Com. v. Diamond, W. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM ANTHONY DIAMOND JR. :
:
Appellant : No. 11 WDA 2023
Appeal from the PCRA Order Entered October 5, 2021
In the Court of Common Pleas of Venango County Criminal Division at
No(s): CP-61-CR-0000488-2017
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY OLSON, J.: FILED: August 17, 2023
Appellant, William Anthony Diamond Jr., appeals from the order entered
on October 5, 2021, which dismissed his petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On December 14, 2017, Appellant pleaded guilty to the following
charges: at Docket Number CP-61-CR-0000488-2017 (hereinafter “Docket
Number 488”), Appellant pleaded guilty to rape of a child;1 at Docket Number
CP-61-CR-0000533-2017 (hereinafter “Docket Number 533”), Appellant
pleaded guilty to unlawful restraint, unlawful contact with a minor, and
corruption of minors;2 and, at Docket Number CP-61-CR-0000740-2017
(hereinafter “Docket Number 740”), Appellant pleaded guilty to attempted
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1 18 Pa.C.S.A. § 3121(c).
2 18 Pa.C.S.A. §§ 2902(a)(1), 6318(a)(1), and 6301(a)(1)(i), respectively.
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rape of a child.3 On April 6, 2018, the trial court sentenced Appellant to serve
an aggregate term of 27 to 87 years in prison for his convictions. See N.T.
Sentencing, 4/6/18, at 35. Appellant did not file a direct appeal from his
judgment of sentence.
On January 14, 2020, Appellant filed a pro se PCRA petition at all three
docket numbers and, on January 17, 2020, the PCRA court appointed counsel
to represent Appellant during the collateral proceedings. On February 14,
2020, counsel filed an amended petition on Appellant’s behalf. Within the
amended petition, Appellant claimed that his trial counsel was ineffective
because:
a) [trial counsel] did not go over the police reports with him;
b) [Appellant] never read the police reports[,] was not
offered an “offense specific evaluation,” together with a
polygraph test, or a mental health evaluation in regard to
these charges and his ability to aid in his own defense . . . ;
c) [Appellant] was assured that he would only receive a 7-10
year sentence from the [trial court] if he pled guilty[;] d)
[trial counsel] did not file an appeal in his case as directed by
him . . . ; and e) [Appellant’s] history of abuse, mental health
issues and disabilities were not properly explored or brought
to the [trial court’s] attention.
Amended PCRA Petition, 2/14/20, at 1-2.
On October 5, 2021, the PCRA court finally dismissed Appellant’s
petition at Docket Number 488. See PCRA Court Order, 10/5/21, at 1.
Further, on March 7, 2022, the PCRA court provided Appellant with notice at
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3 18 Pa.C.S.A. § 901(a).
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Docket Numbers 533 and 740 that it intended to dismiss these petitions in 20
days, without holding a hearing. See PCRA Court Order, 3/7/22, at 1; see
also Pa.R.Crim.P. 907(1).
On August 10, 2022, the PCRA court finally dismissed Appellant’s PCRA
petition at Docket Number 533 and, on August 31, 2022, the PCRA court finally
dismissed Appellant’s PCRA petition at Docket Number 740. Appellant filed
timely notices of appeal at all three docket numbers. 4 Appellant raises one
claim on appeal:
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4 Appellant filed his notices of appeal at all three docket numbers on August
25, 2022. The notice was facially timely at Docket Number 533, facially
untimely at Docket Number 488, and facially premature at Docket Number
740.
With respect to Docket Number 488, the PCRA court entered its final order
dismissing Appellant’s petition on October 5, 2021. Nevertheless, the clerk of
courts failed to note, on the docket, the date upon which the order was served
upon Appellant’s attorney. This constitutes a breakdown in the operation of
the courts and renders Appellant’s August 25, 2022 notice of appeal timely.
To be sure, Pennsylvania Rule of Criminal Procedure 114(B)(1) requires the
clerk of courts to serve promptly a copy of any trial court order or notice on
each party's attorney-of-record or the party if unrepresented. Pa.R.Crim.P.
114(B)(1). To memorialize that proper service of a trial court order or notice
was provided, Rule 114(C)(2)(c) requires the clerk of courts to note, via a
docket entry, the date of service of such trial court order or notice.
Pa.R.Crim.P. 114(C)(2)(c). It is well-settled that the appeal period only begins
to run on the date the clerk of courts mails or delivers a copy of the trial court
order or notice to the parties. Pa.R.A.P. 108(a)(1), (d), and Note (stating, the
purpose of this rule is to fix that date from which the time for appeal shall be
computed); see also Commonwealth v. Carter, 122 A.3d 388, 391 (Pa.
Super. 2015) (stating that, the “appeal period only begins running on the date
the [clerk of courts] mails or delivers copies of the orders to the parties”
(original quotation marks omitted)), Commonwealth v. Jerman, 762 A.2d
366, 368 (Pa. Super. 2000).
(Footnote Continued Next Page)
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Did the [PCRA] court err in dismissing this matter for lack of
timeliness under the [PCRA]?
Appellant’s Brief at 3.
“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).
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Because the PCRA court docket does not contain the entry information
prescribed by Rule 114, we are unable to discern the date upon which the
clerk of courts served Appellant with a copy of the October 5, 2021 dismissal
order. A breakdown in the judicial system occurs if the clerk of courts fails to
note on the docket the date upon which a trial court order or notice has been
served upon a party. Jerman, 762 A.2d at 368 (finding a breakdown in the
judicial system and deeming the appeal timely when the clerk of courts failed
to serve a copy of an order on the party). As a result of this breakdown, the
period in which Appellant may file a notice of appeal has not begun to run.
Therefore, we deem Appellant's notice of appeal to be timely filed on August
25, 2022.
As to Docket Number 740 (where Appellant filed a premature notice of
appeal), we find that this notice of appeal was also timely filed. On August
10, 2022, the PCRA court finally dismissed Appellant’s PCRA petition at Docket
Number 533. Believing that his PCRA petitions at all three docket numbers
were dismissed, Appellant filed notices of appeal at all three docket numbers
on August 25, 2022. Further, the PCRA court also believed that its August 10,
2022 order dismissed both of Appellant’s outstanding petitions because, when
the PCRA court finally dismissed Appellant’s petition at Docket Number 740,
the PCRA court declared that its failure to list Docket Number 740 on the
August 10, 2022 order was “due to [a] scrivener’s error.” See PCRA Court
Order, 8/31/22, at 1. Therefore, as to Docket Number 740, since all entities
believed that the August 10, 2022 order finally dismissed Appellant’s petition
at Docket Number 740, we will treat Appellant’s August 25, 2022 notice of
appeal “as filed after [the] entry” of the August 31, 2022 order, which finally
dismissed Appellant’s petition at Docket Number 740. See Pa.R.A.P.
905(a)(5) (“[a] notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof”).
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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.
See Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014)
(quotation marks and some citations omitted).
The trial court sentenced Appellant on April 6, 2018 and Appellant did
not file a notice of appeal. Thus, Appellant’s judgment of sentence became
final at the end of the day on Monday, May 7, 2018. See, e.g., Pa.R.A.P.
903(a); see also 1 Pa.C.S.A. § 1908 (computation of time). Since the PCRA
requires that a petition be filed “within one year of the date the judgment
becomes final,” Appellant had until May 7, 2019 to file a timely PCRA petition.
See 42 Pa.C.S.A. § 9545(b)(1); see also 1 Pa.C.S.A. § 1908 (computation of
time). Therefore, Appellant’s current petition, which was filed on January 14,
2020, is patently untimely and the burden thus fell upon Appellant to plead
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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 did not attempt to plead a valid statutory exception to the
PCRA's one-year time-bar. Thus, since Appellant's PCRA petition is manifestly
untimely and Appellant did not plead any of the statutory exceptions to the
one-year time-bar, our “courts are without jurisdiction to offer [Appellant] any
form of relief.” Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super.
2011). We, therefore, affirm the PCRA court's order, which dismissed
Appellant's PCRA petition without a hearing.5
Order affirmed. Jurisdiction relinquished.
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5 On appeal, Appellant does not claim that the PCRA court erred when it
dismissed his petition at Docket Number 488 without issuing a Rule 907
notice. Appellant has thus waived any such claim on appeal. See
Commonwealth v. Taylor, 65 A.3d 462, 467 (Pa. Super. 2013) (“[t]he
failure to challenge the absence of a Rule 907 notice constitutes waiver”);
Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa. Super. 2007)
(“[a]lthough the notice requirement set forth in Rule 907 has been held to be
mandatory, Appellant has not objected to its omission and thereby has waived
the issue”) (citations omitted).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2023
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