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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                         :
DAVID JOSEPH DONAGHY,                    :          No. 3261 EDA 2019
                                         :
                        Appellant        :


               Appeal from the Order Entered October 22, 2019,
                in the Court of Common Pleas of Bucks County
               Criminal Division at No. CP-09-CR-0008791-2008


BEFORE: BOWES J., KING J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JUNE 23, 2020

      David Joseph Donaghy appeals pro se from the October 22, 2019 order

entered in the Court of Common Pleas of Bucks County that dismissed, without

a hearing, his second petition filed pursuant to the Post Conviction Relief Act,

42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The record reflects that appellant plead guilty to robbery; burglary;

simple assault; recklessly endangering another person; theft by unlawful

taking – movable property; receiving stolen property; and six counts of

conspiracy1 in connection with a December 19, 2007 home invasion and

robbery of an 80-year-old victim. On March 5, 2009, appellant was sentenced




118 Pa.C.S.A. §§ 3701 (a)(1)(ii), 3701(a)(1)(iv) and (a)(1)(v); 3502 (a);
2701 (a)(1); 2705; 3921 (a); and 3925, respectively.
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to an aggregate term of not less 9 nor more than 18 years’ imprisonment. No

post-sentence motions were filed and no direct appeal was taken.

      Appellant filed his first pro se PCRA petition on January 21, 2010.

Counsel was appointed.         On September 17, 2010, the PCRA court denied

appellant’s petition, and he timely appealed claiming that plea counsel was

ineffective   for   failing   to   file   a   direct   appeal.      This   court   agreed.

Commonwealth v. Donaghy, 33 A.3d 12, 17 (Pa.Super. 2011), appeal

denied, 40 A.3d 120 (Pa. 2012). On April 27, 2012, the PCRA court issued

an order reinstating appellant’s direct appeal rights nunc pro tunc.

      Appellant, however, failed to file a direct appeal. Rather, on May 7,

2012, appellant filed a pro se PCRA petition. Counsel was appointed. The

PCRA court denied relief on September 21, 2012.                   This court affirmed on

September 4, 2013, and our supreme court denied discretionary review on

July 9, 2014. See Commonwealth v. Donaghy, 87 A.3d 371 (Pa.Super.

2013), appeal denied, 95 A.3d 275 (Pa. 2014).

      On May 7, 2019, appellant filed pro se the instant PCRA petition. The

PCRA court issued a notice of intent to dismiss.                 Appellant filed a timely

response. The PCRA court then dismissed the petition. Appellant filed a timely

notice of appeal. The PCRA court ordered appellant to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant

timely complied. The PCRA court then filed its Rule 1925(a) opinion.

      Appellant raises the following issues for our review:



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          1[.]   Did the PCRA Court penalize, prejudice, time
                 Barr [sic], me [appellant] from this PCRA for an
                 erroneously [sic] error, In [sic] witch [sic] the
                 Clerk of Courts did not enter the Criminal
                 Trespassing     charge    on     case    number
                 CR-0001517-1998 as Nolle-Prossed [sic] but
                 instead, entered the charge as a guilty plea.
                 Therefore, raising the petitioners [sic] point
                 score buy [sic] a full point and causing the
                 petitioner to get a much higher sentence?

          2[.]   Did the PCRA Court, District Attorney, my Court
                 appointed counsel, Mr. William Penglase, Esq.
                 and the Clerk of Courts all fail to provide the
                 additional discovery of the medical hospital
                 report of the victim that would have confirmed
                 the exact nature of the victims [sic] injuries and,
                 bodily harm that the petitioner was accused of
                 and pleading guilty to causing?

          3[.]   On 12-26-2018, the petitioner David Joseph
                 Donaghy wrote the Clerk of Courts on case
                 number CR-0001517-1998 stating that the
                 Criminal Trespassing charge of the felony three
                 on this case was in fact nol-prossed [sic] on
                 June 16, 1998 but, shows as a guilty plea on the
                 most recent requested court summary sheet
                 readout that the Clerk of Courts office sent me?
                 On January 3, 2018 the Clerk of Courts
                 acknowledged       this    correspondence     and
                 researched there [sic] records and corrected the
                 docket sheet to show the above count of
                 Criminal     Trespassing       was    in    “fact”
                 nol-prossed [sic] on June 16, 1998 and there
                 was    an     error     on    this   entry    see
                 exhibit             . Therefore, should the PCRA
                 Court start the time to file PCRA from January 3,
                 2019; the day the Clerk of Courts acknowledged
                 and then corrected the error they originally
                 caused in this case to get me the sentence I got?

          4[.]   Did the PCRA Court, District Attorney, my court
                 appointed counsel, Mr. William Penglase, Esq.
                 and the Clerk of Courts all fail to provide me


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                 with the Pennsylvania Commission Sentencing
                 Guidelines for case number CR-0008791-2008?
                 Therefore, I was unaware that this point was
                 erroneously added or, even used against me at
                 the sentencing decision or, even aware that
                 there was a point system. The District Attorney
                 never stated any reference to points in the
                 sentencing phase. See exhibit             .

          5[.]   Did the PCRA Court error [sic] in finding no
                 violation of s/s [sic] 9781; Appellant [sic]
                 Review of Sentence (c)(1) that states: The
                 sentencing court purported to sentence outside
                 the Sentencing guidelines because the Court
                 applied the guidelines erroneously by adding a
                 full point to my sentencing guidelines by using
                 case number CR-0001517-1998 or, the Criminal
                 Trespassing charge, which is a felony three,
                 those [sic] raising guidelines to an erroneously
                 higher level?

          6[.]   Did the PCRA Court prejudice the petitioner by
                 applying this erroneously [sic] sentence and
                 applying this error?

          7[.]   Weather [sic] the PCRA Court erred in not
                 finding the petitioners [sic] counsel at the time,
                 Mr. William Penglase, Esq. ineffective for not
                 seeing these mistakes, investigating or, not
                 taking action a pond [sic] the petitioners [sic]
                 statement at the sentencing to him that this
                 Criminal Trespassing charge and the Drug
                 Passion [sic] charge was dismissed at his
                 sentencing hearing or, got A.R.D.?

          8[.]   Did the PCRA Court error [sic] in not finding the
                 District Attorney violated Prosecution [sic]
                 misconduct when prior record was stated and
                 introduced to the Court and to Judge Boylan
                 that the defendant had a 1986 Passion [sic] of
                 Controlled    substance    charge     and     not
                 investigating or, looking into his prior record
                 and introducing Criminal Trespassing charge
                 that was indeed dismissed as well?


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             9[.]   Did the PCRA Court error [sic] in not finding
                    petitioners [sic] counselor, Mr. William
                    Penglase, Esq. ineffective for not allowing a
                    pre-sentence investigation to be done before
                    the sentencing hearing witch [sic] would have
                    changed the outcome of the sentence?

             10[.] Did the PCRA Court error [sic] because of the
                   recently newly discovered PRS and the
                   miscalculation on the PRS to the legality of the
                   sentence for this is not subjected [sic] to waiver,
                   should the Court have invoked jurisdiction to
                   correct this patent and manifested mistake in
                   the petitioner’s sentence?

             11[.] Did the PCRA court error [sic] in not finding the
                   District Attorney, my counselor, Mr. William
                   Penglase, Esq. and the Clerk of Courts
                   violating [sic] any Rules, Statues [sic], or State
                   or Federal Constitutional rules, etc.

             12[.] Does this Court or, the PCRA think if the
                   petitioner know about this newly discovered
                   error/point system at the time of his sentencing
                   or, at any point of his twelve years
                   incarcerated [sic] he would not have brought it
                   to the Courts [sic] attention?

             13[.] The most important question to this Court is: If
                   this correct prior record score of four was
                   presented at the petitioners [sic] sentencing
                   hearing phase would it have changed the
                   outcome or, reduced the petitioner’s sentence.

Appellant’s brief at 12, 152 (set forth verbatim; no exhibit numbers in

original).


2 Appellant’s brief is paginated, in part, by small Roman numerals that are
often repeated.       Interspersed throughout the brief are unnumbered
documents. For ease of reference, starting with the table of contents, we will
refer to each page in the order of its position in the brief.


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

The PCRA court’s findings will not be disturbed unless there is no support for

them in the certified record.   Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa.Super. 2014).

      Furthermore, PCRA petitions, “including second and subsequent

petition[s], shall be filed within one year of the date the judgment becomes

final[.]”   42 Pa.C.S.A. § 9545(b)(1).    “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.” 42 Pa.C.S.A. § 9545(b)(3).

The Supreme Court of Pennsylvania has held that the PCRA’s time restriction

is constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.

2004). In addition, our supreme court has instructed that the timeliness of a

PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).




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      Our review of the record reflects that appellant’s direct appeal rights

were reinstated nunc pro tunc by the PCRA court on April 27, 2012.3

Appellant failed to file a direct appeal within 30 days and, therefore, his

judgment of sentence became final on May 29, 2012.4             See 42 Pa.C.S.A.

§ 9545(b)(3); Pa.R.A.P. 903(a). Therefore, appellant’s current PCRA petition,

filed May 7, 2019, is facially untimely. As a result, the PCRA court lacked

jurisdiction to review appellant’s petition, unless appellant alleged and proved

one of the statutory exceptions to the time-bar, as set forth in 42 Pa.C.S.A.

§ 9545(b)(1).

      Those three narrow exceptions to the one-year time-bar are: when the

government has interfered with the appellant’s ability to present the claim,

when the appellant has newly discovered facts upon which his PCRA claim is

predicated, or when either the Supreme Court of Pennsylvania or the Supreme

Court of the United States has recognized a new constitutional right and made

that right retroactive. 42 Pa.C.S.A. § 9545(b)(1)(i-iii); Commonwealth v.

Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The appellant bears the

burden   of   pleading   and   proving   the   applicability   of   any   exception.




3The order informed appellant he had 30 days to file an appeal. See also
Commonwealth v. Wright, 846 A.2d 730, 725 (Pa.Super. 2004).

4 As May 27, 2012 fell on a Sunday, and May 28, 2012 was Memorial Day,
appellant’s judgment of sentence became final on May 29, 2012. See
1 Pa.C.S.A. § 1908 (providing whenever last day of period of time referred to
in statute falls on Saturday, Sunday, or legal holiday such day is omitted from
computation).


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42 Pa.C.S.A. § 9545(b)(1). If an appellant fails to invoke a valid exception to

the PCRA time-bar, this court may not review the petition. See 42 Pa.C.S.A.

§ 9545(b)(1)(i- iii).

      Initially, we note that appellant has filed a pro se brief.

            [A]ppellate briefs must conform materially to the
            requirements of the Pennsylvania Rules of Appellate
            Procedure, and this Court may quash or dismiss an
            appeal if the defect in the brief is substantial.
            Although this Court is willing to construe liberally
            materials filed by a pro se litigant, a pro se appellant
            enjoys no special benefit.        Accordingly, pro se
            litigants must comply with the procedural rules set
            forth in the Pennsylvania Rules of the Court. This
            [c]ourt will not act as counsel and will not develop
            arguments on behalf of an appellant.

Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa.Super. 2017)

(citations and quotation marks omitted); Pa.R.A.P. 2101 (stating appeal may

be quashed for substantial defects in brief).

      Appellant’s brief not only fails to provide a cogent legal argument, but

it also fails to comply with our rules of appellate procedure . First, appellant

has failed to attach to his brief a copy of his concise statement of errors

complained of on appeal and the required certificates of compliance.       See

Pa.R.A.P. 2111(a)(11) and (a)(12). Second, as can be seen from appellant’s

issues, set forth verbatim herein, the statement of the questions involved is

not concise, is not expressed without unnecessary detail, and is not followed

by an answer simply stating the court’s position on the question.          See

Pa.R.A.P. 2116(a); appellant’s brief at 12, 15. Third, appellant’s statement of



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the case is rambling, convoluted, contains argument, and does not have

appropriate references to the record.       See Pa.R.A.P. 2117(a)(b) and (c);

appellant’s brief at 16-31.5 Fourth, the summary of argument is not concise,

nor an “accurate, summary of the arguments presented in support of the

issues in the statement of questions involved.”           Pa.R.A.P. 2118; see

appellant’s brief at 31. Finally, appellant’s argument is not divided into as

many parts as there are questions to be argued, does not have at the head of

each part the particular point addressed therein, and is not followed by

pertinent   discussion   or    citation   of   relevant   authorities.     See

Pa.R.A.P. 2119(a); appellant’s brief at 32-41. These considerable defects in

appellant’s brief adversely affect this court’s ability to perform appellate

review.

      Therefore, the PCRA court lacked jurisdiction to review appellant’s

second PCRA petition, and we may not review the petition on appeal.6

      Order affirmed.



      King, J. joins this Memorandum.

      Bowes, J. concurs in the result.




5Throughout appellant’s statement of the case, appellant has inserted various
documents.

6 We note that even if the appellant’s brief was not defective, he has failed to
invoke an exception to the time-bar. Therefore, he would still not be entitled
to relief.


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Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary




Date: 6/23/2020




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