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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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



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* Former Justice specially assigned to the Superior Court.
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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.




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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).




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       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
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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.

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          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.



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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.


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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.




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3   Brady v. Maryland, 373 U.S. 83 (1963).




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       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.


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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.

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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.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/19




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