Com. v. Dulaney, K. ( 2019 )

J-S34024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH ROBERT DULANEY :
:
Appellant : No. 1665 WDA 2018
Appeal from the PCRA Order Entered November 2, 2018
In the Court of Common Pleas of Greene County Criminal Division at
No(s): CP-30-CR-0000319-2007
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 10, 2019
Kenneth Robert Dulaney appeals from the November 2, 2018 order
denying his Post Conviction Relief Act (“PCRA”) petition as untimely.1 We
affirm.
Dulaney was charged with numerous crimes for illegal sexual contact
with his stepdaughter, including rape, involuntary deviate sexual intercourse,
and statutory sexual assault. After entering a negotiated guilty plea, Dulaney
withdrew his guilty plea and went to trial. A jury found Dulaney guilty in
September 2009 and the court sentenced him to a total of 12 to 25 years in
prison. He appealed the judgment of sentence and this Court affirmed in
August 2011.
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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After the failure of his first PCRA petition, Dulaney filed the instant, pro
se petition on September 26, 2018, more than seven years after his judgment
of sentence became final. Although he styled it as an “Amended Petition For
Post-Conviction Relief Act Pursuant to 42 Pa.C.S. 9542, and 42 Pa.C.S.
9545(b),” it was in fact the first filing of this petition. The PCRA court dismissed
the petition as untimely and this timely appeal followed.2
Dulaney raises the following issues, which we reproduce verbatim (with
capitalization regularized):
I. Whether the PCRA court erred by not reinstating the
Appellant’s direct appeal rights due to counsel on direct
appeal waiving the main issues on direct appeal which were
(a) sufficiency of the evidence: (B) Pa. Rules of Evidence
802(3), and 802(4); and (C) whether the trial court erred in
not admitting the S.A.N.E. hospital report’s inculpatory
statement at trial prior to the Commonwealth proving the
corpus delecti [sic] for each crime charged?
II. 18 Pa.C.S.A. § 3121(c) / 3123(a)(7) / 3123(a)(6) / 3122.1
/ 3125(a)(7) /3125(a)(8) / 3126(a)(7) / 6301(a)(1) /
3126(a)(8). Whether the trial court erred of proving the
corpus delecti [sic] rule for each crime charged above?, [sic]
before ruling the records were properly authenticated, at
Washington Hospital records/reports was known to the
Commonwealth, the report was undertaken as an
examination upon referral from CYS and the police, and the
____________________________________________
2 We note Dulaney filed yet another PCRA petition, just days prior to his
initiation of the instant timely appeal. In its Rule 1925(a) opinion, the trial
court aptly explains that the court lacked jurisdiction to rule on Dulaney’s third
PCRA petition due to the pendency of the instant appeal. See
Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa.Super.
2000)(“Pennsylvania law makes clear the trial court has no jurisdiction to
consider a subsequent PCRA petition while an appeal from the denial of the
petitioner’s prior PCRA petition in the same case is still pending on appeal”).
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content of the report showed a “normal” examination and
was not “inadmissible” as opinion?
III. Should a privately retained counsel have filed a “no-merit”
letter without ever communicating with the Appellant, since
it was his job to do before he withdrawal, and especially
where a meritorious issue was clearly present after direct
appeal to Superior Court was dismissed due to direct appeal
counsel’s failure to protect an appeal?: (b) Did the trial court
err by dismissing the Post-Conviction Relief Act petition
pursuant to counsel’s “no-merit” letter that failure to
comport with appellate standards governing withdrawal of
counsel’s representation in post–direct appeal
proceedings?; (c) Did the court’s erroneous notification to
Appellant that appeal’s counsel had withdrawn amounted to
government interference?
Dulaney’s Br. at 3.
We do not reach the merits of Dulaney’s appeal because we agree with
the lower court that Dulaney’s petition was untimely. If the petition is untimely
and the petitioner has not pled nor proven a timeliness exception, “the petition
must be dismissed because Pennsylvania courts are without jurisdiction to
consider the merits of the petition.” See Commonwealth v. Jackson, 30
A.3d 516, 519 (Pa.Super. 2011). A PCRA petitioner must file the petition within
one year of the judgment becoming final unless an exception to the one-year
rule applies. 42 Pa.C.S.A. § 9545(b)(1).
Dulaney filed the instant petition approximately seven years after the
one-year time bar expired, rendering this petition patently untimely. Thus,
Dulaney bore the burden of pleading and proving at least one of the time-bar
exceptions:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation
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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.A. §§ 9545(b)(1)(i)-(iii).
It is difficult to discern the argument Dulaney intends to make regarding
the timeliness of his PCRA petition. His appellate brief argues on the one hand
that “the court’s erroneous notification to appellant that appeal's counsel had
withdrawn amounted to governmental interference[.]” Dulaney’s Br. at 16. On
the other hand, the brief contradictorily maintains that he “never heard from
his attorney nor the lower courts ‘no notice’ ‘no notification’ . . . that his
appeal’s [sic] counsel had withdrawn from his case.” Id. It appears that what
he may mean to say is that counsel abandoned him. In his PCRA petition, he
maintained that he was entitled to relief due to “counsel on direct appeal by
quiting [sic] on his case (abandonment) without leaving his client know about
leaving his case.” Amended PCRA Petition at 4 (unpaginated).
Regardless, he has waived the governmental interference exception
because he did not plead it or any other exception in the instant PCRA petition.
Furthermore, his claims in his petition that his counsel was ineffective do not
amount governmental interference. Defense counsel is not considered a
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government official for purposes of the governmental interference exception.
42 Pa.C.S.A. § 9545(b)(4); see also Commonwealth v. Abu-Jamal, 833
A.2d 719, 725 (Pa. 2003). Nor do such claims suffice to prove the “newly-
discovered facts” exception. See Commonwealth v. Gamboa-Taylor, 753
A.2d 780, 785 (Pa. 2000). Accordingly, we conclude that the PCRA court did
not err in concluding Dulaney filed an untimely PCRA petition and failed to
establish any exception to the time bar.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2019
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