Opinion
250 WDA 2024 J-S39045-24
12-23-2024
COMMONWEALTH OF PENNSYLVANIA v. DOUGLAS EUGENE STEPHENSON Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered January 29, 2024 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0016742-2009.
Benjamin D. Kohler, Esq.
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM
NICHOLS, J.
Appellant Douglas Eugene Stephenson appeals pro se from the order denying his third Post Conviction Relief Act (PCRA) petition. On appeal, Appellant contends that his counsel for his first PCRA petition rendered ineffective assistance. We affirm.
The PCRA court set forth the following procedural history:
[Appellant] was convicted following a jury trial on August 3, 2011 of second-degree murder, robbery-serious bodily injury, and criminal conspiracy [to commit] robbery in the shooting death of a James Williams, Jr. on July 7, 2009. [Appellant] was sentenced to a term of life imprisonment for second-degree murder and a consecutive term of 72 to 144 months for criminal conspiracy [to commit] robbery. His conviction was affirmed by the Superior Court on August 6, 2013[.] [See Commonwealth v. Stephenson, 1978 WDA 2011, 2013 WL 11256545 (Pa. Super. filed Aug. 6, 2013) (unpublished mem.), appeal denied, 81 A.3d
77 (Pa. filed Nov. 26, 2013). On April 2, 2014, [Appellant] filed a PCRA petition and counsel was appointed and an amended PCRA petition was filed. A PCRA hearing was held on May 3, 2016 and an order was entered on May 9, 2016 denying the amended petition. The order included the following statement: "[Appellant] is advised that he has thirty (30) days from the entry of this order to appeal to the Superior Court of Pennsylvania." The cover sheet of the order also indicates that copies were sent to both PCRA counsel and [Appellant]. [Appellant] filed an appeal to the Superior Court on June 8, 2016 and the Superior Court affirmed the dismissal of the petition on November 20, 2017[.] [See Commonwealth v. Stephenson, 819 WDA 2016, 2017 WL 5565558 (Pa. Super. filed Nov. 20, 2017) (unpublished mem.), appeal denied, 186 A.3d 945 (Pa. filed June 4, 2018)].PCRA Ct. Op., 6/18/24, at 1-2.
18 Pa.C.S. §§ 2502(b), 3701(a)(1)(i), and 903(a)(1), respectively.
Appellant did not file a petition for a writ of certiorari with the Supreme Court of the United States.
On July 26, 2022, Appellant filed a petition for DNA testing pursuant to the PCRA. See 42 Pa.C.S. § 9543.1. The PCRA court dismissed Appellant's petition on October 25, 2022. Appellant appealed from the PCRA court's October 25, 2022 order, and this Court dismissed Appellant's appeal on April 4, 2023 for failure to file a brief. See Commonwealth v. Stephenson, 1391 WDA 2022 (Pa. Super. filed Apr. 4, 2023) (per curiam order).
Appellant filed an application for relief on January 25, 2024, which the PCRA court treated as a third PCRA petition. The PCRA court entered an order on January 29, 2024, denying the instant petition. Appellant filed a timely notice of appeal. The PCRA court ordered Appellant to file a concise statement of errors complained of on appeal and filed a subsequent opinion pursuant to Pa.R.A.P. 1925(a).
The record reflects that the PCRA court failed to file a notice of intent to dismiss the instant PCRA petition without an evidentiary hearing as required by Pa.R.Crim.P. 907. Because Appellant failed to raise this issue as it pertains to the instant petition, any issue relating to the PCRA court's failure to file a notice of intent to dismiss without a hearing is waived. See Commonwealth v. Zeigler, 148 A.3d 849, 851 n.2 (Pa. Super. 2016). "Moreover, failure to issue [a] Rule 907 notice is not reversible error where the record is clear that the petition is untimely." Id. (citation omitted).
Appellant failed to file a concise statement of errors complained of on appeal. However, Appellant alleges that the PCRA court's February 29, 2024 order was returned to sender, and that he never received a copy of the order directing him to file a Rule 1925(b) statement. See Appellant's Brief at 1; Exhibit 1. We find that a breakdown in court operations has taken place; accordingly, we shall decline to find that Appellant has waived all issues for appellate review due to the failure to file a Rule 1925(b) statement. See Commonwealth v. Bush, 197 A.3d 285, 287 (Pa. Super. 2018). Moreover, in its Rule 1925(a) opinion, the PCRA court addressed the issues raised by Appellant; therefore, we find that remand is not necessary. See Commonwealth v. Thompson, 39 A.3d 335, 340-41 (Pa. Super. 2012).
In his brief, Appellant alleges that his counsel for his first PCRA petition, Thomas Farrell, Esq., provided ineffective assistance of counsel and that the PCRA court erred when it failed to enter a notice of intent to dismiss Appellant's first PCRA petition pursuant to Pa.R.Crim.P. 907. Appellant's Brief at 2. Further, Appellant cites to our Supreme Court's decision in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), as an avenue for relief. See Appellant's Brief at 4.
We note that Appellant's brief fails to comply with our appellate rules in several respects. See generally Pa.R.A.P. 2101, 2111-2119, 2174; see also Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003) (stating that "[t]his Court may quash or dismiss an appeal if an appellant fails to conform with the requirements set forth in the Pennsylvania Rules of Appellate Procedure" (citations omitted)). However, because Appellant's failure to adhere to the briefing requirements does not preclude our meaningful appellate review, we will address Appellant's appeal.
In Bradley, our Supreme Court has held that after a PCRA court denies relief in a timely filed first PCRA petition a PCRA petitioner may, after obtaining new counsel or acting pro se, raise claims of PCRA counsel's ineffectiveness at the first opportunity to do so, even if on appeal. See Bradley, 261 A.3d at 405; see also Commonwealth v. Stahl, 292 A.3d 1130, 1135-36 (Pa. Super. 2023).
In reviewing an order denying a PCRA petition, our standard of review is well settled:
[O]ur standard of review from the denial of a PCRA petition is limited to examining whether the PCRA court's determination is supported by the evidence of record and whether it is free of legal error. The PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions.Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citations omitted and formatting altered).
The timeliness of a PCRA petition is a threshold jurisdictional question. See Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014); see also Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa. Super. 2019) (stating that "no court has jurisdiction to hear an untimely PCRA petition" (citation omitted and emphasis omitted)). "A PCRA petition, including a second or subsequent one, must be filed within one year of the date the petitioner's judgment of sentence became final, unless he pleads and proves one of the three exceptions outlined in 42 Pa.C.S. § 9545(b)(1)." Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (citation and footnote omitted). A judgment of sentence becomes final at the conclusion of direct review, or at the expiration of time for seeking such review. See id. at 17; see also 42 Pa.C.S. § 9545(b)(3).
Courts may consider a PCRA petition filed more than one year after a judgment of sentence becomes final if the petitioner pleads and proves one of the following three statutory exceptions to the time bar:
(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.42 Pa.C.S. § 9545(b)(1)(i)-(iii). A petitioner asserting one of these exceptions must file a petition within one year of the date the claim could have first been presented. See 42 Pa.C.S. § 9545(b)(2). It is the petitioner's "burden to allege and prove that one of the timeliness exceptions applies." Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010) (citations omitted and some formatting altered).
On October 28, 2018, the General Assembly amended Section 9545(b)(2) and extended the time for filing a PCRA petition from sixty days to one year from the date the claim could have been presented. See 2018 Pa. Legis. Serv. Act 2018-146 (S.B. 915) (eff. Dec. 24, 2018). The amendment applies only to claims arising one year before the effective date of this section, December 24, 2017, or thereafter.
Here, it is undisputed that Appellant's instant petition is facially untimely, as it was filed nearly ten years after his sentence became final in 2014. See 42 Pa.C.S. § 9545(b)(1). Although Appellant cites Bradley, we note that Bradley only applies to timely PCRA petitions and does not provide an avenue for relief from an order denying an untimely subsequent PCRA petition. See, e.g., Stahl, 292 A.3d at 1136; see also Commonwealth v. Aybar, 2636 EDA 2022, 2023 WL 7323370 at *4 (Pa. Super. filed Nov. 7, 2023) (unpublished mem.) (concluding that Bradley involved a timely first PCRA petition, and it did not apply to an appeal from an order denying an untimely PCRA petition).
This Court may cite to nonprecedential memoranda filed after May 1, 2019, for persuasive value. Pa.R.A.P. 126(b).
We note that the instant appeal concerns Appellant's third PCRA petition, which was untimely filed. Accordingly, Appellant's reliance on
Bradley is misplaced in that it is not applicable to untimely filed PCRA petitions. See Stahl, 292 A.3d at 1136; Aybar, 2023 WL 7323370 at *4. Importantly, Appellant has neither pled nor proven any of the enumerated exceptions to the PCRA time bar, therefore, the PCRA court correctly dismissed his third petition as untimely. See Sandusky, 203 A.3d at 1043; 42 Pa.C.S. § 9545(b)(1)(i)-(iii). For these reasons, Appellant is not entitled to relief.Order affirmed. Jurisdiction relinquished.
Appellant filed a motion requesting remand on July 25, 2024, in order to supplement his claims of ineffective assistance of counsel based on events that took place before the trial court in November of 2011. See Appellant's Motion Requesting Remand, 7/25/24, at 2. Appellant's motion is DENIED.
Judgment Entered.