Com. v. Dockery, T. ( 2023 )

J-S44011-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY DOCKERY :
:
Appellant : No. 2983 EDA 2022
Appeal from the PCRA Order Entered October 17, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0742101-1989
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED DECEMBER 15, 2023
Appellant, Timothy Dockery, appeals pro se from the order entered on
October 17, 2022, which dismissed his sixth petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court summarized the factual and procedural history of the case
leading up to the dismissal of Appellant’s fourth PCRA petition:
On May 19, 1988, Appellant and his brother, Laverne
Dockery, entered a Philadelphia residence armed with
automatic weapons. The Dockery brothers shot and killed
Gregory Tutt, Hassan Uqdah, James Saunders, and Dawn
Gross.
[On February 6, 1991, a jury found Appellant guilty of four
counts of second-degree murder and one count each of
burglary, conspiracy, and possessing an instrument of
crime.] The trial court sentenced Appellant to an aggregate
term of life imprisonment without the possibility of parole.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S44011-23
On June 2, 1992, this Court affirmed the judgment of
sentence. Commonwealth v. Dockery, 613 A.2d 1259 (Pa.
Super. 1992) (unpublished memorandum). Appellant did not
file a petition for allowance of appeal with our Supreme Court.
On May 19, 1994, Appellant filed a pro se PCRA petition.
Counsel was appointed and filed an amended petition. On
May 23, 1996, the PCRA court dismissed Appellant's first
PCRA petition without an evidentiary hearing. This Court
affirmed the dismissal and our Supreme Court denied
allowance of appeal. See Commonwealth v. Dockery, 701
A.2d 776 (Pa. Super. 1997) (unpublished memorandum),
appeal denied, 723 A.2d 669 (Pa. 1998). . . .
On March 8, 1999, Appellant filed a second pro se PCRA
petition. On March 24, 1999, the PCRA court dismissed
Appellant's second PCRA petition as untimely. This Court
affirmed the dismissal. See Commonwealth v. Dockery,
803 A.2d 790 (Pa. Super. 2002) (unpublished
memorandum). . . .
On May 20, 2008, Appellant filed his third pro se PCRA
petition. On May 12, 2009, the PCRA court dismissed the
petition as untimely. Appellant did not appeal that
determination.
On December 15, 2014, Appellant filed [] his fourth, pro se[,]
PCRA petition. . . . On September 3, 2015, the PCRA court
dismissed the petition without an evidentiary hearing[. This
Court affirmed the PCRA court’s order on January 6, 2017,
and, on August 1, 2017, the Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal.
Commonwealth v. Dockery, 160 A.3d 245 (Pa. Super.
2017), appeal denied, 169 A.3d 1076 (Pa. 2017).
Commonwealth v. Dockery, 160 A.3d 245 (Pa. Super. 2017) (unpublished
memorandum), appeal denied, 169 A.3d 1076 (Pa. 2017).
Appellant’s fifth PCRA petition was filed on January 8, 2018 and
dismissed on August 13, 2018. Although Appellant filed a timely notice of
-2-
J-S44011-23
appeal from that order, Appellant later discontinued his appeal. See
Appellant’s Praecipe to Discontinue, 11/28/18, at 1.
Appellant filed the current PCRA petition – his sixth – on April 1, 2019.
As the PCRA court explained:
[After filing his sixth petition pro se, Appellant] retained
Attorney Cheryl J. Sturm, Esq.[,] who filed a counseled
amended [sixth] PCRA petition on March 2, 2021. In the
counseled amended petition, [Appellant] raised two claims:
(1) [Appellant’s] constitutional rights were violated because
the Commonwealth did not disclose the full scope of
[co-defendant Timothy Quattlebaum’s (“Co-Defendant
Quattlebaum”)] cooperation agreement – namely, that he
would serve only six years in prison rather than the [ten] to
20 year sentence alluded to during trial; and (2) Appellant’s
constitutional rights were violated because only hearsay
testimony was presented at the preliminary hearing.
In the counseled amended petition, [Appellant] claims that
the petition is timely because the claims: (1) are premised
upon the newly discovered recantation evidence set forth in
the 2016 [affidavit sworn by Co-Defendant Quattlebaum];
and, (2) governmental interference resulted in [Appellant]
not discovering the basis of these claims. Seven weeks []
after filing the amended petition, Attorney Sturm filed a
[petition] for leave to withdraw as counsel. Attorney Sturm
and [Appellant] (filing pro se) both supplemented the
[petition] to withdraw. On July 28, 2021, [the PCRA] court
granted Attorney Sturm leave to withdraw and appointed
James Lloyd, Esq. [(“Attorney Lloyd”)], [as] counsel to
represent [Appellant] with respect to the current PCRA
proceedings.
PCRA Court Opinion, 3/3/23, at 12.
On March 24, 2022, however, Attorney Lloyd filed a petition to withdraw
as counsel and a no-merit letter pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.
-3-
J-S44011-23
Super. 1988) (en banc). On September 27, 2022, the PCRA court granted
counsel leave to withdraw and issued Appellant notice that it intended to
dismiss his petition in 20 days without holding a hearing. See PCRA Court
Order, 9/27/22, at 1-3; see also Pa.R.Crim.P. 907(1). The PCRA court finally
dismissed Appellant’s petition on October 17, 2022. PCRA Court Order,
10/17/22, at 1. Appellant filed a timely notice of appeal from this order. We
now affirm the dismissal of Appellant’s untimely, serial PCRA petition.
“As a general proposition, we review a denial of PCRA relief to determine
whether the findings of the PCRA court are supported by the record and free
of legal error.” Commonwealth v. Eichinger, 108 A.3d 821, 830 (Pa. 2014).
Before this Court may address the substance of Appellant’s claims, we
must first determine if this petition is timely.
[The PCRA requires] a petitioner to file any PCRA petition
within one year of the date the judgment of sentence
becomes final. A judgment of sentence becomes final at the
conclusion of direct review . . . or at the expiration of time
for seeking review.
...
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), are met.
A petition invoking one of these exceptions must be filed
within [one year] of the date the claim could first have been
presented. 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 [one-year] timeframe.
-4-
J-S44011-23
See Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014)
(quotation marks and some citations omitted).
We affirmed Appellant’s judgment of sentence on June 2, 1992 and
Appellant did not file a petition for allowance of appeal with the Pennsylvania
Supreme Court. Commonwealth v. Dockery, 613 A.2d 1259 (Pa. Super.
1992) (unpublished memorandum). Thus, Appellant’s judgment of sentence
became final at the end of the day on July 2, 1992. See, e.g., Pa.R.A.P.
903(a). Since the PCRA requires that a petition be filed “within one year of
the date the judgment becomes final,” Appellant had until July 2, 1993 to file
a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Therefore,
Appellant’s current petition, which was filed on April 1, 2019, is patently
untimely and the burden thus 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 properly invoke a statutory exception to the
one-year time-bar, the PCRA demands that the petitioner properly plead and
prove all required elements of the relied-upon exception).
Appellant purports to invoke the “newly discovered facts” and
“governmental interference” exceptions to the time-bar. These statutory
exceptions provide:
(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:
-5-
J-S44011-23
(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[.]
...
(2) Any petition invoking an exception provided in paragraph
(1) shall be filed within one year of the date the claim could
have been presented.
42 Pa.C.S.A. § 9545(b).
To successfully invoke the governmental interference exception, a
“petitioner must plead and prove the failure to previously raise the
[underlying] claim was the result of interference by government officials, and
the information could not have been obtained earlier with the exercise of due
diligence.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).
Regarding the newly discovered evidence exception, our Supreme Court
has explained:
subsection (b)(1)(ii) has two components, which must be
alleged and proved. Namely, the petitioner must establish
that: 1) “the facts upon which the claim was predicated were
unknown” and (2) “could not have been ascertained by the
exercise of due diligence.” 42 Pa.C.S.A.
§ 9545(b)(1)(ii)(emphasis added). If the petitioner alleges
and proves these two components, then the PCRA court has
jurisdiction over the claim under this subsection.
-6-
J-S44011-23
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis
omitted).
Further, to properly invoke either exception, the petitioner is statutorily
required to file his petition “within one year of the date the claim could have
been presented.” 42 Pa.C.S.A. § 9545(b). As our Supreme Court explained,
to satisfy this “one year requirement,” a petitioner must “plead and prove that
the information on which he relies could not have been obtained earlier,
despite the exercise of due diligence.” See Commonwealth v. Stokes, 959
A.2d 306, 310-311 (Pa. 2008); Commonwealth v. Breakiron, 781 A.2d 94,
98 (Pa. 2001). Moreover, because the “one year requirement” of section
9545(b)(2) is a statutory mandate, the requirement is “strictly enforced.” See
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010).
The PCRA court ably explained why Appellant’s claims are time-barred:
[Appellant’s claims are] premised upon unknown benefits
granted to [Co-Defendant Quattlebaum] in exchange for
[Co-Defendant Quattlebaum’s] trial testimony[. These
claims were] arguably not discovered by [Appellant] until he
received [Co-Defendant Quattlebaum’s] affidavit (dated
March 18, 2016) until sometime in 2016. One key portion of
this new fact – namely, that [Co-Defendant Quattlebaum]
only served six years in prison for his conviction for four
murders – was apparently known to [Appellant] in 2005
according to his third pro se PCRA petition. However,
[Co-Defendant Quattlebaum’s] affidavit indisputably contains
additional exculpatory information as it includes a recantation
of his trial testimony and the motive for providing false
testimony against [Appellant] at trial. Indeed, in the 2016
affidavit, [Co-Defendant Quattlebaum] admits that he leveled
false allegations against [Appellant] in order to secure a
secret deal with the district attorney to avoid a lengthy prison
-7-
J-S44011-23
sentence for other crimes in a separate indictment pending
against him for an “auto theft ring” he was involved in.
[Co-Defendant Quattlebaum] further explained that the lies
aided him in exacting revenge against [Appellant] and his
co-defendant/brother because [Appellant] refused to bail
[Co-Defendant Quattlebaum] out of county jail.
[Co-Defendant Quattlebaum] admits that he harbored further
animosity against the Dockerys because [Appellant’s]
co-defendant/brother had an affair with [Co-Defendant
Quattlebaum’s] wife. This infidelity was especially offensive
to [Co-Defendant Quattlebaum] because Laverne Dockery
was cheating on [Co-Defendant Quattlebaum’s] sister by
engaging in the affair at the time of the murders. . . .
Appellant received [Co-Defendant Quattlebaum’s] affidavit –
and thus new facts – while the appeal of the order dismissing
his fourth PCRA petition was pending. In his petition for leave
to file a second or subsequent [petition] in federal court,
[Appellant] averred that he “discovered the new evidence
contained in [Co-Defendant Quattlebaum’s] affidavit on
March 18, 2016.” The appeal was finally resolved on August
1, 2017, when the Supreme Court denied allocator. Thus, on
August 2, 2017, there were no appeals pending in this matter
. . . for the first time since September 30, 2015 – i.e., before
[Appellant] received [Co-Defendant Quattlebaum’s] affidavit.
...
Accordingly, [Appellant’s] first opportunity to raise a PCRA
claim as a result of the discovery of the new information in
[Co-Defendant Quattlebaum’s] affidavit – which [Appellant]
claims was withheld from him as a result of governmental
interference – was on August 2, 2017. . . . [Appellant] did
not file the [current PCRA petition] until April 1, 2019.
Accordingly, the petition does not fall within the timeliness
exception provided in [Section] 9545(b)(i) or (ii).
PCRA Court Opinion, 3/3/23, at 19-21.
We agree with the PCRA court’s able analysis and conclude that, since
Appellant failed to plead a valid exception to the PCRA’s time-bar, Appellant's
petition is time-barred and our “courts are without jurisdiction to offer
-8-
J-S44011-23
[Appellant] any form of relief.” Commonwealth v. Jackson, 30 A.3d 516,
523 (Pa. Super. 2011). We thus affirm the PCRA court's order, which
dismissed Appellant's sixth PCRA petition without a hearing.
Order affirmed. Jurisdiction relinquished.
Date: 12/15/2023
-9-