Opinion
J-S27012-18 No. 3649 EDA 2016
07-19-2018
COMMONWEALTH OF PENNSYLVANIA v. DOMINIC NAPLES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order October 19, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0701681-2001, CP-51-CR-0706161-2001, CP-51-CR-0712461-2001, CP-51-CR-0906271-2001 BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J. MEMORANDUM BY SHOGAN, J.:
Appellant, Dominic Naples, appeals pro se from the order denying his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. We affirm.
In Appellant's direct appeal nunc pro tunc, we summarized the initial procedural history:
On July 10, 2001, Appellant entered an open plea of nolo contendere in the matter designated CP 0011-0832, on the charge of Arson. On October 3, 2001, he also entered a plea of nolo contendere in the matter designated [CP 51-CR-0701681-2001, CP-51-CR-0706161-2001] to two counts of Aggravated Assault, Escape, and Burglary. Finally, on April 16, Appellant entered an Open Guilty Plea in the matter designated [CP-51-CR-0712461-
Commonwealth v. Naples , 931 A.2d 50, 1983 EDA 2005 (Pa. Super. 2007) (unpublished memorandum at 1-2). Appellant did not file a direct appeal. On July 1, 2003, he filed his first PCRA petition. Appointed counsel filed an Amended Petition and a Supplemental Amended Petition, following which the PCRA court granted Appellant's request to reinstate his post-sentence rights nunc pro tunc on February 10, 2005. Appellant filed post-sentence motions nunc pro tunc, which were denied, followed by a notice of appeal nunc pro tunc. We affirmed Appellant's judgment of sentence on June 13, 2007, and our Supreme Court denied further review on December 18, 2007. Id., appeal denied, Commonwealth v . Naples , 939 A.2d 890, 329 EAL 2007 (Pa. 2007).
2001] and [CP-51-CR-0906271-2001], to Rape, Attempted Rape, two counts of Involuntary Deviate Sexual Intercourse [("IDSI")], two counts of Corrupting of the Morals of a Minor and Kidnapping. Following an evaluation by the Sexual Offenders Assessment Board . . . , it was determined that Appellant did not meet the criteria to be classified as a Sexually Violent Predator . . . , and on August 20, 2002, Appellant was sentenced . . . to an aggregate term of twenty-two (22) to forty-five (45) years of incarceration.
The direct appeal nunc pro tunc encompassed Appellant's plea to arson. The arson charge is not at issue in Appellant's current PCRA petition. Commonwealth Brief at 2.
Appellant timely filed a PCRA petition on July 16, 2008. The PCRA court appointed counsel, who filed amended and supplemental amended PCRA petitions. Following an evidentiary hearing, the PCRA court dismissed Appellant's PCRA petition on June 8, 2012. Appellant filed a timely appeal to this Court. We affirmed the dismissal of Appellant's PCRA petition on September 24, 2013, and our Supreme Court denied further review. Commonwealth v. Naples , 87 A.3d 390, 1842 EDA 2012 (Pa. Super. 2013) (unpublished memorandum), appeal dismissed, Commonwealth v . Naples , 92 A.3d 811, 640 EAL 2013 (Pa. 2014).
Because Appellant's first PCRA petition resulted in the restoration of his direct appeal rights, the second PCRA petition properly was treated as his first petition. See Commonwealth v. Turner , 73 A.3d 1283, 1286 (Pa. Super. 2013) ("[W]hen a PCRA petitioner's direct appeal rights are reinstated nunc pro tunc in his first PCRA petition, a subsequent PCRA petition will be considered a first PCRA petition for timeliness purposes.").
Appellant filed the instant pro se PCRA petition, effectively his second, on July 14, 2014. He filed a pro se supplemental petition on March 18, 2015, and after obtaining leave of court, a pro se supplemental amended petition on March 1, 2016. Inexplicably, the PCRA court appointed counsel, who ultimately filed, on July 28, 2016, a petition to withdraw as counsel and a no-merit letter pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc). The PCRA court agreed with counsel that the PCRA petition was untimely and no exceptions applied and issued a notice of intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. Order, 9/19/16. Appellant filed responses to the PCRA court's Rule 907 notice on October 14, 2016, and October 19, 2016. Response, 10/14/16; Response, 10/19/16. The PCRA court granted counsel's request to withdraw as counsel and dismissed the PCRA petition on October 19, 2016. Order, 10/19/16. Appellant filed a timely notice of appeal; both Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Counsel need not have been appointed in this second PCRA proceeding, as this is not a first-time petition in which Appellant has a rule-based right to counsel. See Pa.R.Crim.P. 904(C) ("[T]he judge shall appoint counsel to represent the defendant on the defendant's first petition for post-conviction collateral relief.")(emphasis added); Commonwealth v. Figueroa , 29 A.3d 1177, 1181 (Pa. Super. 2011) (it is undisputed that first-time PCRA petitioners have a rule-based right to counsel).
On June 21, 2017, the Superior Court Prothonotary issued a rule to show cause why the appeal should not be quashed, noting that the PCRA court entered four separate orders dismissing the PCRA petition, and Appellant, on November 15, 2016, filed one pro se notice of appeal listing four trial court docket numbers. Appellant filed two responses. Thereafter, on August 21, 2017, this Court filed a per curiam order stating, in part, that the amended notices of appeal attached to Appellant's pro se Motion for Permission to File Amended Notice of Appeal were "hereby accepted" and directing our Prothonotary to forward copies of the amended notices of appeal to the PCRA court and Office of Judicial Records. Order, 8/21/17.
For the reasons stated in Appellant's response, and in light of the filing of the amended notices of appeal, we conclude the appeal properly is before us. We further note that Commonwealth v. Walker , 2018 WL 2448643, ___ A.3d ___ (Pa. 2018)(filed June 1, 2018), where our Supreme Court held that a single notice of appeal does not suffice for appeals from multiple dockets, is not applicable. The Walker Court held that its decision shall apply prospectively, and it was filed ten months after this Court's acceptance of the amended notices of appeal in this case.
We summarized the facts of the crimes in the nunc pro tunc direct appeal, as follows:
The facts underlying the instant cases are as follows: . . . Appellant . . . cut the gas line directly linked to the stove in his apartment, which caused a massive explosion and fire, and $54,000 worth of property damage. [CP 51-CR-0701681-2001, and CP-51-CR-0706161-2001] involve Appellant's attempted escape from his preliminary hearing and subsequent assault of two law enforcement officers. [CP-51-CR-0906271-2001]
involved Appellant's luring of the nine year old victim into an abandoned factory. Once inside, Appellant had the victim take off her clothes and he removed his own pants. Appellant then laid on top of the nine-year-old and attempted to place his penis into her vagina. Finally, [CP-51-CR-0712461-2001] involved the [r]ape of the twelve-year-old victim. Appellant was a friend of the victim's brother, and while driving the girl to school, Appellant drove to a secluded path and attempted to kiss her. When the victim refused, Appellant threatened her that he had a razor, and proceeded to place his penis into her anus.Naples , 1983 EDA 2005 (unpublished memorandum at 2).
Preliminarily, we note that Appellant has failed to comply with our appellate rules in a significant way. "Appellate briefs must conform materially to the requirements of the Pennsylvania Rules of Appellate Procedure, and this Court may quash or dismiss an appeal if the defect in the brief is substantial." Commonwealth v. Tchirkow , 160 A.3d 798, 804 (Pa. Super. 2017); Pa.R.A.P. 2101. "Although this Court is willing to construe liberally materials filed by a pro se litigant, a pro se appellant enjoys no special benefit. Accordingly, pro se litigants must comply with the procedural rules set forth in the Pennsylvania Rules of the Court." Id.
Appellant's brief fails to comply with Pa.R.A.P. 2116(a). That rule requires a Statement of Questions Involved, and notably, demands that "[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby." Pa.R.A.P. 2116(a). Despite this admonition, we have chosen to overlook the defect in this case and consider the claims that we are able to discern from the argument section of Appellant's brief.
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. Robinson , 139 A.3d 178, 185 (Pa. 2016). The PCRA court's findings will not be disturbed unless there is no support for them in the certified record. Commonwealth v. Lippert , 85 A.3d 1095, 1100 (Pa. Super. 2014).
In order to be considered timely, a first, or any subsequent PCRA petition, must be filed within one year of the date the petitioner's judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). The PCRA's time-for-filing requirements are mandatory and jurisdictional in nature, and a court may not ignore them in order to reach the merits of the petition. Commonwealth v. Robinson , 139 A.3d 178, 185 (Pa. 2016). For purposes of the PCRA, a judgment of sentence "becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S. § 9545(b)(3).
As noted supra, when a PCRA petitioner's direct appeal rights are reinstated nunc pro tunc in his first PCRA petition, as here, a subsequent PCRA petition will be considered a first PCRA petition for timeliness purposes. Turner , 73 A.3d at 1286. In effect, the time for filing a PCRA petition is "restarted." Id. Here, we affirmed Appellant's judgment of sentence in his nunc pro tunc appeal on June 13, 2007, and the Pennsylvania Supreme Court denied further review on December 18, 2007. Naples , 1983 EDA 2005 (unpublished memorandum), appeal denied, Naples , 329 EAL 2007. The time for seeking review in the Supreme Court of the United States expired on March 18, 2008, ninety days after the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal on December 18, 2007. 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13. Thus, Appellant's judgment of sentence became final on March 18, 2008, and in order to be timely under the PCRA, Appellant was required to file his PCRA petition on or before March 18, 2009. Because Appellant did not file the instant PCRA petition until July 14, 2014, more than six years after his judgment of sentence became final, the petition is patently untimely.
The ninetieth day fell on Sunday, March 17, 2008; however, when the last day of any time period referred to in a statute falls on a Sunday, we omit that day from the computation. 1 Pa.C.S. § 1908. Commonwealth v. Davis , 86 A.3d 883 (Pa. Super. 2014).
If a petitioner does not file a timely PCRA petition, his petition nevertheless may be received under three limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. § 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his petition within sixty days of the date that the exception could be asserted. 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).
The exceptions to the timeliness requirement are:
(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;42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
(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.
Appellant first attempts to raise legality challenges to his sentences. Appellant's Brief at 14-20. "[A] legality of sentence claim may nevertheless be lost should it be raised . . . in an untimely PCRA petition for which no time-bar exception applies. . . ." Commonwealth v. Miller , 102 A.3d 988, 995 (Pa. Super. 2014). Appellant initially avers that the sentencing orders conflict with the trial court's statements at the sentencing hearing, and he did not realize the trial court had not imposed mandatory minimum sentences. Appellant's Brief at 14.
We reject his claim that this qualifies as a previously unknown fact. Appellant's Brief at 14. The sentencing transcript and the sentencing orders are part of the original record and could have been reviewed in the past sixteen years since the entry of his pleas in 2001 and subsequent sentencing. Thus, Appellant could have ascertained any such claim by the exercise of due diligence. 42 Pa.C.S. § 9545(b)(1)(ii). This contention does not provide a basis for overcoming the untimeliness of his PCRA petition because it is apparent from the sixteen-year delay that Appellant failed to seek out the information in a duly diligent manner. See Commonwealth v. Robinson , ___ A.3d ___, 2018 PA Super 109, *8 (Pa. Super. filed May 2, 2018) (en banc) ("Due diligence demands that the petitioner take reasonable steps to protect his own interests.").
Moreover, Appellant acknowledges that the transcript "reads as described" by the PCRA court, but he fails to identify where such reference can be found. Appellant's Brief at 14. "It is an appellant's duty to ensure that the certified record is complete for purposes of review." Commonwealth v. Reed , 971 A.2d 1216, 1219 (Pa. 2009). It is not this Court's responsibility to comb through the record seeking the factual underpinnings of a claim. Commonwealth v. Samuel , 102 A.3d 1001, 1005 (Pa. Super. 2014). In addition, this Court has stated that a "[f]ailure to ensure that the record provides sufficient information to conduct a meaningful review constitutes waiver of the issue sought to be reviewed." Commonwealth v. Lopez , 57 A.3d 74, 82 (Pa. Super. 2012). This issue is waived, and even if not waived, for reasons cited above, it lacks merit.
Appellant's second and third claims, regarding the propriety of his sentences for burglary and escape, Appellant's Brief at 16-18, and the applicability of Alleyne v. United States , 570 U.S. 99 (2013) to his case, Appellant's Brief at 19-20, were addressed by the PCRA court in its Pa.R.A.P. 1925(a) opinion. In disposing of these claims, we rely on the PCRA court's rationale as if it were our own.
Appellant's fourth claim suggests that "the ADA at the PCRA evidentiary hearing committed fraud when it presented false evidence. . . ." Appellant's Brief at 21. Appellant fails to assert applicability of an exception to the PCRA time bar. Moreover, Appellant has failed to include any references or citations to the notes of testimony from any evidentiary hearing or citations to relevant case law in support of his claim. Id. Indeed, Appellant fails even to identify the "false evidence" to which he refers. For these reasons, we conclude that the issue is waived. See Commonwealth v. Fransen , 42 A.3d 1100, 1116 n.14 (Pa. Super. 2012) (citing Commonwealth v. Einhorn , 911 A.2d 960, 970 (Pa. Super. 2006)) (concluding, inter alia, that a claim is waived for failure to direct this Court's attention to that part of the record substantiating it); see also Pa.R.A.P. 2119(c) ("If reference is made to . . . any other matter appearing in the record, the argument must set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter referred to appears."). As noted supra, this Court will not comb through the record seeking the factual underpinnings of a claim. Samuel , 102 A.3d at 1005.
We assume Appellant is referencing the evidentiary hearing relating to his prior PCRA petition, because the instant PCRA petition was dismissed without a hearing.
Appellant's final issue suggests the PCRA court erred in dismissing his PCRA petition without a hearing. In particular, he complains as follows:
In Appellant[']s petition, he stated that his appellate attorney, Mr. John Cotter, asked Appellant if he would like his file returned at the conclusion of his representation. Appellant, believing that Mr. Cotter would merely be returning the file that he himself had provided Mr. Cotter, agreed. When the parcel arrived at the State Correctional Institute at Fayette, the authorities at the institution told Appellant that he could not have this parcel for security reasons due to it containing computer disks, metal clips, etc. The institution gave Appellant two options: Ship or destroy. Appellant only had one person he could send it to, so he sent it to his Uncle. Appellant's uncle refused to return this parcel to Appellant despite Appellant[']s multiple requests. As Appellant had no idea of what was in this parcel, and because Mr. Cotter ignored all of Appellant's inquiries, Appellant was without any recourse in getting this material.Appellant's Brief at 22-23.
Appellant suggests the PCRA court "did not consider the facts as set forth by Appellant in consideration of the question as to if Appellant met one of the exceptions for the PCRA time bar." Appellant's Brief at 23. Appellant does not identify to which exception of the PCRA time bar he is referring. We determine that it qualifies for none. The issue has no merit.
We conclude that the PCRA court properly dismissed Appellant's PCRA petition without a hearing. For the reasons stated herein, and in reliance on the PCRA court's opinion, we affirm the untimeliness of Appellant's petition and the absence of applicability of any exception. Because Appellant's PCRA petition was untimely and no exceptions apply, the PCRA court lacked jurisdiction to address the claims presented and grant relief. Commonwealth v. Fairiror , 809 A.2d 396, 398 (Pa. Super. 2002) (PCRA court lacks jurisdiction to hear untimely petition). Likewise, we lack the authority to address the merits of any substantive claim raised in the PCRA petition. See Commonwealth v. Bennett 930 A.2d 1264, 1267 (Pa. 2007) ("Jurisdictional time limits go to a court's right of competency to adjudicate a controversy.").
We direct the parties to attach a copy of the PCRA court's opinion in the event of future proceedings in this matter.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/19/18
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