Com. v. Dean, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JEFFERY LEROY DEAN :
:
Appellant : No. 705 WDA 2021
Appeal from the PCRA Order Entered May 10, 2021
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000258-2006
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: MARCH 8, 2022
Jeffrey Leroy Dean (Dean) appeals from the order of the Court of
Common Pleas of Venango County (PCRA court) dismissing his third petition
filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546, as untimely. We affirm.
On November 16, 2006, a jury convicted Dean of ten counts of child
pornography and one count of criminal use of a communication facility. 1 On
April 27, 2007, the trial court sentenced him to an aggregate 8 ½ to 32 years’
imprisonment with a consecutive 10 years of probation. Dean filed a timely
direct appeal but his appellate counsel discontinued the appeal on November
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 6312(d) and 7512(a).
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13, 2008. See Commonwealth v. Dean, 922 WDA 2007. As a result, his
judgment of sentence became final that day. See 42 Pa.C.S. § 9545(b)(3);
Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008)
(explaining that a judgment of sentence is final for PCRA purposes on the date
that a defendant discontinues his direct appeal).
On April 16, 2021, Dean filed this pro se PCRA petition, his third.2
Recognizing that his petition was untimely, Dean attempted to invoke the
timeliness exception under 42 Pa.C.S. § 9545(b)(1)(iii). In so doing, Dean
relied on Missouri v. Frye, 566 U.S 134 (2012), which held “as a general
rule, defense counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be favorable
to the accused.” Id. at 145. Dean, however, failed to plead any facts that
would explain how Frye would be applicable to his case.
The PCRA court dismissed the petition as untimely. First, the PCRA court
observed that any petition, “invoking an exception provided in [§ 9545(b)(1)]
shall be filed within one year of the date the claim could have been presented.”
Order of Court, 5/7/21, at 2 (unpaginated) (quoting 42 Pa.C.S. § 9545(b)(2)).
Because Frye was decided on March 21, 2012, Dean’s petition was filed too
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2 Dean’s first PCRA petition was filed on February 24, 2011, and eventually
dismissed on December 23, 2014. On July 16, 2018, he filed a “Brief in
Support of Restoration of Appellate Right,” which the PCRA court treated as a
post-conviction petition and dismissed the next day.
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late “to benefit from whatever Frye may have had to offer.” Id. In any event,
the PCRA court noted that Frye did not announce a new constitutional right
allowing a PCRA petitioner to invoke the exception under § 9545(b)(1)(iii).
Id. n.2. Accordingly, the PCRA court dismissed the petition without hearing,
following which Dean then filed this appeal.
As to the PCRA’s jurisdictional time-bar,3 “[a] PCRA petition, including a
second and subsequent petition, shall be filed within one year of the date the
underlying judgment becomes final.” Commonwealth v. Graves, 197 A.3d
1182, 1185 (Pa. Super. 2018) (citation omitted); see also 42 Pa.C.S.
§ 9545(b)(1). [A] judgment becomes final at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and
the Supreme Court of Pennsylvania, or at the expiration of time for seeking
the review.” 42 Pa.C.S. § 9545(b)(3). Because the timeliness requirements
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3 Whether a PCRA petition is timely filed is a question of law over which our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations
omitted). “The standard of review of an order dismissing a PCRA petition is
whether that determination is supported by the evidence of record and is free
of legal error.” Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super.
2017). “[A] PCRA court has discretion to dismiss a PCRA petition without a
hearing if the court is satisfied that there are no genuine issues concerning
any material fact; that the defendant is not entitled to post-conviction
collateral relief; and that no legitimate purpose would be served by further
proceedings.” Commonwealth v. Brown, 161 A.3d 960, 964 (Pa. Super.
2017) (citations omitted).
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of the PCRA are jurisdictional, no court may consider the merits of an untimely
petition. Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020).
As discussed, Dean’s judgment of sentence became final in 2008 after
his counsel discontinued his direct appeal. 42 Pa.C.S. § 9545(b)(3). Because
he filed this petition on April 16, 2021, Dean’s petition is facially untimely and
he, thus, must plead and prove one of the exceptions to the PCRA s timeliness
requirements.
There are three exceptions to the PCRA’s jurisdictional time-bar:
(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). In addition, the petition invoking the claimed
exception must be filed within one year of the date the claim could have been
presented. 42 Pa.C.S. § 9545(b)(2).
On appeal, Dean does not address the timeliness of his petition or the
PCRA court’s determination that the timeliness exception under
§ 9545(b)(1)(iii) did not apply. Instead, Dean discusses the merits of his
issues as if he pled and proved a timeliness exception. Because Dean does
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not even address the timeliness issue, necessarily, we hold that he does not
fall within any of the exceptions to the PCRA’s one-year jurisdictional time-bar
exceptions.
Regardless, besides Dean’s failure to timely file his petition after Frye,
this Court has explicitly held that Frye did not create a new constitutional
right. See Commonwealth v. Feliciano, 69 A.3d 1270, 1277 (Pa. Super.
2013). Rather, in Frye, the Supreme Court “simply applied the Sixth
Amendment right to counsel, and the Strickland test for demonstrating
counsel’s ineffectiveness, to the particular circumstances at hand[.]” Id.Even if we were to address the timeliness, Dean could not invoke that the
newly recognized constitutional right exception applies.4
Order affirmed.
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4 Dean was not served with notice under Pa.R.Crim.P. 907 before dismissal of
his petition. While Rule 907 notice is mandatory, it is well established that
this Court will not remand for compliance with the rule where a PCRA petition
is manifestly untimely and no exception to the PCRA’s one year time-bar
applies, which is the case here. See Commonwealth v. Lawson, 90 A.3d
1, 5-6 (Pa. Super. 2014) (where the PCRA petition is untimely, the failure to
provide Rule 907 notice is not reversible error) (citations omitted). Moreover,
Dean has not raised the issue on appeal, so he waived any defect in notice.
See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (“The
failure to challenge the absence of a Rule 907 notice constitutes waiver.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/08/2022
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