J-S64013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CLINTON DUNN

                            Appellant                  No. 543 EDA 2016


                  Appeal from the PCRA Order January 29, 2016
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0009554-2009


BEFORE: STABILE, SOLANO, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                        FILED DECEMBER 13, 2016

        Appellant, Clinton Dunn, appeals pro se from the January 29, 2016

order entered in the Court of Common Pleas of Philadelphia County (“PCRA

court”), denying his petition for collateral relief pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The PCRA court summarized the procedural background of this matter

as follows.
                     On March 14, 2011, [Appellant] voluntarily,
              intelligently, and knowingly entered a negotiated guilty
              plea to the charges of Unlawful Contact with a Minor (F1),
              Statutory Sexual Assault (F2), Incest (F2), and Corruption
              of Minors (M1) on bill of information CP-51-CR-0009554-
              2009. Following the plea, [the PCRA court] imposed the
              negotiated sentence of 2.5-5 years of incarceration on the
              Corruption of Minors charge and deferred the remainder of
              sentencing until October 14, 2011 for the completion of
              the report by the Sexual Offenders Assessment Board. On
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S64013-16


            October 14, 2011, [the PCRA court] found [Appellant] to
            be a sexually violent predator and subsequently imposed
            the negotiated aggregate sentence of 17.5-50 years of
            incarceration.

                    On March 28, 2013, [Appellant] filed an untimely
            PCRA petition. PCRA counsel was appointed and, on June
            10, 2014, counsel filed a Finley Letter. The matter was
            first listed before [the PCRA] court for decision on July 30,
            2014. On July 31, 2014, following a review of the record,
            [the PCRA] court sent [Appellant] a 907 Notice, pursuant
            to Pa.R.Crim.P. 907(1). [The PCRA] court did not receive
            any response to the 907 Notice and on September 26,
            2014, [the PCRA] court dismissed the PCRA petition.

                  On December 5, 2014, December 10, 2014, and
            June 24, 2015, respectively, [Appellant] filed three
            additional untimely PCRA petitions. On December 4, 2015,
            following a review of the record, [the PCRA] court sent
            [Appellant] a 907 Notice, pursuant to Pa.R.Crim.P.
            907(1). [The PCRA] court received [Appellant’s] response
            to the 907 Notice on December 16, 2015. On January 29,
            2016, [the PCRA] court dismissed the PCRA petition.

PCRA Court Opinion, 1/29/2016, at 1-2.

      Appellant filed the instant appeal on February 9, 2016.       In lieu of

directing Appellant to file a concise statement of matters complained of on

appeal, the PCRA court issued an opinion on February 22, 2016.

      On appeal, Appellant raises one issue, “did the [PCRA] court error in

failing to apply one of the timely exceptions enunciated in 42 Pa.C.S.A.

§ 9545(b)(i-iii) on the grounds that an unconstitutional guilty plea/sentence

cannot be enforced under a republic form of government (constitutional).”

Appellant’s Brief at 2.

      “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).                  All PCRA

                                     -2-
J-S64013-16



petitions, “including a second or subsequent petition, shall be filed within

one year of the date the judgment becomes final” unless an exception to

timeliness applies.     42 Pa.C.S.A. § 9545(b)(1).         “The PCRA’s time

restrictions are jurisdictional in nature.    Thus, [i]f a PCRA petition is

untimely, neither this Court nor the [PCRA] court has jurisdiction over the

petition. Without jurisdiction, we simply do not have the legal authority to

address the substantive claims.”     Commonwealth v. Chester, 895 A.2d

520, 522 (Pa. 2006) (first alteration in original) (internal citations and

quotation marks omitted).

      The PCRA provides for three exceptions to the timeliness requirement

of filing within one year of the date the judgment becomes final.           The

exceptions are

            (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.A. § 9545(b)(1)(i-iii).

      While Appellant’s issue is the trial court’s purported failure to apply a

timeliness exception to the PCRA, Appellant fails to develop this argument in

                                     -3-
J-S64013-16



his brief, rather he discusses the merits of his underlying claims. Appellant

did not file a direct appeal of the judgment of sentence entered in this

matter; therefore, his judgment became final on November 13, 2011.

Appellant’s petition is clearly untimely and he has not plead, nor argued in

his brief that any of the exceptions apply. Because Appellant addressed only

the merits of the petition, but not its timeliness, we conclude Appellant’s

petition is untimely.1 We direct that a copy of the PCRA court’s January 29,

2016 opinion be filed along with this Memorandum.

       Order affirmed. Motions for leave to supplement the record denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2016




____________________________________________


1
  Appellant filed a motion for leave to supplement the record on July 22,
2016, and November 14, 2016. These motions are hereby denied.



                                           -4-
                                                                                Circulated 10/27/2016 02:30 PM


                IN THE COURT OF COMM<DN PLEAS OF PHILADELPHIA                   COUNTY
                           TRIAL DIVISlpN - CRIMINAL SECTION




    COMMONWEAL TH OF PENNSYLVANIA

                   v.                                           CP-51-CR-0009554-2009
    CLINTON DUNN



                                                     OPINION

           This Opinion is written in support of this court's January 29, 2016 dismissal of

    Clinton Dunn's PCRA petition.



    PROCEDURAL HISTORY

           On March 14, 2011, petitioner Clinton Dunn ("Dunn") voluntarily, intelligently, and
                                                 .
    knowingly entered a negotiated guilty plea to the charges of Unlawful Contact with a Minor

    (F1), Statutory Sexual Assault (F2), Incest (F2), and Corruption of Minors (M1) on bill of

    information CP-51-CR-0009554-2009'.               Following the plea, this court imposed the

    negotiated sentence of 2.5-5 years of incarceration on the Corruption of Minors charge

    and deferred the remainder of sentendng until October 14, 2011 for the completion of a

    report by the Sexual Offenders Assessment Board. On October 14, 2011, this court found

    Dunn to be a sexually violent predator and subsequently imposed the negotiated

aggregate sentence of 17.5-50 years of incarceration.

          On March 28, 2013, Dunn filed an untimely PCRA petition.            PCRA counsel was

appointed and, on June 10, 2014, counsel filed a Finley1 Letter. The matter was first listed


1
    Com. v. Finley, 550 A.2d 213, 215 (Pa. Super. 1988).
     before this court for decision on July 30, 2014. On July 31, 2014, following a review of the

    record, this court sent Dunn a 907 Notice, pursuant to Pa.R.Crim.P. 907(1). This court did
                                                    ;

                                                    i
    not receive any response to the 907 Notice and on . September 26, 2014 this court

    dismissed the PCRA petition.

           On December 5, 2014, December 10, 2014, and June 24, 2015, respectively, Dunn

    filed three additional untimely PCRA petitions. On December 4, 2015, following a review

    of the record, this court sent Dunn a 907 Notice, pursuant to Pa.R.Crim.P. 907(1). This

    court received Dunn's response to the [907 Notice on December 16, 2015. On January 29,
                                                '
    2016, this court dismissed the PCRA petition.



    DISCUSSION

           The standard applied when reviewing an order dismissing a PCRA petition is

    whether the determination of the PCRA court is supported by the record evidence and is
                       2
    free of legal error. The PC RA court's factual determinations are entitled to deference, but

    its legal determinations are subject to plenary review.3 The PCRA court's findings will not

    be disturbed unless there is no support for the findings in the certified record.4

           Pursuant to 42 Pa.C.S. 9545(b)i a PCRA petition, including second and subsequent

petitions, must be filed within one year of the date the judgment becomes final, unless the

petition alleges and the petitioner proves that his claim(s) fall under any of the three

enumerated exceptions to the one year requirement. These exceptions are interference

by government officials", facts unknown and not discoverable by due diligence6, and newly


2
    Com. v. Hart, 911 A.2d 939, 941 (Pa. Super. 2006).
"com. v. Hawkins, 894 A.2d 716, 722 (Pa. 2006).
4
  Com. v. Hart, 911 A.2d 939, 941 (Pa. Super. 2006).
5
  42 Pa.C.S. 9545(b)(1)(i).                   ;
6
  42 Pa.C.S. 9545(b)(1 )(ii).
     recognized constitutional rights that apply retroactively"   A petition claiming one of these

    exceptions must be filed within sixty; (60) days of the time the claim could have been
                                                    '
    presented.8     Further, the Pennsylvania Supreme Court set forth in Commonwealth v.

    Fahy that "a claim of ineffective assistance of counsel does not save an otherwise

    untimely petition for review on the merits."?

           In the instant matter, Dunn's jui:1gmentbecame final on November 13, 2011, thirty

    (30) days after this court imposed sentence: thus, the deadline for a PCRA petition was

    November 13, 2012. Dunn did not file filed the instant PCRA petitions until December 5,

    2014, December 10, 2014, and June 24, 2015, respectively.            Based upon this court's
                                                '
    independent review of the record, this court concludes that Dunn's petitions are untimely

    filed and do not warrant relief under any of the enumerated exceptions to the one year

    filing requirement.          Additionally, Dunn's supplemental averment of an unintelligent,

    unknowing, and involuntary plea, as set forth in his Response to the 907 Notice, does not

    warrant relief under any of the enumerated exceptions to the one year filing requirement.



CONCLUSION

          Based upon this court's independent review of the record, this court concludes that

Dunn's petitions are untimely filed and thus, he is not eligible for post-conviction relief.




7
  42 Pa.C.S. 9545(b)(1 )(iii).
8
  42 Pa.C.S. 9545(b)(2).
9
  714 A.2d 214 (Pa. 1999).
10
   Id. at 223.
First Judicial District of Pennsylvania
Honorable Linda A. Carpenter ·
1418 Criminal Justice Center
1301 Filbert Street
Philadelphia, PA 19107


Commonwealth v. Clinton Dunn
CP-51-CR-0009554-2009

Date: January 29, 2016


                                      PROOF OF SERViCE

I hereby certify that I am this day serving the foregoing upon the person(s), and in the manner
indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:


Defense Counsel/Party:      Clinton Dunn
                            JY-3620
                            SCI-Benner Township
                            301 Institution Drive
                            Bellefonte, PA 17932

Type of Service: ( ) Personal    ( X) First Class Mail   ( ) Other, please specify:        _


District Attorney:   Robin Godfrey, Esq.
                     District Attorney's Office
                     Three South Penn Square
                     Philadelphia, PA 19107

Type of Service: ( ) Personal   ( X) First Class Mail    ( ) Other, please specify:        _




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