Com. v. Toby, D.

• Court: Superior Court of Pennsylvania
• Decided: March 22, 2017
• Docket: Com. v. Toby, D. No. 1064 MDA 2016
• Status: Unpublished

Opinion

J-S19004-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : v. : : DENNIS TOBY : : Appellant : No. 1064 MDA 2016

Appeal from the PCRA Order June 6, 2016 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0003199-2003

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

JUDGMENT ORDER BY GANTMAN, P.J.: FILED MARCH 22, 2017

Appellant, Dennis Toby, appeals pro se from the order entered in the

York County Court of Common Pleas, which denied his most recent petition

for collateral relief (labeled a petition for writ of habeas corpus), per the Post

Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546. On July 16,

2004, a jury convicted Appellant of third-degree murder, robbery, burglary,

and receiving stolen property. The court sentenced Appellant on August 25,

2004, to an aggregate term of 27½-55 years’ imprisonment. This Court

affirmed the judgment of sentence on September 8, 2006, and our Supreme

Court denied allowance of appeal on March 20, 2007. See Commonwealth

v. Toby, 911 A.2d 187 (Pa.Super. 2006), appeal denied, 591 Pa. 713, 919

A.2d 956 (2007). On June 4, 2007, Appellant timely filed a PCRA petition,

for reinstatement of his direct appeal rights nunc pro tunc due to counsel’s

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*Former Justice specially assigned to the Superior Court. J-S19004-17

failure to file a timely Rule 1925(b) statement on direct appeal. The court

granted relief on July 12, 2007, and Appellant filed a nunc pro tunc notice of

appeal on July 17, 2007. On July 8, 2008, this Court affirmed. See

Commonwealth v. Toby, 959 A.2d 975 (Pa.Super. 2008). Our Supreme

Court subsequently granted Appellant’s petition for allowance of appeal on

December 17, 2008, and remanded the case to this Court for consideration

of a jury instruction issue. See Commonwealth v. Toby, 600 Pa. 97, 963

A.2d 902 (2008). This Court again affirmed the judgment of sentence on

March 31, 2009, and our Supreme Court denied allowance of appeal on

October 15, 2009. See Commonwealth v. Toby, 974 A.2d 1193

(Pa.Super. 2009), appeal denied, 603 Pa. 676, 982 A.2d 65 (2009). On

August 2, 2010, Appellant timely filed a pro se PCRA petition; however,

Appellant withdrew the petition on December 13, 2010. Appellant then filed

a pro se PCRA petition on September 8, 2011, and the PCRA court denied

relief on September 26, 2011. This Court affirmed on June 29, 2012, and

our Supreme Court denied allowance of appeal on November 20, 2012. See

Commonwealth v. Toby, 53 A.3d 944 (Pa.Super. 2012), appeal denied,

618 Pa. 688, 57 A.3d 70 (2012). On or about March 7, 2016, Appellant filed

the instant petition for writ of habeas corpus in the civil division, which

raised challenges to the lawfulness of his convictions. The court treated

Appellant’s petition as a PCRA petition and transferred it to Appellant’s

existing criminal docket. The court ultimately dismissed the petition as

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untimely on June 6, 2016. Appellant timely filed a notice of appeal on June

27, 2016. On July 8, 2016, the court ordered Appellant to file a Rule

1925(b) statement, and Appellant timely complied on July 25, 2016.

Any petition for post-conviction collateral relief generally is considered

a PCRA petition, regardless of how an appellant captions the petition, if the

petition raises issues for which the relief sought is the kind available under

the PCRA. 42 Pa.C.S.A. § 9542 (stating PCRA is sole means of obtaining

collateral relief). The timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Robinson, 12 A.3d 477 (Pa.Super. 2011). A

petitioner must file a PCRA petition within one year of the date the

underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A

judgment is final at the conclusion of direct review or at the expiration of

time for seeking review. 42 Pa.C.S.A. § 9545(b)(3). The three statutory

exceptions to the timeliness provisions in the PCRA allow for very limited

circumstances under which the late filing of a petition will be excused. 42

Pa.C.S.A. § 9545(b)(1).

Instantly, the court properly treated Appellant’s current petition for

writ of habeas corpus as a PCRA petition. Appellant’s judgment of sentence,

however, became final on January 13, 2010, upon expiration of time to file a

petition for writ of certiorari with the U.S. Supreme Court. See

U.S.Sup.Ct.R. 13. Appellant filed his current petition on or about March 7,

2016, over six years later; thus, the petition is patently untimely. See 42

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Pa.C.S.A. § 9545(b)(1). Significantly, Appellant’s petition neither alleges nor

proves any cognizable exception to the PCRA timeliness requirements. See

42 Pa.C.S.A. § 9545(b)(1). Therefore, the court properly dismissed

Appellant’s current petition as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/22/2017

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