Com. v. Hollenback, D., Jr. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DAVID JAMES HOLLENBACK JR. :
:
Appellant : No. 275 MDA 2021
Appeal from the PCRA Order Entered January 25, 2021
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0002218-2008
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED SEPTEMBER 08, 2021
David James Hollenback, Jr. (Appellant), appeals pro se from the order
entered in the Centre County Court of Common Pleas dismissing his “Petition
for Allowance of Appeal,” as a second, untimely petition filed pursuant to the
Post Conviction Relief Act (PCRA).1 On appeal, Appellant insists he was denied
substantive due process when trial counsel agreed to present his case on
stipulated facts, which amounted to a guilty plea entered without Appellant’s
knowledge or consent. We affirm.
This Court summarized the relevant facts underlying Appellant’s
conviction in the decision affirming the judgment of sentence on direct appeal:
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
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Over Labor Day weekend of 2008, Jennifer Hollenback,
Appellant’s daughter, found child pornography on one of
Appellant’s computers. She went to police, who obtained a
warrant, arrested Appellant, and seized his computers. Based on
their contents, Appellant was charged with over 400 counts of
possession of child pornography, but all of those charges were
subsequently dismissed. After Appellant’s arrest, Jennifer also
discovered at his residence a videotape of Appellant sexually
abusing his niece, L.K., when she was a child. A second warrant
was issued and resulted in the seizure of the videotape and the
filing of the charges for which Appellant was convicted.
Commonwealth v. Hollenback, 1636 MDA 2010 (unpub. memo. at 2) (Pa.
Super. Oct. 14, 2011), appeal denied, 853 MAL 2011 (Pa. Sep. 17, 2012).2
Appellant was subsequently charged with two counts each of rape,
involuntary deviate sexual intercourse (IDSI), aggravated indecent assault,
indecent assault, incest, and endangering the welfare of a child (EWC), and
eight counts of sexual abuse of children (videotaping sexual acts and
possession of child pornography).3 He filed a pretrial motion to suppress the
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2 The decision also includes the stipulation of facts entered into by the parties
at Appellant’s nonjury trial, which details the sexual abuse of L.K. as
documented on the video. See Hollenback, 1636 MDA 2010 (unpub. memo.
at 2-5).
3 See 18 Pa.C.S. §§ 3121(a)(6), 3123(a)(6), 3125(a)(7), 3126(a)(7), 4302,
4304(a)(1), 6312(b), (d).
Subsection (a)(6) of the both the rape and IDSI statutes were repealed
in December 2002, and replaced with Section 3121(c) “Rape of a child,” and
Section 3123(b), “Involuntary deviate sexual intercourse with a child.” See
2002, Dec. 9, P.L. 1350, No. 162, § 2, effective in 60 days. Because the
sexual abuse in the present case occurred between May and November of
2002 (when Appellant was 43 to 44 years old and the victim was six years
old), Appellant was properly convicted under the prior statutes. See
Hollenback, 1636 MDA 2010 (unpub. memo at 3-5).
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evidence seized pursuant to both search warrants, which the trial court denied
after conducting two hearings. See Order, 7/21/09.
Appellant appeared for a nonjury trial on October 19, 2009. At that
time, Assistant District Attorney Yvette L. Willson (ADA Willson) informed the
trial court that she and Appellant’s counsel, George Lepley, Jr., Esquire, had
“come to an agreement” that the Commonwealth would present evidence via
a prepared “stipulation of fact,” which both attorneys had reviewed and
signed. See N.T. Trial, 10/19/09, at 3. The Commonwealth also submitted
into evidence a DVD, which included the recorded videos of the sexual abuse.
See id. ADA Willson informed the court that, in exchange for Appellant’s
agreement to proceed by stipulated facts, “the Commonwealth has agreed
[that] counts 13 through 20, which have to do with the child pornography
videos,” would receive concurrent sentences to Counts 1 through 12. Id.
After reviewing the stipulation of facts, which was admitted into evidence, the
trial court found Appellant guilty of all charges. Id. at 10. It merits emphasis
that Appellant did not sign the stipulation of facts,4 and neither the trial court
nor Attorney Lepley questioned Appellant concerning his agreement to
proceed by way of stipulated facts.
On March 26, 2010, Appellant was sentenced to an aggregate term of
40 to 80 years’ imprisonment; the court imposed consecutive sentences on all
counts except the convictions of Section 6312, consistent with the parties’
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4 See N.T., 10/19/09, Commonwealth Exhibit 2, Stipulation of Fact.
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agreement. See N.T. Sentencing H’rg, 3/26/10, at 27-30. The trial court also
determined that Appellant met the criteria for classification as a sexually
violent predator under the then-applicable sexual offender registration
statute. Id. at 9.
Appellant filed a timely post-sentence motion, seeking modification of
his sentence. On September 7, 2010, the trial court granted in part, and
denied in part, Appellant’s motion. See Order, 9/7/10. Thereafter, on
September 28th, the court vacated the sentences imposed on counts 8, 10,
and 12 (one count each of indecent assault, incest, and EWC), reducing
Appellant’s aggregate sentence to 38 to 76 years’ imprisonment. N.T.
Resentencing H’rg, 9/28/10, at 3-4. Appellant filed a timely direct appeal,
challenging the court’s denial of his suppression motion, and the
excessiveness of his sentence. This Court affirmed the judgment of sentence
on direct appeal, and the Pennsylvania Supreme Court denied Appellant’s
petition for allocatur review. See Hollenback, 1636 MDA 2010, appeal
denied, 853 MAL 2011.
On February 17, 2015, Appellant filed a pro se PCRA petition. Ronald
McGlaughlin, Esquire, was appointed to assist Appellant in litigating his first
PCRA petition. On May 22, 2015, the Commonwealth filed an answer and
motion to dismiss Appellant’s PCRA petition, asserting it was untimely filed.
Despite being represented by counsel, Appellant continued to file several pro
se motions in the PCRA court. Notably, on July 2, 2015, Appellant filed a letter
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sent to Attorney McGlaughlin from what appears to be a jailhouse lawyer.5
The letter outlined “issues that permit jurisdiction beyond the PCRA Time-
Bar,” including Appellant’s present claim that he unknowingly entered a guilty
plea “under the guise of a stipulation.” See Letter, 7/2/15, at 1-2
(unpaginated). Attorney McGlaughlin filed an answer to the Commonwealth’s
motion to dismiss on August 18, 2015. Following argument on August 24th,
the PCRA court entered an order on September 18th, dismissing Appellant’s
petition as untimely filed. Appellant filed a timely appeal, a panel of this Court
affirmed, and the Pennsylvania Supreme Court denied allocatur review. See
Commonwealth v. Hollenback, 1816 MDA 2015 (unpub. memo) (Pa. Super.
Aug. 19, 2016), appeal denied, 655 MAL 2016 (Pa. Mar. 7, 2017).
On October 23, 2020, Appellant filed the instant petition, which he
entitled “Petition for Allowance of Appeal.” See Appellant’s Petition for
Allowance of Appeal, 10/23/20. The PCRA court construed the filing to be a
second PCRA petition, and, on December 14, 2020, issued notice of its intent
to dismiss the petition as untimely filed pursuant to Pa.R.Crim.P. 907.
Appellant filed a pro se response on December 28, 2020, asserting, inter alia,
“[j]urisdiction can be challenged at any[ ]time [and] is an exception to the
[PCRA] time-bar requisites.” Appellant’s Objection to Rule 907 Notice,
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5 The author, “Dr. Thomas F. P. Brennan, LL.D., PJ.D.,” resides at the State
Correctional Institute at Albion. See Letter, 7/2/15, cover page. Attached to
the letter is a notice to the clerk of courts, signed by Appellant, requesting a
time stamp copy be returned to him. See id. at 9 (unpaginated).
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12/28/20. On January 22, 2021, the PCRA court dismissed Appellant’s petition
as untimely. Appellant incorrectly filed a notice of appeal in this Court on
February 17, 2021, which we transferred to the Centre County Court of
Common Pleas. See Pa.R.A.P. 905(a)(4) (“If a notice of appeal is mistakenly
filed in an appellate court, . . . the clerk shall immediately stamp it with the
date of receipt and transmit it to the clerk of the court which entered the order
appealed from, and . . . the notice of appeal shall be deemed filed in the trial
court on the date originally filed.”).6 Thereafter, on March 1, 2021, Appellant
filed a petition for leave to amend his petition, which the PCRA court properly
denied as it lacked jurisdiction because the matter “is currently on appeal
before the Pennsylvania Superior Court.” See Order, 3/17/21; Pa.R.A.P.
1701(a) (“[A]fter an appeal is taken . . . the trial court . . . may no longer
proceed further in the matter.”).
Appellant lists 11 issues for our review in his brief. See Appellant’s Brief
at 4-5. However, he argues only one claim — that he was deprived of
substantive due process when “counsel from both sides entered into a plea
agreement (stipulation) which amounted to a guilty plea,” without his
knowledge or consent. See id. at 7.
Our standard of review of an order denying PCRA relief is well-
established. “[W]e examine whether the PCRA court’s determination ‘is
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6 The PCRA court did not direct Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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supported by the record and free of legal error.’” Commonwealth v.
Mitchell, 141 A.3d 1277, 1283–84 (Pa. 2016) (citation omitted).
Here, the PCRA court found Appellant’s petition was untimely filed, and
he failed to plead or prove any of the statutory exceptions to the time-bar.
PCRA Ct. Op., 4/30/21. The statutory requirement that a PCRA petition be
filed within one year of the date the judgment of sentence becomes final is a
“jurisdictional deadline” and a PCRA court may not ignore the untimeliness of
a petition to address the merits of the issues raised therein. Commonwealth
v. Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019), appeal denied, 216 A.3d
1028 (Pa. 2019). See also 42 Pa.C.S. § 9545(b)(1).
Here, Appellant’s judgment of sentence was final on December 17, 2012
— 90 days after the Pennsylvania Supreme Court denied allocatur review of
his direct appeal, and Appellant declined to petition the United States Supreme
Court for a writ of certiorari.7 See 42 Pa.C.S. § 9545(b)(3) (for purpose of
PCRA timeliness provisions, “a judgment becomes final at the conclusion of
direct review, including discretionary review in the Supreme Court of the
United States . . . or at the expiration of time for seeking the review”); U.S.
Sup. Ct. R. 13(1) (“[A] petition for a writ of certiorari to review a judgment in
any case, . . . is timely when it is filed with the Clerk of this Court within 90
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7 The ninetieth day, December 16, 2012, fell on a Sunday; thus, Appellant had
until Monday, December 17th to file a petition for certiorari. See U.S. Sup.
Ct. R. 30(1) (when computing time under the Rules, the last day is not
calculated if it falls on a weekend or holiday).
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days after entry of the judgment.”). Thus, his current petition, filed nearly
eight years later, is facially untimely. See 42 Pa.C.S. § 9545(b)(1).
Nevertheless, an untimely petition may be considered if the petitioner
pleads and proves the applicability of one of the three timeliness exceptions
set forth at Section 9545(b):
(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
(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. § 9545(b)(1)(i)-(iii). A petition invoking an exception must be filed
“within one year of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).
Appellant does not address the timeliness requirements in either his
PCRA petition or his brief on appeal. Rather, in his petition, Appellant simply
states the “Supreme law of the land dictates jurisdiction of court is NOT a
time-barrable issue[,]” and that neither jurisdictional defects nor illegal
sentence claims can be waived. Appellant’s Petition for Allowance of Appeal
at IX-X (some capitalization omitted). The argument in his brief is even more
sparse. He asserts “[t]he statute of limitations is irrelevant in this matter
because [of] the Commonwealth’s deliberate violation of the Judicial Process
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and Due Process Rights of Law.”8 Appellant’s Brief at 8.
The Pennsylvania Supreme Court has made clear that “the time
requirements under the . . . the PCRA are jurisdictional[, and] the court has
no jurisdiction to address an untimely petition[,]” regardless of the claim
raised therein. Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). The
only exceptions to the timing requirements are those set forth at Section
9545(b): governmental interference with the presentation of a claim, newly
discovered facts which could not have been ascertained earlier by the exercise
of due diligence, or a newly recognized constitutional right. See 42 Pa.C.S. §
9545(b)(1)(i)-(iii). “[T]here is no ‘miscarriage of justice’ standard exception
to the time requirements of the PCRA.” Commonwealth v. Burton, 936
A.2d 521, 527 (Pa. Super. 2007).
Appellant’s present claim — that he was deprived of due process when
the court accepted a stipulation of facts purportedly without his knowledge or
consent — does not satisfy any of the Section 9545 timing exceptions. With
regard to the governmental interference exception, we note that although
Appellant claims the Commonwealth and trial counsel conspired to present a
de facto guilty plea, he does not assert that the Commonwealth or trial court
interfered with his ability to raise this claim previously. See 42 Pa.C.S. §
9545(b)(1)(i). Further, Appellant cannot meet the newly discovered facts
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8 Similarly, in his reply brief, Appellant argues, without any citation,
“[c]hallenge to jurisdiction is an exception to any time bar.” Appellant’s Reply
Brief at 2.
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exception because he was present for his nonjury trial, and, thus, aware
counsel agreed to stipulated facts allegedly without his consent. Moreover,
this claim was initially raised in the jailhouse lawyer letter sent to first PCRA
counsel in July of 2015. See Letter, 7/2/15, at 1 (“Trial counsels [sic]
stipulation to evidence, absent [Appellant’s] authorization and the trial court’s
failure to conduct a proper and, thus, necessary colloquy, . . . deprived
[Appellant] his constitutional right to effective assistance of counsel, a fair trial
and, due process of law.”). Accordingly, the “fact” that he was convicted
based upon stipulated facts is not “newly discovered.” See 42 Pa.C.S. §
9545(b)(1)(ii). Finally, this claim is not based on a newly recognized
constitutional right. See 42 Pa.C.S. § 9545(b)(1)(iii).
Therefore, we agree with the PCRA court that Appellant failed to plead
or prove the applicability of any of the PCRA timing exceptions. Accordingly,
his petition was untimely filed, and he is entitled to no relief.9
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9 Despite the fact that Appellant’s claim is untimely, we note that the
stipulation of facts presented to the trial court does not contain Appellant’s
signature, nor did counsel or the court question Appellant regarding his
consent to proceed by way of stipulation during the nonjury trial. See N.T.,
10/19/09, at 3-10; Stipulation of Fact at 4 (unpaginated). Although a case
tried on stipulated facts does not require a full guilty plea colloquy, Appellant
should have been informed, on the record, of his right to confront witnesses
against him and given the opportunity to acknowledge his agreement to
proceed by stipulated facts. See Commonwealth v. Tate, 410 A.2d 751,
754-55 (Pa. 1980) (guilty plea colloquy unnecessary for trial by way of
stipulation; defendant explicitly waived right to confront witnesses and
indicated willingness to proceed by stipulated facts); Commonwealth v.
Cook, 547 A.2d 406, 409 (Pa. Super. 1988) (guilty plea colloquy unnecessary
(Footnote Continued Next Page)
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2021
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when court explained to appeal that counsel intended to proceed on stipulated
testimony and defendant indicated he understood).
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