J-S69037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS JAMES KAHLE :
:
Appellant : No. 843 WDA 2017
Appeal from the PCRA Order May 11, 2017
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000561-2013
BEFORE: BOWES, J., RANSOM, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 12, 2017
Appellant, Thomas James Kahle, appeals from the order entered in the
Court of Common Pleas of Venango County dismissing his first petition filed
pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 as
untimely. We affirm.
The PCRA court sets forth an apt factual and procedural history, as
follows:
In December of 2002, the victim A.S.’s father passed away.
Subsequently, A.S. (born 7/21/1997) lived with victim’s mother,
Defendant [hereinafter “Appellant”], and other family members
over a period of time between 2003 and 2004. At some point in
either February or March of 2004, Appellant invited the victim to
“play a game” ostensibly with the goal of bringing back the girl’s
father. When the two went upstairs into the victim’s mother’s
room, where Appellant was also residing at the time, Appellant
pulled down the victim’s pants and underwear, and proceed[ed]
to touch the victim in the vaginal area. According to testimony
at trial and during a CYS interview in 2013, Appellant did not
penetrate into the victim’s vaginal canal, digitally or otherwise,
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* Former Justice specially assigned to the Superior Court.
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but did digitally penetrate the inner folds of the victim’s vagina.
Appellant then stated that if the victim told anyone of the
assault, something bad would happen to her mother.
Following a jury trial held January 12 and 13, 2015, Appellant
was convicted of: one count of Unlawful Contact with Minor—
Sexual Offense, 18 Pa.C.S.A. § 6318(a)(1); one count of
Aggravated Indecent Assault, 18 Pa.C.S.A. § 3125(b); one count
of Corruption of Minors, 18 Pa.C.S.A. § 6301(a)(1)(i); and one
count of Indecent Assault, 18 Pa.C.S.A. § 3126(a)(7). Appellant
was sentenced on May 8, 2015 to an aggregate term of 39 – 264
months’ imprisonment on Counts 1-3, with the Indecent Assault
conviction merging with the Aggravated Indecent Assault
conviction for sentencing purposes. Appellant filed post-trial
motions, but these were denied as an operation of law[.]
Appellant filed a direct appeal with the Superior Court, which
was properly perfected, on October 30, 2015. However, on
December 14, 2015, Appellant filed a Praecipe to Discontinue
Appeal, attaching with the filed praecipe a letter from Appellant
acknowledging that he wished to withdraw his appeal.
Accordingly, the Superior Court discontinued his appeal on
December 17, 2015. Court-appointed counsel thereafter
withdrew as counsel February 12, 2016.
Subsequently, Appellant filed his first petition under the PCRA on
January 19, 2017, through privately-retained counsel, Stephen
E. Sebald, Esq. The Commonwealth filed a reply to the PCRA,
arguing [the PCRA] court lacked jurisdiction under the PCRA’s
time bar limiting petitions to be filed only within a year of a
conviction becoming final, unless an enumerated exception is
demonstrated. [The PCRA] court determined that it was indeed
without jurisdiction to address the merits of the petition, as it
was untimely filed. Upon notification of the [PCRA court’s]
intention to dismiss the petition, Appellant filed a Motion for
Reconsideration, leading to [the PCRA] court scheduling a PCRA
hearing on May 20, 2017.
During this hearing, [the PCRA] court met with counsel for both
Appellant and the Commonwealth in chambers. During this
time, it was discussed that the petition had in fact been
withdrawn with Appellant’s knowledge. Appellant’s counsel,
Attorney Sebald, acknowledged that he had not realized that fact
beforehand, and accepted responsibility for the missed [PCRA]
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deadline. Conversations between [the PCRA] court and counsel
centered on the fact that, as the petition was facially untimely,
the Court could not proceed to the merits of the petition.
Accordingly, [the PCRA] court returned to the record and entered
an order finding the petition untimely, and dismissed [the
petition].
PCRA Court Opinion, 7/12/17 at 1-3.
Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P.
1925(b) concise statement of matters complained of on appeal. In turn, the
PCRA court has filed a responsive Pa.R.A.P. 1925(a) opinion. Appellant’s
brief presents the following questions for our review:
I. DID THE TRIAL COURT ERR IN UTILIZING THE
INCORRECT DATE FOR ASCERTAINING WHEN THE
TIME FOR THE PCRA PETITION WAS DUE, WHICH
INCORRECT DATE (DECEMBER 17, 2015) FAILED TO
TAKE INTO ACCOUNT THE SIGNIFICANT ERRORS
MADE BY PREVIOUS COUNSEL, INCLUDING
DISCONTINUANCE OF APPELLANT’S PRIOR APPEAL
WITHOUT FILING THE REQUIRED ANDERS BRIEF?
II. DID THE TRIAL COURT ERR IN REFUSING TO ALLOW
APPELLANT TO RESTORE HIS APPELLATE RIGHTS
NUNC PRO TUNC WHERE PRIOR APPELLATE
COUNSEL UNJUSTIFIABLY AND IMPERMISSIBLY
DISCONTINUED APPELLANT’S APPEAL, WITHOUT
OBTAINING CONSENT TO DO SO, AND WITHOUT
FILING AN ANDERS BRIEF AS CONSTITUTIONALLY
REQUIRED?
III. DID THE TRIAL COURT ERR IN FINDING THAT
APPELLANT’S PCRA PETITION WAS UNTIMELY AND
FAILING TO APPLY THE STATUTORY EXCEPTION
PROVIDED UNDER 42 PA.C.S. § 9545(B)(1)(i)
WHICH IS TRIGGERED WHERE GOVERNMENT
OFFICIALS INTERFERE WITH THE PRESENTATION OF
ONE’S CLAIM?
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IV. DID THE TRIAL COURT ERR IN FINDING THAT THIS
CASE DOES NOT FALL WITHIN AN EXCEPTION TO
THE ONE-YEAR TIME LIMITATION GOVERNING PCRA
PETITIONS – THE EXCEPTION ENCAPSULATED IN 42
PA.C.S. § 9545(B)(1)(ii), WHICH PROVIDES AN
EXCEPTION [TO] THE ONE-YEAR PERIOD WHEN “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?”
V. DID THE TRIAL COURT ERR IN REFUSING TO
CONSIDER THE MERITS OF APPELLANT’S CASE?
Appellant’s brief at 7-8.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc)). This Court is limited to determining whether the evidence
of record supports the conclusions of the PCRA court and whether the ruling
is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court's findings that
are supported in the record and will not disturb them unless they have no
support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa. Super. 2014).
We first address whether Appellant satisfied the timeliness
requirement of the PCRA. A PCRA petition must be filed within one year of
the date that the judgment of sentence becomes final. 42 Pa.C.S. §
9545(b)(1). An appellant’s judgment of sentence becomes final when he or
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she voluntarily discontinues a direct appeal. See Commonwealth v.
McKeever, 947 A.2d 782, 785 (Pa.Super. 2008) (stating that the judgment
of sentence becomes final for PCRA purposes when direct appeal is
discontinued voluntarily) citing Commonwealth v. Conway, 706 A.2d 1243
(Pa. Super 1997); see also generally 42 Pa.C.S.A. § 9545(b)(3). This time
requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of the petition. Commonwealth v.
Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).
However, an 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 at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), is met. A petition invoking one of these exceptions must be filed
within sixty days of the date the claim could first have been presented. 42
Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
PCRA's one-year filing deadline, “the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,
1167 (Pa. Super. 2001).
Taken together, Appellant’s issues contend that the PCRA court
erroneously dismissed his petition as time-barred where counsel’s manner of
withdrawal from representation amounted to an abandonment of Appellant’s
direct appeal, thus entitling him to application of an exception to the one-
year time limitation. We disagree.
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In the case sub judice, the record contains a written statement
ostensibly prepared by Assistant Public Defender Jeri Bolton,1 Appellant’s
trial and direct appeal counsel, and signed by Appellant. The statement read
as follows: “After careful consideration and after conferring with my
attorney, Assistant Public Defender Jeri Bolton, Esquire, I, Thomas Kahle,
have voluntarily and intelligently decided to withdraw my appeal to the
Superior Court 1759 WDA 2015.” Praecipe to Discontinue, filed 12/21/15.
The PCRA Court found the letter to be credible evidence that Appellant, by
signing the clearly-worded statement as he did, endorsed the premise that
he voluntarily wished to withdraw his direct appeal after consultation with
his attorney. Trial Court Opinion, at 6.
Initially, for purposes of fixing the date on which the PCRA’s one-year
limitations period commenced, we discern no error with the PCRA court’s
determination that Appellant’s judgment of sentence became final on the
date he voluntarily withdrew his direct appeal to this Court. See McKeever,
supra. Hence, under the PCRA, Appellant had until December 21, 2016, to
file the instant PCRA petition, but he did not do so until January 19, 2017.
Thus, his PCRA petition is facially untimely.
Therefore, it became incumbent upon Appellant to plead and prove the
applicability of one or more of the enumerated exceptions in order to invoke
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1
The PCRA court presumed, arguendo, that counsel prepared the statement,
as it is typed on the Venango County Public Defender’s letterhead.
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the jurisdiction of the PCRA court. Accordingly, Appellant has equated the
discontinuation of his direct appeal and counsel’s subsequent withdrawal
from representation to a per se abandonment of his appeal, as he claims he
did not understand the consequences of signing the prepared statement. As
such he likens his case to those situations where our courts have recognized
a complete denial of counsel. See Commonwealth v. Bennett, 930 A.2d
1264, 1272-74 (Pa. 2007) (holding appointed counsel’s failure to file
appellate brief, unbeknownst to appellant, amounted to act of abandonment
qualifying as fact unknown to appellant for purposes of subsection (b)(1)(ii))
(collecting cases).
The Bennett line of jurisprudence, however, centered as it is on
ensuring the due process rights of appellants who could not have known
they had been abandoned by counsel, simply does not apply to the case sub
judice, where Appellant explicitly acknowledged in the letter that he agreed
to voluntarily discontinue his direct appeal after consultation with appointed
counsel. Notably, in this regard, Appellant made no allegation below that
counsel provided erroneous legal advice about the withdrawal or that, but
for her failure to advise him about the ramifications of the decision, he would
have elected not to withdraw the appeal. Accordingly, Appellant cannot
prevail on his subsection (b)(1)(ii)-based claim.
Nor can Appellant gain relief from his alternate claim that direct appeal
counsel’s alleged ineffectiveness amounted to government interference as
contemplated under subsection (b)(1)(i), for the PCRA provides “[f]or
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purposes of this subchapter, ‘government officials’ shall not include defense
counsel, whether appointed or retained.” 42 Pa.C.S. § 9545(b)(4); see also
See Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000) (explaining
claims relating to ineffectiveness of counsel for failing to raise certain issues
do not qualify for “governmental interference” exception to PCRA time-bar,
as term “government officials” does not include defense counsel).
Thus, Appellant's ineffectiveness claims do not meet any of the above-
stated timeliness exceptions.2 Accordingly, the PCRA court properly
concluded that it was without jurisdiction to entertain Appellant’s untimely
petition.
Order is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2017
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2
As the record supports a finding that Appellant voluntarily discontinued his
appeal without undue influence from counsel, it follows that counsel was not,
thereafter, required to withdraw representation pursuant to Anders, as
Appellant’s judgment of sentence had become final on the date Appellant
discontinued his appeal.
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