Com. v. Donaghy, D.

J. S14033/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DAVID JOSEPH DONAGHY, : No. 3261 EDA 2019
:
Appellant :
Appeal from the Order Entered October 22, 2019,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP-09-CR-0008791-2008
BEFORE: BOWES J., KING J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 23, 2020
David Joseph Donaghy appeals pro se from the October 22, 2019 order
entered in the Court of Common Pleas of Bucks County that dismissed, without
a hearing, his second petition filed pursuant to the Post Conviction Relief Act,
42 Pa.C.S.A. §§ 9541-9546. We affirm.
The record reflects that appellant plead guilty to robbery; burglary;
simple assault; recklessly endangering another person; theft by unlawful
taking – movable property; receiving stolen property; and six counts of
conspiracy1 in connection with a December 19, 2007 home invasion and
robbery of an 80-year-old victim. On March 5, 2009, appellant was sentenced
118 Pa.C.S.A. §§ 3701 (a)(1)(ii), 3701(a)(1)(iv) and (a)(1)(v); 3502 (a);
2701 (a)(1); 2705; 3921 (a); and 3925, respectively.
J. S14033/20
to an aggregate term of not less 9 nor more than 18 years’ imprisonment. No
post-sentence motions were filed and no direct appeal was taken.
Appellant filed his first pro se PCRA petition on January 21, 2010.
Counsel was appointed. On September 17, 2010, the PCRA court denied
appellant’s petition, and he timely appealed claiming that plea counsel was
ineffective for failing to file a direct appeal. This court agreed.
Commonwealth v. Donaghy, 33 A.3d 12, 17 (Pa.Super. 2011), appeal
denied, 40 A.3d 120 (Pa. 2012). On April 27, 2012, the PCRA court issued
an order reinstating appellant’s direct appeal rights nunc pro tunc.
Appellant, however, failed to file a direct appeal. Rather, on May 7,
2012, appellant filed a pro se PCRA petition. Counsel was appointed. The
PCRA court denied relief on September 21, 2012. This court affirmed on
September 4, 2013, and our supreme court denied discretionary review on
July 9, 2014. See Commonwealth v. Donaghy, 87 A.3d 371 (Pa.Super.
2013), appeal denied, 95 A.3d 275 (Pa. 2014).
On May 7, 2019, appellant filed pro se the instant PCRA petition. The
PCRA court issued a notice of intent to dismiss. Appellant filed a timely
response. The PCRA court then dismissed the petition. Appellant filed a timely
notice of appeal. The PCRA court ordered appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
timely complied. The PCRA court then filed its Rule 1925(a) opinion.
Appellant raises the following issues for our review:
-2-
J. S14033/20
1[.] Did the PCRA Court penalize, prejudice, time
Barr [sic], me [appellant] from this PCRA for an
erroneously [sic] error, In [sic] witch [sic] the
Clerk of Courts did not enter the Criminal
Trespassing charge on case number
CR-0001517-1998 as Nolle-Prossed [sic] but
instead, entered the charge as a guilty plea.
Therefore, raising the petitioners [sic] point
score buy [sic] a full point and causing the
petitioner to get a much higher sentence?
2[.] Did the PCRA Court, District Attorney, my Court
appointed counsel, Mr. William Penglase, Esq.
and the Clerk of Courts all fail to provide the
additional discovery of the medical hospital
report of the victim that would have confirmed
the exact nature of the victims [sic] injuries and,
bodily harm that the petitioner was accused of
and pleading guilty to causing?
3[.] On 12-26-2018, the petitioner David Joseph
Donaghy wrote the Clerk of Courts on case
number CR-0001517-1998 stating that the
Criminal Trespassing charge of the felony three
on this case was in fact nol-prossed [sic] on
June 16, 1998 but, shows as a guilty plea on the
most recent requested court summary sheet
readout that the Clerk of Courts office sent me?
On January 3, 2018 the Clerk of Courts
acknowledged this correspondence and
researched there [sic] records and corrected the
docket sheet to show the above count of
Criminal Trespassing was in “fact”
nol-prossed [sic] on June 16, 1998 and there
was an error on this entry see
exhibit . Therefore, should the PCRA
Court start the time to file PCRA from January 3,
2019; the day the Clerk of Courts acknowledged
and then corrected the error they originally
caused in this case to get me the sentence I got?
4[.] Did the PCRA Court, District Attorney, my court
appointed counsel, Mr. William Penglase, Esq.
and the Clerk of Courts all fail to provide me
-3-
J. S14033/20
with the Pennsylvania Commission Sentencing
Guidelines for case number CR-0008791-2008?
Therefore, I was unaware that this point was
erroneously added or, even used against me at
the sentencing decision or, even aware that
there was a point system. The District Attorney
never stated any reference to points in the
sentencing phase. See exhibit .
5[.] Did the PCRA Court error [sic] in finding no
violation of s/s [sic] 9781; Appellant [sic]
Review of Sentence (c)(1) that states: The
sentencing court purported to sentence outside
the Sentencing guidelines because the Court
applied the guidelines erroneously by adding a
full point to my sentencing guidelines by using
case number CR-0001517-1998 or, the Criminal
Trespassing charge, which is a felony three,
those [sic] raising guidelines to an erroneously
higher level?
6[.] Did the PCRA Court prejudice the petitioner by
applying this erroneously [sic] sentence and
applying this error?
7[.] Weather [sic] the PCRA Court erred in not
finding the petitioners [sic] counsel at the time,
Mr. William Penglase, Esq. ineffective for not
seeing these mistakes, investigating or, not
taking action a pond [sic] the petitioners [sic]
statement at the sentencing to him that this
Criminal Trespassing charge and the Drug
Passion [sic] charge was dismissed at his
sentencing hearing or, got A.R.D.?
8[.] Did the PCRA Court error [sic] in not finding the
District Attorney violated Prosecution [sic]
misconduct when prior record was stated and
introduced to the Court and to Judge Boylan
that the defendant had a 1986 Passion [sic] of
Controlled substance charge and not
investigating or, looking into his prior record
and introducing Criminal Trespassing charge
that was indeed dismissed as well?
-4-
J. S14033/20
9[.] Did the PCRA Court error [sic] in not finding
petitioners [sic] counselor, Mr. William
Penglase, Esq. ineffective for not allowing a
pre-sentence investigation to be done before
the sentencing hearing witch [sic] would have
changed the outcome of the sentence?
10[.] Did the PCRA Court error [sic] because of the
recently newly discovered PRS and the
miscalculation on the PRS to the legality of the
sentence for this is not subjected [sic] to waiver,
should the Court have invoked jurisdiction to
correct this patent and manifested mistake in
the petitioner’s sentence?
11[.] Did the PCRA court error [sic] in not finding the
District Attorney, my counselor, Mr. William
Penglase, Esq. and the Clerk of Courts
violating [sic] any Rules, Statues [sic], or State
or Federal Constitutional rules, etc.
12[.] Does this Court or, the PCRA think if the
petitioner know about this newly discovered
error/point system at the time of his sentencing
or, at any point of his twelve years
incarcerated [sic] he would not have brought it
to the Courts [sic] attention?
13[.] The most important question to this Court is: If
this correct prior record score of four was
presented at the petitioners [sic] sentencing
hearing phase would it have changed the
outcome or, reduced the petitioner’s sentence.
Appellant’s brief at 12, 152 (set forth verbatim; no exhibit numbers in
original).
2 Appellant’s brief is paginated, in part, by small Roman numerals that are
often repeated. Interspersed throughout the brief are unnumbered
documents. For ease of reference, starting with the table of contents, we will
refer to each page in the order of its position in the brief.
-5-
J. S14033/20
When reviewing the propriety of an order denying PCRA relief, this court
is limited to determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of legal error.
The PCRA court’s findings will not be disturbed unless there is no support for
them in the certified record. Commonwealth v. Lippert, 85 A.3d 1095,
1100 (Pa.Super. 2014).
Furthermore, PCRA petitions, “including second and subsequent
petition[s], shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S.A. § 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 the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).
The Supreme Court of Pennsylvania has held that the PCRA’s time restriction
is constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.
2004). In addition, our supreme court has instructed that the timeliness of a
PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks
jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,
120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely
PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).
-6-
J. S14033/20
Our review of the record reflects that appellant’s direct appeal rights
were reinstated nunc pro tunc by the PCRA court on April 27, 2012.3
Appellant failed to file a direct appeal within 30 days and, therefore, his
judgment of sentence became final on May 29, 2012.4 See 42 Pa.C.S.A.
§ 9545(b)(3); Pa.R.A.P. 903(a). Therefore, appellant’s current PCRA petition,
filed May 7, 2019, is facially untimely. As a result, the PCRA court lacked
jurisdiction to review appellant’s petition, unless appellant alleged and proved
one of the statutory exceptions to the time-bar, as set forth in 42 Pa.C.S.A.
§ 9545(b)(1).
Those three narrow exceptions to the one-year time-bar are: when the
government has interfered with the appellant’s ability to present the claim,
when the appellant has newly discovered facts upon which his PCRA claim is
predicated, or when either the Supreme Court of Pennsylvania or the Supreme
Court of the United States has recognized a new constitutional right and made
that right retroactive. 42 Pa.C.S.A. § 9545(b)(1)(i-iii); Commonwealth v.
Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The appellant bears the
burden of pleading and proving the applicability of any exception.
3The order informed appellant he had 30 days to file an appeal. See also
Commonwealth v. Wright, 846 A.2d 730, 725 (Pa.Super. 2004).
4 As May 27, 2012 fell on a Sunday, and May 28, 2012 was Memorial Day,
appellant’s judgment of sentence became final on May 29, 2012. See
1 Pa.C.S.A. § 1908 (providing whenever last day of period of time referred to
in statute falls on Saturday, Sunday, or legal holiday such day is omitted from
computation).
-7-
J. S14033/20
42 Pa.C.S.A. § 9545(b)(1). If an appellant fails to invoke a valid exception to
the PCRA time-bar, this court may not review the petition. See 42 Pa.C.S.A.
§ 9545(b)(1)(i- iii).
Initially, we note that appellant has filed a pro se brief.
[A]ppellate briefs must conform materially to the
requirements of the Pennsylvania Rules of Appellate
Procedure, and this Court may quash or dismiss an
appeal if the defect in the brief is substantial.
Although this Court is willing to construe liberally
materials filed by a pro se litigant, a pro se appellant
enjoys no special benefit. Accordingly, pro se
litigants must comply with the procedural rules set
forth in the Pennsylvania Rules of the Court. This
[c]ourt will not act as counsel and will not develop
arguments on behalf of an appellant.
Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa.Super. 2017)
(citations and quotation marks omitted); Pa.R.A.P. 2101 (stating appeal may
be quashed for substantial defects in brief).
Appellant’s brief not only fails to provide a cogent legal argument, but
it also fails to comply with our rules of appellate procedure . First, appellant
has failed to attach to his brief a copy of his concise statement of errors
complained of on appeal and the required certificates of compliance. See
Pa.R.A.P. 2111(a)(11) and (a)(12). Second, as can be seen from appellant’s
issues, set forth verbatim herein, the statement of the questions involved is
not concise, is not expressed without unnecessary detail, and is not followed
by an answer simply stating the court’s position on the question. See
Pa.R.A.P. 2116(a); appellant’s brief at 12, 15. Third, appellant’s statement of
-8-
J. S14033/20
the case is rambling, convoluted, contains argument, and does not have
appropriate references to the record. See Pa.R.A.P. 2117(a)(b) and (c);
appellant’s brief at 16-31.5 Fourth, the summary of argument is not concise,
nor an “accurate, summary of the arguments presented in support of the
issues in the statement of questions involved.” Pa.R.A.P. 2118; see
appellant’s brief at 31. Finally, appellant’s argument is not divided into as
many parts as there are questions to be argued, does not have at the head of
each part the particular point addressed therein, and is not followed by
pertinent discussion or citation of relevant authorities. See
Pa.R.A.P. 2119(a); appellant’s brief at 32-41. These considerable defects in
appellant’s brief adversely affect this court’s ability to perform appellate
review.
Therefore, the PCRA court lacked jurisdiction to review appellant’s
second PCRA petition, and we may not review the petition on appeal.6
Order affirmed.
King, J. joins this Memorandum.
Bowes, J. concurs in the result.
5Throughout appellant’s statement of the case, appellant has inserted various
documents.
6 We note that even if the appellant’s brief was not defective, he has failed to
invoke an exception to the time-bar. Therefore, he would still not be entitled
to relief.
-9-
J. S14033/20
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 6/23/2020
- 10 -