Com. v. Hollenback, D., Jr.

• Court: Superior Court of Pennsylvania
• Decided: September 8, 2021
• Docket: 275 MDA 2021
• Status: Unpublished

Opinion

J-A16029-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAVID JAMES HOLLENBACK JR. : : Appellant : No. 275 MDA 2021

Appeal from the PCRA Order Entered January 25, 2021 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0002218-2008

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 08, 2021

David James Hollenback, Jr. (Appellant), appeals pro se from the order

entered in the Centre County Court of Common Pleas dismissing his “Petition

for Allowance of Appeal,” as a second, untimely petition filed pursuant to the

Post Conviction Relief Act (PCRA).1 On appeal, Appellant insists he was denied

substantive due process when trial counsel agreed to present his case on

stipulated facts, which amounted to a guilty plea entered without Appellant’s

knowledge or consent. We affirm.

This Court summarized the relevant facts underlying Appellant’s

conviction in the decision affirming the judgment of sentence on direct appeal:

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546. J-A16029-21

Over Labor Day weekend of 2008, Jennifer Hollenback, Appellant’s daughter, found child pornography on one of Appellant’s computers. She went to police, who obtained a warrant, arrested Appellant, and seized his computers. Based on their contents, Appellant was charged with over 400 counts of possession of child pornography, but all of those charges were subsequently dismissed. After Appellant’s arrest, Jennifer also discovered at his residence a videotape of Appellant sexually abusing his niece, L.K., when she was a child. A second warrant was issued and resulted in the seizure of the videotape and the filing of the charges for which Appellant was convicted.

Commonwealth v. Hollenback, 1636 MDA 2010 (unpub. memo. at 2) (Pa.

Super. Oct. 14, 2011), appeal denied, 853 MAL 2011 (Pa. Sep. 17, 2012).2

Appellant was subsequently charged with two counts each of rape,

involuntary deviate sexual intercourse (IDSI), aggravated indecent assault,

indecent assault, incest, and endangering the welfare of a child (EWC), and

eight counts of sexual abuse of children (videotaping sexual acts and

possession of child pornography).3 He filed a pretrial motion to suppress the

2 The decision also includes the stipulation of facts entered into by the parties

at Appellant’s nonjury trial, which details the sexual abuse of L.K. as documented on the video. See Hollenback, 1636 MDA 2010 (unpub. memo. at 2-5).

3 See 18 Pa.C.S. §§ 3121(a)(6), 3123(a)(6), 3125(a)(7), 3126(a)(7), 4302,

4304(a)(1), 6312(b), (d).

Subsection (a)(6) of the both the rape and IDSI statutes were repealed in December 2002, and replaced with Section 3121(c) “Rape of a child,” and Section 3123(b), “Involuntary deviate sexual intercourse with a child.” See 2002, Dec. 9, P.L. 1350, No. 162, § 2, effective in 60 days. Because the sexual abuse in the present case occurred between May and November of 2002 (when Appellant was 43 to 44 years old and the victim was six years old), Appellant was properly convicted under the prior statutes. See Hollenback, 1636 MDA 2010 (unpub. memo at 3-5).

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evidence seized pursuant to both search warrants, which the trial court denied

after conducting two hearings. See Order, 7/21/09.

Appellant appeared for a nonjury trial on October 19, 2009. At that

time, Assistant District Attorney Yvette L. Willson (ADA Willson) informed the

trial court that she and Appellant’s counsel, George Lepley, Jr., Esquire, had

“come to an agreement” that the Commonwealth would present evidence via

a prepared “stipulation of fact,” which both attorneys had reviewed and

signed. See N.T. Trial, 10/19/09, at 3. The Commonwealth also submitted

into evidence a DVD, which included the recorded videos of the sexual abuse.

See id. ADA Willson informed the court that, in exchange for Appellant’s

agreement to proceed by stipulated facts, “the Commonwealth has agreed

[that] counts 13 through 20, which have to do with the child pornography

videos,” would receive concurrent sentences to Counts 1 through 12. Id.

After reviewing the stipulation of facts, which was admitted into evidence, the

trial court found Appellant guilty of all charges. Id. at 10. It merits emphasis

that Appellant did not sign the stipulation of facts,4 and neither the trial court

nor Attorney Lepley questioned Appellant concerning his agreement to

proceed by way of stipulated facts.

On March 26, 2010, Appellant was sentenced to an aggregate term of

40 to 80 years’ imprisonment; the court imposed consecutive sentences on all

counts except the convictions of Section 6312, consistent with the parties’

4 See N.T., 10/19/09, Commonwealth Exhibit 2, Stipulation of Fact.

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agreement. See N.T. Sentencing H’rg, 3/26/10, at 27-30. The trial court also

determined that Appellant met the criteria for classification as a sexually

violent predator under the then-applicable sexual offender registration

statute. Id. at 9.

Appellant filed a timely post-sentence motion, seeking modification of

his sentence. On September 7, 2010, the trial court granted in part, and

denied in part, Appellant’s motion. See Order, 9/7/10. Thereafter, on

September 28th, the court vacated the sentences imposed on counts 8, 10,

and 12 (one count each of indecent assault, incest, and EWC), reducing

Appellant’s aggregate sentence to 38 to 76 years’ imprisonment. N.T.

Resentencing H’rg, 9/28/10, at 3-4. Appellant filed a timely direct appeal,

challenging the court’s denial of his suppression motion, and the

excessiveness of his sentence. This Court affirmed the judgment of sentence

on direct appeal, and the Pennsylvania Supreme Court denied Appellant’s

petition for allocatur review. See Hollenback, 1636 MDA 2010, appeal

denied, 853 MAL 2011.

On February 17, 2015, Appellant filed a pro se PCRA petition. Ronald

McGlaughlin, Esquire, was appointed to assist Appellant in litigating his first

PCRA petition. On May 22, 2015, the Commonwealth filed an answer and

motion to dismiss Appellant’s PCRA petition, asserting it was untimely filed.

Despite being represented by counsel, Appellant continued to file several pro

se motions in the PCRA court. Notably, on July 2, 2015, Appellant filed a letter

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sent to Attorney McGlaughlin from what appears to be a jailhouse lawyer.5

The letter outlined “issues that permit jurisdiction beyond the PCRA Time-

Bar,” including Appellant’s present claim that he unknowingly entered a guilty

plea “under the guise of a stipulation.” See Letter, 7/2/15, at 1-2

(unpaginated). Attorney McGlaughlin filed an answer to the Commonwealth’s

motion to dismiss on August 18, 2015. Following argument on August 24th,

the PCRA court entered an order on September 18th, dismissing Appellant’s

petition as untimely filed. Appellant filed a timely appeal, a panel of this Court

affirmed, and the Pennsylvania Supreme Court denied allocatur review. See

Commonwealth v. Hollenback, 1816 MDA 2015 (unpub. memo) (Pa. Super.

Aug. 19, 2016), appeal denied, 655 MAL 2016 (Pa. Mar. 7, 2017).

On October 23, 2020, Appellant filed the instant petition, which he

entitled “Petition for Allowance of Appeal.” See Appellant’s Petition for

Allowance of Appeal, 10/23/20. The PCRA court construed the filing to be a

second PCRA petition, and, on December 14, 2020, issued notice of its intent

to dismiss the petition as untimely filed pursuant to Pa.R.Crim.P. 907.

Appellant filed a pro se response on December 28, 2020, asserting, inter alia,

“[j]urisdiction can be challenged at any[ ]time [and] is an exception to the

[PCRA] time-bar requisites.” Appellant’s Objection to Rule 907 Notice,

5 The author, “Dr. Thomas F. P. Brennan, LL.D., PJ.D.,” resides at the State

Correctional Institute at Albion. See Letter, 7/2/15, cover page. Attached to the letter is a notice to the clerk of courts, signed by Appellant, requesting a time stamp copy be returned to him. See id. at 9 (unpaginated).

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12/28/20. On January 22, 2021, the PCRA court dismissed Appellant’s petition

as untimely. Appellant incorrectly filed a notice of appeal in this Court on

February 17, 2021, which we transferred to the Centre County Court of

Common Pleas. See Pa.R.A.P. 905(a)(4) (“If a notice of appeal is mistakenly

filed in an appellate court, . . . the clerk shall immediately stamp it with the

date of receipt and transmit it to the clerk of the court which entered the order

appealed from, and . . . the notice of appeal shall be deemed filed in the trial

court on the date originally filed.”).6 Thereafter, on March 1, 2021, Appellant

filed a petition for leave to amend his petition, which the PCRA court properly

denied as it lacked jurisdiction because the matter “is currently on appeal

before the Pennsylvania Superior Court.” See Order, 3/17/21; Pa.R.A.P.

1701(a) (“[A]fter an appeal is taken . . . the trial court . . . may no longer

proceed further in the matter.”).

Appellant lists 11 issues for our review in his brief. See Appellant’s Brief

at 4-5. However, he argues only one claim — that he was deprived of

substantive due process when “counsel from both sides entered into a plea

agreement (stipulation) which amounted to a guilty plea,” without his

knowledge or consent. See id. at 7.

Our standard of review of an order denying PCRA relief is well-

established. “[W]e examine whether the PCRA court’s determination ‘is

6 The PCRA court did not direct Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

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supported by the record and free of legal error.’” Commonwealth v.

Mitchell, 141 A.3d 1277, 1283–84 (Pa. 2016) (citation omitted).

Here, the PCRA court found Appellant’s petition was untimely filed, and

he failed to plead or prove any of the statutory exceptions to the time-bar.

PCRA Ct. Op., 4/30/21. The statutory requirement that a PCRA petition be

filed within one year of the date the judgment of sentence becomes final is a

“jurisdictional deadline” and a PCRA court may not ignore the untimeliness of

a petition to address the merits of the issues raised therein. Commonwealth

v. Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019), appeal denied, 216 A.3d

1028 (Pa. 2019). See also 42 Pa.C.S. § 9545(b)(1).

Here, Appellant’s judgment of sentence was final on December 17, 2012

— 90 days after the Pennsylvania Supreme Court denied allocatur review of

his direct appeal, and Appellant declined to petition the United States Supreme

Court for a writ of certiorari.7 See 42 Pa.C.S. § 9545(b)(3) (for purpose of

PCRA timeliness provisions, “a judgment becomes final at the conclusion of

direct review, including discretionary review in the Supreme Court of the

United States . . . or at the expiration of time for seeking the review”); U.S.

Sup. Ct. R. 13(1) (“[A] petition for a writ of certiorari to review a judgment in

any case, . . . is timely when it is filed with the Clerk of this Court within 90

7 The ninetieth day, December 16, 2012, fell on a Sunday; thus, Appellant had

until Monday, December 17th to file a petition for certiorari. See U.S. Sup. Ct. R. 30(1) (when computing time under the Rules, the last day is not calculated if it falls on a weekend or holiday).

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days after entry of the judgment.”). Thus, his current petition, filed nearly

eight years later, is facially untimely. See 42 Pa.C.S. § 9545(b)(1).

Nevertheless, an untimely petition may be considered if the petitioner

pleads and proves the applicability of one of the three timeliness exceptions

set forth at Section 9545(b):

(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 petition invoking an exception must be filed

“within one year of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2).

Appellant does not address the timeliness requirements in either his

PCRA petition or his brief on appeal. Rather, in his petition, Appellant simply

states the “Supreme law of the land dictates jurisdiction of court is NOT a

time-barrable issue[,]” and that neither jurisdictional defects nor illegal

sentence claims can be waived. Appellant’s Petition for Allowance of Appeal

at IX-X (some capitalization omitted). The argument in his brief is even more

sparse. He asserts “[t]he statute of limitations is irrelevant in this matter

because [of] the Commonwealth’s deliberate violation of the Judicial Process

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and Due Process Rights of Law.”8 Appellant’s Brief at 8.

The Pennsylvania Supreme Court has made clear that “the time

requirements under the . . . the PCRA are jurisdictional[, and] the court has

no jurisdiction to address an untimely petition[,]” regardless of the claim

raised therein. Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). The

only exceptions to the timing requirements are those set forth at Section

9545(b): governmental interference with the presentation of a claim, newly

discovered facts which could not have been ascertained earlier by the exercise

of due diligence, or a newly recognized constitutional right. See 42 Pa.C.S. §

9545(b)(1)(i)-(iii). “[T]here is no ‘miscarriage of justice’ standard exception

to the time requirements of the PCRA.” Commonwealth v. Burton, 936

A.2d 521, 527 (Pa. Super. 2007).

Appellant’s present claim — that he was deprived of due process when

the court accepted a stipulation of facts purportedly without his knowledge or

consent — does not satisfy any of the Section 9545 timing exceptions. With

regard to the governmental interference exception, we note that although

Appellant claims the Commonwealth and trial counsel conspired to present a

de facto guilty plea, he does not assert that the Commonwealth or trial court

interfered with his ability to raise this claim previously. See 42 Pa.C.S. §

9545(b)(1)(i). Further, Appellant cannot meet the newly discovered facts

8 Similarly, in his reply brief, Appellant argues, without any citation, “[c]hallenge to jurisdiction is an exception to any time bar.” Appellant’s Reply Brief at 2.

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exception because he was present for his nonjury trial, and, thus, aware

counsel agreed to stipulated facts allegedly without his consent. Moreover,

this claim was initially raised in the jailhouse lawyer letter sent to first PCRA

counsel in July of 2015. See Letter, 7/2/15, at 1 (“Trial counsels [sic]

stipulation to evidence, absent [Appellant’s] authorization and the trial court’s

failure to conduct a proper and, thus, necessary colloquy, . . . deprived

[Appellant] his constitutional right to effective assistance of counsel, a fair trial

and, due process of law.”). Accordingly, the “fact” that he was convicted

based upon stipulated facts is not “newly discovered.” See 42 Pa.C.S. §

9545(b)(1)(ii). Finally, this claim is not based on a newly recognized

constitutional right. See 42 Pa.C.S. § 9545(b)(1)(iii).

Therefore, we agree with the PCRA court that Appellant failed to plead

or prove the applicability of any of the PCRA timing exceptions. Accordingly,

his petition was untimely filed, and he is entitled to no relief.9

9 Despite the fact that Appellant’s claim is untimely, we note that the stipulation of facts presented to the trial court does not contain Appellant’s signature, nor did counsel or the court question Appellant regarding his consent to proceed by way of stipulation during the nonjury trial. See N.T., 10/19/09, at 3-10; Stipulation of Fact at 4 (unpaginated). Although a case tried on stipulated facts does not require a full guilty plea colloquy, Appellant should have been informed, on the record, of his right to confront witnesses against him and given the opportunity to acknowledge his agreement to proceed by stipulated facts. See Commonwealth v. Tate, 410 A.2d 751, 754-55 (Pa. 1980) (guilty plea colloquy unnecessary for trial by way of stipulation; defendant explicitly waived right to confront witnesses and indicated willingness to proceed by stipulated facts); Commonwealth v. Cook, 547 A.2d 406, 409 (Pa. Super. 1988) (guilty plea colloquy unnecessary (Footnote Continued Next Page)

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/8/2021

when court explained to appeal that counsel intended to proceed on stipulated testimony and defendant indicated he understood).

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