J-S69037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
THOMAS JAMES KAHLE                      :
                                        :
                  Appellant             :   No. 843 WDA 2017

                 Appeal from the PCRA Order May 11, 2017
   In the Court of Common Pleas of Venango County Criminal Division at
                     No(s): CP-61-CR-0000561-2013


BEFORE:    BOWES, J., RANSOM, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                 FILED DECEMBER 12, 2017

      Appellant, Thomas James Kahle, appeals from the order entered in the

Court of Common Pleas of Venango County dismissing his first petition filed

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 as

untimely. We affirm.

      The PCRA court sets forth an apt factual and procedural history, as

follows:

      In December of 2002, the victim A.S.’s father passed away.
      Subsequently, A.S. (born 7/21/1997) lived with victim’s mother,
      Defendant [hereinafter “Appellant”], and other family members
      over a period of time between 2003 and 2004. At some point in
      either February or March of 2004, Appellant invited the victim to
      “play a game” ostensibly with the goal of bringing back the girl’s
      father. When the two went upstairs into the victim’s mother’s
      room, where Appellant was also residing at the time, Appellant
      pulled down the victim’s pants and underwear, and proceed[ed]
      to touch the victim in the vaginal area. According to testimony
      at trial and during a CYS interview in 2013, Appellant did not
      penetrate into the victim’s vaginal canal, digitally or otherwise,

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S69037-17


     but did digitally penetrate the inner folds of the victim’s vagina.
     Appellant then stated that if the victim told anyone of the
     assault, something bad would happen to her mother.

     Following a jury trial held January 12 and 13, 2015, Appellant
     was convicted of: one count of Unlawful Contact with Minor—
     Sexual Offense, 18 Pa.C.S.A. § 6318(a)(1); one count of
     Aggravated Indecent Assault, 18 Pa.C.S.A. § 3125(b); one count
     of Corruption of Minors, 18 Pa.C.S.A. § 6301(a)(1)(i); and one
     count of Indecent Assault, 18 Pa.C.S.A. § 3126(a)(7). Appellant
     was sentenced on May 8, 2015 to an aggregate term of 39 – 264
     months’ imprisonment on Counts 1-3, with the Indecent Assault
     conviction merging with the Aggravated Indecent Assault
     conviction for sentencing purposes. Appellant filed post-trial
     motions, but these were denied as an operation of law[.]

     Appellant filed a direct appeal with the Superior Court, which
     was properly perfected, on October 30, 2015. However, on
     December 14, 2015, Appellant filed a Praecipe to Discontinue
     Appeal, attaching with the filed praecipe a letter from Appellant
     acknowledging that he wished to withdraw his appeal.
     Accordingly, the Superior Court discontinued his appeal on
     December 17, 2015.         Court-appointed counsel thereafter
     withdrew as counsel February 12, 2016.

     Subsequently, Appellant filed his first petition under the PCRA on
     January 19, 2017, through privately-retained counsel, Stephen
     E. Sebald, Esq. The Commonwealth filed a reply to the PCRA,
     arguing [the PCRA] court lacked jurisdiction under the PCRA’s
     time bar limiting petitions to be filed only within a year of a
     conviction becoming final, unless an enumerated exception is
     demonstrated. [The PCRA] court determined that it was indeed
     without jurisdiction to address the merits of the petition, as it
     was untimely filed. Upon notification of the [PCRA court’s]
     intention to dismiss the petition, Appellant filed a Motion for
     Reconsideration, leading to [the PCRA] court scheduling a PCRA
     hearing on May 20, 2017.

     During this hearing, [the PCRA] court met with counsel for both
     Appellant and the Commonwealth in chambers. During this
     time, it was discussed that the petition had in fact been
     withdrawn with Appellant’s knowledge.      Appellant’s counsel,
     Attorney Sebald, acknowledged that he had not realized that fact
     beforehand, and accepted responsibility for the missed [PCRA]

                                    -2-
J-S69037-17


      deadline. Conversations between [the PCRA] court and counsel
      centered on the fact that, as the petition was facially untimely,
      the Court could not proceed to the merits of the petition.
      Accordingly, [the PCRA] court returned to the record and entered
      an order finding the petition untimely, and dismissed [the
      petition].

PCRA Court Opinion, 7/12/17 at 1-3.

      Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P.

1925(b) concise statement of matters complained of on appeal. In turn, the

PCRA court has filed a responsive Pa.R.A.P. 1925(a) opinion.      Appellant’s

brief presents the following questions for our review:

      I.    DID THE TRIAL COURT ERR IN UTILIZING THE
            INCORRECT DATE FOR ASCERTAINING WHEN THE
            TIME FOR THE PCRA PETITION WAS DUE, WHICH
            INCORRECT DATE (DECEMBER 17, 2015) FAILED TO
            TAKE INTO ACCOUNT THE SIGNIFICANT ERRORS
            MADE   BY   PREVIOUS   COUNSEL,   INCLUDING
            DISCONTINUANCE OF APPELLANT’S PRIOR APPEAL
            WITHOUT FILING THE REQUIRED ANDERS BRIEF?

      II.   DID THE TRIAL COURT ERR IN REFUSING TO ALLOW
            APPELLANT TO RESTORE HIS APPELLATE RIGHTS
            NUNC PRO TUNC WHERE PRIOR APPELLATE
            COUNSEL UNJUSTIFIABLY AND IMPERMISSIBLY
            DISCONTINUED APPELLANT’S APPEAL, WITHOUT
            OBTAINING CONSENT TO DO SO, AND WITHOUT
            FILING AN ANDERS BRIEF AS CONSTITUTIONALLY
            REQUIRED?


      III. DID THE TRIAL COURT ERR IN FINDING THAT
           APPELLANT’S PCRA PETITION WAS UNTIMELY AND
           FAILING TO APPLY THE STATUTORY EXCEPTION
           PROVIDED UNDER 42 PA.C.S. § 9545(B)(1)(i)
           WHICH    IS  TRIGGERED  WHERE    GOVERNMENT
           OFFICIALS INTERFERE WITH THE PRESENTATION OF
           ONE’S CLAIM?



                                     -3-
J-S69037-17


      IV.   DID THE TRIAL COURT ERR IN FINDING THAT THIS
            CASE DOES NOT FALL WITHIN AN EXCEPTION TO
            THE ONE-YEAR TIME LIMITATION GOVERNING PCRA
            PETITIONS – THE EXCEPTION ENCAPSULATED IN 42
            PA.C.S.  § 9545(B)(1)(ii), WHICH PROVIDES AN
            EXCEPTION [TO] THE ONE-YEAR PERIOD WHEN “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?”


      V.    DID THE TRIAL COURT ERR IN REFUSING                         TO
            CONSIDER THE MERITS OF APPELLANT’S CASE?

Appellant’s brief at 7-8.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”    Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court's findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      We    first   address   whether    Appellant   satisfied   the   timeliness

requirement of the PCRA. A PCRA petition must be filed within one year of

the date that the judgment of sentence becomes final.             42 Pa.C.S. §

9545(b)(1). An appellant’s judgment of sentence becomes final when he or

                                        -4-
J-S69037-17



she voluntarily discontinues a direct appeal.       See Commonwealth v.

McKeever, 947 A.2d 782, 785 (Pa.Super. 2008) (stating that the judgment

of sentence becomes final for PCRA purposes when direct appeal is

discontinued voluntarily) citing Commonwealth v. Conway, 706 A.2d 1243

(Pa. Super 1997); see also generally 42 Pa.C.S.A. § 9545(b)(3). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.    Commonwealth v.

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).

      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. § 9545(b)(1)(i), (ii),

and (iii), is met. A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).     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 sixty-day time

frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,

1167 (Pa. Super. 2001).

      Taken together, Appellant’s issues contend that the PCRA court

erroneously dismissed his petition as time-barred where counsel’s manner of

withdrawal from representation amounted to an abandonment of Appellant’s

direct appeal, thus entitling him to application of an exception to the one-

year time limitation. We disagree.

                                     -5-
J-S69037-17



        In the case sub judice, the record contains a written statement

ostensibly prepared by Assistant Public Defender Jeri Bolton,1 Appellant’s

trial and direct appeal counsel, and signed by Appellant. The statement read

as follows: “After careful consideration and after conferring with my

attorney, Assistant Public Defender Jeri Bolton, Esquire, I, Thomas Kahle,

have voluntarily and intelligently decided to withdraw my appeal to the

Superior Court 1759 WDA 2015.” Praecipe to Discontinue, filed 12/21/15.

The PCRA Court found the letter to be credible evidence that Appellant, by

signing the clearly-worded statement as he did, endorsed the premise that

he voluntarily wished to withdraw his direct appeal after consultation with

his attorney. Trial Court Opinion, at 6.

       Initially, for purposes of fixing the date on which the PCRA’s one-year

limitations period commenced, we discern no error with the PCRA court’s

determination that Appellant’s judgment of sentence became final on the

date he voluntarily withdrew his direct appeal to this Court. See McKeever,

supra. Hence, under the PCRA, Appellant had until December 21, 2016, to

file the instant PCRA petition, but he did not do so until January 19, 2017.

Thus, his PCRA petition is facially untimely.

       Therefore, it became incumbent upon Appellant to plead and prove the

applicability of one or more of the enumerated exceptions in order to invoke

____________________________________________


1
 The PCRA court presumed, arguendo, that counsel prepared the statement,
as it is typed on the Venango County Public Defender’s letterhead.



                                           -6-
J-S69037-17



the jurisdiction of the PCRA court. Accordingly, Appellant has equated the

discontinuation of his direct appeal and counsel’s subsequent withdrawal

from representation to a per se abandonment of his appeal, as he claims he

did not understand the consequences of signing the prepared statement. As

such he likens his case to those situations where our courts have recognized

a complete denial of counsel. See Commonwealth v. Bennett, 930 A.2d

1264, 1272-74 (Pa. 2007) (holding appointed counsel’s failure to file

appellate brief, unbeknownst to appellant, amounted to act of abandonment

qualifying as fact unknown to appellant for purposes of subsection (b)(1)(ii))

(collecting cases).

      The Bennett line of jurisprudence, however, centered as it is on

ensuring the due process rights of appellants who could not have known

they had been abandoned by counsel, simply does not apply to the case sub

judice, where Appellant explicitly acknowledged in the letter that he agreed

to voluntarily discontinue his direct appeal after consultation with appointed

counsel.   Notably, in this regard, Appellant made no allegation below that

counsel provided erroneous legal advice about the withdrawal or that, but

for her failure to advise him about the ramifications of the decision, he would

have elected not to withdraw the appeal.       Accordingly, Appellant cannot

prevail on his subsection (b)(1)(ii)-based claim.

      Nor can Appellant gain relief from his alternate claim that direct appeal

counsel’s alleged ineffectiveness amounted to government interference as

contemplated under subsection (b)(1)(i), for the PCRA provides “[f]or

                                     -7-
J-S69037-17



purposes of this subchapter, ‘government officials’ shall not include defense

counsel, whether appointed or retained.” 42 Pa.C.S. § 9545(b)(4); see also

See Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000) (explaining

claims relating to ineffectiveness of counsel for failing to raise certain issues

do not qualify for “governmental interference” exception to PCRA time-bar,

as term “government officials” does not include defense counsel).

       Thus, Appellant's ineffectiveness claims do not meet any of the above-

stated timeliness exceptions.2            Accordingly, the PCRA court properly

concluded that it was without jurisdiction to entertain Appellant’s untimely

petition.

     Order is AFFIRMED.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017




____________________________________________


2
  As the record supports a finding that Appellant voluntarily discontinued his
appeal without undue influence from counsel, it follows that counsel was not,
thereafter, required to withdraw representation pursuant to Anders, as
Appellant’s judgment of sentence had become final on the date Appellant
discontinued his appeal.



                                           -8-
