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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
TOREY DOBBIN,                            :         No. 199 MDA 2017
                                         :
                           Appellant     :


               Appeal from the PCRA Order, December 28, 2016,
               in the Court of Common Pleas of Dauphin County
              Criminal Division at Nos. CP-22-CR-0000041-1998,
              CP-22-CR-0003983-1997, CP-22-CR-0003984-1997


BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 25, 2017

        Torey Dobbin appeals from the December 28, 2016 order denying his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

After careful review, we affirm.

        The PCRA court summarized the relevant facts and procedural history

of this case as follows:

                   [Appellant] pled guilty pursuant to a plea
             agreement before th[e trial c]ourt on April 13, 1998.
             The guilty plea involved three criminal dockets
             [(CP-22-CR-3984-1997, CP-22-CR-3983-1997, and
             CP-22-CR-41-1998)]       and      [appellant]     was
             subsequently sentenced to seven and one-half (7½)
             to twenty (20) years of imprisonment. On June 23,




1   42 Pa.C.S.A. §§ 9541-9546.
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            1998, [appellant] was sentenced in Cumberland
            County on similar charges.[2]

                  Years later, [appellant] incurred new charges
            for robbery and was sentenced in federal court in
            September of 2014. In March of 2015, [appellant]
            received an enhanced sentence from the federal
            court due to his prior convictions from armed
            robbery and burglary in Dauphin County and
            Cumberland County.      The Third Circuit Court of
            Appeals affirmed [appellant’s] federal sentence on
            December 4, 2015.

                 [On May 20, 2015, appellant filed a pro se
            PCRA petition and Christopher Wilson, Esquire
            (“PCRA counsel”) was appointed to represent him on
            June 1, 2015.] On December 2[4], 2015, [PCRA
            counsel] filed a [supplemental] PCRA petition on
            [appellant’s] behalf alleging that [appellant’s] trial
            counsel, Brian Walk, Esquire [(hereinafter, “trial
            counsel”)], was ineffective for not seeking to have
            [appellant] sentenced on the same day in Dauphin
            County and Cumberland County to avoid future
            consequences in federal court.

PCRA court opinion, 12/28/16 at 1.

      On May 10, 2016, the PCRA court conducted an evidentiary hearing on

appellant’s petition. Following the hearing, the PCRA court entered an order

on December 28, 2016 denying appellant’s petition.           In the opinion

accompanying its December 28, 2016 order, the PCRA court noted that it

“questions the timeliness of [appellant’s petition]” but elected to dispose of

appellant’s ineffectiveness claims on the merits.      (See id. at 5 n.3).

Appellant filed a timely notice of appeal on January 19, 2017.             On


2 The record reflects that appellant did not file a direct appeal from his
judgment of sentence.


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January 26, 2017, the trial court ordered appellant to file a concise

statement    of   errors   complained    of   on   appeal,   in   accordance   with

Pa.R.A.P. 1925(b), within 21 days.        Appellant filed a timely Rule 1925(b)

statement on February 6, 2017.          Thereafter, on April 24, 2017, the trial

court filed a one-page “memorandum statement in lieu of opinion” that

indicated that it was relying on the reasoning set forth in its December 28,

2016 opinion.

      Appellant raises the following issues for our review:

            1.     Whether the PCRA Court erred by concluding
                   that the plea counsel was not ineffective in
                   [his] failure to coordinate sentences in two
                   different counties in a way to avoid federal
                   career offender status and in plea counsel’s
                   failure   to   advise   [a]ppellant  of  the
                   consequences of his plea and immediate
                   sentencing?

            2.     Whether the PCRA Court erred by not vacating
                   the robbery conviction on docket 3984 CR
                   1997 when no transcript exists of the plea, and
                   when the evidence shows that the actual guilty
                   plea colloquy did not contain any robbery
                   charge[?]

Appellant’s brief at 3.

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in



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the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.

2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.”      Commonwealth v. Alderman,

811 A.2d 592, 594 (Pa.Super. 2002), appeal denied, 825 A.2d 1259 (Pa.

2003) (citation omitted). In order to be eligible for PCRA relief, a defendant

must plead and prove by a preponderance of the evidence that his conviction

or sentence arose from one or more of the errors listed in 42 Pa.C.S.A.

§ 9543(a)(2). Further, these issues must be neither previously litigated nor

waived. 42 Pa.C.S.A. § 9543(a)(3).

         Preliminarily, we must consider the timeliness of appellant’s PCRA

petition because it implicates the jurisdiction of this court and the PCRA

court.     Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014)

(citation omitted).

              To be timely, a PCRA petition must be filed within
              one year of the date that the petitioner’s judgment
              of sentence became final, unless the petition alleges
              and the petitioner proves one or more of the
              following statutory exceptions:

              (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


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                    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).

Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008).               “[A]n

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 [in Section 9545] are met.” Lawson, 90 A.3d

at 5 (footnote omitted).

      In the instant matter, appellant’s judgment of sentence became final

on July 23, 1998, 30 days after the trial court imposed sentence in

Cumberland County and when the time for filing a direct appeal with this

court expired.      See 42 Pa.C.S.A. § 9545(b)(3) (stating, “[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 the time for seeking the review[]”).

Therefore, in order to comply with the filing requirements of the PCRA,

appellant was required to file his petition by July 23, 1999.           See

42 Pa.C.S.A. § 9545(b)(1) (stating that all PCRA petitions, including second



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and subsequent petitions, must be filed within one year of when a

defendant’s judgment of sentence becomes final).           Appellant’s instant

petition was filed May 20, 2015, nearly 16 years past the deadline, and is

therefore patently untimely. As a result, the PCRA court lacked jurisdiction

to review appellant’s petition, unless appellant alleged and proved one of the

statutory exceptions set forth in Section 9545(b)(1).

      Here, our review of the record in this matter reveals that appellant

failed to specifically invoke any of the statutory exceptions to the PCRA

time-bar.   Notably, although appellant checked the Section 9545(b)(1)(ii)

“newly-discovered fact” exception box on his May 20, 2015 pro se PCRA

petition, he failed to make any argument whatsoever with regard to this

exception   in   his   December   24,    2015   amended   PCRA      petition,   his

Rule 1925(b) statement, or his appellate brief.      (See certified record at

nos. 9, 20, 35.)

      Rather, the crux of appellant’s argument on appeal is that his trial

counsel was ineffective in failing to ensure that appellant was sentenced in

both the Cumberland County and Dauphin County matters on the same date,

so as “to avoid federal career offender status[.]” (Appellant’s brief at 3, 11.)

Appellant further contends that the PCRA court erred in failing to vacate his

robbery conviction at CP-22-CR-3984-1997 on the basis that “no robbery

offense [was] found in the guilty plea colloquy.” (Id. at 8, 17.)




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      Generally, claims of trial counsel ineffectiveness do not operate as an

independent exception to the one-year jurisdictional time-bar of the PCRA.

See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000)

(holding a claim of ineffective assistance of counsel does not save an

otherwise     untimely     petition   for   review    on    the   merits);    see   also

Commonwealth v. Breakiron, 781 A.2d 94, 97 (Pa. 2001) (allegations of

ineffective   assistance     of   counsel    will   not    circumvent   the   timeliness

requirement of the PCRA).         We recognize that in limited situations where

counsel’s ineffective assistance was tantamount to abandoning his client on

appeal, our supreme court has recognized that a petitioner’s discovery of

this ineffectiveness may form the basis for a claim under the “newly-

discovered fact” exception to the PCRA time-bar. See Commonwealth v.

Bennett, 930 A.2d 1264, 1272-1273 (Pa. 2007). Appellant, however, fails

to allege on appeal that trial counsel’s purported ineffectiveness constituted

an abandonment of counsel. “[I]t is the petitioner’s burden to plead in the

petition and prove that one of the exceptions applies.” Commonwealth v.

Crews, 863 A.2d 498, 501 (Pa. 2004) (citation omitted).

      Having found that the instant petition was untimely filed and appellant

has failed to invoke any statutory exception to excuse that untimely filing,

we discern no error on the part of the PCRA court in dismissing appellant’s

PCRA petition.




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     Order affirmed.

     Gantman, P.J. joins this Memorandum.

     Shogan, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/25/2017




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