Com. v. Dixon, D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAWANN R. DIXON :
:
Appellant : No. 1145 EDA 2022
Appeal from the PCRA Order Entered March 19, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004889-2009
BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 28, 2022
Appellant, Dawann R. Dixon, appeals from an order entered in the
Criminal Division of the Court of Common Pleas of Delaware County on March
19, 2022, dismissing, as untimely, his third petition for collateral relief filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
We affirm.
Our review of the certified record reveals the following facts and
procedural history. Appellant entered a negotiated guilty plea to third-degree
murder1 and persons not to possess or use firearms2 on March 26, 2010. After
Appellant waived a pre-sentence investigation report, the trial court, on the
same day, sentenced Appellant in accordance with the terms of his negotiated
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1 18 Pa.C.S.A. § 2502(c).
2 18 Pa.C.S.A. § 6105(c)(1).
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plea agreement to an aggregate term of 25 to 50 years’ incarceration. Neither
a post-sentence motion nor a timely direct appeal was filed. Therefore,
Appellant’s judgment of sentence became final on April 26, 2010, 30 days
after the court imposed its sentence. See 42 Pa.C.S.A. § 9545(b)(3) (under
the PCRA, a judgment becomes final at the conclusion of direct review or at
the expiration of time for seeking such review); 1 Pa.C.S.A. § 1908 (excluding
Sunday from calculation of appeal period where, as here, the 30 th day
following imposition of sentence – April 25, 2010 – fell on Sunday).
Appellant filed his first PCRA petition on August 5, 2011. The PCRA court
appointed counsel who, after review, filed a no-merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) and requested leave to withdraw.
On January 19, 2012, the PCRA court issued notice of its intent to dismiss
Appellant’s initial petition without a hearing. See Pa.R.Crim.P. 907.
Thereafter, the court dismissed the petition on February 22, 2012. This Court
affirmed the dismissal of Appellant’s first petition on October 17, 2012.
Appellant filed a second petition for collateral relief on September 28,
2020, which the PCRA court dismissed as untimely on December 2, 2020.
Appellant did not appeal the dismissal of his second petition. On December
30, 2021, Appellant filed the instant PCRA petition, his third. The court issued
a Rule 907 notice on February 8, 2022, and Appellant responded on March 3,
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2022. The court then dismissed Appellant’s petition as untimely on March 19,
2022. This appeal timely appeal followed on April 19, 2022.3
In his brief, Appellant asserts that the PCRA court erred in concluding
that it lacked jurisdiction to consider the merits of his claims. Specifically,
Appellant argues that he validly invoked the exception to the PCRA’s one-year
time-bar found at 42 Pa.C.S.A. § 9545(b)(1)(iii)4 when he cited to our
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3 Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
4 In relevant part, 42 Pa.C.S.A. § 9545(b) provides:
§ 9545. Jurisdiction and proceedings
(a) Original jurisdiction. Original jurisdiction over a
proceeding under this subchapter shall be in the court of
common pleas. No court shall have authority to entertain a
request for any form of relief in anticipation of the filing of
a petition under this subchapter.
(b) Time for filing petition.
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of
the date the judgment becomes final, unless the
petition alleges and the petitioner proves that:
(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
(Footnote Continued Next Page)
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Supreme Court’s decision in Commonwealth v. Bradley 261 A.3d 381 (Pa.
2021). Appellant maintains that he is similarly situated to Bradley and that
Bradley fashioned a new rule of criminal procedure which should be
retroactively applied. See Appellant’s Brief at 1-2. We agree with the PCRA
court that Bradley does not trigger the “new constitutional right exception”
set forth at 42 Pa.C.S.A. § 9545(b)(1)(iii).
When reviewing the propriety of an order denying PCRA relief, this Court
determines whether the evidence of record supports the PCRA court's
conclusions and whether its ruling is free of legal error. Commonwealth v.
Robinson, 139 A.3d 178, 185 (Pa. 2016). We will not disturb the PCRA
court's findings unless there is no support for them in the certified record.
Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014). The
question of whether a petition is timely raises a question of law, and where a
petitioner raises questions of law, our standard of review is de novo and our
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(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(a) and (b)(1). For claims arising on December 24, 2017
or thereafter, “[a]ny petition invoking an exception provided in [42 Pa.C.S.A.
§ (b)(1)] shall be filed within one year of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). Because Appellant’s claim turns on
the interpretation of a decision issued by our Supreme Court in 2021, the
one-year filing deadline applies in this matter.
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scope of review is plenary. Commonwealth v. Callahan, 101 A.3d 118, 121
(Pa. Super. 2014).
All PCRA petitions must be filed within one year of the date upon which
the judgment of sentence became final, unless one of the statutory exceptions
set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The petitioner bears the
burden to plead and prove an applicable statutory exception. If the petition
is untimely, and the petitioner has not pled and proven an exception, the
petition must be dismissed without a hearing because Pennsylvania courts are
without jurisdiction to consider the merits of the petition. Commonwealth
v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).
Since Appellant did not file post-sentence motions or lodge a direct
appeal, his judgment of sentence became final on April 26, 2010, 30 days
after the court imposed its sentence. See 42 Pa.C.S.A. § 9545(b)(3).
Appellant therefore needed to petition for collateral relief on or before April
26, 2011. Appellant filed the instant PCRA petition on December 30, 2021.
As such, the petition is patently untimely, and the burden fell upon Appellant
to plead and prove that one of the enumerated exceptions to the one-year
time-bar applied to his case. See 42 Pa.C.S.A. § 9545(b)(1);
Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to
invoke a statutory exception to the PCRA time-bar, a petitioner must properly
plead and prove all required elements of the exception).
In rejecting Appellant’s claim that Bradley triggered the timeliness
exception contained in section 9545(b)(1)(iii), the PCRA court stated:
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In his pro se PCRA [petition, Appellant] attempts to avoid the time
bar by alleging a newly recognized constitutional right that is
applied retroactively. Specifically, [Appellant] has filed the instant
PCRA [petition] in reliance [upon] the Pennsylvania Supreme
Court’s decision in [Bradley]. [Appellant] misreads Bradley.
The holding in that case does not announce a newly recognized
constitutional right that applies retroactively. Instead, Bradley
revised prior PCRA procedure to allow “a petitioner to raise claims
of PCRA counsel’s ineffectiveness at the first opportunity when
represented by new counsel, even if on appeal.” Bradley, supra
at 401. The [Supreme C]ourt went on to state “we deem the
consideration on collateral appeal of claims of PCRA counsel
ineffectiveness to spring from the original petition itself, and that
doing so does not amount to impermissibly allowing a ‘second or
subsequent’ serial petition[.]” Bradley, supra at 404. The
Bradley Court further stated, “we reject the argument that claims
of ineffective assistance of PCRA counsel may be raised in an
untimely successive petition pursuant to the unknown facts
exception to the PCRA time-bar.” See id. 404 n.18. [Appellant’s]
PCRA petition is untimely. Accordingly, the court lacks jurisdiction
to entertain his untimely third PCRA petition.
PCRA Court Opinion, 6/14/22, at 5.
We agree with the PCRA court’s conclusion that Bradley does not trigger
the timeliness exception found at section 9545(b)(1)(iii). As the PCRA court
observed, Bradley is properly understood as a reassessment of appellate
procedure in cases involving claims for collateral relief. It is not, as section
9545(b)(1)(iii) requires, a decision by the Pennsylvania Supreme Court which
recognizes a new and retroactive constitutional right outside the permissible
filing period provided under the PCRA. Accordingly, we hold that the PCRA
court correctively concluded that it lacked jurisdiction to consider the merits
of Appellant’s third petition because the petition was untimely and not subject
to a timeliness exception under the PCRA.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2022
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