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[U] Commonwealth v. Doty

Superior Court of Pennsylvania

February 25, 2014



Appeal from the Order Entered on May 30, 2013 In the Court of Common Pleas of Erie County Criminal Division at No.: CP-25-CR-0001370-2008




Christopher Doty ("Doty") appeals from the May 30, 2013 order dismissing his second pro se petition pursuant to the Post-Conviction Relief Act ("PCRA").[1] Doty has failed substantively to comply with our rules of appellate procedure, specifically the rules' briefing and timeliness requirements. Thus, Doty has failed properly to invoke our jurisdiction.

We review the factual and procedural history of this case, but briefly. Doty was charged in connection with the April 24, 2008 assault of Kyle Miles, which left Miles with chronic, debilitating injuries. See Criminal Complaint, 6/5/2008. On January 20, 2009, a jury found Doty and two co-defendants guilty of conspiracy and aggravated assault.[2] See Commonwealth v. Doty ("Doty II"), 48 A.3d 451, 453 (Pa.Super. 2012); see also Commonwealth v. Doty ("Doty I"), 997 A.2d 1184, 1186 (Pa.Super. 2010). Thereafter, on March 19, 2009, Doty failed to appear at a sentencing hearing. The trial court sentenced Doty, in absentia, to an aggregate term of 114 months' to 232 months' incarceration. Id. The trial court also imposed fees and costs, and further ordered Doty to pay $1, 500, 000 in restitution. Id. While Doty remained at-large, his direct appellate counsel filed a timely notice of appeal on April 1, 2009, and, thereafter, filed a timely statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Law enforcement officials eventually apprehended Doty outside the Commonwealth. Id.

On June 9, 2010, a panel of this Court quashed Doty's direct appeal on the basis that he was a fugitive during the thirty-day period in which he was permitted to file a notice of appeal from his judgment of sentence. See Doty I, 997 A.2d at 1184; see also Pa.R.A.P. 903(a).

On March 10, 2011, Doty filed his first pro se PCRA petition. Counsel was appointed, who then filed an amended PCRA petition. On August 3, 2011, the trial court dismissed Doty's first PCRA petition as untimely. Upon reviewing Doty's first PCRA petition, a panel of this Court concluded that, although the PCRA court erred in deeming Doty's first petition untimely, Doty still was not eligible for relief. See Doty II, 48 A.3d at 457 (citing Commonwealth v. Judge, 797 A.2d 250, 260 (Pa. 2002)) ("In [Doty I], we held that [Doty's] fugitive status during the direct appeal period resulted in forfeiture of his right to direct review of these claims. Because [Doty] previously forfeited review of his claims on direct appeal, he is now ineligible for collateral relief[.]"). Accordingly, on July 2, 2012, this Court affirmed the PCRA court's dismissal of Doty's first PCRA petition. Doty II, 48 A.3d at 457.

On August 6, 2012, Doty filed the instant PCRA petition. Therein, Doty alleged the discovery of new, exculpatory facts in the form of an affidavit from a witness, Shawn Williams. In relevant part, Doty asserts that Williams' testimony impeaches the identity of one of the Commonwealth's witnesses at trial.[3] Doty also alleges that the Commonwealth committed a Brady[4] violation, because the Commonwealth was aware of Williams' testimony and should have turned it over to the defense. Doty's Second PCRA Petition, 8/6/2012, at 1. Doty also argues that he was "never advised [or] aware of the disadvantages of knowingly or intelligently waiving his [appellate rights.]" Id. at 2.

On September 28, 2012, the PCRA court ordered the Commonwealth to file a response to Doty's second PCRA petition. On November 27, 2012, the Commonwealth timely complied. On April 19, 2013, the PCRA court entered a notice of its intent to dismiss Doty's second PCRA petition without a hearing, see Pa.R.Crim.P. 907(1), and provided Doty twenty days from the entry of that order to file objections. On April 29, 2013, Doty filed a motion for an extension of time to file objections. On May 3, 2013, the PCRA court granted Doty's motion. Thereafter, Doty filed two sets of objections on May 3 and May 10, 2013. On May 30, 2013, the PCRA court dismissed Doty's second PCRA petition. This appeal followed.

On June 19, 2013, Doty filed a timely notice of appeal. On July 9, 2013, Doty filed a premature Rule 1925(b) statement. On July 19, 2013, the PCRA court actually ordered Doty to file a Rule 1925(b) statement. Relying upon Doty's July 9 Rule 1925(b) statement, on July 22, 2013, the PCRA court issued a Rule 1925(a) opinion incorporating by reference the reasoning set forth in its April 19 notice of intent to dismiss.

Turning to the claims presented by Doty, we preliminarily observe the following with regard to pro se appellants:

[A]ppellate briefs and reproduced records must materially conform to the requirements of the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 2101. This Court may quash or dismiss an appeal if the appellant fails to conform to the requirements set forth in the Pennsylvania Rules of Appellate Procedure. Id.; see Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa.Super. 2003). Although this Court is willing to liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon the appellant. Id. at 252. To the contrary, any person choosing to represent himself in a legal proceeding must, to a reasonable extent, assume that his lack of expertise and legal training will be his undoing. Commonwealth v. Rivera, 685 A.2d 1011, 1013 (Pa.Super. 1996).

In re Ullman, 995 A.2d 1207, 1211-12 (Pa.Super. 2010) (citations altered for clarity). The Pennsylvania Rules of Appellate Procedure provide comprehensive guidelines regarding the required content of an appellant's brief as follows:

Rule 2111. Brief of the Appellant.
(a) General rules.-The brief of the appellant, except as otherwise prescribed by these rules, shall consist of the following matters, separately and distinctly entitled and in the following order:
(1) Statement of jurisdiction.
(2) Order or other determination in question.
(3) Statement of both the scope of review and the standard of review.
(4) Statement of the questions involved.
(5) Statement of the case.
(6) Summary of argument.
(7) Statement of the reasons to allow an appeal to challenge the discretionary aspects of a sentence, if applicable.
(8) Argument for appellant.
(9) A short conclusion stating the precise relief sought.
(10) The opinions and pleadings specified in Subdivisions (b) and (c) of this rule.
(11) In the Superior Court, a copy of the statement of errors complained of on appeal, filed with the trial court pursuant to Rule 1925(b), or an averment that no order requiring a statement of errors complained of on appeal pursuant to Rule 1925(b) was entered.

Pa.R.A.P. 2111. Rules 2114 through 2119 also provide more specific guidelines to appellants in drafting and formatting their briefs.

Instantly, Doty's brief falls far below the minimum standards referenced above. The first page of Doty's brief is a table of citations. See Pa.R.A.P. 2174(b). The rest of Doty's brief is devoted to a handwritten recitation of the testimony presented at Doty's jury trial, reproduced without paragraph breaks or any clear organizational structure. None of the elements required under Rule 2111 are present. Doty's brief does not include a statement of the scope of review and the standard of review. See Pa.R.A.P. 2111(a)(3). Doty also has failed to include the order in question, and his brief does not contain a statement of jurisdiction. See Pa.R.A.P. 2111(a)(1)-(2), 2114-15. Even more notably, Doty has failed to include a statement of the questions involved, a statement of his case, or a summary of his argument. See Pa.R.A.P. 2111(a)(4)-(6), 2116-18. Additionally, we have been unable to locate a single citation to persuasive caselaw or statutory authority. See Pa.R.A.P. 2119(a).

On these bases alone, we could quash or dismiss Doty's appeal. See Pa.R.A.P. 2101; Commonwealth v. Adams, 882 A.2d 496, 497-98 (Pa.Super. 2005) (citing Lyons, 833 at 252). However, we must quash Doty's appeal in any event because Doty has failed to satisfy the jurisdictional timeliness requirements of the PCRA.[5]

It is well-established that the PCRA time limits are jurisdictional, and are meant to be both mandatory and applied literally by the courts to all PCRA petitions, regardless of the potential merit of the claims asserted. Commonwealth v. Murray, 753 A.2d 201, 202-03 (Pa. 2000); Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011). "[N]o court may properly disregard or alter [these filing requirements] in order to reach the merits of the claims raised in a PCRA petition that is filed in an untimely manner." Murray, 753 A.2d at 203; see also Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). PCRA petitions, including second or subsequent applications, must be filed within one year of the date that an appellant's judgment becomes final. See 42 Pa.C.S. § 9545(b)(1). For the purposes of the PCRA, 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." See 42 Pa.C.S. § 9545(b)(3).

Instantly, Doty did not seek an appeal to the Pennsylvania Supreme Court from this Court's June 9, 2010 quashal of his direct appeal. See Doty I, 997 A.2d at 1189. Doty's time in which to seek review to the Pennsylvania Supreme Court expired on July 9, 2010. See Pa.R.A.P. 903(a). Doty's judgment became final the same day. See 42 Pa.C.S. § 9545(b)(3). Thereafter, Doty had until July 9, 2011, to file a timely PCRA petition. The instant petition was filed on August 6, 2012, more than one year after the expiration of the applicable one-year period. Therefore, Doty's petition is untimely on its face. See 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).

Despite facial untimeliness, a tardy PCRA petition nonetheless will be considered timely if (but only if) the petitioner pleads and proves that one of the three exceptions to the PCRA's one-year time limit apply. These exceptions are delineated as follows:

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(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.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.

42 Pa.C.S. § 9545(b). Instantly, the only exception that Doty invokes is related to the newly discovered facts set forth in his second PCRA petition. See 42 Pa.C.S. § 9545(b)(1)(ii). Doty argues that the testimony of Williams was unknown to Doty during his trial. See Doty's Second PCRA Petition, 8/6/2012, at 2 (citing 42 Pa.C.S. §§ 9545(b)(1)(i)-(iii)).

The affidavit containing Williams' testimony was notarized on June 27, 2012. Although stated in a cursory manner, Doty appears to argue that, because he submitted Williams' testimony within sixty days of it being notarized, he has complied with the sixty-day requirement of 42 Pa.C.S. § 9545(b)(2). See Attachment A to Doty's Second PCRA Petition, 8/6/2012. We disagree.

While Doty successfully has pleaded an exception to timeliness, he has not taken the necessary steps to prove the exception. Doty has not provided any explanation as to why it took him until June 2012 to obtain a statement from Williams – approximately eleven months beyond the one-year time limit. Aside from noting that Williams resides at the same detention facility as Doty, the affidavit presented by Doty does not identify who Williams is, does not describe Williams' relationship with Doty or the case, and does not explain how Williams is privy to the allegedly exculpatory information. Moreover, Doty does not attempt to explain the eleven-month deficiency in his filings, nor does he seek to establish why Williams' testimony could not have been obtained earlier. We conclude that Doty has not acted with the required diligence. See 42 Pa.C.S. § 9545(b)(2); see also Commonwealth v. Yarris, 731 A.2d 581, 591 (Pa. 1999) (finding that a failure to explain why affidavits could not have been obtained earlier renders PCRA claim of newly discovered facts untimely).

Because Doty has failed to establish that his PCRA petition is subject to one of the timeliness exceptions at 42 Pa.C.S. § 9545(b)(1), he has failed to establish our jurisdiction. Consequently, we affirm the trial court's order dismissing Doty's second PCRA petition.

Order affirmed.

Judgment Entered.

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