Com. v. Bowen, N.

Opinion

J-S13034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : NICHOLAS L. BOWEN : : Appellant : No. 1066 WDA 2015

Appeal from the Order June 29, 2015 in the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000866-1997

BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 29, 2016

Appellant, Nicholas L. Bowen, appeals from the order entered in the

Venango County Court of Common Pleas denying his motion to appeal nunc

pro tunc from the dismissal of his fifth Post Conviction Relief Act 1 (“PCRA”)

petition. Although Appellant presented an argument pursuant to Miller v.

Alabama, 132 S. Ct. 2455 (2012) in his fifth PCRA petition, the instant

case solely concerns the PCRA court’s dismissal of Appellant’s bid to have his

appellate rights reinstated nunc pro tunc, in what must be considered a

sixth PCRA petition. We are constrained to affirm the PCRA court’s dismissal

of Appellant’s sixth PCRA petition as untimely.

* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J-S13034-16

We glean the pertinent and complex history from the record. On

September 30, 1998, Appellant pleaded guilty to murder of the first degree

and was immediately sentenced to life imprisonment without parole.

Appellant was seventeen years of age when he raped and killed a four-year-

old girl. Appellant did not pursue a direct appeal, and his judgment of

sentence became final on October 30, 1998. Appellant filed a timely PCRA

petition, which the PCRA court denied, and this Court affirmed.

Commonwealth v. Bowen, 348 WDA 2001 (Pa. Super. August 4, 2003)

(unpublished judgment order). Appellant proceeded to file two additional

PCRA petitions, in June 2006 and July 2010, both of which the trial court

dismissed as untimely and this Court affirmed the dual dismissal.

Commonwealth v. Bowen, 1843 WDA 2011 (Pa. Super. May 18, 2012)

(unpublished memorandum).2

Appellant filed a fifth PCRA petition pro se on July 16, 2012. On

August 23, 2012, he filed a motion to amend his petition. The sole issue

raised in his amended petition was “whether the sentencing order is illegal

since it mandates a life sentence without parole to juvenile convicted of first

degree murder.” PCRA Ct. Op., 6/29/15, at 3. Specifically, Appellant

2 We note that in May 2011, Appellant also filed a “Petition for Writ of Mandamus and/or Extraordinary Relief,” which was denied by the PCRA court. This Court affirmed the denial, holding that Appellant’s filing constituted yet another untimely PCRA petition. Commonwealth v. Bowen, 504 WDA 2012 (Pa. Super. Nov. 5, 2012) (unpublished memorandum).

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claimed that his petition was timely filed in light of the United States

Supreme Court’s decision in Miller.

Clyde Middleton, Esq., entered his appearance on Appellant’s behalf on

February 20, 2013. Shortly thereafter, on February 26, 2013, the PCRA

court continued Appellant’s hearing on his amended petition pending the

outcome of Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013).

Cunningham was issued on October 30, 2013, and held Miller did not

apply retroactively to cases such as Appellant’s. Accordingly, two weeks

later on November 13, 2013, the PCRA court issued a notice of intent to

dismiss Appellant’s petition. See Pa.R.Crim.P. 907. Appellant did not file a

response to the court’s Rule 907 notice, and the court dismissed Appellant’s

fifth PCRA petition on December 9, 2013.

Appellant did not appeal the PCRA court’s December 9, 2013 order,

but over ten months later, on November 6, 2014, he filed a pro se motion to

vacate the order, and reinstate his appellate rights nunc pro nunc

(“Motion”). In his Motion, Appellant claimed that Attorney Middleton had

abandoned him3 and that he had only learned of the PCRA court’s December

9, 2013 dismissal of his fifth PCRA petition on October 23, 2014, when his

federal counsel informed him. On February 17, 2015, Appellant filed another

3 The PCRA court acknowledged that Attorney Middleton has had ongoing criminal issues, being arraigned and released on his own recognizance on January 23, 2015. PCRA Ct. Op. at 2.

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motion, to “Expedite Consideration of Motion to Reinstate Nunc Pro Tunc.”

Appellant also filed a motion for the appointment of new counsel.

On June 29, 2015, the PCRA court issued an opinion and order denying

Appellant’s Motion. The court also ordered Attorney Middleton to withdraw

as counsel of record, in order to permit Appellant to proceed pro se.4 The

court specifically found Appellant’s Motion to be patently untimely. Further,

the court determined that Appellant had not exercised due diligence,

regardless of the performance of his counsel, as it took Appellant over ten

months to discover that his fifth PCRA petition had been dismissed. In

addition, the court noted Appellant’s sole issue on appeal was of no moment

because Cunningham specifically provided that the constitutional

protections set forth in Miller would not apply retroactively. Appellant filed

a timely notice of appeal.

On January 25, 2016, during the pendency of this appeal, the United

States Supreme Court decided Montgomery v. Louisianna, 136 S. Ct. 718

(2016), and held that Miller does apply retroactively. See Montgomery,

136 S. Ct. at 734. Furthermore, in Commonwealth v. Secreti, __ A.3d

__, 2016 WL 513341 (Pa. Super. Feb. 9, 2016), this Court specifically held

that Montgomery renders Miller retroactive “effective as of the date of the

Miller decision.” Secreti, ___ A.3d at ___, 2016 WL 513341 at *5.

4 Appellant is represented, for purposes of the instant appeal, by Matthew C. Parson, Esq.

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In his instant appeal, Appellant raises a single issue for our review:

Whether the [PCRA] court abused its discretion or erred as a matter of law in denying [Appellant’s] motion for an appeal nunc pro tunc.

Appellant’s Brief at 5.

Appellant argues that his prior PCRA counsel was ineffective for failing

to file an appeal from the dismissal of his fifth PCRA petition. Therefore, he

contends that the PCRA court erred by dismissing his Motion and failing to

restore his appellate rights nunc pro tunc. We do not agree.

As a prefatory matter, we note that “all requests for reinstatement of

appellate rights, including PCRA appellate rights, must meet the timeliness

requirements of the PCRA.” Commonwealth v. Fairiror, 809 A.2d 396,

397 (Pa. Super. 2002). Moreover, we note that a petition seeking

restoration of PCRA appellate rights nunc pro tunc must be treated as a

subsequent PCRA petition. Id.

When reviewing an order dismissing a PCRA petition, we consider

“whether the determination of the PCRA court is supported by evidence of

record and is free of legal error.” Commonwealth v. Brandon, 51 A.3d

231, 233 (Pa. Super. 2012) (citation omitted). The merits of a PCRA petition

cannot be addressed unless the PCRA court has jurisdiction.

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). Jurisdiction does

not exist if the PCRA petition is untimely. Commonwealth v. Abu-Jamal,

941 A.2d 1263, 1267-68 (Pa. 2008).

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A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.” Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (citations and footnote omitted). The PCRA petitioner

has the burden of alleging and proving that one of the three timeliness

exceptions applies. Abu-Jamal, 941 A.2d at 1268. The three timeliness

exceptions are:

(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 of 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. § 9545(b)(1)(i)-(iii).

“It is now well settled that there is no generalized equitable exception

to the jurisdictional one-year time bar pertaining to post-conviction

petitions.” Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008).

Further, a mere claim that counsel was ineffective for failing to file an

appeal, without a showing of due diligence on the part of the

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petitioner, will not save an untimely PCRA petition. Commonwealth v.

Carr, 768 A.2d 1164, 1167-68 (Pa. Super. 2001).

In Carr, this Court held that “absent assertions of due diligence, the

mere discovery of trial counsel’s failure to file a direct appeal, after the one-

year window to file a PCRA petition, [did] not place [the petitioner] under

subsection 9545(b)(1)(ii).” Id. at 1168. We emphasized that the petitioner

in that case could have discovered his counsel’s lack of action by a mere

phone call to the clerk of courts. Id. Accordingly, the Carr Court affirmed

the dismissal of the petitioner’s untimely PCRA petition. Id.

Conversely, in Commonwealth v. Bennett, 930 A.2d 1264 (Pa.

2007), the Pennsylvania Supreme Court held that attorney abandonment

may constitute a factual basis for a timeliness exception under subsection

9545(b)(1)(ii). However, the Court’s grant of relief in Bennett was largely

based upon what it determined to be the petitioner’s due diligence under the

circumstances of that case. The Court explained that a petitioner bears the

burden of establishing “that the [after-discovered] facts were ‘unknown’ to

him and that he could not uncover them with the exercise of ‘due diligence.’”

Id. at 1274. In particular, the Bennett Court noted that the petitioner had

provided a description of the steps he took to ascertain the status of his

case, including writing to both the PCRA court and the Superior Court. Id.

In the case sub judice, Appellant’s Motion must be treated as yet

another PCRA petition. See Fairiror, 809 A.2d at 397. Therefore, because

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Appellant filed his Motion well over a year after his judgment of sentence

became final, the Motion was facially untimely.

Appellant asserts that his Motion was timely pursuant to subsection

9545(b)(1)(ii), because Attorney Middleton effectively abandoned him by

failing to file an appeal of the dismissal of his fifth PCRA petition, a fact he

claims he only became aware of less then sixty days before he filed his

Motion. In support of this contention, Appellant provides only a citation to

Bennett. Motion at 2. However, Appellant did not attempt to plead or

prove any efforts on his part that would constitute due diligence. Compare

Bennett, 930 A.2d at 1272, 1274, with Carr, 768 A.2d at 1168.

Accordingly, Appellant’s contention that his Motion falls under the timeliness

exception set forth under subsection 9545(b)(1)(ii) must fail.

Therefore, as Appellant’s Motion, effectively a sixth PCRA petition, is

untimely filed and no exception to the PCRA time-bar applies, the PCRA

court lacked jurisdiction to reinstate Appellant’s PCRA appellate rights nunc

pro tunc and its dismissal of the Motion was proper. See Fairiror, 809 A.2d

at 398. Accordingly, we are bound to affirm the dismissal of Appellant’s

sixth, untimely, PCRA petition.

We note that Secreti holds that this Court may remand for

resentencing during the pendency of an appeal stemming from a Miller

claim. However, Secreti is inapposite under the peculiar procedural

posture of this case. Here, Appellant is solely seeking the nunc pro tunc

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restoration of his appellate rights regarding his fifth PCRA petition. The

application of Montgomery and Miller is not instantly at issue. Therefore,

we affirm the PCRA court’s dismissal of Appellant’s sixth, untimely, PCRA

petition without prejudice to Appellant’s right to file a subsequent petition,

pursuant to Montgomery within sixty days of the final disposition of this

matter. See Commonwealth v. Lark, 746 A.2d 585, 588. (Pa. 2000)

(holding that subsequent PCRA petitions must be filed within sixty days of a

final order disposing of a previous PCRA petition).

Order affirmed.

Lazarus, J. joins this Memorandum.

Stabile, J. Concurs in the Result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/29/2016

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