Com. v. Eaddy, A.

• Court: Superior Court of Pennsylvania
• Decided: November 20, 2023
• Docket: 1063 EDA 2022
• Status: Unpublished

Opinion

J-A10027-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AUSTIN EADDY : : Appellant : No. 1063 EDA 2022

Appeal from the PCRA Order Entered March 10, 2022 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001537-2016

BEFORE: PANELLA, P.J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 20, 2023

Austin Eaddy brings this appeal from the dismissal of his first petition

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546,

as untimely. After careful review, we affirm.

Given that we ultimately conclude the PCRA court was correct in finding

it did not have jurisdiction to entertain Eaddy’s petition due to the PCRA’s time

bar, an extensive recitation of the factual background is unnecessary. The

evidence supporting Eaddy’s convictions can be summarized as follows. In the

spring of 2016, Eaddy and Victim were both students at West Chester

University. At approximately 2:00 a.m. on April 1, 2016, Victim, who drank a

significant amount of alcohol that evening, met Eaddy for the first time on the

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* Former Justice specially assigned to the Superior Court. J-A10027-23

street. Video surveillance footage shows the two walked across campus

together, and eventually entered a parking garage, however, Victim did not

recall entering the garage. Once inside the parking garage, Victim handed

Eaddy a phone, which Eaddy put into his pocket. The surveillance video also

shows the two kissing and engaging in other intimacies by the garage doors,

and they then moved to a space between two parked cars. Victim’s recollection

returned when she was on her knees being forced to perform oral sex. Eaddy

then pinned Victim to a car.

An independent witness, who was also a student at West Chester

University, entered the parking garage looking for her vehicle. The witness did

not know either Eaddy or Victim before the incident. The witness then heard

a distressed female voice asking for her phone. According to the witness, she

saw Eaddy standing in front of Victim, who was on her back on the hood of a

car with her pants down. When the witness asked what was going on, Eaddy

stated, “[O]h shit,” and ran. Victim left in a different direction, crying, and

pulling up her pants. The witness walked with Victim to their mutual residence

hall. A security guard noticed that Victim’s knee was bleeding and called

university police. Victim told the guard she was sexually assaulted. Eaddy fled

campus, and eventually turned himself in.

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In July 2017, a jury found Eaddy guilty of two counts of attempted rape

and one count of indecent assault.1 The jury acquitted Eaddy of nine sexual

offenses and one count of theft related to the Victim’s phone. On October 25,

2017, the trial court sentenced Eaddy to serve a term of incarceration of four

to ten years. In addition, the trial court determined that Eaddy was not a

sexually violent predator and ordered him to register as a tier-three sexual

offender.

Eaddy took a direct appeal, and on October 17, 2019, this Court affirmed

his judgment of sentence.2 Commonwealth v. Eaddy, 3869 EDA 2017, 222

A.3d 838 (non-precedential decision) (Pa. Super. filed October 17, 2019).

Eaddy did not file a petition for allowance of appeal with our Supreme Court.

On September 15, 2021, Eaddy filed the instant PCRA petition, and the

Commonwealth filed an answer. On January 31, 2022, pursuant to

Pa.R.Crim.P. 907, the PCRA court issued notice of intent to dismiss the

petition, indicating, among other reasons, that the PCRA petition was

untimely. Eaddy filed a response. On March 10, 2022, the PCRA court entered

an order dismissing the petition. This timely appeal followed.

1 18 Pa.C.S.A. §§ 903 & 3121(a)(1) (attempted rape by threat of forcible compulsion), 3121(a)(2) (attempted rape by threat of forcible compulsion); and 18 Pa.C.S.A. § 3126(a)(1) (indecent assault—without consent), respectively.

2 We note that the panel also vacated, as illegal, the portion of the sentence

directing Eaddy to pay restitution for the replacement of the cell phone.

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For our review, Eaddy asserts claims of ineffective assistance of PCRA

counsel. Initially, he contends that PCRA counsel was ineffective for failing to

file a timely PCRA petition. See Appellant’s Brief at 4. In addition, he alleges

PCRA counsel improperly failed to raise meritorious claims of prior counsels’

ineffectiveness. See id.

Our standard of review for an order denying PCRA relief is whether the

record supports the PCRA court’s determination, and whether the PCRA court’s

determination is free of legal error. See Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record. See id.

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

judgment of sentence became final. See 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.” 42 Pa.C.S.A. § 9545(b)(3). This time requirement is mandatory

and jurisdictional in nature and goes to a court’s right or competency to

adjudicate a controversy. See Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa. 2003) (citations omitted).

Our review of the record reflects the trial court imposed Eaddy’s

judgment of sentence on October 25, 2017, and this Court affirmed the

judgment of sentence on October 17, 2019. It is undisputed that Eaddy did

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not seek review in the Pennsylvania Supreme Court. Accordingly, his

judgment of sentence became final November 18, 2019,3 thirty days after we

affirmed the judgment of sentence and the time for filing a petition for

allowance of appeal with the Pennsylvania Supreme Court expired. See 42

Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Eaddy did not file this PCRA petition

until September 15, 2021. Therefore, the PCRA petition is patently untimely,

and we lack jurisdiction to consider its merits unless he pleaded and proved a

timeliness exception.

Section 9545 of the PCRA provides three exceptions that allow for review

of an untimely PCRA petition: (1) the petitioner’s inability to raise a claim

because of governmental interference; (2) the discovery of previously

unknown facts that would have supported a claim; and (3) a newly recognized

constitutional right. See id. A PCRA petition invoking one of these statutory

exceptions must be filed within the time constraints set forth at 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) (citation omitted).

3 We observe that Eaddy needed to file his petition for allowance of appeal on

or before Monday, November 18, 2019, because November 16, 2019, was a Saturday. See 1 Pa.C.S.A. § 1908 (stating that, for computations of time, whenever the last day of any such period shall fall on Saturday or Sunday, or a legal holiday, such day shall be omitted from the computation).

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Our review of the record reflects that Eaddy did not specifically raise the

issue of timeliness and did not plead any exception to the timeliness

requirement in his PCRA petition. See PCRA Petition, 9/15/21, Record Entry

6. The record further reveals that in its Rule 907 notice, the PCRA court

addressed the question of timeliness and determined that the PCRA petition

was untimely and the court was without jurisdiction to conduct review. See

Pa.R.Crim.P. 907 Notice, 1/31/22.

Eaddy filed a response to the PCRA court’s Rule 907 notice, which

alleged that while his direct appeal was pending, Eaddy and his family planned

for new counsel, Attorney Norris Gelman, to handle an appeal to the

Pennsylvania Supreme Court and a possible PCRA petition. See Response to

Rule 907 Notice, 2/20/22, at 1, ¶4. Eaddy further alleged that after this Court

decided his appeal in October 2019, the “family relied on Mr. Gelman to timely

effectuate the” allocatur. Id. at 2, ¶5. As previously discussed, any petition

for allowance of appeal to our Supreme Court needed to be filed on or before

November 18, 2019. However, the response to the Rule 907 notice alleged

that “[t]he family then had difficulty reaching Mr. Gelman.” Id. Eaddy

explained “[t]he family attempted to contact Mr. Gelman on many occasions

but was unsuccessful. The family did not know why but ultimately discovered,

in September of 2020, that Mr. Gelman had passed away [in May of 2020].”

Id. Attorney Gelman did not file a petition for allowance of appeal on Eaddy’s

behalf, which was due six months before his passing. See id. at 2, ¶6.

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Of import is the fact that the record bears no indication that Mr. Gelman

entered his appearance in this matter or was retained by Eaddy. Rather, the

response to the Rule 907 notice states that PCRA counsel, Attorney Margeaux

Cigianero, “was retained on September 18, 2020.” Id. at 2, ¶7. Consequently,

newly-retained PCRA counsel had two months before the November 18, 2020

PCRA deadline in which to file a timely PCRA petition. As previously mentioned,

the PCRA petition was filed on September 15, 2021, one year after the family

discovered Mr. Gelman’s death and one year after PCRA counsel was retained.

See id. at 2, ¶8. Regarding timeliness of the PCRA petition, Eaddy reasoned

that “[t]he untimely death of [Attorney Gelman] and the lack of notice given

to the family until [e]arly September 2020 should allow this PCRA petition to

be considered timely filed.” Id. at 2, ¶9. Nevertheless, on March 10, 2022,

the PCRA court entered an order dismissing Eaddy’s PCRA petition as untimely.

See Order, 3/10/22, at 2, n.1.

On appeal, Eaddy obtained new counsel and has abandoned his previous

claim that the PCRA petition should be considered timely filed. Now, in his

appellate brief, Eaddy acknowledges that the PCRA petition is untimely, but

argues that PCRA counsel’s untimely filing constituted ineffectiveness per se.

See Appellant’s Brief at 21-24. Eaddy posits that “PCRA counsel’s critical error

in filing [Eaddy’s] petition on September [15], 2021, well after the expiration

of his one-year period to file, entitles Eaddy to relief in itself.” Id. at 23. Eaddy

notes that, pursuant to Commonwealth v. Bradley, 261 A.3d 381 (Pa.

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2021), he is raising PCRA counsel’s ineffectiveness at the first opportunity.

See Appellant’s Brief at 5. However, Bradley does not specifically provide

Eaddy the relief he seeks: the opportunity to raise PCRA counsel’s

ineffectiveness during an appeal to satisfy a timeliness exception to the PCRA

filing restrictions.

The Bradley Court held that “a PCRA petitioner may, after a PCRA court

denies relief, and after obtaining new counsel or acting pro se, raise claims of

PCRA counsel’s ineffectiveness at the first opportunity to do so, even if on

appeal.” Bradley, 261 A.3d at 401 (footnote omitted). However, in Bradley,

the PCRA petition was timely filed. See id. at 384. As discussed, that is not

true here.

Importantly, Bradley does not stand for the proposition that a PCRA

petitioner can raise PCRA counsel’s ineffective assistance for the first time on

appeal in an attempt to satisfy the new-fact exception to the PCRA time bar.

As the Court in Bradley noted, “We decline to adopt the approach … that

would deem a petitioner’s ‘discovery’ of initial PCRA counsel’s ineffective

assistance to constitute a ‘previously unknown fact’ that was unknown to

petitioner, allowing such petitioner to overcome, in a successive petition, the

PCRA’s time bar provision under the ‘previously unknown fact’ exception. See

42 Pa.C.S. § 9545(b)(1)(ii). We have repeatedly rejected such an

understanding of the ‘new fact’ exception to the PCRA’s one-year time bar.”

Bradley, 261 A.3d at 404 n.18.

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It is undisputed that Eaddy’s PCRA petition was untimely filed, which

implicates the PCRA court’s and this Court’s jurisdiction. See Robinson, 837

A.2d at 1161. To circumvent the untimeliness of the petition, appellate PCRA

counsel has, for the first time, raised PCRA counsel’s ineffectiveness for failing

to timely file the petition. However, such claims in themselves have been held

not to establish the “previously unknown fact” exception to the PCRA’s time

restrictions. See Bradley, 261 A.3d at 404 n.18. Therefore, because no

exceptions to the PCRA’s time bar apply, we lack jurisdiction to address the

merits of Eaddy’s PCRA petition. See Robinson.

We further observe that Eaddy has relied upon our Supreme Court’s

decision in Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018), for the

overarching proposition that PCRA counsel’s failure to file the PCRA petition

within the statutory timeframe amounts to ineffectiveness per se, which

essentially entitles him to relief under the “previously unknown facts”

exception. See Appellant’s Brief at 22-23. While Peterson may provide Eaddy

an avenue to invoke an exception to the PCRA timeliness requirement, we are

constrained to conclude that such relief is not available at the current

procedural juncture of this case.

In Peterson, due to PCRA counsel’s miscalculation, the appellant filed

a first PCRA petition that was untimely by one day. See Peterson, 192 A.3d

at 1125. The PCRA court denied relief on the merits, but on appeal, this Court

affirmed on the alternative basis that Peterson’s PCRA petition was untimely.

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See Commonwealth v. Peterson, 538 WDA 2014 (Pa. Super. filed January

30, 2015) (unpublished memorandum). Peterson then filed a second PCRA

petition seeking reinstatement of his PCRA appellate rights based on first PCRA

counsel’s ineffectiveness for filing the first PCRA petition late. See id. The

PCRA court accepted the second PCRA petition as timely filed under the

“previously unknown facts” exception and granted Peterson the right to file a

nunc pro tunc appeal from his first PCRA petition. Peterson, 192 A.3d 1127.

This Court consolidated Peterson’s nunc pro tunc appeal with the

Commonwealth’s appeal from the order granting nunc pro tunc relief and

concluded that no exception applied. See Commonwealth v. Peterson, 141

WDA 2016, 181 WDA 2016 (Pa. Super. filed September 29, 2016)

(unpublished memorandum). As a result, this Court reversed the grant of a

nunc pro tunc appeal, and dismissed Peterson’s appeal as moot. See id.

Our Supreme Court reversed, reasoning that, by filing the first PCRA

petition late, initial PCRA counsel was ineffective per se, “as it completely

deprived [the appellant] of any consideration of his collateral claims under the

PCRA.” See Peterson, 192 A.3d at 1130. the Supreme Court concluded that

Peterson had successfully invoked the “previously unknown fact” exception to

permit the late filing of the second PCRA petition, as the PCRA court had made

the necessary factual findings to support the application of the exception. See

id. at 1132. Specifically, in Peterson, the PCRA court made “factual findings

that [the appellant] did not know about the untimely filing and could not have

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ascertained this fact through the exercise of due diligence.” See id. at 1130-

1131.

However, unlike the appellant in Peterson, Eaddy has not filed a second

PCRA petition, which would have allowed the PCRA court to address the

“previously unknown fact” timeliness exception as it pertains to PCRA

counsel’s late filing. Rather, when the PCRA court dismissed the petition as

untimely, it had not been presented with Eaddy’s claim that PCRA counsel was

ineffective.

While Bradley arguably allows us to remand to the PCRA court for a

hearing on Eaddy’s new claims of ineffectiveness, we believe the more

appropriate procedure is to affirm the PCRA court’s order and permit Eaddy to

file a second petition pursuant to Peterson. If we remand on this appeal, the

PCRA court could, but is not required to, conclude that Eaddy has satisfied the

previously unknown fact exception to the time bar. 4 No matter what decision

the PCRA court reached, this Court would then be presented with a wholly

different order to review on appeal. And in the event the PCRA court found

that Eaddy had established the timeliness exception, a new question would

arise: should the PCRA court then automatically address Eaddy’s substantive

claims that were raised for the first time on appeal?

4 Under Peterson, the only factual issue that still remains open would be whether Eaddy exercised due diligence in discovering PCRA counsel’s ineffectiveness.

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These issues are not insurmountable. However, for the sake of

procedural transparency and simplicity, we conclude the more appropriate

pathway to addressing Eaddy’s claims is through a second petition to be

addressed through the paradigm established by Peterson. Consequently,

because the PCRA court correctly interpreted the record and addressed the

issues before it, we affirm its order dismissing Eaddy’s petition as untimely.

This ruling is explicitly dependent on our conclusion that, under Peterson,

Eaddy has the right to file a second PCRA petition, where he is allowed an

opportunity to establish the “previously unknown fact” exception in relation to

his clam that PCRA counsel was per se ineffective.5

Order affirmed.

President Judge Emeritus Stevens joins the memorandum.

Judge King did not participate in the consideration or decision of this

case.

5 We would be remiss if we did not note that, in Eaddy’s response to the PCRA

court’s Rule 907 notice of intent to dismiss, PCRA counsel stated, “This PCRA was filed on September 15, 2021, within 365 days from the Record Remittal to Chester County Criminal Division.” Response to Rule 907 Notice, 2/20/22, at 1, ¶8. This statement reflects a misunderstanding on the part of PCRA counsel concerning the triggering of the PCRA timing deadline.

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Date: 11/20/2023

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