J-S70037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : SHAWN BISHOP, : : Appellant : No. 3747 EDA 2015
Appeal from the Order November 16, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-1208991-2002
BEFORE: OLSON, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 15, 2016
Shawn Bishop (“Bishop”), pro se, appeals from the Order dismissing
his second Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court set forth in its Opinion the relevant procedural history
underlying this appeal, which we incorporate as though fully set forth herein.
See PCRA Court Opinion, 3/22/16, at 1-3.
In this timely appeal, Bishop presents the following questions for our
review:
1. Did the PCRA court err[] in dismissing [Bishop’s] PCRA Petition by conflating the [PCRA’s] timeliness requirements with merit[]s review, contravening [the Pennsylvania] Supreme Court’s decision in Commonwealth v. Bennett, 930 A.3d 1264 (Pa. 2007)?
2. Did the PCRA court err[] by dismissing [Bishop’s] successive PCRA Petition as untimely where the Petition was filed within sixty days of PCRA Counsel (James Bruno[, Esquire J-S70037-16
(hereinafter “PCRA counsel”),]) informing [Bishop] personally by letter that [PCRA counsel] was temporarily disbarred?
3. [Whether] the PCRA court erred by dismissing [Bishop’s] PCRA Petition based[,] to any degree[,] on a finding that [Bishop] could not establish prejudice where PCRA counsel’s mental condition interfered with counsel’s ability to provide [Bishop] with his rule[-]base[d] right (Pa.R.Crim.P. 904) to effective assistance of counsel on his first PCRA Petition?
4. Did the PCRA court err[] by appointing [Bishop] an attorney who had a long[-]documented history of disciplinary issues[,] dating back to 1998, and accepting [Bishop’s] pro se filings ([Bishop’s response to the PCRA court’s Pa.R.Crim.P.] 907 Notice, [and the] Notice of Appeal) below while [PCRA] counsel was still counsel of record?
5. Did the PCRA court err[] by not restoring [Bishop’s] PCRA rights where [PCRA] counsel failed to perform his duties as required under Pa.R.Crim.P. 904?
Brief for Appellant at 4 (some capitalization omitted).
We review an order dismissing a petition under the PCRA in the light
most favorable to the prevailing party at the PCRA level. Commonwealth
v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The review is limited to the findings
of the PCRA court and the evidence of record. Id. The PCRA court’s
decision will be upheld if it is supported by the record and free of legal error.
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).
Under the PCRA, any PCRA petition “shall be filed within one year of
the date the judgment [of sentence] becomes final.” 42 Pa.C.S.A.
§ 9545(b)(1). A judgment of sentence becomes final “at the conclusion of
direct review, including discretionary review in the Supreme Court of
Pennsylvania, or at the expiration time for seeking the review.” Id.
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§ 9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in
nature, and a court may not address the merits of the issues raised if the
PCRA petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d
1091, 1093 (Pa. 2010).
Here, Bishop’s judgment of sentence became final on July 21, 2009,
when the time to file a petition for writ of certiorari with the United States
Supreme Court expired. See Commonwealth v. Wilson, 911 A.2d 942,
945 (Pa. Super. 2006). Therefore, Bishop’s instant PCRA Petition, which was
filed over six years later, is facially untimely. See 42 Pa.C.S.A.
§ 9545(b)(3).
However, Pennsylvania courts may consider an untimely PCRA petition
if the appellant can explicitly plead and prove one of the three exceptions set
forth at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). To establish an exception to the
timeliness requirement, the Petitioner must plead and prove 1) the failure to
raise the claim was the result of government interference; 2) the facts upon
which the claim is predicated were unknown and could not have been
discovered with due diligence (hereinafter “the newly-discovered facts
exception”); or 3) the right asserted is a Constitutional right recognized by
the Supreme Court of the United States or the Supreme Court of
Pennsylvania after the time period provided in the section, and the court has
held that it applies retroactively. Id. Any petition invoking one of these
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exceptions “shall be filed within 60 days of the date the claim could have
been presented.” Id. § 9545(b)(2).
We will address all of Bishop’s claims simultaneously, as they are
related. Bishop argues that the PCRA court improperly dismissed his second
PCRA Petition because he (1) met the requirements of the newly-discovered
facts exception; and (2) filed the PCRA Petition within 60 days of the date
his claim concerning this exception could have been presented. See Brief
for Appellant at 12, 15-16. Specifically, Bishop contends that the letter that
PCRA counsel sent to Bishop on March 22, 2013 (hereinafter “the
Suspension Letter”), informing Bishop of PCRA counsel’s temporary
suspension from the practice of law,1 constitutes a newly-discovered fact
that meets the timeliness exception. Id. at 12-13, 15. According to Bishop,
PCRA counsel’s “ADHD [] caused [counsel] to abandon [Bishop] on his first
PCRA [P]etition[,]” and PCRA counsel’s representation was ineffective. Id.
at 14, 19; see also id. at 18 (arguing that the Amended first PCRA Petition
that PCRA counsel filed on behalf of Bishop “was so boilerplate and
insufficient[,] in that it was substantially lacking in citation to any legal
authorities and without any meaningful argument. In all likelihood[,] the
deficient document is the result of [PCRA counsel’s] cognitive disorders.
1 Bishop attached to his brief a Report and Recommendation issued by the Disciplinary Board of the Pennsylvania Supreme Court, which detailed PCRA counsel’s diagnosis of Attention Deficit-Hyperactivity Disorder (“ADHD”) and depression, and counsel’s violations of the Rules of Professional Conduct. See Brief for Appellant, Exhibit B.
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[PCRA counsel] never consulted or communicated with [Bishop] throughout
the PCRA proceedings.”) (internal citation omitted).
In its Opinion, the PCRA court addressed Bishop’s claims, concisely
summarized the law pertaining to the newly-discovered facts exception, and
determined that Bishop failed to meet this exception. See PCRA Court
Opinion, 3/22/16, at 5-7. We affirm with regard to Bishop’s issues based on
the PCRA court’s sound rationale, see id., with the following addendum.
Generally, claims of ineffective assistance of counsel, such as Bishop’s
claim, will not save an otherwise untimely petition from the application of
the time restrictions of the PCRA. Commonwealth v. Edmiston, 65 A.3d
339, 349 (Pa. 2013); Commonwealth v. Gamboa-Taylor, 753 A.2d 780,
785 (Pa. 2000). However, the Supreme Court of Pennsylvania has
determined that a PCRA petitioner’s discovery that his counsel has
abandoned him (by failing to file a requested appeal from an order denying
his timely first PCRA petition, a court-ordered Pa.R.A.P. 1925(b) concise
statement, or an appellate brief) can permit the petitioner to circumvent the
PCRA time bar under the newly-discovered facts exception. Bennett, 930
A.2d at 1273;2 see also id. (stating that “subsection 9545(b)(1)(ii) is a
limited extension of the one-year time requirement under circumstances
where a petitioner has not had the review to which he was entitled due to a
circumstance that was beyond his control.”).
2 Bishop invoked Bennett in both his appellate brief and second PCRA Petition.
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In the instant case, unlike in Bennett, Bishop was not deprived of his
right to a counseled first PCRA appeal. Although PCRA counsel undeniably
failed to file a court-ordered Rule 1925(b) concise statement on Bishop’s
behalf (regarding Bishop’s appeal from the denial of his first PCRA Petition),
after PCRA counsel withdrew his representation, the PCRA court appointed
Bishop new counsel, and this Court decided Bishop’s appeal on the merits.
Accordingly, Bennett is of no avail to Bishop, and the PCRA court properly
determined that Bishop failed to establish the newly-discovered facts
exception.
Accordingly, because we conclude that Bishop did not meet any of the
time timeliness exceptions necessary to save his facially untimely second
PCRA Petition, and his ineffectiveness claim is unavailing, the PCRA court
properly dismissed the Petition.
Order affirmed.
Judge Ott joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/15/2016
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-7- Circulated 10/19/2016 02:17 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
CRIMINAL TRIAL DIVISION COMMONWEALTH OF PENNSYLVANIA CP-51-CR-1208991-2002
V. 3747 EDA 2015
SHAWN BISHOP FILED MAR 2 2 20\6 . OPINION Cf\m\na\ App~a\~ Unit . Rose Marie DeFino-Nastasi, J. firstJud\cia, o,stnctot PA PROCEDURAL HISTORY
On November 12, 2003, Petitioner was found guilty after a jury trial, presided over by the
Honorable Jane Cutler Greenspan, of First Degree Murder, 18 Pa.C.S. § 2502(a)_, as a felony of
the first degree; and Conspiracy, 18 Pa.C.S. § 903, as a felony of the first degree.
On January 9, 2004, Petitioner was sentenced to life imprisonment for the first degree
murder conviction; ten (10) years to twenty (20) years for the conspiracy conviction, to run
concurrently.
On July 22, 2005, the Superior Court affirmed the judgment of sentence.
Following the reinstatement of Petitioner's right to file a petition for allowance of appeal
with the Pennsylvania Supreme Court, his appeal was denied on April 22, 2008.
·on January 26, 2009, Petitioner filed a pro se petition under the Post Conviction Relief
Act (PCRA). James Bruno, Esq. was appointed PCRA counsel and filed an amended petition.
On August 10, 2011, the Commonwealth filed a Motion to Dismiss.
On March 14, 2012, Petitioner's first PCRA petition was formally dismissed.
On April 12, 2012, Petitioner filed a prose notice of appeal to the Superior Court. On March 22, 2013, Attorney Bruno sent Petitioner a letter stating that he has been placed on temporary suspension by the Pennsylvania Supreme Court, effective March 28, 2013.
See Petitioner's January 26, 2015 PCRA Petition at Exhibit P2. That same day, Attorney Bruno
filed a Motion to Withdraw as Counsel and for Remand to Appoint Counsel, which was granted
by the Superior Court on April 10, 2013.1
Lee Mandell, Esq. was appointed PCRA counsel by the Court Appointments Unit and
entered his appearance on April 19, 2013.
On May 16, 2014, the Superior Court affirmed the Order formally dismissing Petitioner's
first PCRA petition. In its Opinion, the Court stated that although Attorney Bruno failed to file a
Rule 1925(b) Statement of Matters Complained of on Appeal, it was unnecessary to remand for
the filing of a Rule 1925(b) statement nunc pro tune because the PCRA court addressed all of the
issues PetitionerraisedinhisPCRApetition. Com. v. Bishop, 1205 EDA2012atpp.4-5 n. 3.
On July 11, 2014, Petitioner filed the instant, second PCRA petition, prose, broadly
asserting claims of ineffective assistance of PCRA counsel.
On August 13, 2014, Teri Himebaugh, Esq. entered her appearance as privately retained
PCRA counsel.
On January 14, 2015, the Supreme Court denied the Petition for Allowance of Appeal
from Petitioner's first PCRA petition.
On January 26, 2015, Attorney Himebaugh filed an amended petition.
On July 23, 2015, the Commonwealth filed a motion to dismiss.
On September 4, 2015, Petitioner filed a response to the Commonwealth's Motion to
Dismiss.
I On November 13, 2014, the Supreme Court of Pennsylvania suspended Attorney Bruno from the practice of law for a period of two years retroactive to February 26, 2013. See Petitioner's January 26, 2015 PCRA Petition at Exhibit PS.
2 On October 14, 2015, the Court issued a 907 notice.
On November 16, 2015, Petitioner's second PCRA petition was formally dismissed.
On December 15, 2015, Petitioner filed the instant appeal the Superior Court.2
On February 4, 2016, Petitioner filed a Rule 1925(b) statement, pursuant to an Order of
the Court, claiming that:
l. The PCRA court erred in dismissing Petitioner's second PCRA petition "by
conflating the timeliness requirements with a merit's review, contravening" Com. v.
Bennett, 930 A.3d 1264 (Pa. 2007).
2. The PCRA Court erred in dismissing Petitioner's second PCRA petition where the
petition was filed within 60 days of PCRA counsel James Bruno, Esq. informing
Petitioner that he was temporarily disbarred.
3. The PCRA court erred in dismissing Petitioner's second PCRA petition based on a
finding that Petitioner could not establish prejudice where PCRA counsel's mental
condition interfered with counsel's ability to provide Petitioner with effective
assistance of counsel.
4. The PCRA court erred by appointing Petitioner an attorney "who had a long
documented history of disciplinary issues dating back to 1997" and "by accepting
Petitioner's prose filings (907 Notice, Notice of Appeal) below while Attorney
Bruno was still counsel of record."
5. · The PCRA court erred by failing to restore Petitioner's PCRA rights "where counsel
failed to perform his duties as required under Pa.RCrim.P. 904."
2 On December 29, 2015, Attorney Himebaugh, whom Petitioner privately retained, filed a Motion to Withdraw in the Superior Court. On December 31, 2015, Petitioner flied a motion to proceed prose. On January 20, 2016, the Superior Court remanded to the PCRA court to conduct a hearing pursuant to Com. v. Grazier, 713 A.2d 81 (Pa. 1998). On March 21, 2016, the Court conducted a hearing and determined that since this was Petitioner's second PCRA petition, he was not entitled to court-appointed counsel.
3 ANALYSIS
Petitioner's PCRA petition is untimely. The Pennsylvania Supreme Court denied his
Petition for Allowance of Appeal on April 22, 2008. Petitioner's judgment of sentence became
final on July 21, 2008, after the ninety-day period to file a writ of certiorari with the United
States Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3) ("For purposes of this subchapter, a
judgment becomes final at the conclusion of direct review ... or at the expiration oftime for
seeking the review."). A petition for relief under the PCRA must be filed within one year of the
date the PCRA petitioner's judgment of sentence becomes final, unless the petitioner alleges and
proves that an exception to the one-year time-bar is met. Com. v. Taylor, 65 A.3d 462, 468 (Pa.
Super. 2013) (citing 42 Pa.C.S. § 9545). Thus, Petitioner had until July 21, 2009, to file a timely
petition, making his July 11, 2014 second PCRA petition patently untimely.
The timeliness of a PCRA petition is a jurisdictional requirement. Com. v. Robinson, 12
A.3d 477 (Pa. Super. 2011). The Act provides three, very limited exceptions to the requirement
that a PCRA petition be filed within one year of finality of the judgment of sentence:
(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 I 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.
4 42 Pa.C.S. § 9545(b)(l)(i)-(iii).
Additionally, any petition invoking an exception must be filed within sixty (60) days of
the date the claim could have been presented. 42 Pa.C.S. § 9545(b )(2). "As such, when a PCRA
petition is not filed within one year of the expiration of direct review, or not eligible for one of
the three limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of
the date that the claim could have been first brought, the [PCRA] court has no power to address
the substantive merits of a petitioner's PCRA claims." Com. v. Monaco, 996 A.2d 1076, 1080
(Pa. Super. 2010) (quoting Com. v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000)).
Since Petitioner's PCRA petition is untimely, Petitioner must plead and prove the
applicability of one of the above-stated exceptions to the PCRA's one-year time-bar for this
Court to have jurisdiction over his appeal. Petitioner has failed to meet this burden.
Issue I
In his Rule 1925 (b) statement, Petitioner asserts that the PCRA court erred in dismissing
his second PCRA petition "by conflating the timeliness requirements with a merit's review,
contravening" Com. v. Bennett, 930 A.3d 1264 (Pa. 2007). This is not an exception to the
jurisdictional time bar. Com. v. Taylor, 67 A.3d 1245, 1249 (Pa. 2013) (claim that PCRA court
conflated the issues of timeliness and merits is not an exception to the PCRA time requirement).
Thus, Petitioner's claim is without merit.
Issue Il- V
Issues two through five in Petitioner's Rule 1925(b) statement will be addressed together.
Since Petitioner's July 11, 2014 PCRA petition is untimely, he attempts to circumvent the PCRA
jurisdictional requirements by claiming after-discovered evidence in the form of a March 22,
2013 letter James Bruno, Esq., counsel for Petitioner's first PCRA petition, sent Petitioner
5 stating that he was being suspended from the practice oflaw. See Section 9545(b)(l)(ii).
Petitioner alleges that this evidence demonstrates that Attorney Bruno rendered ineffective
assistance during Petitioner's first PCRA petition.
Under the "after-discovered facts" exception to the PCRA timeliness requirement, a
petitioner must establish that (1) he did not know the facts upon which he based his petition, and
(2) he could not have learned those facts earlier with the exercise of due diligence. Com. v.
Burton, 121 A.3d 1063, 1068 (Pa. Super. 2015) (citing 42 Pa.C.S. § 9545(b)(l)(ii)). The claim
must be raised within sixty days of the date that the claim could have been presented. Com. v.
Feliciano, 69 A.3d 1270, 1275 (Pa. Super. 2013) (citing 42 Pa.CS. § 9545(b)(2)).
Where a petitioner relies on public information to establish the newly-discovered facts
exception found in§ 9545(b)(l)(ii), Pennsylvania courts have repeatedly and consistently held
that he must file his petition within 60 days from the emergence of a "fact" into the public
domain. Taylor, 67 A.3d at 1248; Com. v. Lopez, 51 A.3d 195, 196 (Pa. 2012) (information
related to defense counsel's disciplinary issues was publicly available seven years before
defendant's trial and 23 years before second PCRA petition; thus, newly-discovered facts
exception did not apply); Feliciano, 69 A.3d at 1278 (information relating to suspension of trial
counsel's license to practice law did not constitute a newly-discovered fact since information was
publicly available 11 years before defendant filed PCRA petition).
In this case, information related to Attorney Bruno's disciplinary issues was publicly
available for years, including when Petitioner's first PCRA petition was being prepared.These
facts were easily discoverable and in the public record for longer than 60 days before the instant,
second PCRA petition was filed on July 11, 2014.
6 Furthermore, even if Attorney Bruno's March 22, 2013, letter to Petitioner regarding his
suspension could. be considered "after-discovered evidence," . Petitioner did not file his petition
within 60 days of receiving the letter. Since Petitioner's petition is time-barred and no exceptions
to the timeliness requirement exist, this Court lacks jurisdiction to address the merits of
Petitioner's claims.
CONCLUSION
Based on the foregoing, the Court's denial of the PCRA petition should be affirmed.
By the Court: