Com. v. Caiby, A.

• Court: Superior Court of Pennsylvania
• Decided: April 14, 2025
• Docket: 2676 EDA 2024
• Status: Unpublished

Opinion

J-S08008-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY CAIBY, : : Appellant : No. 2676 EDA 2024

Appeal from the PCRA Order Entered September 18, 2024 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0002035-2013

BEFORE: DUBOW, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E. *

MEMORANDUM BY DUBOW, J.: FILED APRIL 14, 2025

Appellant, Anthony Caiby, appeals from the September 18, 2024 order

entered in the Monroe County Court of Common Pleas, which dismissed as

untimely his third and fourth petitions filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S §§ 9541-46, in which he asserted ineffective

assistance of counsel claims against his trial counsel and his prior PCRA

counsel. After careful review, we affirm.

We glean the relevant procedural history from the trial court opinion and

the certified record. On January 13, 2016, a jury convicted Appellant of First-

Degree Murder and related offenses. On April 6, 2016, the trial court

sentenced Appellant to the mandatory sentence of life imprisonment without

the possibility of parole, plus a consecutive sentence of 42 to 84 months of

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* Retired Senior Judge assigned to the Superior Court. J-S08008-25

incarceration. This Court affirmed his judgment of sentence, and the

Pennsylvania Supreme Court denied his petition for allowance of appeal on

May 7, 2018. Commonwealth v. Caiby, 181 A.3d 434 (Pa. Super. 2017)

(unpublished memorandum), appeal denied, 185 A.3d 277 (Pa. 2018).

Appellant’s judgment of sentence became final on August 6, 2018, when the

time for seeking certiorari in the Supreme Court of the United States expired.

Appellant filed a timely first PCRA petition, docketed July 11, 2018,

alleging, inter alia, that the Commonwealth’s plea offer was a sentence of 6

to 20 years of incarceration, but his trial counsel, Vernon Chestnut, Esq., told

him the offer was 20 to 40 years. PCRA Pet., 7/11/18, at 3. The PCRA court

denied relief on November 1, 2019, and Appellant did not appeal.

On November 14, 2019, Appellant pro se filed a second PCRA petition,

which the PCRA court dismissed as untimely on December 5, 2019. Appellant

filed two notices of appeal, one of which he later withdrew. Although the court

did not formally appoint counsel for Appellant, Donald Gual, Esq., filed a brief

on Appellant’s behalf, which did not address either the timeliness of the PCRA

petition or the failure of either him or Appellant to file a Pa.R.A.P. 1925(b)

statement. Commonwealth v. Caiby, 2021 WL 2322832 at *2 (Pa. Super.

Jun. 7, 2021). We ultimately quashed the appeal because Appellant appealed

from an order purportedly entered on December 18, 2019, which was not in

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the docket.1 Id. Our Supreme Court denied Appellant’s petition for allowance

of appeal. Commonwealth v. Caiby, 303 A.3d 708, 709 (Pa. 2023).

On March 11, 2024, Appellant pro se filed his third PCRA petition,2 the

first of the two petitions at issue in this appeal. In it, Appellant asserted that

Attorney Chestnut had failed to disclose the Commonwealth’s plea offer of 6

to 20 years of incarceration. PCRA Pet., 3/11/24, at 2-3 (unpaginated). This

petition did not raise any exceptions to the PCRA’s time bar.

On July 17, 2024, Appellant filed his fourth PCRA petition, alleging

ineffective assistance of both Attorney Chestnut and Attorney Gual. PCRA

Pet., 7/17/24, at 4. He maintains the petition is timely based on the

governmental interference and newly-discovered fact exceptions to the

PCRA’s time bar because Attorney Gual’s ineffectiveness constituted

governmental interference and the existence of the favorable plea offer was a

newly-discovered fact. Id. at 3.

On July 31, 2024, the PCRA court filed a Pa.R.Crim.P. 907 Notice of

Intent to Dismiss both petitions because, inter alia, Appellant had failed to

1 See Pa.R.A.P. 301(a)(1) (“Except as provided in subparagraph (2) of this paragraph, no order of a court shall be appealable until it has been entered upon the appropriate docket in the trial court.”).

2 Appellant titled this petition “Motion for Lafler [v. Cooper, 566 U.S. 156 (2012)] Hearing,” but the PCRA court properly considered it to be a PCRA petition. See Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002) (“We have repeatedly held that the PCRA provides the sole means for obtaining collateral review, and that any petition filed after the judgment of sentence becomes final will be treated as a PCRA petition.”).

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plead and prove an exception to the time bar. Rule 907 Notice, 7/31/24, at

2. In response, Appellant filed an amended petition on August 23, 2024 in

which he did not raise any additional arguments regarding timeliness. The

PCRA court dismissed both petitions on September 18, 2024.

Appellant appealed pro se. Both he and the PCRA court complied with

Pa.R.A.P. 1925.3

Appellant raises the following issue for our review:

Whether Appellant’s right to effective assisstance [sic] of counsel guar[a]nteed to him by the Sixth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution, [a]s well as the rule based rights to counsel in the Pennsylvania Rules of Criminal Procedure 120[(A)](4), and 122 (B)[](2) as well as those violated in [R]ule 904, and Art[itcle] V[,] Section 9 of the Pennsylvania Constitution abandoning him and not filing his appeal as requested, ultimately leading to his appeal getting quashed under Pa[.]R.A.P. 301, for failure to follow those rules on his first PCRA.

Appellant’s Br. at 6.

***

We review the denial of a PCRA petition to determine whether the record

supports the PCRA court’s determination and whether its order is otherwise

free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

However, before we review the issue raised on appeal, we must determine

whether Appellant’s petition satisfies our courts’ jurisdictional requirements.

3 The PCRA court issued a Rule 1925(a) statement directing this Court to its

July 31, 2024 Rule 907 Notice of Intent to Dismiss and its September 18, 2024 dismissal order. Rule 1925(a) Statement, 11/18/24.

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It is well-established that the timeliness of a PCRA petition is

jurisdictional; if a PCRA petition is untimely, courts lack jurisdiction over the

claims and cannot address substantive claims. Commonwealth v. Wharton,

886 A.2d 1120, 1124 (Pa. 2005). To be timely, a PCRA petition, including a

second or subsequent petition, must be filed within one year of the date that

a petitioner’s judgment of sentence becomes final. 42 Pa.C.S. § 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. § 9545(b)(3).

Here, Appellant’s petitions, filed almost 6 years after his judgment of

sentence became final, are facially untimely. Pennsylvania courts may

consider an untimely PCRA petition, however, if the petitioner pleads and

proves one of the three exceptions to the time bar set forth in Section

9545(b)(1). Any petition invoking a timeliness exception must be “filed within

one year of the date the claim could have been presented.” 42 Pa.C.S

§ 9545(b)(2).

Appellant failed to invoke any of the timeliness exceptions in his March

11, 2024 PCRA petition. Accordingly, we find no abuse of discretion in the

PCRA court’s dismissal of this petition.

In his July 17, 2024 PCRA petition, Appellant attempted to invoke the

government interference and newly discovered facts exceptions. To establish

the newly discovered facts exception, a petitioner must plead and prove that

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“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.” 42

Pa.C.S. § 9545(b)(1)(ii).

To establish the government interference exception under 42 Pa.C.S.

§ 9545(b)(1)(i), “a petitioner must plead and prove (1) the failure to

previously raise the claim was the result of interference by government

officials, and (2) the petitioner could not have obtained the information earlier

with the exercise of due diligence.” Commonwealth v. Vinson, 249 A.3d

1197, 1205 (Pa. Super. 2021). Finally, “due to the specific provision in 42

Pa.C.S. § 9545(b)(4) that the term ‘government officials’ does not include

defense counsel[,]” claims of ineffective assistance of counsel do not meet the

governmental interference exception. Commonwealth v. Abu-Jamal, 833

A.2d 719, 725 (Pa. 2003).

*

In his July 17, 2024 petition, Appellant asserted that he met the

governmental interference exception because this Court quashed his previous

PCRA appeal for procedural defects due to Attorney Gual’s ineffectiveness.

PCRA Pet., 7/17/24, at 3. Appellant also asserted that he met the newly-

discovered fact exception based on his claim that he had learned that the

Commonwealth had offered him a plea deal of 6 to 20 years of incarceration,

not 20 to 40 years of incarceration as Attorney Chestnut had told him. Id.

In its Rule 907 Notice, the PCRA court determined that Appellant failed

to satisfy either exception to the PCRA’s time bar. Rule 907 Notice at 2.

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Following our review, we determine that the record and legal authority support

the PCRA court’s conclusion.

First, Appellant has failed to establish the governmental interference

exception because claims of ineffective assistance of counsel do not constitute

governmental interference. Abu-Jamal, 833 A.2d at 725. Furthermore, the

purported offer of a 6 to 20-year sentence is not a newly-discovered fact for

the purpose of his 2024 PCRA petition because Appellant raised the same

claim in his first PCRA petition in 2018. PCRA Pet., 7/11/18, at 3. Therefore,

Appellant has also failed to establish the newly-discovered facts exception.

Accordingly, we conclude that the PCRA court properly dismissed

Appellant’s third and fourth PCRA petitions as untimely. We, thus, have no

jurisdiction to address the claims raised in Appellant’s petitions.

Order affirmed.

Date: 4/14/2025

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