Com. v. Dunbar, G. ( 2018 )

J-S22038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GREGORY DUNBAR, :
:
Appellant : No. 3374 EDA 2017
Appeal from the PCRA Order September 11, 2017
in the Court of Common Pleas of Bucks County
Criminal Division at Nos.: CP-09-CR-0002434-1985
CP-09-CR-0002435-1985
CP-09-CR-0002436-1985
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED JULY 23, 2018
Appellant, Gregory Dunbar, appeals pro se from the order denying as
untimely his serial petition for relief under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541–9546. Appellant’s facially untimely petition
does not plead or prove any of the three statutory exceptions to the PCRA
time bar. Accordingly, we affirm.
This petition is the latest of over a dozen unsuccessful petitions for post-
conviction relief, filed in state and federal court. Several, including the instant
petition, are incorrectly styled as a petition for habeas corpus relief.1
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1We note that with limited exceptions not applicable here, the PCRA subsumes
petitions for habeas corpus relief. See 42 Pa.C.S.A. § 9542.
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* Retired Senior Judge assigned to the Superior Court.
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On October 7, 1985, Appellant entered counseled pleas of guilty but
mentally ill to three separate criminal informations involving numerous
crimes, which included attempted murder, rape, robbery, aggravated assault,
and simple assault.2 On January 15, 1986, the court sentenced him to an
aggregate term of incarceration of not less than twenty nor more than forty
years in a state correctional institution. Appellant did not file a direct appeal. 3
On July 24, 2017, Appellant filed the instant petition, styled as a petition
for a writ of habeas corpus, thirty years after his conviction became final and
twenty years after the extended jurisdictional time period had expired. The
PCRA court denied the petition on September 11, 2017. On September 25,
2017, Appellant filed a motion for recusal and reconsideration (on the ground
that he had filed a private criminal complaint against the PCRA court judge,
as well as other court personnel). The PCRA court denied the motion on
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2 Appellant raped one woman at knifepoint, and gutted a second, requiring
surgery to restore her intestines to their proper place in her abdomen. He
broke into a home occupied by the third Victim and her two small children.
He stabbed her in the abdomen, robbed her, and forced her to have anal and
vaginal intercourse with him. The knife Appellant used, with the Victim’s blood
still on it, was found in his closet.
3 Settled Pennsylvania law makes clear that by entering a guilty plea, the
defendant waives his right to challenge on direct appeal all non-jurisdictional
defects except the legality of the sentence and the validity of the plea. See
Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013), appeal
denied, 87 A.3d 319 (Pa. 2014).
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October 4, 2017. The clerk of courts received Appellant’s notice of appeal on
October 16, 2017.
Appellant presents five questions for our review:
1. Did the court error [sic] and abuse its discretion by
dismissing habeas corpus action as a PCRA in cases 2435 and
2436 which expired in 2005?
2. Did the court abuse its discretion by ruling Appellant’s
(which allege fraud and want of jurisdiction) [sic] issues were not
cognizable under PCRA?
3. Did the court abuse it discretion by not granting a hearing
(habeas corpus) on allegation that the state coersed [sic] a victim
in case 2435, to falsely identify Appellant under oath at
preliminary hearing, and suppress a pretrial statement that would
of [sic] exonerated Appellant?
4. Did the court abuse its discretion by ruling Appellant was
time barred from bring [sic] fraud claim, and challenge to court’s
jurisdiction?
5. Did the court abuse its discretion by denying Appellant’s
recusal petition and reconsideration request after Appellant
informed court he filed criminal charges against it?
(Appellant’s Brief, at 5)
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court’s determination, and
whether the PCRA court’s determination is free of legal error. The
PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.
It is undisputed that a PCRA petition must be filed within
one year of the date that the judgment of sentence becomes final.
[See] 42 Pa.C.S.A. § 9545(b)(1). This time requirement is
mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of the petition.
A judgment of sentence becomes final at the conclusion of
direct review, including discretionary review in the Supreme Court
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of the United States and the Supreme Court of Pennsylvania, or
at the expiration of time for seeking the review. [See] 42
Pa.C.S.A. § 9545(b)(3).
However, an 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), is met. A petition
invoking one of these exceptions must be filed within sixty days
of the date the claim could first have been presented. [See] 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. Hernandez, 79 A.3d 649, 651–52 (Pa. Super. 2013)
(citations, internal quotation marks, and footnote omitted).
Here, initially, we observe that Appellant misapprehends our standard
of review, which determines whether the record supports the PCRA court’s
determination, and whether the PCRA court’s determination is free of legal
error. See id. at 651. We do not review for abuse of discretion.
To be timely, Appellant’s PCRA petition had to be filed within one year
from the date his judgment of sentence became final, which would have been
at the conclusion of direct review by this Court, or at the expiration of time
for seeking the review. [See] 42 Pa.C.S.A. § 9545 (b)(3); see also
Commonwealth v. Alcorn, 703 A.2d 1054, 1056 (Pa. Super. 1997), appeal
denied, 724 A.2d 348 (Pa. 1998). Our review of the record reflects that
Appellant’s judgment of sentence became final on February 14, 1986, thirty
days after the trial court imposed the judgment of sentence and Appellant
declined to file a direct appeal with this Court. See 42 Pa.C.S.A. § 9545(b)(3);
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Pa.R.A.P. 903(a). Appellant filed his first petition on March 31, 1986, under
the Post Conviction Hearing Act.4 Appellant did not file the instant PCRA
petition until July 24, 2017. Thus, Appellant’s PCRA petition currently on
appeal is patently untimely, unless he pleads and proves one of the three
statutory exceptions to the PCRA time bar.
However, Appellant fails to plead any of the three cognizable exceptions
to the PCRA time bar.5
Accordingly, the PCRA court properly determined that Appellant’s
petition is untimely, with no cognizable exception to the statutory time bar
pleaded or proven, and it lacked jurisdiction to review Appellant’s claims on
the merits.
Order affirmed.6
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4 We note for the sake of completeness and clarity that Appellant is ineligible
for the grace period which was applied to first PCRA petitions, where the
petitioner’s judgment of sentence became final on or before the effective date
of the 1995 amendments, allowing the petition to be considered timely if filed
by January 16, 1997. See Act of November 17, 1995, P.L. 1118, No. 32
(Spec. Sess. No. 1), § 3(1); see also Commonwealth v. Rivera, 802 A.2d
629, 631 (Pa. Super. 2002). As previously noted, Appellant filed his first
petition on March 31, 1986, under the Post Conviction Hearing Act.
5 Instead, he asserts a variety of purported abuses of discretion, not
cognizable under the PCRA, most notably the frivolous claim that the PCRA
court had refused his motion to recuse for lack of jurisdiction based on
Appellant’s private criminal complaint against the PCRA court judge.
6 The PCRA court suggests that the instant claim be quashed because the
notice of appeal was not received until October 16, 2017. (See PCRA Court
Opinion, at 3). However, the certified record includes Appellant’s envelope
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/18
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with a postmark of October 10, 2017. “[A] pro se prisoner’s appeal will be
deemed to be filed when the inmate places the document in the hands of
prison officials or in the prison mailbox[.]” Smith v. Pennsylvania Bd. of
Prob. & Parole, 683 A.2d 278, 279 (Pa. 1996). Accordingly, we give
Appellant the benefit of the Prisoner Mailbox Rule. Nevertheless, we may
affirm the decision of the PCRA court if there is any basis on the record to
support the PCRA court’s action; this is so even if we rely on a different basis
in our decision to affirm. See Commonwealth v. Wiley, 966 A.2d 1153,
1157 (Pa. Super. 2009).
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