Com. v. Broadus, R.
This text of Com. v. Broadus, R. (Com. v. Broadus, R.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
J-S10033-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICHARD A. BROADUS : : Appellant : No. 8 WDA 2023
Appeal from the PCRA Order Entered November 29, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0011050-2010
BEFORE: OLSON, J., KING, J., and LANE, J.
MEMORANDUM BY LANE, J.: FILED: June 7, 2024
Richard A. Broadus (“Broadus”) appeals from the order dismissing his
third petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 Because Broadus is no longer serving a sentence for the underlying
conviction, he is not eligible for PCRA relief. Accordingly, we affirm the order
dismissing his petition.
Following a non-jury trial in November 2011, the trial court found
Broadus guilty of one count each of possession with intent to deliver a
controlled substance, possession of a controlled substance, possession of
marijuana, duties at stop signs, and driving an unregistered vehicle. On
November 30, 2011, the trial court sentenced him to five to ten years’
imprisonment, to be served concurrently with ten years’ probation. Broadus
filed a timely, counseled notice of appeal. On March 19, 2012, however, this ____________________________________________
1 See 42 Pa.C.S.A. §§ 9541-9546. J-S10033-24
Court dismissed the appeal for failure to file a docketing statement. See
Pa.R.A.P. 3517 (stating a docketing statement must be filed within ten days
of filing a notice of appeal to the Superior Court).
Broadus timely filed his first PCRA petition in March 2013, and the PCRA
court dismissed it. This Court affirmed the dismissal order. See
Commonwealth v. Broadus, 105 A.3d 803 (Pa. Super. 2014) (unpublished
memorandum). He filed his second PCRA petition in May 2015, and the PCRA
court dismissed it as untimely filed.
Broadus filed the instant pro se petition on October 23, 2020,2 and the
PCRA court appointed counsel, Diana Stavroulakis, Esquire (“PCRA Counsel”).
Broadus then filed a pro se PCRA motion on January 7, 2022. The PCRA court
acknowledged it was a pro se filing,3 and entered an order to dismiss it on
April 19, 2022, finding it lacked jurisdiction because Broadus had completed
serving his sentence. See Memorandum Opinion and Order, 4/19/22, at 2-3;
see also 42 Pa.C.S.A. § 9542 (discussed infra).
On August 31, 2022, PCRA Counsel filed an amended PCRA petition
(“Amended Petition”), which referenced the initial pro se petition filed in ____________________________________________
2 Although Broadus’ pro se petition was docketed on October 28, 2020, it was
subject to the prisoner mailbox rule. Thus, we deem it was filed on October 23, 2020, “the date of the prison postmark or the date [it] was delivered to the prison authorities for purposes of mailing.” Pa.R.A.P. 121(f).
3 As Broadus was represented by PCRA counsel at the time he filed the January
2022 PCRA motion, he engaged in hybrid representation, which is disallowed by our courts. See 210 Pa. Code § 65.24; see also Pa.R.Crim.P. 576(a)(4). Thus, the court clerk should not have accepted Broadus’ motion for filing, but instead, noted it on the docket and forwarded it to PCRA counsel. Id.
-2- J-S10033-24
October 2020, but made no mention of the pro se January 2022 motion, nor
the subsequent April 2022 order to dismiss.4 Consequently, the Amended
Petition did not address the PCRA court’s prior finding that Broadus was no
longer serving a sentence. Instead, the petition alleged that Broadus’ counsel
at trial and on direct appeal, Eric Jobe, Esquire (“Trial Counsel”), was
ineffective due to his failure to file a docketing statement, causing Broadus’
direct appeal to be dismissed. See Amended Petition, 8/31/22, at 9. Broadus
further argued that he met the newly-discovered fact exception to the PCRA’s
one-year time bar because he only recently discovered that in “2016,” Trial
Counsel was disciplined and issued a public reprimand by the Disciplinary
Board of the Pennsylvania Supreme Court for failure to take action on another
client’s case. Id. Broadus also highlighted that this disciplinary order
acknowledged another reprimand given to Trial Counsel in 2017 for similar
conduct.5 See id. Broadus maintained that he “exercised diligence, and . . .
filed [the instant petition] in a timely manner” because he began serving his
sentence in 2013, and “did not have access to documentary evidence until
just prior to file [sic] his 2020 PCRA petition.” Id. ____________________________________________
4 A review of the trial docket shows that the order to dismiss was served on
PCRA Counsel.
5 PCRA Counsel did not attach a copy of this supposed 2016 reprimand order
to the Amended Petition. Our review of the Supreme Court’s Disciplinary Board website reveals that Trial Counsel was publicly reprimanded on March 26, 2018, for misconduct that occurred in 2016. See Office of Disciplinary Counsel v. Jobe, 31 DB 2018 (Pa. 2018). This order did acknowledge, however, a prior record of discipline that was imposed on Trial Counsel in 2017 for similar misconduct.
-3- J-S10033-24
The PCRA court issued Pa.R.Crim.P. 907 notice of its intent to dismiss
the Amended Petition without a hearing. The court rejected Broadus’ reliance
on the newly-discovered fact exception, finding that “the underlying facts were
known to . . . Broadus way earlier than he claim[ed].” Notice of Intent to
Dismiss, 11/2/22, at 1-2. Thus, the PCRA court concluded the Amended
Petition was untimely filed. See id. at 2. The court dismissed the petition on
December 7, 2022. We note the court did not refer to its prior finding that
Broadus was no longer serving a sentence. This timely appeal followed. The
PCRA court did not require Broadus to file a Pa.R.A.P. 1925(b) concise
statement, and he did not do so.
Broadus raises the following issue for our review: “The PCRA Court erred
in dismissing the petition as time barred because Broadus’s [sic] case falls
within an exception to the timeliness provision of the [PCRA].” Broadus’ Brief
at 5.
Before we address the issue raised by Broadus on appeal, we must first
determine whether he is eligible for relief under the PCRA. The relevant
requirements for PCRA eligibility in the instant case are as follows:
(a) General rule.—To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:
(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:
(i) currently serving a sentence of imprisonment, probation or parole for the crime[.]
-4- J-S10033-24
42 Pa.C.S.A. § 9543(a)(1)(i).
We reiterate that on November 30, 2011, Broadus received a sentence
of five to ten years’ imprisonment to be served concurrently with ten years’
probation. In light of the PCRA court’s earlier, April 19, 2022 opinion and
order to dismiss, indicating that Broadus had completed serving his sentence,
we directed the court, and invited the parties, to advise as to whether Broadus
is still serving the underlying sentence. The trial court and the Commonwealth
have both confirmed that Broadus completed this sentence on March 13,
2023. PCRA Counsel has not responded, and therefore has not disputed that
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