Com. v. Windon, D., Jr.

• Court: Superior Court of Pennsylvania
• Decided: July 31, 2024
• Docket: 1113 MDA 2023
• Status: Unpublished

Opinion

J-S01044-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DONALD EUGENE WINDON JR. : : Appellant : No. 1113 MDA 2023

Appeal from the PCRA Order Entered July 18, 2023 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0006069-2018

BEFORE: PANELLA, P.J.E., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: JULY 31, 2024

Appellant, Donald Eugene Windon Jr., appeals pro se from the order

entered in the York County Court of Common Pleas that dismissed his second

petition filed pursuant to the Post Conviction Relief Act (PCRA)1 as untimely.

For the reasons set forth below, we affirm.

Appellant was convicted by a jury on September 26, 2019 of rape by

forcible compulsion, statutory sexual assault, involuntary deviate sexual

intercourse (IDSI) by forcible compulsion, IDSI, incest of a minor, indecent

assault, and corruption of minors for sexually assaulting his fourteen-year-old

niece (Victim). N.T. Trial at 613-16. On December 31, 2019, the trial court

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541–9546. J-S01044-24

sentenced Appellant to an aggregate 10 to 20 years’ incarceration. N.T.

Sentencing at 11-17. Appellant initially did not timely appeal, but his appellate

rights were reinstated by the trial court. Trial Court Order, 4/8/20. Appellant

thereafter filed a timely appeal from his judgment of sentence but

discontinued that appeal on October 23, 2020 and filed a timely counseled

first PCRA petition on February 9, 2021.

In this first PCRA petition, Appellant asserted a single claim for relief,

that trial counsel was ineffective in failing to file a written pretrial motion as

required under the Rape Shield Law, 18 Pa.C.S. § 3104, to introduce evidence

that Victim had requested and been denied a “morning-after pill” before she

made her accusation against Appellant. 2021 PCRA Petition at 18-30. On

April 13, 2021, the PCRA court denied Appellant’s first PCRA petition.

Appellant timely appealed the denial of his first PCRA petition. Shortly

after the appeal was filed, Appellant’s PCRA counsel was permitted to

withdraw and new PCRA counsel was appointed to represent Appellant on May

28, 2021. 498 MDA 2021 Order, 5/25/21; PCRA Court Order, 5/28/21. On

March 4, 2022, this Court affirmed the order denying his first PCRA petition.

Commonwealth v. Windon, 276 A.3d 211, No. 498 MDA 2021 (Pa. Super.

2022) (unpublished memorandum). Appellant filed a petition for allowance of

appeal, which the Pennsylvania Supreme Court denied on September 7, 2022.

Commonwealth v. Windon, 284 A.3d 880 (Pa. 2022).

-2- J-S01044-24

On January 24, 2023, Appellant filed the instant pro se second PCRA

petition.2 In this PCRA petition, Appellant asserted that his PCRA counsel was

ineffective for failing to plead a claim that trial counsel was ineffective in

advising him to reject a Commonwealth plea offer under which he would have

pled guilty to statutory sexual assault, indecent assault, and corruption of

minors and received a sentence of 21/2 to 5 years’ incarceration. 2023 PCRA

Petition at 3-6. On June 23, 2023, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss this PCRA petition without a hearing on the

ground that it was time-barred. Appellant filed a pro se response to the PCRA

court’s Rule 907 notice setting forth grounds on which he contended that the

PCRA petition was timely. On July 18, 2023, the PCRA court dismissed the

PCRA petition as untimely, and Appellant timely appealed that order to this

Court.

In this appeal, Appellant argues that his second PCRA petition was

timely on the same two grounds that he raised in his response to the PCRA

court’s Rule 907 notice: (1) that it was timely under our Supreme Court’s

decision in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), and (2)

2 Although this PCRA petition was docketed on January 26, 2023, the record

shows that Appellant mailed it on January 24, 2023. Under the prisoner- mailbox rule, a document is considered filed on the date that the pro se inmate delivered it to prison authorities for mailing, regardless of when it is received. Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 (Pa. Super. 2019).

-3- J-S01044-24

that it was timely because appellate PCRA counsel waived the only issue that

he raised. Neither of these arguments has merit.

The PCRA provides that “[a]ny petition under this subchapter, including

a second or subsequent petition, shall be filed within one year of the date the

judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A PCRA petition may be

filed beyond the one-year time period only if the convicted defendant pleads

and proves one of the following three exceptions:

(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.

Id. The PCRA’s time limit is jurisdictional, and a court may not ignore it and

reach the merits of an untimely PCRA claim. Commonwealth v. Fahy, 737

A.2d 214, 222 (Pa. 1999); Commonwealth v. Hipps, 274 A.3d 1263, 1267

(Pa. Super. 2022).

Appellant's judgment of sentence became final on October 23, 2020,

when he withdrew his appeal to this Court. 42 Pa.C.S. § 9545(b)(3);

Commonwealth v. Woolstrum, 271 A.3d 512, 514 (Pa. Super. 2022).

Appellant’s second PCRA petition was filed in January 2023, more than two

-4- J-S01044-24

years after his judgment of sentence became final and is therefore untimely

unless Appellant alleged and proved one of the three limited exceptions set

forth in Section 9545(b)(1)(i)-(iii).

In his first argument, Appellant asserts that under Bradley, his second

PCRA petition is an extension of his timely first PCRA petition because he

allegedly had no opportunity to raise his claim of ineffectiveness of PCRA

counsel until after the appeal concerning his first PCRA petition had concluded.

This argument is both contrary to the law and contrary to the record in this

case.

In Bradley, our Supreme Court addressed the problem of when a

defendant may raise claims of ineffective assistance of PCRA counsel and held

that such claims may be raised in an appellate court for the first time during

an appeal from the denial of a timely filed first PCRA petition if the PCRA

counsel in question represented the defendant until the appeal. 261 A.3d at

401-05. Bradley, however, did not create an exception to the PCRA’s time

limit for PCRA petitions filed in the court of common pleas after conclusion of

the appeal of the denial of a timely first PCRA petition. Commonwealth v.

Stahl, 292 A.3d 1130, 1136 (Pa. Super. 2023). To the contrary, the Supreme

Court made clear in Bradley that ineffectiveness of PCRA counsel in failing to

raise additional issues in a timely PCRA petition does not satisfy any exception

to the PCRA’s time-bar or permit a defendant to file a PCRA petition after the

-5- J-S01044-24

conclusion of the appeal concerning the first PCRA petition. Bradley, 261

A.3d at 403-04 & n.18; Stahl, 292 A.3d at 1136.

Here, Appellant did not raise his claim of ineffectiveness of PCRA counsel

during his appeal, as permitted by Bradley. Instead, he filed it in the court

of common pleas three months after his appeal from the denial of his first

PCRA petition was over as a new PCRA petition alleging that PCRA counsel was

ineffective for failure to raise an additional issue. Because such a claim of

ineffectiveness of PCRA counsel does not satisfy any exception to the PCRA’s

time-bar and his second PCRA petition was filed more than one year after his

judgment of sentence became final in October 2020, his claim that PCRA

counsel was ineffective in failing to assert that trial counsel was ineffective

with respect to the Commonwealth’s plea offer was untimely and was properly

dismissed by the PCRA court. Stahl, 292 A.3d at 1135-36.

Moreover, Appellant’s claim that he did not have an opportunity to raise

this claim during the appeal from the denial of his first PCRA petition is simply

inaccurate. Appellant knew that PCRA counsel had not raised any claim that

trial counsel was ineffective with respect to the Commonwealth’s plea offer at

the time that his timely first PCRA petition was filed in February 2021, as

Appellant signed a verification stating that he had read the PCRA petition.

2021 PCRA Petition, Appendix A. Appellant was not represented by that first

PCRA counsel or by counsel affiliated with first PCRA counsel on appeal, PCRA

Court Order, 5/28/21, and therefore could have asserted the ineffectiveness

-6- J-S01044-24

of his first PCRA counsel in failing to raise a claim concerning the

Commonwealth’s plea offer in this Court.

Appellant’s second argument fails because it is contrary to the record.

A narrow exception to the rule that ineffectiveness of PCRA counsel cannot

satisfy a timeliness exception exists where there is a complete default by PCRA

counsel that wholly deprives the defendant of any PCRA review or of any

appellate review of the denial of a PCRA petition. Commonwealth v.

Peterson, 192 A.3d 1123, 1129-32 (Pa. 2018); Commonwealth v.

Bennett, 930 A.2d 1264, 1272-74 (Pa. 2007); Hipps, 274 A.3d at 1268-72.

That exception, however, does not apply where PCRA counsel has timely

raised a claim for PCRA relief and timely filed an appeal from its denial and

the courts have decided the issue that PCRA counsel has raised on the merits.

Hipps, 274 A.3d at 1271-72.

Appellant does not dispute that PCRA counsel timely filed a first PCRA

petition on his behalf and timely filed an appeal from the PCRA court’s denial

of that PCRA petition. His only claim in this regard is that PCRA appellate

counsel’s briefing was allegedly so deficient that he was denied appellate

review of the sole issue that was raised in his PCRA petition. While deficient

briefing by a defendant’s PCRA appellate counsel that results in complete

waiver of all issues on appeal and denies the defendant any appellate review

on the merits can constitute grounds for nunc pro tunc reinstatement of the

defendant’s appeal rights, Commonwealth v. Clark, 254 A.3d 723, 725 (Pa.

-7- J-S01044-24

2021), that situation is not present here. This Court did not find any waiver

in affirming the denial of Appellant’s first PCRA petition and considered and

rejected the issue that Appellant’s PCRA counsel had raised on the merits.

Windon, 276 A.3d 211, No. 498 MDA 2021, slip op. at 12-14.

Because Appellant’s second PCRA petition was filed more than one year

after his judgment of sentence became final and no exception to the PCRA’s

time bar applies, the PCRA court properly dismissed it as untimely. We

therefore affirm the PCRA court’s dismissal order.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 07/31/2024

-8-