Com. v. Bell, M.

• Court: Superior Court of Pennsylvania
• Decided: June 6, 2023
• Docket: 1244 WDA 2022
• Status: Unpublished

Opinion

J-S14043-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARTHA FENCHAK BELL : : Appellant : No. 1244 WDA 2022

Appeal from the PCRA Order Entered September 12, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005044-2004

BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: JUNE 6, 2023

Martha Fenchak Bell (Bell) appeals pro se from the order entered in the

Court of Common Pleas of Allegheny County (PCRA court) denying her first

petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9501-9506, as untimely. She maintains that she is innocent, that her

sentence was illegal, that she can avail herself of the newly discovered facts

exception based on ineffective assistance of counsel and the discovery of an

order entered in her case, and that PCRA counsel was ineffective. We affirm.

I.

On October 23, 2003, Bell was charged in this matter with two counts

each of theft by unlawful taking-movable property (18 Pa.C.S. § 3921(a)),

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* Retired Senior Judge assigned to the Superior Court. J-S14043-23

theft by deception (18 Pa.C.S. § 3922) and theft by failing to make required

disposition of funds (18 Pa.C.S. § 3927(a)). On September 29, 2008, at the

conclusion of a waiver trial, she was convicted of all counts. On October 3,

2008, the court sentenced her to a term of not less than six nor more than

twelve months’ incarceration on count four, theft by unlawful taking-movable

property; plus fourteen aggregate years’ probation (seven years each on

counts five and six, theft by deception and theft by failure to make required

disposition of funds, respectively). The sentence was to run consecutive to

any sentence she was then serving.1 On October 30, 2008, Bell timely

appealed her judgment of sentence in this matter. The Superior Court

dismissed her appeal on June 9, 2009 (docketed July 14, 2009) for her failure

to file a brief. Petitioner did not seek allowance of appeal and on August 14,

2009, her judgment of sentence became final.

Approximately eight years later, Bell committed a substantive violation

of her probation.2 On February 12, 2018, Bell appeared for a probation

1 Before her trial on the charges in this case had commenced, a jury found Bell guilty of involuntary manslaughter, neglect of care of a dependent person, recklessly endangering another person, and criminal conspiracy at docket number 2004-5045. The court imposed a term of imprisonment of twenty- two to forty-four months, consecutive to any other sentence Bell was then serving. At the time at which the sentence was imposed, Bell was incarcerated in relation to a 2005 federal conviction on fraud and false statements charges.

2 Specifically, in case number 15179-2016, Bell pleaded guilty to theft by deception on December 14, 2017. She was sentenced to not less than six nor

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violation hearing and she was resentenced at count six to not less than five

nor more than ten years’ incarceration. On June 8, 2018, the court granted

her motion to modify the sentence and resentenced her to the statutory

maximum of three and one-half to seven years’ incarceration, with credit for

448 days’ time served.

On July 3, 2018, Bell filed a post-sentence motion, but appealed three

days later before the court could address it. On appeal, Bell claimed that the

court lacked jurisdiction to revoke her probation because her original sentence

imposed on October 3, 2008, was illegal where the convictions should have

been merged for sentencing purposes. (See Commonwealth v. Bell, 239

A.3d 120, at *3 (Pa. Super. filed July 31, 2020) (unpublished memorandum)).

This Court found that since “[Bell]’s challenge to the legality of the original

sentences was not properly raised, the original sentences remained effective

at the time of the probation violation and hearing. Thus, the alleged

sentencing issues were not an impediment to the revocation court’s

jurisdiction to revoke probation and resentence [Bell]” in this matter. (Id. at

*4). The Pennsylvania Supreme Court denied her petition for allowance of

appeal on January 20, 2021. (See Commonwealth v. Bell, 244 A.3d 449

(Pa. 2021)).

more than twelve months incarceration, plus nine years of probation and restitution. She was immediately paroled.

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On January 27, 2022, Bell filed a first pro se PCRA petition and appointed

counsel filed a petition to withdraw and a Turner/Finley3 no-merit letter on

June 14, 2022, in which he concluded, after conscientious review, that Bell’s

claims were time-barred with no applicable exception. (See Turner/Finley

Letter, 6/14/22, at 1-3). On June 30, 2022, the PCRA court granted counsel’s

petition to withdraw and notified Bell of its intent to dismiss the PCRA petition

without a hearing. See Pa.R.Crim.P. 907(1). Bell filed a timely response and

on September 12, 2022, the court dismissed the PCRA petition as untimely

based on the Turner/Finley letter, Bell’s response to the Rule 907 notice and

its independent review. Bell timely appealed and filed a court-ordered

statement of errors claimed on appeal. See Pa.R.A.P. 1925(b).

On appeal, Bell claims: (1) she is innocent, as proven by the newly-

discovered facts that the trial court granted her petition for habeas corpus;

(2) her original sentence was illegal because the convictions should have been

merged for sentencing purposes; (2) the newly-discovered facts that trial

counsel was subject to criminal and disciplinary proceedings due to his

substance abuse, rendering him ineffective; (3) trial counsel was ineffective

per se for failing to file a court-ordered Rule 1925(b) statement and appellate

3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

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brief; and (4) PCRA counsel was ineffective for failing to review the timeliness

exceptions with her.4 (See Bell’s Brief, at 1-6).5

II.

Before considering the merits of Bell’s PCRA petition, we must first

determine whether the PCRA court properly found that it is untimely under

the PCRA’s jurisdictional time-bar. A PCRA petition, “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final.”6 42 Pa.C.S. § 9545(b)(1). A judgment becomes final at the

4 “Our standard of review from the denial of a PCRA petition is limited to examining whether the PCRA court’s determination is supported by the evidence of record and whether it is free of legal error.” Commonwealth v. King, 259 A.3d 511, 520 (Pa. Super. 2021) (citation omitted). “The PCRA court’s credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court’s legal conclusions.” Id. (citation omitted).

5Bell’s brief fails to comport with our appellate rules where it does not contain many of the required sections and her argument section is inadequate. See Pa.R.A.P. 2111(a), (b), (d); Pa.R.A.P. 2119. We recognize that Bell is acting pro se, but this does not relieve her of her duty to comply with our appellate rules. See Commonwealth v. Vurimindi, 200 A.3d 1031, 1037 (Pa. Super. 2018), appeal denied, 217 A.3d 793 (Pa. 2019), cert. denied, 140 S. Ct. 1147 (2020) (“Although this Court is willing to liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon the appellant. To the contrary, any person choosing to represent [her]self in a legal proceeding must, to a reasonable extent, assume that [her] lack of expertise and legal training will be [her] undoing.”) (citation omitted). Although we could quash her appeal on this basis, see Pa.R.A.P. 2101, we decline to do so where we can discern her arguments.

6 “Where a new sentence is imposed at a probation revocation hearing, the revocation hearing date must be employed when assessing finality under § 9545(b)(3) to any issues directly appealable from that hearing.” However,

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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 time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). Because

the timeliness requirements of the PCRA are jurisdictional in nature, courts

cannot address the merits of an untimely petition. See Commonwealth v.

Moore, 247 A.3d 990, 998 (Pa. 2021).

Bell was convicted on September 29, 2008. This Court dismissed the

direct appeal on July 14, 2009, and she did not seek review in our Supreme

Court. Therefore, her judgment of sentence became final on August 14, 2009,

and her PCRA petition filed on January 27, 2022, is untimely on its face by

over a decade, and we lack jurisdiction to consider any claims raised therein

unless Bell pleads and proves one of the three limited exceptions to the time-

bar:

(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 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

none of Bell’s claims involve issues related to the revocation hearing. Commonwealth v. Anderson, 788 A.2d 1019, 1021 (Pa. Super. 2001), appeal denied, 798 A.2d 1286 (Pa. 2002).

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of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).

A.

Bell invokes the newly-discovered facts exception. A petitioner satisfies

the newly-discovered facts exception through pleading and proving that there

were facts that were unknown to her and that she exercised due diligence.

See Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa. 2007). “Due

diligence demands that the petitioner take reasonable steps to protect [her]

own interests; a petitioner must explain why [she] could not have learned the

new facts earlier with the exercise of due diligence.” Commonwealth v.

Sanchez, 204 A.3d 524, 526 (Pa. Super. 2019) (citation omitted).

Bell argues that she is entitled to application of the newly-discovered

facts exception because she was not aware that her trial counsel “was on

probation for his continued alcohol abuse and violated that probation. … The

record reflects that at the time of [her] trial … [trial counsel] on October 8,

2008 was sentenced to serve a mandatory of (a) 15 months intermediate

punishment on electronic monitoring, and (b) serve his 24 months probation.”

(Bell’s Brief, at 3-4). She concludes that this “continued alcohol/substance

abuse from the time prior to [Bell’s] case thru the trial and appellate process

has harmed her irreparably in her pursuit of justice.” (Id. at 4). This attempt

to apply the newly-discovered facts exception fails.

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First, Bell fails to explain when she became aware of this fact or why,

with the exercise of due diligence, she could not have discovered it sooner

than over a decade later. Further, other than mere speculation, she has not

averred how this affected her case. Thus, she has failed to plead and prove

that she can avail herself of the newly-discovered facts exception. Moreover,

even had she established this, she would not be due any relief because “[o]ur

Supreme Court has made clear that the section 9545(b)(1)(ii) exception will

not apply to alleged ineffective assistance of counsel claims, even if the claims

were not knowable until later” learned by petitioner. Commonwealth v.

Perrin, 947 A.2d 1284, 1287 (Pa. Super. 2008) (citations omitted); see

Commonwealth v. Fahy, 737 A.2d 214, 233 (Pa. 1999) (claim of ineffective

assistance of counsel does not save an otherwise untimely petition for review

on merits).7

B.

Bell also claims that the petition is timely pursuant to the newly-

discovered facts exception because she was not aware that the trial court had

granted her petition for habeas corpus relief in 2004, which proves her

7 Because a claim of ineffectiveness of counsel does not save an otherwise untimely PCRA petition, Bell’s claim that counsel was per se ineffective for failing to file a court-ordered Rule 1925(b) statement or appellate brief in her direct appeal likewise fails as an attempted timeliness exception. Bell had a year after her judgment of sentence became final on August 14, 2009, to raise a timely ineffectiveness challenge on this basis, at which point she could have raised an ineffectiveness claim and related legality of sentence challenge.

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innocence. (See Bell’s Brief, at 1, 3). First, this issue is waived for Bell’s

failure to raise it in her Rule 1925(b) statement. See Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”);

Commonwealth v. Davis, 273 A.3d 1228, 1239 n.5 (Pa. Super. 2022)

(waiving issue where appellant did not specifically raise it in Rule 1925(b)

statement).

Moreover, on September 22, 2006, the trial court entered an order in

which it expressly stated that the May 10, 2004 order was signed in error.

(See Order, 9/22/06). Bell is not entitled to relief on this issue.

C.

Bell claims that her sentence8 was illegal because the counts should

have been merged for sentencing purposes. (See Bell’s Brief, at 1-2). This

claim also fails because she was aware of her sentence for nearly fourteen

years at the time that she filed her PCRA petition so it is patently untimely.

Bell argues, however, that this issue cannot be waived and, therefore,

no timeliness exception need apply; it is well-settled that, “[a]s long as this

8 Bell does not identify if she is challenging the original sentence or the sentence imposed after her revocation proceeding. Based on her argument, it appears clear that she is challenging the original sentence. However, for sake of completeness, we note that the sentence of three-and-one-half to seven years for theft by failure to make required distribution of funds, a felony of the third degree, was lawful. See 18 Pa.C.S. § 1103(3).

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Court has jurisdiction over a matter, a legality of sentencing issue is

reviewable and cannot be waived. However, a legality of sentencing issue

must be raised in a timely filed PCRA petition.” Commonwealth v.

Whitehawk, 146 A.3d 266, 270 (Pa. Super. 2016) (citations omitted;

emphases added); see also Fahy, 737 A.2d at 223 (“[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.”).

This issue fails.

D.

Finally, Bell claims that PCRA counsel’s representation was ineffective

because they had “irreconcilable differences” and he “did not review … the

exceptions that would preclude any time bar statements[.]” (Bell’s Brief, at

4-5).

In considering an ineffective assistance of counsel claim, we observe

first that counsel is presumed effective and that a petitioner bears the burden

to prove otherwise. See Commonwealth v. Fears, 86 A.3d 795, 804 (Pa.

Super. 2014). To establish an ineffectiveness claim, a defendant must prove:

(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel’s actions or failure to act; and (3) [appellant] suffered prejudice as a result of counsel’s error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.

Id. (citation omitted). “Failure to prove any prong of this test will defeat an

ineffectiveness claim. When an appellant fails to meaningfully discuss each of

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the three ineffectiveness prongs, he is not entitled to relief, and we are

constrained to find such claims waived for lack of development.” Id. (citations

and internal quotation marks).

Bell does not meaningfully discuss any prong of the ineffectiveness test.

She fails to identify what the “irreconcilable difference” was or explain what is

meant by her allegation that PCRA counsel “failed to review the exceptions

that would preclude any time bar statements.” (Bell’s Brief, at 4-5). Because

Bell fails to develop her claim of PCRA counsel’s ineffectiveness in any

meaningful way to allow for our review, she is not entitled to relief on this

claim.9

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/6/2023

9 It appears that PCRA counsel’s representation was effective where he undertook a conscientious review of the record before filing a Turner/Finley letter concluding that Bell’s issues were time-barred and she was not entitled to relief.

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