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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JAMES D. DINICOLA :
:
Appellant : No. 157 WDA 2022
Appeal from the PCRA Order Entered January 13, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002789-2008
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY DUBOW, J.: FILED: OCTOBER 12, 2022
Appellant, James D. Dinicolo, appeals from the Order entered by the
Erie County Court of Common Pleas denying as untimely his third petition
seeking relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-
46 (“PCRA”). After careful review, we agree that the petition is untimely. We,
thus, affirm the denial of relief.
On March 11, 2010, Appellant pled guilty to rape of a child and related
offenses and the court sentenced him to an aggregate term of incarceration
of 21 to 42½ years.1 This Court affirmed the judgment of sentence on
December 28, 2011. Appellant did not seek further review.
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* Retired Senior Judge assigned to the Superior Court.
1 The court also found him to be a sexually violent predator (“SVP”).
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Appellant subsequently filed two counseled PCRA petitions which failed
to garner relief. He filed the instant petition, his third, on June 30, 2021,
represented by new counsel Cheryl J. Sturm. On December 8, 2021, the PCRA
court filed a notice of intent to dismiss the petition, to which Appellant
responded.2 On January 13, 2021, the court issued an opinion and order
dismissing the petition as untimely.3
Appellant filed a timely notice of appeal. Both Appellant and the PCRA
court complied with Pa.R.A.P. 1925.4
Appellant presents the following questions for our review:
1. Whether the amended PCRA petition is timely under the Bradley
decision?
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2 Simultaneously, Appellant filed a motion to amend his PCRA petition to add
a claim that his prior PCRA counsel, who represented him in both his 2012 and
2015 PCRA proceedings, provided ineffective assistance for not raising a claim
alleging that only hearsay was presented at his preliminary hearing. See
Motion to Amend, dated 12/21/22, 1, 4 (citing Commonwealth v. Bradley,
261 A.3d 381 (Pa. 2021), and Commonwealth v. Capero, 35 Pa. Super. 392
(Pa. Super. 1907)(vacating a conviction where the 7-year-old victim testified
before a jury without having been sworn in or examined by the court as to
competency)). Appellant contended that Bradley presented a new fact that
enabled him to bring this claim. Motion to Amend at 4.
3 In its January 13, 2022 order dismissing the instant Petition, the court
addressed Appellant’s Motion to Amend his PCRA petition, observing that even
if it were to permit the requested amendment and find that the petition was
timely in light of Bradley, Appellant would still not be entitled to relief because
the victim, who was 12 at the time she testified at the preliminary hearing,
demonstrated that she understood the difference between the truth and a lie.
Final Order, dated Jan. 13, 2022, at 4.
4 The PCRA court relied on its December 8, 2021 and January 13, 2022
opinions in lieu of a Rule 1925(a) opinion.
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2. Whether the PCRA Court erred in not holding a hearing on the PCRA
Petition?
3. Whether the PCRA Court erred in finding that [the victim] was not
incompetent to testify and in finding that prior PCRA counsel was not
ineffective for failing to raise the Capero issue that [she] was not
competent to testify because she did not understand the meaning of
an oath?
Appellant’s Br. at 1-2.
Our standard of review is well-settled. We review the denial of a PCRA
petition to determine whether the record supports the PCRA court’s findings
and whether its order is otherwise free of legal error. Commonwealth v.
Fears, 86 A.3d 795, 803 (Pa. 2014). This Court grants great deference to
the findings of the PCRA court if they are supported by the record.
Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). We give no
such deference, however, to the court’s legal conclusions. Commonwealth
v. Paddy, 15 A.3d 431, 442 (Pa. 2011).
A petitioner may seek PCRA relief within one year following the date on
which his or her judgment of sentence becomes final. 42 Pa.C.S. §
9545(b)(1). The PCRA’s timeliness requirements are jurisdictional in nature,
and a PCRA court may not address the merits of the issues raised if the
petitioner did not timely file the PCRA petition. Commonwealth v. Albrecht,
994 A.2d 1091, 1093 (Pa. 2010). In fact, no court has jurisdiction to review
the merits of the claims raised in an untimely PCRA petition. Commonwealth
v. Lambert, 884 A.2d 848, 851 (Pa. 2005). Here, Appellant’s judgment of
sentence became final in 2012. This petition is, thus, facially untimely.
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The PCRA provides three exceptions to the one-year time bar. 42
Pa.C.S. § 9545(b)(1)(i-iii). In order for a petitioner to benefit from these
exceptions, the petitioner must plead and prove the applicability of at least
one. Id. The PCRA “confers no authority upon [courts] to fashion ad
hoc equitable exceptions to the PCRA time-bar in addition to those exceptions
expressly delineated in the Act.” Commonwealth v. Hackett, 956 A.2d 978,
983-84 (Pa. 2008) (citation omitted).
While Appellant acknowledges that this third PCRA petition was not filed
within one year of the date his judgment of sentence became final, and then
quotes the PCRA’s timeliness exceptions verbatim, he makes no attempt to
apply any of them to his issues. See Appellant’s Br. at 7-8. Instead, he
summarily asserts that his “petition was ‘timely’ and the PCRA court had
jurisdiction over the claim in ineffective assistance of PCRA counsel which is
cognizable under Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021).”
Id. at 8. A bald assertion of timeliness, without more, does not meet the
PCRA’s jurisdictional requirements5 or our briefing requirements.6
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5 A claim of ineffective assistance of counsel does not meet any of the
timeliness exceptions provided by the PCRA. Commonwealth v. Gamboa–
Taylor, 753 A.2d 780, 785 (Pa. 2000). Moreover, to the extent that Appellant
implies that Bradley satisfied the “new fact” timeliness exception, we note
that “subsequent decisional law does not amount to a new ‘fact’ under section
9545(b)(1)(ii) of the PCRA.” Commonwealth v. Watts, 23 A.3d 980, 987
(Pa. 2011)).
6 See Pa.R.A.P. 2119(a) (requiring discussion and citation of pertinent
authorities); Pa.R.A.P. 2101 (providing that where briefs fail to conform to the
rules of appellate procedure, the appeal may be quashed or dismissed).
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In sum, Appellant has failed to meet the jurisdictional timeliness
requirement for obtaining relief. The PCRA court, thus, did not abuse its
discretion in dismissing this serial PCRA petition. Accordingly, we affirm the
denial of relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2022
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