Com. v. Cranshaw, D.

J-S39020-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
DAVID VAUGHIN CRANSHAW
Appellant No. 3610 EDA 2018
Appeal from the PCRA Order entered November 8, 2018
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0005779-1987
BEFORE: GANTMAN, P.J.E., STABILE, J. and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED OCTOBER 22, 2019
Appellant, David Vaughin Cranshaw, appeals from the November 8,
2018 order entered in the Court of Common Pleas of Delaware County,
dismissing as untimely his petition for collateral relief filed under the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
As the PCRA court explained in its Rule 1925(a) opinion, in July 1986
Appellant was charged with Involuntary Deviate Sexual Intercourse (IDSI) and
related sexual offenses after he paid a fifteen-year-old boy $150 to engage in
oral sex. Following entry of a negotiated plea, Appellant was sentenced in
February 1988 to five to twenty years in prison followed by ten years’
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S39020-19
probation. Appellant did not file a direct appeal from his judgment of
sentence. On January 6, 1997, he filed a PCRA petition that was ultimately
denied after a hearing. PCRA Court Opinion, 1/15/19, at 1-2.
Appellant was released in 2011 but was reincarcerated for violating
terms of parole. He was released again in 2015 after serving his maximum
jail sentence. At that time, he began serving his probationary sentence. Id.
at 2. The Pennsylvania Department of Probation and Parole petitioned the
court to add standard special conditions and optional conditions for sex
offenders as conditions of Appellant’s probation. The late Honorable James F.
Nilon, Jr., convened a hearing on October 15, 2015, and ordered a
psychosexual evaluation. Judge Nilon reconvened the hearing on October 22,
2015, following receipt of the evaluation. Counsel objected that the conditions
were not part of Appellant’s original negotiated plea. Id. (citing Notes of
Testimony (“N.T.”), 10/22/15, at 4). Judge Nilon responded:
I think that the court has the authority to order his compliance
with the special rules governing sex offenders as well as the
optional sex offender rules or the extended sex offender rules as
well[,] if the purpose would effectuate the goals of probation. I
believe that given the contents of the psychosexual evaluation, I
think the application of these rules would effectuate the goals of
probation, and so accordingly, I’m going to order that [Appellant]
comply with both the state sexual offender rules and the extended
sexual offender rules, and [Assistant District Attorney], . . . as
soon as you submit the order, I’ll sign it and make it part of the
record.
-2-
J-S39020-19
N.T., 10/22/15, at 5-6 (some capitalization omitted). The record reflects the
order was docketed on November 4, 2015 and served that day on counsel for
the Commonwealth and counsel for Appellant.
The docket also reflects the issuance of a bench warrant on November
22, 2016 for a violation of probation. As the PCRA court further explained,
and as the docket confirms, Appellant appeared before Judge Nilon for a
Gagnon II hearing on May 2, 2017, at which time Appellant contested the
alleged violation. During that hearing, a probation and parole agent testified
that he met with Appellant on November 4, 2015. PCRA Court Opinion,
1/15/19, at 3 (citing N.T., 5/2/17, at 3). The agent stated that he provided
Appellant a copy of the rules and conditions for sex offenders during the
November 4, 2015 meeting and that Appellant signed each of the twenty-one
rules individually before adding his signature at the end of the document. Id.
(citing N.T., 5/2/17, at 5-7). The agent explained that the Gagnon
proceedings were precipitated by Appellant’s violation of two of the conditions,
i.e., that Appellant was discharged from treatment and that Appellant was
“chatting” on Facebook with a Hungarian man—the father of a young boy—for
whom Appellant purchased young girls’ underwear. Id. at 3-4 (citing N.T.,
5/2/17, at 6). See also N.T., 5/2/17, at 31, 38-39 (Appellant acknowledging
his signature on the notice of conditions and the purchase of girls’ underwear
for his Hungarian Facebook friend).
-3-
J-S39020-19
At the conclusion of the May 2, 2017 hearing, the court found Appellant
in violation of the conditions of his probation. He was sentenced to 18 to 36
months in prison followed by two years of probation.
Appellant filed a notice of appeal on May 26, 2017. On June 2, 2017,
he filed a pro se PCRA petition that was dismissed in light of the pending
appeal. The appeal was withdrawn on July 17, 2017 and, on August 2, 2017,
Appellant filed a PCRA petition. Appointed counsel filed an amended PCRA
petition on May 8, 2018 in which there was no assertion of any exception to
the PCRA’s one-year time limitation.1 At an October 16, 2018 hearing before
the Honorable James P. Bradley, Appellant’s counsel focused on what he
termed “non-PCRA issues,” i.e., that the sentence imposed following the
October 22, 2015 hearing was illegal because the court lacked jurisdiction to
impose conditions of probation. On November 8, 2018, Judge Bradley
dismissed Appellant’s petition as untimely and, therefore, outside the court’s
jurisdiction pursuant to 42 Pa.C.S.A. § 9545. This appeal followed. Both
Appellant and the PCRA court complied with Pa.R.A.P. 1925.
Appellant asks us to consider two issues in this appeal:
1. Whether the PCRA court erred in dismissing [Appellant’s] PCRA
claims due to lack of timeliness when [Appellant] only received
____________________________________________
1 The amended petition largely focused on assertions relating to the Sex
Offender Registration and Notification Act (“SORNA”). In its response, the
Commonwealth countered that any concerns regarding SORNA registration
were premature because Appellant remained incarcerated. At the October 16,
2018 hearing, Appellant’s counsel conceded the SORNA issues were not ripe
for consideration. N.T., 10/16/18, at 5-6.
-4-
J-S39020-19
notice of Judge Nilon’s 11/3/15 order formally imposing new
conditions related to his probation on 12/14/16, in light of his
first pro se filing of 2/7/17 that should have been construed as
a PCRA that was filed within 60 days thereof?
2. Whether [Appellant’s] current probation sentence imposed on
5/2/17 is wholly illegal since Judge Nilon on or after 10/22/15
possessed no lawful jurisdiction to modify the conditions of the
original 2/29/88 sentencing order beyond 30 days after its
entry?
Appellant’s Brief at 4 (some capitalization omitted).
“On appeal from the denial of PCRA relief, our standard of review is
whether the findings of the PCRA court are supported by the record and free
of legal error.” Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007)
(citations omitted). All PCRA petitions, “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes final.”
42 Pa.C.S.A. § 9545(b)(1). The one-year time limitation, however, can be
overcome if a petitioner (1) alleges and proves one of the three exceptions
set forth in Section 9545(b)(1)(i)-(iii) of the PCRA, and (2) files a petition
raising this exception within sixty days of the date the claim could have been
presented. 42 Pa.C.S.A. § 9545(b)(2).2
We begin by addressing the timeliness of Appellant's petition,
recognizing that “[t]he PCRA’s time restrictions are jurisdictional in nature.
____________________________________________
2Section 9545(b)(2) was recently amended to enlarge the deadline from sixty
days to one year. However, the amendment applies only to claims arising on
or after December 24, 2017.
-5-
J-S39020-19
Thus, [i]f a PCRA petition is untimely, neither this Court nor the trial court has
jurisdiction over the petition. Without jurisdiction, we simply do not have the
legal authority to address the substantive claims.” Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation omitted). As timeliness
is separate and distinct from the merits of Appellant’s underlying claims, we
first determine whether this PCRA petition is timely filed. See
Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008) (consideration of
Brady3 claim separate from consideration of its timeliness). Further,
“[a]lthough legality of sentence is always subject to review within the PCRA,
claims must still first satisfy the PCRA's time limits or one of the exceptions
thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).
The PCRA court determined Appellant’s PCRA claims were time-barred.
We agree. At issue are the special conditions of probation that were imposed
by Judge Nilon by order entered November 4, 2015. Appellant did not file an
appeal from that order. Therefore, in accordance with 42 Pa.C.S.A.
§ 9545(b)(1), Appellant had until December 4, 2016 to file a timely PCRA
petition. Appellant concedes he did not file his first pro se PCRA petition prior
to December 4, 2016. Appellant’s Brief at 15.
____________________________________________
3 Brady v. Maryland, 373 U.S. 83 (1963).
-6-
J-S39020-19
Appellant first filed a PCRA petition on February 24, 2017, asserting that
he received documents listing the twenty-one special conditions at his
Gagnon I hearing on December 13, 2016.4 Even if he could demonstrate that
receipt of the probation conditions in December 2016—despite a claimed
exercise of due diligence—constituted an after-discovered fact under
42 Pa.C.S.A. § 9545(b)(1)(ii), the filing of that petition would still fall outside
the sixty-day “grace period” of Section 9545(b)(2).
Appellant suggests that his first pro se filing on February 7, 2017 fell
within that 60-day grace period. However, the February 7, 2017 filing was
not a PCRA petition but was rather a Petition to Suppress Physical Evidence at
his Gagnon II hearing. Even if it were considered a PCRA petition, Appellant
did not plead or prove an exception to the PCRA’s time bar in that petition but
rather requested that evidence, including his computer, phone, and UPS
shipping labels, be suppressed at his Gagnon II hearing. Further, Appellant’s
contention that he was unaware prior to December 13, 2016 of the special
conditions of probation is belied by his admission that the signature on those
conditions is his signature, dated November 4, 2015. N.T., 5/2/17, at 31.
____________________________________________
4 As reflected above, the February 24, 2017 petition was dismissed in light of
Appellant’s pending appeal from the sentence imposed following the May 2,
2017 Gagnon II hearing. However, we discuss the February 24, 2017
petition because it was the first PCRA petition filed after imposition of the
conditions of probation on November 4, 2015. If Appellant’s earliest PCRA
filing failed the timeliness requirements, any subsequent petition, including
his petition filed on August 2, 2017, would likewise fail absent proof of one of
the PCRA’s timeliness exceptions.
-7-
J-S39020-19
Moreover, by virtue of the statements made at the October 15, 2015 hearing,
Appellant was aware that Judge Nilon would be imposing new conditions of
probation upon receipt of the psychosexual evaluation. See N.T., 10/16/18,
at 9. Finally, Appellant was present when Judge Nilon stated at the October
22, 2015 hearing that he would sign the order with the new conditions as soon
as he received it from the Commonwealth. In response, the prosecutor
advised the court the order would be submitted the following Monday. N.T.,
10/22/15, at 6-7. The order was signed and subsequently entered on the
docket on November 4, 2015, the same day Appellant signed the conditions
of probation. There can be no question that Appellant was aware of the new
conditions of probation prior to December 13, 2016. Consequently, his
petition did not comply with the PCRA’s timeliness requirements and the PCRA
court properly dismissed his petition as untimely.
Because Appellant’s PCRA petition was untimely filed, this Court lacks
jurisdiction to consider the merits, if any, of Appellant’s claims. Therefore, we
shall affirm the order of the PCRA court dismissing Appellant’s petition as
untimely.
Order affirmed.
-8-
J-S39020-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/19
-9-