Com. v. Dorsey, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEFFERY DORSEY,
Appellant No. 2743 EDA 2015
Appeal from the PCRA Order August 26, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos.: CP-51-CR-0431471-1981
CP-51-CR-0503081-1981
CP-51-CR-0503391-1981
BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 20, 2016
Appellant, Jeffery Dorsey, appeals pro se from the order dismissing his
petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541–9546. Appellant’s petition is untimely with no statutory
exception to the time bar properly pleaded and proven. Appellant has also
filed a pro se application for relief captioned “Appellant Authorities,” and an
application for reconsideration. We affirm the dismissal of Appellant’s
petition and deny his applications as moot.
In 1981, Appellant was convicted in two separate trials of multiple
crimes including rape, robbery, burglary, theft by unlawful taking and
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*
Retired Senior Judge assigned to the Superior Court.
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conspiracy. On March 9, 1982, the court imposed an aggregate sentence of
incarceration of not less than twenty-three nor more than forty-six years in
a state correctional institution. (See PCRA Court Opinion, 10/22/15, at 1-
2). This Court affirmed the judgment of sentence. (See Commonwealth
v. Dorsey, 482 A.2d 667 (Pa. Super. 1984) (unpublished memorandum)).
On August 8, 2012, Appellant filed the instant PCRA petition. The
court appointed counsel who, in due course, filed a Turner/Finley “no
merit” letter. (See “No Merit/Finley Letter,” 2/11/15, at 1-6); see also
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The PCRA court
permitted her to withdraw. After notice pursuant to Pa.R.Crim.P. 907, the
PCRA court dismissed the petition, on August 26, 2015. This timely appeal
followed on September 8, 2015. Appellant filed a statement of errors on
September 29, 2015. See Pa.R.A.P. 1925(b). The PCRA court filed its
opinion on October 22, 2015. See Pa.R.A.P. 1925(a).
Preliminarily, we observe that Appellant’s brief fails to comply not only
with our procedural rules, but even with the most basic requirements of an
intelligible argument.1 The pages are not consecutively numbered, making
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1
Appellant filed both his brief and his reproduced record late, on January 12,
2016. Appellant has filed an Application for Reconsideration, on March 29,
2016. The application offers an explanation of the circumstances which he
claims led to (and excused) the late filings. In the interest of justice, and for
the sake of judicial economy, we have reviewed Appellant’s filings on their
respective merits, such as there are. Therefore, it is unnecessary for us to
(Footnote Continued Next Page)
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referencing, let alone cross-referencing, virtually impossible. More
substantively, Appellant fails to identify any cognizable PCRA court errors.
In fact, he has failed to include a statement of questions involved on appeal
at all. See Pa.R.A.P. 2116(a): (“The statement of the questions involved
must state concisely the issues to be resolved, expressed in the terms and
circumstances of the case but without unnecessary detail.”).
Similarly, Appellant’s purported concise statement of errors is little
more than an unfocussed assortment of alleged grievances. These include
his claimed right to substitute PCRA counsel, an attempt to incorporate by
reference a variety of previously filed motions, a complaint addressed
personally to the PCRA judge, and so forth. (See “Claims of Error,”
9/29/15, at 1-2; see also Appellant’s Brief, “Court’s Exhibit “B,” at 1-4).
Instead of specific reviewable claims, Appellant opts in general for a
long, rambling narrative punctuated by broad critiques of the PCRA court
judge, his accuracy, (“totally wrong”) (Appellant’s Brief, at 6), his “Bias,”
(id. at 12), and even his veracity, (“[T]hat’s a lie.”). (Id.).
Appellant fails to develop legal arguments or present meaningful
authority rationally related to support of any of his claims. Often his
assertions are simply unintelligible, e.g., “[I]t’s just a shame that a (bunch
_______________________
(Footnote Continued)
review this application for reconsideration on the merits, and we decline to
do so. Appellant’s application is denied as moot.
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of kid pornographic’s) [sic] will try to keep a child, now a grown man in
prison to die.” (Id. at 4) (parenthesis in original).
[A]lthough this Court is willing to construe liberally materials
filed by a pro se litigant, pro se status generally confers no
special benefit upon an appellant. Accordingly, a pro se litigant
must comply with the procedural rules set forth in the
Pennsylvania Rules of the Court. This Court may quash or
dismiss an appeal if an appellant fails to conform with the
requirements set forth in the Pennsylvania Rules of Appellate
Procedure. Pa.R.A.P. 2101. For example,
The argument [section] shall be divided into as many parts
as there are questions to be argued; and shall have as the
head of each part-in distinctive type or in type distinctively
displayed-the particular point treated therein, followed by
such discussion and citation of authorities as are deemed
pertinent.
Pa.R.A.P. 2119(a). In the instant case, the defects in Appellant’s
brief are substantial. . . . See Pa.R.A.P. 2116, 2119. Appellant’s
. . . argument is rambling, repetitive and often incoherent. See
Pa.R.A.P. 2119. Nonetheless, in the interest of justice we
address the arguments that can reasonably be discerned from
this defective brief.
Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003),
appeal denied, 879 A.2d 782 (Pa. 2005) (case citation omitted).2
To the extent review of the PCRA court’s determinations is
implicated, an appellate court reviews the PCRA court’s findings
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2
In the spirit of liberal construction espoused in Lyons, we disregard, as the
PCRA court did, Appellant’s failure to file separate notices of appeal under
the proper docket numbers. (See PCRA Ct. Op., at 2-3); see also Grossi
v. Travelers Pers. Ins. Co., 79 A.3d 1141, 1145 n.1 (Pa. Super. 2013),
appeal denied, 101 A.3d 103 (Pa. 2014) (“[I]n the interests of justice and to
promote judicial economy an appellate court may ‘regard as done that which
ought to have been done’ and proceed in the matter.”).
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of fact to determine whether they are supported by the record,
and reviews its conclusions of law to determine whether they are
free from legal error. The scope of review is limited to the
findings of the PCRA court and the evidence of record, viewed in
the light most favorable to the prevailing party at the trial level.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations and
quotation marks omitted). For questions of law the appellate standard of
review is de novo, and our scope of review is plenary. See id.
We must first address whether Appellant satisfied the
timeliness requirements of the PCRA. The timeliness of a PCRA
petition is a jurisdictional threshold and may not be disregarded
in order to reach the merits of the claims raised in a PCRA
petition that is untimely. Effective January 16, 1996, the PCRA
was amended to require a petitioner to file any PCRA petition
within one year of the date the judgment of sentence becomes
final. 42 Pa.C.S.A. § 9545(b)(1). 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.A. § 9545(b)(3). . . .
[A]n untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited
exceptions to the time for filing the petition, set forth at 42
Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met. 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.A. § 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. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (case
citations, internal quotation marks and other punctuation omitted).
Here, because Appellant’s sentence became final prior to January 16,
1996, he had one year from that date, or January 16, 1997, to file a timely
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first PCRA petition. See Commonwealth v. Alcorn, 703 A.2d 1054, 1056-
57 (Pa. Super. 1997), appeal denied, 724 A.2d 348 (Pa. 1998). He did not.
Therefore, Appellant’s PCRA petition, filed in 2012, is untimely on its
face, and the PCRA court lacked jurisdiction to review the merits of
Appellant’s claims unless he pleads and proves one of the three statutory
exceptions to the time bar.
Liberally construed, Appellant invokes the exception for newly
discovered facts, specifically, notice from the Department of Corrections that
it computed his sentences to be consecutive. (See Appellant’s Brief, at 13;
see also Sentence Status Summary, Appellant’s Brief, at Exhibit E, at 1-3).
However, Appellant concedes that he learned about this purportedly
erroneous calculation on November 25, 2002. (See Appellant’s PCRA
Petition, at 11-13).
Nevertheless, he did not file his PCRA petition until August 8, 2012,
almost ten years later. Accordingly, Appellant failed to comply with 42
Pa.C.S.A. § 9545(b)(2), (“Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the claim could have
been presented.”).
Furthermore, a claim that the Department of Corrections erroneously
calculated a sentence is outside of the scope of the PCRA, requiring an
original action in the Commonwealth Court. See Commonwealth v. Perry,
563 A.2d 511, 512-13 (Pa. Super. 1989); see also Commonwealth v.
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Heredia, 97 A.3d 392, 394-95 (Pa. Super. 2014), appeal denied, 104 A.3d
524 (Pa. 2014) (following Perry). None of Appellant’s myriad of other
undeveloped claims presents anything remotely resembling one of the three
statutory exemptions to the PCRA time bar.
Accordingly, Appellant’s petition is untimely, with no exception to the
statutory time bar pleaded and proven. The PCRA court correctly
determined it lacked jurisdiction to review the merits of Appellant’s petition
and properly dismissed it. On independent review, we discern no other basis
on which to disturb the PCRA court’s dismissal of Appellant’s petition as
untimely. See Spotz, supra at 311.
Appellant has also filed a pro se application for relief captioned
“Appellant Authorities.” (See Appellant Authorities, 3/18/16, at 1-2). Aside
from requesting the Prothonotary to send back to Appellant all his previous
filings, the application does not seek a specific form of judicial relief. Rather,
it appears to be an effort by Appellant to supply additional authority he
believes will support his original petition. Nothing in the filing would alter
our disposition.
Order affirmed. Applications denied as moot.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2016
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