are jurisdictional in nature. Thus, if a PCRA
petition is untimely, neither this Court nor the trial court has jurisdiction over
the petition. Without jurisdiction, we simply do not have the legal authority
to address the substantive claims.” Commonwealth v. Albrecht, 994 A.2d
1091, 1093 (Pa. 2010) (cleaned up)
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final unless the petition alleges, and the petitioner proves, that
an exception to the time for filing the petition is met, and that the claim was
raised within 60 days of the date on which it became available. 42 Pa.C.S.
§ 9545(b). Specifically, to establish a timeliness exception, the petition must
allege and the petitioner must prove:
(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 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.
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42 Pa.C.S. § 9545(b)(1).
Although the PCRA court dismissed Appellant’s petition, which was filed
six years after his judgment of sentence became final, as untimely, and
Appellant bears the burden of convincing us that that determination was
incorrect, he presents this Court with substantive questions that do not bear
on the timeliness of his petition. Indeed, he preserved no claim of PCRA court
error regarding the timeliness of his petition when he filed a Rule 1925(b)
statement that provided as follows, verbatim: “1. Ineffective Assistance of
Counsel – Failing to file motion to correct sentence, etc.; 2. Tribunal w/o
Jurisdiction; 3. Fraud upon the Court; 4. Miscarriage of Justice.” Concise
Statement, 11/30/17, at unnumbered 1.3 See, e.g., Commonwealth v.
Castillo, 888 A.2d 775, 780 (Pa. 2005) (“Any issues not raised in a
Pa.R.A.P.1925(b) statement will be deemed waived.” (internal quotation
marks omitted)). See also Commonwealth v. Wholaver, 177 A.3d 136,
152 (Pa. 2018) (“Because Appellant does not assign any error to the manner
in which the PCRA court actually disposed of his claims, he has failed to meet
his burden of proving that the PCRA court erred.”).
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3 We note that a new statement of errors complained of on appeal makes up
the initial pages of Appellant’s brief. As that statement was filed in this Court
long after the due-date set by the trial court’s order, it does not comply with
Rule 1925(b) and, therefore, does not serve to preserve any issues for this
appeal.
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In the body of his brief, Appellant argues that his sentence is illegal, and
that “an illegal sentence is exempt from the time bar rule.” Appellant’s
memorandum of law at 8. Appellant appears to confuse timeliness with
waiver. As we have explained, “although illegal sentencing issues cannot be
waived, they still must be presented in a timely PCRA petition.”
Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.Super. 2013).
To the extent that Appellant contends that his allegedly-illegal sentence
must be corrected because he otherwise suffers a miscarriage of justice, see
Memorandum of Law at 9, we note that, “there is no ‘miscarriage of justice’
standard exception to the time requirements of the PCRA.” Commonwealth
v. Burton, 936 A.2d 521, 527 (Pa.Super. 2007) (“Turning to Burton’s
argument that his conviction is a ‘miscarriage of justice,’ we need not reach
the merits of his contentions because the courts of Pennsylvania will only
entertain a ‘miscarriage of justice’ claim when the initial timeliness
requirement is met.”).
Thus, Appellant has failed to convince us that the PCRA court erred in
dismissing his petition as untimely, and no relief is due.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/19
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