Com. v. Cunningham D., Jr.

• Court: Superior Court of Pennsylvania
• Decided: September 27, 2019
• Docket: 710 MDA 2019
• Status: Unpublished

Opinion

J-S51023-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : DONALD KENNETH CUNNINGHAM, : JR. : : Appellant : No. 710 MDA 2019

Appeal from the PCRA Order Entered April 17, 2019 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000560-2005

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED SEPTEMBER 27, 2019

Appellant, Donald Kenneth Cunningham, Jr., appeals pro se from the

order entered in the Lancaster County Court of Common Pleas, which

dismissed as untimely his second petition filed under the Post Conviction Relief

Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. On January 20, 2006, Appellant

entered a negotiated guilty plea to two counts each of involuntary deviate

sexual intercourse (“IDSI”), incest, and indecent assault, and one count of

corruption of minors, in connection with Appellant’s sexual assaults on his

daughter between April 30, 1999 and June 1, 2002. The court imposed the

negotiated aggregate sentence of 10 to 20 years’ imprisonment, plus 10 years’

probation. This Court affirmed on December 14, 2007, and our Supreme

Court denied allowance of appeal on May 30, 2008. See Commonwealth v.

Cunningham, 947 A.2d 759 (Pa.Super. 2007), appeal denied, 597 Pa. 727, J-S51023-19

952 A.2d 674 (2008).

On March 8, 2018, Appellant filed his first PCRA petition pro se. The

court appointed counsel, who subsequently filed a petition to withdraw and a

“no-merit” letter. On May 29, 2018, the court issued appropriate notice per

Pa.R.Crim.P. 907, and denied relief on June 22, 2018. Appellant did not

appeal that decision. Appellant filed the current PCRA petition pro se on March

11, 2019. The next day, the court issued Rule 907 notice and dismissed the

petition as untimely on April 17, 2019. Appellant timely appealed on April 26,

2019, and the court immediately ordered a concise statement of errors per

Pa.R.A.P. 1925(b). Appellant timely complied.

Preliminarily, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A

PCRA petition, including a second or subsequent petition, shall be filed within

one year of the date the underlying judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment of sentence is 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.A. § 9545(b)(3). The statutory

exceptions to the PCRA time-bar allow very limited circumstances to excuse

the late filing of a petition; a petitioner asserting a timeliness exception must

also file the petition within the time allowed under the statute. 42 Pa.C.S.A.

§ 9545(b)(1) and (b)(2). The “newly-discovered facts” exception at Section

-2- J-S51023-19

9545(b)(1)(ii) requires a petitioner to plead and prove he: (1) did not know

the fact(s) underlying his exception/petition; and (2) could not have learned

those fact(s) earlier with the exercise of due diligence. Commonwealth v.

Shiloh, 170 A.3d 553 (Pa.Super. 2017).

Instantly, the judgment of sentence became final on August 28, 2008,

upon expiration of the time for filing a petition for writ of certiorari with the

U.S. Supreme Court. See U.S.Sup.Ct.R.13 (providing 90 days to timely file

petition for writ of certiorari). Appellant filed his current petition on March 11,

2019, which was patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).

Appellant tried to invoke the “newly-discovered fact” exception by alleging

that he recently discovered the legislature had “repealed” the IDSI statute at

18 Pa.C.S.A. § 3123(a)(6) (IDSI with complainant less than 13 years old) in

2003, three years before he entered his plea.1 Subsection (6), however, was

in effect when Appellant committed his offenses between April 30, 1999 and

June 1, 2002. Moreover, the exercise of due diligence would have led

Appellant to learn this alleged “newly-discovered fact” before his guilty plea.2

____________________________________________

1The legislature did not actually repeal 18 Pa.C.S.A. § 3123. The legislature amended the statute, effective February 14, 2003, and deleted subsection (6).

2 Appellant’s reliance on Commonwealth v. Burton, 121 A.3d 1063 (Pa.Super. 2015) (en banc), aff’d, 638 Pa. 687, 158 A.3d 618 (2017), is misplaced because, “Under Burton, Pennsylvania courts shall no longer apply a public record presumption to pro se incarcerated PCRA petitioners; but, a pro se incarcerated petitioner is still required to plead and prove the facts grounding [his] claim were unknown to [him] and [he] could not have

-3- J-S51023-19

See Shiloh, supra. Thus, the court properly dismissed Appellant’s petition

as untimely.3

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/27/2019

discovered those facts sooner with the exercise of due diligence.” Shiloh, supra at 559 (emphasis in original). Appellant’s asserted “newly-discovered fact” was public information available when Appellant pled guilty and was represented by counsel. Thus, Burton does not apply.

3 Even if the PCRA court mistakenly applied the former 60-day rule instead of the amended one-year rule in Section 9545(b)(2), Appellant still failed to exercise due diligence.

-4-