J   -S10040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                       :   IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                          Appellee

                     v.

JUSTIN CORLISS

                          Appellant                          No. 2468 EDA 2016


                  Appeal from the Order Entered July 21, 2016
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000743-1997

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY SOLANO, J.:                                      FILED MAY 09, 2017

        Pro se Appellant Justin Corliss appeals from the order denying his

serial Post Conviction Relief Act ("PCRA")1 petition as untimely.                The

Commonwealth has filed     a   Motion to Quash this appeal. We affirm the PCRA

court's order and deny the Commonwealth's motion as moot.

        We recently summarized the procedural history of this case:

           On August 20, 1998,    after   a   jury found Appellant guilty of
          statutory sexual assault, aggravated indecent assault,
          indecent assault, and corruption of minors, the trial court
          imposed a sentence of four to ten years of incarceration.
          This Court affirmed the judgment of sentence on direct
          appeal, and Appellant's subsequent PCRA petitions were
          unsuccessful. Appellant was released from prison in 2008,
          having completed the full term of his sentence.

Commonwealth v. Corliss, 709          EDA 2014, at      1   (Pa. Super. Dec. 4, 2014)

(unpublished memorandum), appeal denied, 117 A.3d 295 (Pa. 2015). On

1   42 Pa.C.S. §§ 9541-9546.
J   -S10040-17


August 7, 2013, Appellant filed         a   counseled petition for   a   writ of coram

nobis.      The PCRA court treated that petition as an untimely PCRA petition

and dismissed it for lack of jurisdiction.         We affirmed, id. at 2, and the

Pennsylvania Supreme Court denied Appellant's petition for allowance of

appeal.

           On June 3, 2016, Appellant filed the instant pro se "Nunc Pro Tunc

Petition for Post -Conviction Relief," in which he alleged that his court -

appointed appellate counsel was not competent to represent him due to                  a


conflict of interest. On June 21, 2016, the PCRA court denied the petition as

untimely.2       On July 20, 2016, Appellant filed a motion     for reconsideration

and    a    notice of appeal.3    On July 21, 2016, the PCRA court denied the

motion for reconsideration and struck the notice of appeal.              Appellant filed

another notice of appeal on August 5, 2016.4

           In this appeal, Appellant presents the following issue:



2  The PCRA court did not issue a notice pursuant to Pa.R.Crim.P. 907 before
denying relief. However, Appellant has not raised this issue on appeal, so it
is waived. See Commonwealth v. Zeigler, 148 A.3d 849, 851 n.2 (Pa.
Super. 2016).     "Moreover, failure to issue [a] Rule 907 notice is not
reversible error where the record is clear that the petition is untimely." Id.

3   The docket entry for July 20, 2016 includes only the motion for
reconsideration. However, the July 20 notice of appeal is in the certified
record, and the trial court acknowledged its filing.

4 On October 4, 2016, this Court issued an order directing Appellant to show
cause why his appeal should not be quashed as untimely. On October 14,
2016, Appellant filed a response. Thereafter, we discharged the show -cause
order and deferred resolution of the timeliness issue to this panel.


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              Did the lower court err and abuse its discretion in refusing
              to conduct an evidentiary hearing concerning [appellate
              counsel's] conflict of interest and divided loyalties when
              [Appellant] is able to demonstrate prejudice derived
              therefrom that abrogated his constitutional right to counsel
              and a direct appeal resulting in a manifest miscarriage of
              justice due to the presence of exculpatory DNA evidence
              (having forever been misrepresented and otherwise
              ignored by the lower court) where, under lesser
              circumstances, this Court reversed, in Com. v. Williams,
              814 A.2d 739, 2002?

Appellant's Brief at 7.

                                 Timeliness of Appeal
        As an initial     matter, we must determine whether Appellant filed          a


timely appeal. We may address this issue sua sponte because if           a   notice of

appeal is not timely filed, this Court lacks jurisdiction. Commonwealth v.

Cooper, 710 A.2d 76, 78 (Pa. Super. 1998).

        Generally,    a   notice of appeal must be "filed within 30 days after the

entry of the order from which the appeal        is   taken." Pa.R.A.P. 903(a). If    a


trial court expressly grants reconsideration of an appealable order within

that 30 days, an appeal may not be filed until the trial court enters          a   new

order disposing of the case on reconsideration. See Pa.R.A.P. 1701(b)(3).

In the meantime, any notice of appeal entered from the first dispositive

order    is    rendered inoperative.     Id.   The mere filing of    a   motion for

reconsideration does not toll the appeal period. Moore v. Moore, 634 A.2d

163, 167 (Pa. 1993). Because of the confusion engendered by this rule, the

Official Note to Rule 1701 advises:



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            The better procedure under this rule will be for a party
            seeking reconsideration to file an application for
            reconsideration below and a notice of appeal, etc. If the
            application lacks merit the trial court or other government
            unit may deny the application by the entry of an order to
            that effect or by inaction. The prior appeal paper will
            remain in effect, and appeal will have been taken without
            the necessity to watch the calendar for the running of the
            appeal period.

Pa.R.A.P. 1701 Note.

        Here, Appellant followed the advice in Rule 1701's Official Note by

timely filing both     a   motion for reconsideration and   a   notice of appeal on

July 20, 2016      - within   30 days of the PCRA court's June 21, 2016 order

dismissing Appellant's PCRA petition.           Under Rule 1701, when the PCRA

court denied reconsideration, the prior notice of appeal should                have

remained in effect.        See Pa.R.A.P. 1701 Note.      However, the PCRA court

inexplicably struck Appellant's July 20, 2016 notice of appeal and stated in

its July 21, 2016 order that      "[t]he time   in which to file a Notice of Appeal

begins to run anew after entry of this decision on reconsideration." Order,

7/21/16. Understandably, Appellant then followed the guidance of this order

and filed   a   new notice of appeal on August 5, 2016.

        The PCRA court's July 21, 2016 order was in error. Upon the denial of

reconsideration, the appealable order remained the June 21, 2016 order of

dismissal,      not the PCRA court's order denying          reconsideration.   See

Pa.R.A.P. 1701(b)(3) & Note.         Appellant's August 5, 2016 notice of appeal

therefore was untimely because it was filed more than 30 days after the



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June 21, 2016 dismissal order.           Nevertheless, we will not quash Appellant's

appeal.     Appellant's untimeliness      is   the result of the trial court's erroneous

striking of Appellant's valid July 20, 2016 notice of appeal and erroneous

advice in its July 21 order.        Because those errors constitute      a   breakdown in

the judicial process, we will consider Appellant's appeal timely.                    See

Commonwealth v. Coolbaugh, 770 A.2d 788, 791                        (Pa. Super. 2001)

(declining to quash appeal where trial court misstated appeal period).

                   Timeliness of Appellant's PCRA Petition
        The PCRA court dismissed Appellant's petition as untimely.

            This Court's standard of review regarding an order
            dismissing a petition under the PCRA is to determine
            whether the determination of the PCRA court is supported
            by the evidence of record and is free of legal error. The
            PCRA court's findings will not be disturbed unless there is
            no support for the findings in the certified record.

Commonwealth v. Hill, 149 A.3d 362, 364-65                  (Pa. Super. 2016) (citation

and internal quotation marks omitted).

        We have explained:

            The timeliness of   a   post -conviction petition is jurisdictional.
            Commonwealth v. Hernandez, 79 A.3d 649, 651                      (Pa.
            Super. 2013). Generally, a petition for relief under the
            PCRA, including a second or subsequent petition, must be
            filed within one year of the date the judgment is final
            unless the petition alleges and the petitioner proves one of
            the three exceptions to the time limitations for filing the
            petition set forth in Section 9545(b)(1) of the statute. See
            42 Pa.C.S. § 9545(b).

Commonwealth v. Furgess, 149 A.3d 90, 92                   (Pa. Super. 2016) (footnote

omitted).


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         We have reviewed Appellant's brief, the certified record, the relevant

law, and the opinion of the able PCRA court judge, the Honorable David J.

Williamson.       We discern no error in the PCRA court's determination and

conclude that Judge Williamson's opinion, entered on June 21, 2016, ably

addressed the untimeliness of Appellant's PCRA petition. See Hill, 149 A.3d

at 364-65.       Therefore, we affirm on the basis of Judge Williamson's well -

reasoned opinion and adopt it as our own.5             In the event of further

proceedings that reference this Court's memorandum, the parties shall

attach   a   copy of the PCRA court's June 21, 2016 opinion.

         Motion to quash denied. Order affirmed.

Judgment Entered.




J   seph D. Seletyn,
Prothonotary

Date: 5/9/2017




5   The Commonwealth          moved to quash this appeal, arguing that
                             has
Appellant is ineligible for PCRA relief because he is no longer serving a
sentence of imprisonment, probation, or parole for the crimes at issue, see
42 Pa.C.S. § 9543(a), and that the trial court lacked jurisdiction to consider
Appellant's PCRA petition because the petition was untimely, see 42 Pa.C.S.
§ 9545(b).   Because we are affirming for reasons that are encompassed
within the Commonwealth's         second     argument for quashal, the
Commonwealth's motion to quash is denied as moot.


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                         )




                      COURT OF COMMON PLEAS OF MONROE COUNTY
                            FORTY·THIRD JUDICIAL DISTRICT
                          COMMONWEAL TH OF PENNSYLVANIA




COMMONWEALTH OF PENNSYLVANIA : NO. 743 CRIMINAL 1997

                vs.

JUSTIN CORLISS,                                    : NUNC PRO TUNC
                                                     PETITION FOR POST-
                        Defendant                  : CONVICTION RELIEF




                                           OPINION


               The Defendant filed a pro se "Nunc Pro Tune Petition for Post-Conviction

Relief' on June 3, 2016. In the Petition, the Defendant seeks reinstatement of his direct appeal

rights in this matter in which he was convicted in 1998. The Defendant asserts that his court-

appointed appellate counsel, David Skutnik, Esquire was not competent to represent him due to a

conflict of interest. The petition sets forth that Attorney Skutnik was an assistant district attorney

in Monroe County at the time the Defendant was charged in this matter.

                                            Background

               The Defendant previously filed a Petition for Writ of Coram Nobis in this matter

on August 7, 2013. This Court denied the relief sought, which was affirmed on appeal by the

Superior Court. The Pennsylvania Supreme Court chose not to grant review of the matter. Many

of the facts and much of the procedural history of this matter were reviewed in this Court's
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                                                                             /




    Opinion and Order dated January 7, 2014 on the Petition for Writ of Coram Nobis. The current

    nunc pro tune request seeks relief under the Post-Conviction Relief Act (PCRA) as it relates to a

    conviction following a jury trial on July 16, 1998 for statutory sexual assault, aggravated

    indecent assault, indecent assault, and corruption of minors. The Defendant was sentenced to 4-

    10 years confinement in a state correctional facility. The Defendant was represented at trial by

    Brian Germano, Esquire of the Monroe County Public Defender's office.

                   The Defendant, through appellate counsel David Skutnik, Esquire, filed a timely

Notice of Appeal to the Superior Court on November 20, 1998. The conviction was affirmed on

appeal on November 30, 1999. The Defendant then served the maximum on his sentence and

was released from incarceration in 2008.

                   The Defendant filed various petitions and motions related to his trial in addition to

his appeal to the Superior Court for the underlying conviction and sentence. These were

ultimately denied. The Defendant filed several pro se motions after his conviction. He was also

represented by various court-appointed counsel, who filed motions on his behalf. The Defendant

filed five PCRA petitions, the final one being denied on April 18, 2008. Defendant's Motion for

Reconsideration of the denial of his final PCRA petition was denied on May 6, 2008. Nothing

else was filed until the Defendant filed his Petition for Writ of Coram Nobis, through private

counsel, on August 7, 2013.1

                  The Defendant asserts in his Petition for Nunc Pro Tune PCRA relief, that he was

charged with various offenses on July 10, 1997, that he was convicted of certain offenses on


1
  The Defendant previously conceded one of the reasons for filing the Writ of Coram Nobis was because he was
charged in 2013 with failing to register properly as a sexual offender under Pennsylvania's Megan's Law
requirements imposed as a result of that 1998 conviction. The Defendant filed this nunc pro tune Petition two days
after being convicted on June 1, 2016 in two separate matters of various sexual assault offenses.




                                                         2
July 13, 1998, and that Attorney Skutnik was appointed on August 20, 1998 to represent him in

filing post-sentence motions and a direct appeal to the Superior Court. The Defendant sets forth

that Attorney Skutnik filed the appeal for the Defendant and that the conviction was affirmed.

Defendant alleges he then filed a prose petition as to allegations of Attorney Skutnik's

ineffective assistance of counsel during the appeal.

               The Defendant now alleges that Attorney Skutnik had a conflict of interest in

representing the Defendant on appeal, because at the time of the Defendant's arrest in July 1997,

Attorney Skutnik was employed as an assistant district attorney for the Monroe County District

Attorney's office. Based upon this, the Defendant now requests this Court grant the Nunc Pro

Tune Petition for PCRA relief as an "extension" of his first timely filed PCRA, and to have his

direct appeal rights to the 1998 conviction reinstated.

                                             Discussion

               We have reviewed this matter, and find a determination on the merits can be made

without need for a hearing. The only issue for hearing would be to determine whether or not

Attorney Skutnik was in fact an assistant district attorney at the time of Defendant's arrest as

alleged. However, even if he were, on the facts alleged and the procedural status of this case, the

Defendant cannot now seek relief.

               The Defendant sets forth a claim of ineffective assistance of counsel which is

cognizable under the PCRA. See 42 Pa. C.S.A. §9543 (a)(2)(ii). Title 42 Pa. C.S.A. §9545

(b)(l) sets forth the timeliness requirements for filing a petition pursuant to the PCRA Act. The

Act requires that any petition, including a second or subsequent petition, be filed within one year




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                                                                   .   )




of the date the judgment of sentence 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 of the United States;

                (ii) the facts upon which the claim is brought were unknown to the
                petitioner and could not be ascertained with the exercise of due
                diligence; or

                (iii) the right asserted is a Constitutional right recognized by the
                U.S. Supreme Court or the Pa. Supreme Court after the time period
                provided and applies retroactively.

See 42 Pa. C.S.A. §9545 (b)(l).

                A petitioner must meet these requirements for a late, or nunc pro tune filing to be

considered. Otherwise, this Court lacks jurisdiction.   Commonwealth v. Ali, 86 A.3d 173 (Pa.

2014). Likewise, a petitioner is not eligible for PCRA relief after concluding his sentence of

imprisonment, probation or parole. 42 Pa. C.S.A. § 9543 (a)(l)(i); Commonwealth v. Ahlborn,

548 Pa. 544, 699 A.2d 718 (1997). Here, the Defendant was done serving his full sentence in

2008.

                In his petition, Defendant does not argue the above exceptions to the timeliness

requirement.   Instead, he argues the filing is an extension of his first PCRA petition that should

entitle him to re-instatement of his direct appeal rights. The Defendant cites Commonwealth v.

Williams, 814 A.2d 739 (2002) in support of his contention. Ironically, Attorney Skutnik's

employment with the Monroe County District Attorney's office was at issue in that case, too.

However, the case had several factual distinctions, and is not applicable to this matter.




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                In Commonwealth v. Williams, the defendant was convicted of various offenses

on March 13, 1998. The defendant's trial counsel was Attorney William K. Sayer, of the

Monroe County Public Defender's office. Attorney Skutnik worked in the Monroe County

District Attorney's office at the time of the defendant's preliminary hearing and actually

represented the Commonwealth at that hearing against Mr. Williams. Following a denial of

Williams' direct appeal, the defendant filed his first PCRA petition alleging ineffective

assistance of counsel. Attorney Skutnik, who previously represented the Commonwealth against

Williams at his preliminary hearing, but was no longer employed by the Commonwealth, was

appointed to represent Williams in his PCRA claim. The PCRA claim was ultimately denied.




               Williams then filed a second PCRA petition two (2) years after his judgment of

sentence became final. The argument Williams made to the Superior Court, was that his second

PCRA was an extension of his first PCRA, and therefore not barred as untimely because the first

PCRA was fatally defective due to lack of competent counsel Id. In other words, the Superior

Court had to determine if counsel's possible conflict of interest made the first PCRA defective

ab initio and thereby depriving the Defendant of an opportunity to file a PCRA. Id. The Superior

Court had to determine whether Attorney Skutnik labored under a conflict of interest due to his

representation of Williams in the PCRA, after representing the Commonwealth in the same

matter at the preliminary hearing. Id. ( emphasis added). The Superior Court granted Williams

the right to file an untimely second PCRA because the first PCRA challenge lacked competent

legal counsel as it would have caused Attorney Skutnik to "attack his own efforts as an assistant

district attorney" in the same case. Id. at 742. Williams was given an opportunity to file a second




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                        )




 PCRA late because the first PCRA was deemed defective, and therefore no opportunity to

 challenge matters normally available in a PCRA.

                Here, the facts are different. First, the Defendant seeks to apply the rationale of

"extending" the first PCRA filed timely to include this PCRA which was filed more than 16

years after the judgment of sentence was final, and 8 years since completing his full sentence.

Unlike Williams, the challenge here is not to a prior PCRA; rather it challenges the direct appeal

taken by Attorney Skutnik. The Defendant does not challenge a prior PCRA wherein the

Defendant could have raised the issue of ineffective assistance of counsel in the direct appeal.

Instead, he seeks to challenge the direct appeal itself. The first, and subsequent PCRA's filed by

the Defendant are not deemed fatally defective ab initio as it was in Williams. As such,

Williams, does not support an "extension" of the time in this case to allow the current nunc pro

tune Petition for PCRA relief because the prior PCRAs are not deemed void for lack of

competent counsel. The Defendant herein had an adequate opportunity to file his first PCRA,

and in fact filed it and subsequent PCRAs that were not defective. Therefore, the Defendant had

an adequate opportunity to raise this issue, and all other issues in the prior PCRAs, which would

have been the appropriate forum to do so. However, he did not raise it at the time.

               Also, unlike the Williams case, it is not alleged, that Attorney Skutnik actually

represented the Commonwealth in any proceeding against the Defendant. Even if Attorney

Skutnik was an assistant district attorney at the time of the Defendant's arrest, there is no

allegation, nor any record, that he prosecuted the Defendant. The difference in Williams, noted

specifically by the Superior Court, was that Attorney Skutnik prosecuted Williams at the

preliminary hearing stage and therefore, would not be competent "in a PCRA matter to attack his




                                                  6
                                                                                ·,


    own efforts as an assistant district attorney who acted in a clearly adversarial role ... " Id. The

    fact that Attorney Skutnik may have worked in the D.A.'s office at the time of the Defendant's

    arrest, standing alone, does not require Attorney Skutnik to attack his own efforts on the post -

trial motions and direct appeal. Therefore, the first PCRA filing is not void and the current nunc

pro tune request for PCRA relief is not an extension of, nor necessary to correct an invalid first

PCRA petition. As a result, it is untimely, and must be dismissed.

                   We note that the Defendant has not alleged the failure to raise the claim

previously was the result of government interference, or that the facts were previously unknown

and could not be ascertained with the exercise of due diligence, or that the right asserted is a

newly recognized constitutional right. Defendant's issue is directed to the representation he

received in his post-sentence motion and direct appeal. The time to raise those concerns was by

a timely filed PCRA petition. The Defendant filed five PCRA petitions, including his first one in

which he alleged ineffective assistance of counsel by Attorney Skutnik. The Defendant could

have raised the issue of Attorney Skutnik working in the D.A. 's office in those PCRA petitions,

but failed to do so.2 We see no reason why the Defendant would not know this through the

exercise of due diligence. Therefore, it should have been raised in his prior PCRA petition(s).

Failure to do so is a waiver of the issue under 42 Pa. C.S.A. §9544(b). Furthermore, the

Defendant raised claims of ineffective assistance of counsel by Attorney Skutnik in his first

PCRA and such claims were dismissed. The Defendant has failed to meet his burden in filing an

untimely PCRA petition now, even ifhe had asserted those issues to be considered as an

exception under 42 Pa. C.S.A. §9545.
2
  Not that working in the D.A. 's office prior to representing a criminal defendant is an automatic conflict of interest
barring any later representation, but the sole issue is that even if it was, the Defendant had ample opportunity to raise
the issue in his prior PCRA petitions, but failed to do so.




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