J-A08014-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TEONIA TERRI KIMBRO : : Appellant : No. 915 WDA 2021
Appeal from the PCRA Order Entered June 22, 2021 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002723-2015
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: MARCH 11, 2022
Appellant, Teonia Terri Kimbro, appeals pro se from the post-conviction
court’s June 22, 2021 order denying, as untimely, her petition filed under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
We need not reproduce the facts or a detailed summary of the
procedural history of Appellant’s case for purposes of her present appeal. We
only note that in January of 2017, Appellant pled guilty to third-degree murder
and burglary. She was sentenced on January 24, 2017, to a negotiated term
of 30 to 60 years’ imprisonment. On September 21, 2017, this Court affirmed
Appellant’s judgment of sentence, and she did not file a petition for permission
to appeal to our Supreme Court. Commonwealth v. Kimbro, 178 A.3d 184
(Pa. Super. 2017) (unpublished memorandum). Thus, Appellant’s judgment
of sentence became final on October 21, 2017. See 42 Pa.C.S. § 9545(b)(3) J-A08014-22
(directing that a judgment of sentence becomes final at the conclusion of
direct review or the expiration of the time for seeking the review); Pa.R.A.P.
1113(a) (stating, “a petition for allowance of appeal shall be filed with the
Prothonotary of the Supreme Court within 30 days of the entry of the order of
the Superior Court sought to be reviewed”).
Appellant thereafter litigated an unsuccessful PCRA petition, the denial
of which we affirmed on appeal. See Commonwealth v. Kimbro, 241 A.3d
357 (Pa. 2020) (unpublished memorandum). On April 15, 2021, Appellant
filed a second, pro se petition, which underlies her present appeal. On April
16, 2021, the court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s petition. She filed a pro se response to the court’s Rule 907 notice,
but on June 22, 2021, the PCRA court issued an order dismissing her petition
as untimely.
Appellant filed a pro se notice of appeal on July 1, 2021. However, she
stated on her notice of appeal that she was appealing from her January 24,
2017 judgment of sentence. The certified record shows that the Erie County
Clerk of Courts time-stamped that notice of appeal and entered it in the
record, but it did not transfer that appeal to this Court. Instead, it notified
Appellant of several errors in her appeal, including that she had failed to
provide filing fees. On August 6, 2021, Appellant filed a corrected, pro se
notice of appeal, again stating she was appealing from the January 24, 2017
judgment of sentence. This appeal was docketed by the trial court and
transmitted to this Court.
-2- J-A08014-22
Thereafter, Appellant indicated in her docketing statement to this Court
that she is appealing from the June 22, 2021 order dismissing her PCRA
petition. Because it was unclear from this record what order/judgment
Appellant was appealing, we issued a Rule to Show Cause order, directing
Appellant to explain why her appeal should not be quashed as either an
untimely appeal from her judgment of sentence, or an untimely appeal from
the June 22, 2021 order denying her PCRA petition. Appellant filed a pro se
response, which did not provide clarification on the timeliness of her appeal.
Nevertheless, we discharged the Rule to Show Cause order, but indicated that
the issue of the timeliness of Appellant’s appeal could be raised by the merits
panel.
On August 16, 2021, the PCRA court issued an order directing Appellant
to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal
within 21 days of the date of the order. The order also notified Appellant that
“[a]ny issue not properly included in the Statement timely filed and served
pursuant to [Rule] 1925(b) shall be deemed waived.” Order for Pa.R.A.P.
1925(b) Statement, 8/16/21, at 1 (single page). On September 23, 2021,
the court issued a Rule 1925(a) opinion stating that, as of that date, Appellant
had not filed a Rule 1925(b) statement, thereby waiving her claims for
appellate review. See PCRA Court Opinion (PCO), 9/23/21, at 1 (single page).
The record does not indicate that Appellant attempted to file a Rule 1925(b)
statement at any point thereafter.
-3- J-A08014-22
In Appellant’s pro se brief to this Court, she states three claims for our
review:
1. Did trial counsel perform ineffective assistance?
2. Did the trial court commit an abuse of discretion when it denied Appellant’s … PCRA [petition]?
3. Did Appellant enter a knowing, voluntary, and intelligent plea?
Appellant’s Brief at 8 (unnecessary capitalization omitted).
Initially, we must begin by assessing whether Appellant’s notice of
appeal was timely filed, as
[t]he timeliness of an appeal and compliance with the statutory provisions granting the right to appeal implicate an appellate court’s jurisdiction and its competency to act. Absent extraordinary circumstances, an appellate court lacks the power to enlarge or extend the time provided by statute for taking an appeal. Thus, an appellant’s failure to appeal timely an order generally divests the appellate court of its jurisdiction to hear the appeal.
Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014).
In this case, Appellant filed a pro se notice of appeal on July 1, 2021.
That appeal was timely-filed from the June 22, 2021 order denying her PCRA
petition. Although Appellant did not provide a filing fee with her appeal, and
she incorrectly stated that she was appealing from her January 2017 judgment
of sentence, Pennsylvania Rule of Appellate Procedure 902 states that the
“[f]ailure of an appellant to take any step other than the timely filing of a
notice of appeal does not affect the validity of the appeal, but it is subject to
such action as the appellate court deems appropriate, which may include, but
is not limited to, remand of the matter to the lower court so that the omitted
-4- J-A08014-22
procedural step may be taken.” Pa.R.A.P. 902. Here, the PCRA court
understood that Appellant was appealing from the denial of her PCRA petition.
See Order for Pa.R.A.P. 1925(b) Statement at 1 (single page); see also PCO
at 1 (single page). Accordingly, we need not remand for Appellant to file a
corrected notice of appeal. Instead, we consider her July 1, 2021 notice of
appeal as being timely-filed from the order denying her PCRA petition.
Nevertheless, Appellant is not entitled to relief. First, she has clearly
waived her issues by failing to comply with the PCRA court’s order to file a
Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included
in the Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”).
Second, even if Appellant’s claims were not waived, Appellant has not
Free access — add to your briefcase to read the full text and ask questions with AI
J-A08014-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TEONIA TERRI KIMBRO : : Appellant : No. 915 WDA 2021
Appeal from the PCRA Order Entered June 22, 2021 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002723-2015
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: MARCH 11, 2022
Appellant, Teonia Terri Kimbro, appeals pro se from the post-conviction
court’s June 22, 2021 order denying, as untimely, her petition filed under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
We need not reproduce the facts or a detailed summary of the
procedural history of Appellant’s case for purposes of her present appeal. We
only note that in January of 2017, Appellant pled guilty to third-degree murder
and burglary. She was sentenced on January 24, 2017, to a negotiated term
of 30 to 60 years’ imprisonment. On September 21, 2017, this Court affirmed
Appellant’s judgment of sentence, and she did not file a petition for permission
to appeal to our Supreme Court. Commonwealth v. Kimbro, 178 A.3d 184
(Pa. Super. 2017) (unpublished memorandum). Thus, Appellant’s judgment
of sentence became final on October 21, 2017. See 42 Pa.C.S. § 9545(b)(3) J-A08014-22
(directing that a judgment of sentence becomes final at the conclusion of
direct review or the expiration of the time for seeking the review); Pa.R.A.P.
1113(a) (stating, “a petition for allowance of appeal shall be filed with the
Prothonotary of the Supreme Court within 30 days of the entry of the order of
the Superior Court sought to be reviewed”).
Appellant thereafter litigated an unsuccessful PCRA petition, the denial
of which we affirmed on appeal. See Commonwealth v. Kimbro, 241 A.3d
357 (Pa. 2020) (unpublished memorandum). On April 15, 2021, Appellant
filed a second, pro se petition, which underlies her present appeal. On April
16, 2021, the court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s petition. She filed a pro se response to the court’s Rule 907 notice,
but on June 22, 2021, the PCRA court issued an order dismissing her petition
as untimely.
Appellant filed a pro se notice of appeal on July 1, 2021. However, she
stated on her notice of appeal that she was appealing from her January 24,
2017 judgment of sentence. The certified record shows that the Erie County
Clerk of Courts time-stamped that notice of appeal and entered it in the
record, but it did not transfer that appeal to this Court. Instead, it notified
Appellant of several errors in her appeal, including that she had failed to
provide filing fees. On August 6, 2021, Appellant filed a corrected, pro se
notice of appeal, again stating she was appealing from the January 24, 2017
judgment of sentence. This appeal was docketed by the trial court and
transmitted to this Court.
-2- J-A08014-22
Thereafter, Appellant indicated in her docketing statement to this Court
that she is appealing from the June 22, 2021 order dismissing her PCRA
petition. Because it was unclear from this record what order/judgment
Appellant was appealing, we issued a Rule to Show Cause order, directing
Appellant to explain why her appeal should not be quashed as either an
untimely appeal from her judgment of sentence, or an untimely appeal from
the June 22, 2021 order denying her PCRA petition. Appellant filed a pro se
response, which did not provide clarification on the timeliness of her appeal.
Nevertheless, we discharged the Rule to Show Cause order, but indicated that
the issue of the timeliness of Appellant’s appeal could be raised by the merits
panel.
On August 16, 2021, the PCRA court issued an order directing Appellant
to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal
within 21 days of the date of the order. The order also notified Appellant that
“[a]ny issue not properly included in the Statement timely filed and served
pursuant to [Rule] 1925(b) shall be deemed waived.” Order for Pa.R.A.P.
1925(b) Statement, 8/16/21, at 1 (single page). On September 23, 2021,
the court issued a Rule 1925(a) opinion stating that, as of that date, Appellant
had not filed a Rule 1925(b) statement, thereby waiving her claims for
appellate review. See PCRA Court Opinion (PCO), 9/23/21, at 1 (single page).
The record does not indicate that Appellant attempted to file a Rule 1925(b)
statement at any point thereafter.
-3- J-A08014-22
In Appellant’s pro se brief to this Court, she states three claims for our
review:
1. Did trial counsel perform ineffective assistance?
2. Did the trial court commit an abuse of discretion when it denied Appellant’s … PCRA [petition]?
3. Did Appellant enter a knowing, voluntary, and intelligent plea?
Appellant’s Brief at 8 (unnecessary capitalization omitted).
Initially, we must begin by assessing whether Appellant’s notice of
appeal was timely filed, as
[t]he timeliness of an appeal and compliance with the statutory provisions granting the right to appeal implicate an appellate court’s jurisdiction and its competency to act. Absent extraordinary circumstances, an appellate court lacks the power to enlarge or extend the time provided by statute for taking an appeal. Thus, an appellant’s failure to appeal timely an order generally divests the appellate court of its jurisdiction to hear the appeal.
Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014).
In this case, Appellant filed a pro se notice of appeal on July 1, 2021.
That appeal was timely-filed from the June 22, 2021 order denying her PCRA
petition. Although Appellant did not provide a filing fee with her appeal, and
she incorrectly stated that she was appealing from her January 2017 judgment
of sentence, Pennsylvania Rule of Appellate Procedure 902 states that the
“[f]ailure of an appellant to take any step other than the timely filing of a
notice of appeal does not affect the validity of the appeal, but it is subject to
such action as the appellate court deems appropriate, which may include, but
is not limited to, remand of the matter to the lower court so that the omitted
-4- J-A08014-22
procedural step may be taken.” Pa.R.A.P. 902. Here, the PCRA court
understood that Appellant was appealing from the denial of her PCRA petition.
See Order for Pa.R.A.P. 1925(b) Statement at 1 (single page); see also PCO
at 1 (single page). Accordingly, we need not remand for Appellant to file a
corrected notice of appeal. Instead, we consider her July 1, 2021 notice of
appeal as being timely-filed from the order denying her PCRA petition.
Nevertheless, Appellant is not entitled to relief. First, she has clearly
waived her issues by failing to comply with the PCRA court’s order to file a
Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included
in the Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”).
Second, even if Appellant’s claims were not waived, Appellant has not
demonstrated that we have jurisdiction to review the merits of the issues
raised in her untimely PCRA petition. The PCRA time limitations implicate our
jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007). Under the PCRA, any petition for post-conviction relief, including
a second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the following exceptions
set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the
-5- J-A08014-22
date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(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). Additionally, any petition attempting to
invoke one of these exceptions must “be filed within one year of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on October 21,
2017, and thus, she had until October 21, 2018, to file a timely petition.
Consequently, her petition filed on April 16, 2021, is facially untimely and, for
this Court to have jurisdiction to review the merits thereof, Appellant must
prove that she meets one of the exceptions to the timeliness requirements set
forth in 42 Pa.C.S. § 9545(b).
Appellant makes no attempt to meet this burden. Instead, she argues
that (1) her trial counsel acted ineffectively by not filing a pre-trial motion to
suppress evidence obtained in this case, and by permitting/causing Appellant
to enter a guilty plea that was involuntary, unknowing, and/or unintelligent;
(2) the PCRA court abused its discretion by denying her petition where she
-6- J-A08014-22
has had ineffective representation throughout her case; and (3) her guilty plea
was unlawfully coerced.
It is well-settled that a claim of ineffective assistance of counsel does
not, in and of itself, satisfy any timeliness exception. See Commonwealth
v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000) (“[A] claim for ineffective
assistance of counsel does not save an otherwise untimely petition for review
on the merits.”). Appellant makes no attempt to explain how her
ineffectiveness claims meet a timeliness exception. She also fails to state how
her argument that her guilty plea was coerced meets a timeliness exception.
Moreover, each of Appellant’s claims would fail to meet the one-year
requirement of section 9545(b)(2), as Appellant clearly was aware (or could
have discovered with due diligence) that her counsel acted ineffectively,
and/or that her guilty plea was coerced.
Accordingly, even had Appellant preserved her claims in a Rule 1925(b)
statement, we would conclude that she has not demonstrated that her
untimely petition satisfies any exception to the PCRA’s one-year time-bar.
Therefore, the court did not err by dismissing it.1
Order affirmed.
____________________________________________
1 On March 2, 2022, Appellant filed a pro se motion requesting that this Court reinstate her post-sentence motion rights. See Application for Post Submission Communication, 3/2/22, at 1 (single page). We hereby deny Appellant’s motion.
-7- J-A08014-22
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/11/2022
-8-