Com. v. Deutsch, J.

• Court: Superior Court of Pennsylvania
• Decided: February 16, 2024
• Docket: 817 WDA 2023
• Status: Unpublished

Opinion

J-S46028-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES NELSON DEUTSCH : : Appellant : No. 817 WDA 2023

Appeal from the PCRA Order Entered June 30, 2023 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0001230-2007

BEFORE: DUBOW, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY MURRAY, J.: FILED: February 16, 2024

James Nelson Deutsch (Appellant) appeals, pro se, 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.

On March 6, 2008, a jury convicted Appellant of second-degree murder,

robbery, burglary, theft, and receiving stolen property.1 The trial court

sentenced Appellant to life in prison. Appellant subsequently filed a post-

sentence motion. Trial counsel requested additional time to amend the post-

sentence motion, indicating that Appellant had retained new counsel to litigate

the post-sentence motion and file an appeal on his behalf. The trial court

granted additional time. Appellant’s post-sentence counsel entered his

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1 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 3502(a), 3921(a), 3925(a). J-S46028-23

appearance, and trial counsel was permitted to withdraw from representation.

Post-sentence counsel was granted another extension of time. Ultimately,

post-sentence counsel filed a motion to withdraw Appellant’s post-sentence

motion. Appellant did not file a direct appeal.

Appellant, pro se, filed his first, timely PCRA petition on February 23,

2009. Appellant argued, in part, that his trial counsel was ineffective for failing

to present alibi or other material witnesses. The PCRA court appointed

counsel. Appellant then authored a pro se “amendment” to his PCRA petition,

which counsel forwarded to the court on Appellant’s behalf. The PCRA court

heard argument on Appellant’s petition. Subsequently, on December 16,

2009, the PCRA court denied Appellant’s first PCRA petition. Appellant did not

appeal the denial of his first PCRA petition.

On February 23, 2023, Appellant, pro se, filed the instant PCRA petition,

his second. Appellant argued his post-sentence counsel abandoned him by

failing to file an appeal. See PCRA Petition, 2/23/23, at 3, 11 (unnumbered).

Appellant also averred that post-sentence counsel did not seek leave to

withdraw as counsel, and Appellant was made aware of that “fact” when he

received his docket sheets through the inmate mailing system. See id. at 7-

8 (unnumbered).2 On May 9, 2023, the PCRA court issued Pa.R.Crim.P. 907

notice of its intent to dismiss Appellant’s PCRA petition without a hearing.

2 Appellant also summarily alleged his first PCRA counsel was ineffective for

failing to identify this claim. See PCRA Petition, 2/23/23, at 6 (unnumbered).

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Appellant sought and was granted an extension of time to file objections to

the Rule 907 notice. In his pro se objections, Appellant alleged he was

previously unaware that he had been abandoned by counsel. On June 30,

2023, the PCRA court dismissed Appellant’s PCRA petition.

This timely appeal followed. Appellant and the PCRA court have

complied with Pa.R.A.P. 1925.

Appellant raises the following issues for review:

1. Did the PCRA court err when it dismissed the Appellant’s PCRA petition without [a] hearing when Appellant set forth facts, both of record and off record[,] which, if proven[,] would have entitled him to relief? More specifically:

a. [Appellant] was abandoned by both direct appeal counsel and first PCRA counsel. Direct appeal counsel for failure to file a petition for allowance of appeal and first PCRA counsel for failure to identify the claim.

b. [Appellant] was unaware of direct appeal counsel’s abandonment until February 2, 2023, therefore allowing for an exception to the filing time requirements of 42 Pa. C.S. § 9545(b)(ii), contrary to the conclusions set forth in the PCRA court[’]s conclusion.

2. Was the Appellant unlawfully and prejudicially deprived of his established right to effective assistance of counsel in filing a petition for allowance of appeal with the Pennsylvania Supreme Court when it was counsel’s specific per se errors which caused the loss[,] and this was [Appellant’s] first opportunity to raise the claim?

3. Was PCRA counsel ineffective in failing to raise these claims?

Appellant’s Brief at 3.3

3 The Commonwealth did not file an appellate brief.

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We review the dismissal of Appellant’s PCRA petition to determine

“whether the PCRA court’s findings of fact are supported in the record, and

whether its conclusions of law are free from legal error.” Commonwealth v.

Busanet, 54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the

findings of the PCRA court and the evidence of record, viewed in the light most

favorable to the party who prevailed in the PCRA court proceeding.” Id.

Prior to reaching the merits of Appellant’s claims, we consider the

timeliness of his PCRA petition. See Commonwealth v. Miller, 102 A.3d

988, 992 (Pa. Super. 2014). A PCRA petition “shall be filed within one year of

the date the judgment 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 the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.” Id. § 9545(b)(3). “[T]he timeliness of a PCRA petition is a

jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa.

Super. 2015).

It is undisputed that Appellant’s PCRA petition is facially untimely, as his

judgment of sentence became final in May 2008, when the time for filing a

direct appeal with this Court expired. Nevertheless, a court may consider an

untimely petition if the appellant can explicitly plead and prove one of three

exceptions set forth under 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any petition

invoking one of these exceptions “shall be filed within one year of the date the

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claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). “The PCRA

petitioner bears the burden of proving the applicability of one of the

exceptions.” Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017).

Appellant invokes the newly-discovered fact exception set forth in 42

Pa.C.S.A. § 9545(b)(1)(ii). See Appellant’s Brief at 32-33. Appellant argues

post-sentence counsel abandoned him by failing to file an amended post-

sentence motion. See id. at 28-29. Appellant also points to counsel’s failure

to file a direct appeal on his behalf. See id. at 29-30. Additionally, Appellant

contends his first PCRA counsel did not communicate with Appellant or

challenge post-sentence counsel’s abandonment on his behalf. Id. at 30, 32.

Appellant avers that he became aware of prior counsel’s abandonment “after

a legal aid in the prison’s law library reviewed his docket sheet….” Id. at 31.

The newly-discovered fact exception

requires that the facts upon which such a claim is predicated must not have been known to appellant, nor could they have been ascertained by due diligence. To fall within this exception, the factual predicate of the claim must not be of public record and must not be facts that were previously known but are now presented through a newly discovered source.

Commonwealth v. Shannon, 184 A.3d 1010, 1015-16 (Pa. Super. 2018)

(citations, quotation marks and brackets omitted).

Appellant relies on Commonwealth v. Bennett, 930 A.2d 1264 (Pa.

2007), to support his argument that abandonment by counsel may constitute

a newly-discovered fact under section 9545(b)(1)(ii). Generally, an

ineffectiveness claim does not constitute a “fact” for purposes of overcoming

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the PCRA’s timeliness requirement. Bennett, 930 A.2d at 1272 (citing

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785-86 (Pa. 2000)).

The Bennett Court, however, recognized there must be an exception to this

rule when counsel abandons the petitioner on appeal. Bennett, 930 A.2d at

1273. A sufficient allegation of abandonment by counsel may invoke section

9545(b)(1)(ii). Id. at 1274. The Bennett Court reiterated that even where

a petitioner’s “allegations bring his claim within the ambit of subsection

(b)(1)(ii), he must still prove … that the facts were ‘unknown’ to him and that

he could not uncover them with the exercise of ‘due diligence.’” Id.

Assuming Appellant sufficiently alleged post-sentence counsel’s

abandonment, Appellant failed to establish counsel’s alleged shortcomings

were previously unknown to him, or that he could not have discovered the

abandonment with the exercise of due diligence. See id. In the motion to

withdraw the post-sentence motion, post-sentence counsel expressly stated

he had discussed possible post-sentence claims with Appellant, and that

Appellant had decided to withdraw the motion. Motion to Withdraw Post-Trial

Motion, 11/3/08. Further, Appellant was aware he did not file a direct appeal

from his judgment of sentence at the time he litigated his first PCRA petition.

See generally PCRA Petition, 2/23/09, at 4 (under section explaining prior

proceedings, stating, counsel “filed direct appeal but withdrew it”). Moreover,

in Appellant’s own words, “there is no record establishing the facts

surrounding when or how [Appellant] learned of his attorney’s failures.”

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Appellant’s Brief at 31. At best, the “fact” of counsel’s abandonment is from

a newly identified source. Cf. Shannon, 184 A.3d at 1015-16.4 As Appellant

has failed to plead and prove the newly-discovered fact exception to the

PCRA’s time-bar, this Court, like the PCRA court, lacks jurisdiction to consider

the merits of Appellant’s issues.

For the above reasons, we affirm the PCRA court’s dismissal of

Appellant’s second PCRA petition as untimely filed.

Order affirmed.

DATE: 02/16/2024

4 To the extent Appellant claims post-sentence counsel’s withdrawal does not

appear on the docket, we note the PCRA court’s observation:

[T]hat fact has been apparent on the face of the docket for almost fifteen years and there is no reason why [Appellant] could not have ascertained it earlier through the exercise of due diligence. He could have obtained a copy of the docket sheet at any time. In fact, a docket entry for June 16, 2016 shows that [Appellant] sent a letter to the Clerk of Courts requesting a copy of the docket sheet for this case[,] and the Clerk of Courts responded by sending him a copy.

PCRA Court Rule 907 Notice, 5/9/23, at 3.

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