Com. v. Deprimo, T.

• Court: Superior Court of Pennsylvania
• Decided: November 8, 2018
• Docket: 622 MDA 2018
• Status: Unpublished

Opinion

J-S60004-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS E. DEPRIMO : : Appellant : No. 622 MDA 2018

Appeal from the PCRA Order February 27, 2018 In the Court of Common Pleas of Lackawanna County Criminal Division at No(s): CP-35-CR-0002705-2013

BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.: FILED: NOVEMBER 8, 2018

Thomas E. Deprimo (“Appellant”) appeals pro se from the order denying

his petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.

The PCRA court provided the history of this appeal as follows:

On January 17, 2014, [Appellant] pled guilty to one count of failure to provide accurate registration information. The charges arose between October 24, 2013 and November 19, 2013, when [Appellant] failed to give the Pennsylvania State Police a valid address even though he had moved and was subject to registration requirements under Megan’s Law.[1] [Appellant] was ____________________________________________

1 Based on charges filed in 2010, Appellant entered a guilty plea on October 19, 2011, to one count of dissemination of photographs/films of child sex acts and one count of child pornography. 18 Pa.C.S. § 6312(c)(1), (d), respectively. The trial court sentenced Appellant to incarceration for six to twenty-three months on each count. As a result of these two convictions, Appellant was subject to lifetime registration under Megan’s Law III. 42

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S60004-18

sentenced to [incarceration for] three to six years [on January 17, 2014].

On August 18, 2017, [Appellant] filed a [PCRA petition]. Kurt Lynott, Esq. was appointed to represent [Appellant]. On November 20, 2017, Mr. Lynott filed a Motion to Withdraw as Counsel Pursuant to a Turner-Finley[2] Letter. On January 23, 2018, this court granted Mr. Lynott’s Motion to Withdraw, and issued a Notice of Intent to Dismiss the PCRA petition [pursuant to Pa.R.Crim.P. 907]. On February 27, 2018, this court dismissed the petition.

PCRA Court Opinion, 6/14/18, at 1. This appeal followed. Appellant and the

PCRA court complied with Pa.R.A.P. 1925.

As a prefatory matter, the Commonwealth argues that this appeal is

untimely because Appellant filed his notice of appeal late. Commonwealth’s

Brief at 3.3 The question of timeliness of an appeal is jurisdictional.

Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000). Time

limitations on appeal periods are strictly construed and cannot be extended

as a matter of grace. Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.

Super. 2002) (citing Commonwealth v. Hottinger, 537 A.2d 1, 3 (Pa.

____________________________________________

Pa.C.S. § 9751.1(b)(1); accord Commonwealth v. Merolla, 909 A.2d 337(Pa. Super. 2006) (holding that multiple “convictions” of Tier I offenses are subject to lifetime registration).

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

3 Appellant applied for an extension of time in which to file a reply brief. Application for Extension of Time, 9/18/18. We granted Appellant’s request, directing that he file his reply brief by October 5, 2018. Order, 9/25/18. Appellant complied with our Order.

-2- J-S60004-18

Super. 1987)). See also Pa.R.A.P. 105(b) (stating that, although an appellate

court may enlarge the time prescribed in the rules of appellate procedure for

good cause shown, the court may not enlarge the time for filing a notice of

appeal).

The relevant rule of appellate procedure promulgated by the

Pennsylvania Supreme Court is as follows:

Rule 903. Time for Appeal

(a) General Rule. Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken. . . .

Pa.R.A.P. 903(a) (emphasis added).

Here, the PCRA court entered an order on January 23, 2018, granting

counsel’s motion to withdraw and providing notice of intent to dismiss

Appellant’s petition pursuant to Pa.R.Crim.P. 907. Appellant did not file a

response. The PCRA court then entered an order dismissing Appellant’s

petition on February 27, 2018. Appellant filed a pro se notice of appeal on

April 10, 2018, more than thirty days after entry of the PCRA order.

This Court issued a rule to show cause whether Appellant’s appeal

should be quashed as untimely; Appellant was required to file a response

within ten days of the filing date of our order. Order, 6/7/18. In a timely

response dated June 16, 2018, Appellant claimed he was procedurally barred

from filing an appeal “due to government interference.” Response to Rule to

Show Cause, 6/21/18, at 1. According to Appellant, he was detained in

-3- J-S60004-18

administrative custody from February 3, 2018, until March 21, 2018. Upon

his release to the general prison population, Appellant sent a letter and a

document entitled, “Appealing the: Memorandum and Notice of Intent to

Dismiss,” to the trial court of Lackawanna County dated March 25, 2018,

explaining his prior inability to mail his appeal. Id. at Exhibit B. The trial

court entered an order on April 4, 2018, instructing that the letter and

document be filed in the Office of the Clerk of Judicial Records and directing

Appellant to file a Concise Statement of Errors Complained of on Appeal within

twenty-one days pursuant to Pa.R.A.P. 1925(b). Id. at Exhibit C.4 On April

10, 2018, Appellant filed a pro se appeal in this Court.

Upon review, we decline to quash this appeal as untimely. Pursuant to

Pa.R.Crim.P. 114(c)(2)(c), “docket entries shall contain . . . the date of service

of the order or court notice.” Here, the docket contains no indication that the

clerk furnished a copy of the February 27, 2018 order dismissing Appellant’s

PCRA petition to Appellant. Thus, we conclude the period for taking an appeal

was not triggered, so the appeal is considered timely.5 Accord

Commonwealth v. Jerman, 762 A.2d 366 (Pa. Super. 2000) (where docket

entries contain no indication that clerk furnished copy of order to appellant,

appeal was considered timely).

4 We discuss below the trial court’s acceptance of Appellant’s pro se filing as a Rule 1925(b) statement.

5 Thus, we need not address Appellant’s government interference claim.

-4- J-S60004-18

Additionally, the PCRA court purportedly accepted Appellant’s March 25,

2018 letter as a timely notice of appeal because it directed Appellant to file a

Concise Statement of Errors Complained of on Appeal within twenty-one days

pursuant to Pa.R.A.P. 1925(b). Order, 4/4/18. Moreover, the PCRA court

indicates that Appellant filed a Rule 1925(b) statement on April 19, 2018,

although the docket indicates that Appellant filed a Rule 1925(b) statement,

dated May 29, 2018, on June 4, 2018. PCRA Court Opinion, 6/14/18, at 1–2;

Docket Entry No. 22. Ostensibly, the trial court treated the document

attached to Appellant’s March 25, 2018 letter as a timely Rule 1925(b)

statement. In the interest of justice, we shall address Appellant’s appeal.

Appellant presents two questions for our consideration:

1.) Did the Court of Common Pleas commit legal error when it dismissed Petitioner’s P.C.R.A. which requested relief in accordance to the Pa. Supreme Court’s ruling in Commonwealth v. Muniz, 135 A.3d 178 (Pa. 2017), in that the application of SORNA was unconstitutional in regards to his underlying conviction as it pre-dates December 12, 2012?

2.) Was the appointed P.C.R.A. counsel, Kurt Lynott grossly ineffective for filing a Turner Finley letter in the instant appeal where Petitioner’s underlying offense pre-dates SORNA and his punishment was indeed increased contrary to the ruling of the Pa. Supreme Court in Muniz, supra?

Appellant’s Brief at 4 (verbatim).

Appellant complains that the PCRA court erred in dismissing his petition

and allowing counsel to withdraw. Our standard of review of an order denying

PCRA relief is whether the record supports the PCRA court’s determination and

-5- J-S60004-18

whether the PCRA court’s determination is free of legal error.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Id.

Here, the PCRA court dismissed Appellant’s petition as untimely. We

discern no error.

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). 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. Hernandez, 79 A.3d at

651. 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).

Appellant’s judgment of sentence became final on February 16, 2014,

thirty days after the time for filing a direct appeal expired. 42 Pa.C.S. §

9545(b)(3); Pa.R.A.P. 903(a). Therefore, Appellant had to file a PCRA petition

by February 16, 2015, in order for it to be timely. Appellant filed the instant

PCRA petition on August 18, 2017. Accordingly, Appellant’s petition is patently

untimely.

However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

-6- J-S60004-18

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and

(iii), is met.6 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. Ward-Green, 141 A.3d 527, 532

(Pa. Super. 2016). This is true despite the fact that Appellant’s petition

presents a challenge to the legality of his sentence. See Commonwealth v.

Fowler, 930 A.2d 586, 592 (Pa. Super. 2007) (“Although legality of sentence

is always subject to review within the PCRA, claims must still first satisfy the

PCRA’s time limits or one of the exceptions thereto.”).

6 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;

(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), (ii), and (iii).

-7- J-S60004-18

Here, although Appellant has not pled a timeliness exception, his

reliance on Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), suggests

that he is attempting to assert the exception provided in Section

9545(b)(1)(iii) for a newly recognized constitutional right. Nonetheless, like

the PCRA court, we conclude that Appellant’s petition is untimely. Appellant’s

Brief at 11.

Our Supreme Court has explained that:

Subsection (iii) of Section 9545(b)(1) has two requirements. First, it provides that 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 provided in this section. Second, it provides that the right “has been held” by “that court” to apply retroactively. Thus, a petitioner must prove that there is a “new” constitutional right and that the right “has been held” by that court to apply retroactively.

Commonwealth v. Copenhefer, 941 A.2d 646, 649 (Pa. 2007).

We acknowledge that Muniz created a substantive rule that applies in

the collateral context. Commonwealth v. Rivera–Figueroa, 174 A.3d 674,

678 (Pa. Super. 2017). However, because Appellant’s PCRA petition is

untimely (unlike the petition at issue in Rivera–Figueroa), he must

demonstrate that the Pennsylvania Supreme Court has held that Muniz

established a newly recognized constitutional right that applies retroactively

in order to satisfy Section 9545(b)(1)(iii). See Commonwealth v. Murphy,

180 A.3d 402, 405–406 (Pa. Super. 2018) (explaining that appellant who files

untimely petition must demonstrate that the Pennsylvania Supreme Court has

held that Muniz established a newly recognized constitutional right that

-8- J-S60004-18

applies retroactively). Our Supreme Court has not issued such a holding;

therefore, Appellant cannot rely on Muniz to meet that timeliness exception.7

Thus, the PCRA court did not err in dismissing Appellant’s untimely petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/08/2018

7 Because Appellant cannot rely on Muniz for the requested relief, counsel cannot be deemed ineffective for failing to raise an issue based on Muniz.

-9-