Com. v. Jones, S.

Opinion

J-S08033-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAWN JONES : : Appellant : No. 786 MDA 2021

Appeal from the PCRA Order Entered May 19, 2021 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005871-2016

BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED: JUNE 7, 2022

Shawn Jones (Appellant) appeals from the order entered in the Dauphin

County Court of Common Pleas, dismissing his first, counseled Post Conviction

Relief Act (PCRA) petition, as untimely filed 25 days beyond the general one-

year filing deadline.1 On appeal, Appellant avers: (1) the date of the

Pennsylvania Supreme Court’s denial of his petition for allowance of appeal,

on direct appeal, should be construed as the date it was entered as received

on the trial docket; (2) in the alternative, PCRA counsel provided ineffective

assistance for filing an untimely PCRA petition; and (3) his untimely filing

should be excused due to the 2020 COVID-19 pandemic statewide judicial

emergency. We affirm.

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1 42 Pa.C.S. §§ 9541-9546 (PCRA). See 42 Pa.C.S. § 9545(b)(1). J-S08033-22

Appellant was found guilty by a jury of first-degree murder and firearms

not to be carried without a license.2 On August 2, 2017, the trial court

imposed an aggregate sentence of life imprisonment without parole. Appellant

took a direct appeal, and this Court affirmed the judgment of sentence on

November 1, 2018. On April 16, 2019, the Pennsylvania Supreme Court

denied Appellant’s petition for allowance of appeal. Commonwealth v.

Jones, 1679 MDA 2017 (Pa. Super. Nov. 1, 2018) (unpub. memo.), appeal

denied, 786 MAL 2018 (Pa. Apr. 16, 2019).

For ease of review of this particular appeal, we first consider the PCRA

court’s calculation of Appellant’s general one-year PCRA filing deadline.

Following our Supreme Court’s denial of allowance of appeal, Appellant had

90 days, or until July 15, 2019, to seek certiorari with the United States

Supreme Court. See Sup.Ct.R. 13. When he did not, his judgment of

sentence became final for PCRA purposes on that day. See 42 Pa.C.S. §

9545(b)(3) (judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States, or

at the expiration of time for seeking the review). The PCRA court properly

found Appellant then generally had one year, until July 15, 2020, to file a

PCRA petition. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii) (PCRA petition shall be

filed within one year of the date the judgment becomes final, unless petition

2 18 Pa.C.S. §§ 2501(a), 6106(a)(1).

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alleges one of three timeliness exceptions); Trial Ct. Mem. Op., 12/1/20, at 8

(PCRA Ct. Op.).3 We further note any petition for habeas corpus relief is

governed by the PCRA time requirements. 42 Pa.C.S.A. § 9542.

On August 7, 2020, Appellant’s current counsel, Ilon Fish, Esquire (PCRA

Counsel), entered his appearance. Two days thereafter, on August 9th, PCRA

Counsel filed a petition for habeas corpus, raising claims of trial counsel’s

ineffectiveness, as well as a Brady4 violation. The petition claimed it was

timely filed, where (1) the “Supreme Court affirmed the Lower Court[’]s

decision” on “May 8, 2019;” and (2) “the Superior Court affirmed the Lower

Court[’]s rulings on May 13, 2019.”5 Appellant’s Petition for Habeas Corpus

Relief, 8/9/20 at 2. These dates are not, in fact, the correct filing dates of the

Superior Court’s and Supreme Court’s decisions, but rather the dates they

3This December 1, 2020, opinion was issued in support of the PCRA court’s Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s petition without a hearing.

4 Brady v. Maryland, 373 U.S. 83 (1963). “To succeed on a Brady claim, the defendant must show: (1) evidence was suppressed by the prosecution; (2) the evidence, whether exculpatory or impeaching, was favorable to the defendant; and (3) prejudice resulted.” Commonwealth v. Hannibal, 156 A.3d 197, 209 (Pa. 2016). But see 42 Pa.C.S. § 9543(a)(3) (PCRA petition must plead and prove allegation of error has not been waived); Hannibal, 156 A.3d at 209 (Brady claims were waived for PCRA review for failure to raise them at trial or on direct appeal).

5 PCRA Counsel further stated Appellant “had until August 11, 2020 to file a Petition to the Third Circuit Court of Appeals.” Appellant’s Petition for Habeas Corpus Relief at 2. He provided no explanation for this deadline nor the relevance of any federal court filing to this matter. See id.

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were entered as received by the PCRA court on the trial docket. See Criminal

Docket at 12-13. In any event, the correct filing dates were clearly set forth

within the docket entries, as a part of the title of the filings. Id. (“Supreme

Court Order 4/16/19 (786MAL2018);” “Superior Court Decision – 11/1/18

(1679MDA2017)”). This habeas corpus petition did not plead any of the

PCRA’s timeliness exceptions. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

Next, on September 3, 2020, PCRA Counsel filed a PCRA petition, which

did not explicitly acknowledge the lateness of the habeas corpus filing, but

nevertheless requested reinstatement of his “Appellate/Filing rights.” See

Appellant’s PCRA Petition, 9/3/20, at 3. PCRA Counsel argued that

“[u]nbeknownst to all parties,” the trial docket entry dates were incorrect. Id.

at 2. This petition likewise did not mention any of the Section 9545(b)(1)

timeliness exceptions, but instead vaguely averred, “Counsel files the within

PCRA requesting that time limitations for filing. [sic].”6 Id. Finally, the

petition stated the Commonwealth did not object to the requested relief.7 Id.

at 3.

6 However, this same petition also continued to argue the request for PCRA relief was “timely filed,” based on the same incorrect dates of the Superior Court’s and Supreme Court’s decisions and the unexplained “August 11, 2020 [deadline] to file a Petition to the Third Circuit Court of Appeals.” See Appellant’s PCRA Petition at 2.

7 On appeal, however, the Commonwealth argues the PCRA court properly dismissed the habeas corpus petition as untimely filed. Commonwealth’s Brief at 4.

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On December 1, 2020, the PCRA court issued Pa.R.Crim.P. 907 notice

of intent to dismiss the petitions without a hearing. The court did not reach

the merits of Appellant’s claims, but instead found the petitions were facially

untimely and failed to plead any of the timeliness exceptions. PCRA Ct. Op.

at 8-9.

Appellant did not file any response to the Rule 907 notice, and on May

19, 2021, the PCRA court entered the underlying order dismissing the petition.

Appellant filed a timely notice of appeal and the trial docket indicates he filed

a timely court-ordered Pa.R.A.P. 1925(b) statement of errors complained of

on appeal.8

Appellant presents six issues for our review:

1. Did the court err and abuse its discretion in failing to consider the PCRA petition as timely?

2. Did the court err and abuse its discretion in failing to approve the subsequent PCRA petition reinstating [Appellant’s] filing rights?

3. Did the court err and abuse its discretion in dismissing the PCRA petition where it was argued trial counsel was ineffective in failing to object to the trial court’s erroneous jury instructions?

4. Did the court err and abuse its discretion in dismissing the PCRA petition where it was argued that prosecutorial misconduct occurred due to a failure to turn over certain evidence?

8 The court issued a Rule 1925(b) order on July 6, 2021, directing Appellant to file a concise statement within 21 days. The certified electronic record does not include the statement, but the trial docket indicates Appellant filed one, timely, on July 27th.

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5. Did the court err and abuse its discretion in dismissing the PCRA petition where it was argued that trial counsel was ineffective in failing to cross examine certain witnesses regarding previous convictions and pending charges?

6. Did the court err and abuse its discretion in dismissing the PCRA petition where it was argued that trial counsel was ineffective for failing to request a cautionary instruction regarding 404(b) evidence?

Appellant’s Brief at 6-7.

“Our standard of review in PCRA appeals is limited to determining

whether the findings of the PCRA court are supported by the record and free

from legal error.” Commonwealth v. Spotz, 84 A.3d 294, 319 (Pa. 2014)

(citation omitted). “If a PCRA petition is untimely, courts lack jurisdiction over

the petition.” Commonwealth v. Woolstrum, 271 A.3d 512, 513 (Pa.

2022).

Appellant first avers the PCRA court abused its discretion in finding his

PCRA petition was untimely filed. He reiterates that the trial docket dates,

rather than the actual filing dates of the appellate courts’ decisions, should

govern, and thus his petition was timely filed. See Appellant’s Brief at 16

(“The final judg[ ]ment appearing on the Lower Court’s docket was a Superior

Court decision that was not timestamped, accepted, and docketed by the Clerk

of Courts until May 13th, 2019. . . . Therefore, judg[ ]ment in this matter

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was not final until May 13th, 2019 and Appellant filed his first PCRA petition

on August 9th, 2020 . . . within the one year and 90 days timeframe.”).9

Appellant then raises, for the first time, a claim of PCRA Counsel’s

ineffectiveness:

As an alternative, if the Court were to determine that undersigned counsel was ineffective in failing to file on time, the Superior Court recently held that defendants may bring new claims of ineffective PCRA counsel. Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021).

* * *

Any mistake made by [A]ppellant or undersigned counsel was inadvertent and the Commonwealth suffered no prejudice as a result of the 18 month delay. In fact, the Commonwealth was granted several extensions to file response to the PCRA petitions. In addition, due to the emergency, no evidentiary hearing would have been able to occur regardless if the Court had granted an evidentiary hearing or the petition.[10]

Id. at 16-17. Finally, Appellant argues, similarly for the first time, that the

COVID-19 pandemic statewide judicial emergency, declared in a Pennsylvania

Supreme Court’s March 16, 2020, order, “lasted throughout the entirety of

9This analysis is mistaken; even if the Superior Court decision were issued on May 13, 2019, the judgment of sentence would not, as PCRA Counsel believes, have become final that same day. Instead, the judgment of sentence would have become final when the 30-day appeal period to the Pennsylvania Supreme Court expired, or if applicable, the 90-day appeal period to the United States Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3).

10It is not clear, and Appellant does not explain, to what this “18 month delay” refers. See Appellant’s Brief at 16. Additionally, although Appellant provides no clarification of the term, “the emergency,” we surmise he is referring to the COVID-19 pandemic.

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the procedural history of this matter.” See id. at 13. We conclude no relief

is due.

First, we reject Appellant’s continued insistence that we should construe

the filing dates of the two direct appeal Courts’ decisions to be the dates they

were entered as received on the trial docket. Appellant provides no authority

to support this reasoning, and we have not discovered any. Furthermore,

PCRA counsel has provided no explanation, in the PCRA pleadings or on

appeal, why he was not able to review the Superior Court and Supreme Court

dockets for the correct filing dates. Accordingly, we agree with the PCRA

court’s finding that Appellant’s general one-year filing period ended on July

15, 2020, and his habeas corpus petition, filed 25 days later on August 9th,

was facially untimely. See PCRA Ct. Op. at 8. Furthermore, the habeas corpus

petition did not plead any timeliness exception.

We next review in detail Appellant’s September 3, 2020, PCRA petition.

This pleading likewise did not invoke any timeliness exception, but

nevertheless requested reinstatement of his “Appellate/Filing rights.” See

Appellant’s PCRA Petition, 9/3/20, at 3. Our Supreme Court has held that an

attorney’s untimely filing of a first PCRA petition, which results in the complete

foreclosure of collateral review is ineffective assistance per se, and can

support the pleading of the newly-discovered evidence exception.

Commonwealth v. Peterson, 192 A.3d 1123, 1130-31 (Pa. 2018), citing 42

Pa.C.S. § 9545(b)(1)(ii) (“the facts upon which the claim is predicated were

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unknown to the petitioner and could not have been ascertained by the exercise

of due diligence”). The PCRA court may accept the otherwise untimely petition

if it makes a finding of fact that the petitioner was unaware their attorney filed

an untimely petition, and could not have learned this information through the

exercise of due diligence. Id.; see also id., citing 42 Pa.C.S. § 9545(b)(2)

(petition invoking an exception shall be filed within one year of the date the

claim could have been presented).

Appellant’s September 3, 2020, PCRA petition, however, neither alleged

PCRA Counsel’s ineffective assistance nor invoked any of the timeliness

exceptions. Although we have not discovered published decisional authority

addressing this factual pattern, this Court has issued non-precedential

decisions11 consistently declining to extend Peterson to PCRA petitions that

did not plead the newly-discovered evidence exception. See

Commonwealth v. Baker, 1424 WDA 2019 (Pa. Super. Aug. 13, 2021)

(unpub. memo. at 6) (“[N]owhere did the Peterson Court excuse PCRA

petitioners from pleading and proving that counsel’s ineffectiveness was

unknown [and] could not have been discovered with the exercise of due

diligence.”); Commonwealth v. Lilly, 887 MDA 2020 (Pa. Super. Mar. 2,

2021) (unpub. memo. at 5) (judicial review of petitioner’s claim, that prior

11 See Pa.R.A.P. 126(b)(1)-(2) (non-precedential Superior Court decisions, filed after May 1, 2019, may be cited for their persuasive value).

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PCRA counsel was ineffective for failing to file appeal, was precluded because

petitioner did not invoke any PCRA timeliness exception). We thus conclude

the September 3rd PCRA petition was likewise untimely filed.12

We next address Appellant’s claim, raised for the first time on appeal,

that PCRA Counsel was ineffective for failing to file a timely PCRA petition.

Bradley 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. However, we note, the PCRA petition in Bradley

was timely filed. Id. at 384. Justice Dougherty’s concurring opinion pointed

out the Court was not “creat[ing] an exception to the PCRA’s jurisdictional

time-bar.” Id. at 406, Dougherty, J., concurring (“The majority’s holding, like

any holding, must be read against the facts of the case.”). As discussed

above, Appellant’s habeas corpus and PCRA petitions were untimely filed and

failed to plead any timeliness exception. Thus, Bradley is not applicable, and

no relief is due. In any event, Appellant has not, consistent with the holding

in Bradley, “obtain[ed] new counsel or act[ed] pro se.” See id. at 401. See

also id. at 398 (“counsel cannot argue [their] own ineffectiveness” as they

would have to “evaluate [their] own ineffectiveness, threatening [their]

12We note Appellant is not precluded from filing a second PCRA petition, after conclusion of this appeal, seeking relief from Peterson.

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livelihood and professional reputation”); Commonwealth v. Koehler, 36

A.3d 121, 132 (Pa. 2012) (counsel cannot raise their own ineffectiveness).

Finally, we reject Appellant’s reliance on the statewide judicial

emergency as a basis for relief. First, this claim is waived, as it was not raised

before the PCRA court, and instead raised for the first time on appeal. See

Commonwealth v. Bedell, 954 A.2d 1209, 1216 (Pa. Super. 2008) (claims

not raised in PCRA court are waived and cannot be raised for first time on

appeal).

Moreover, this Court recently rejected a similar claim in Woolstrum,

271 A.3d 512. In that case, the defendant had until May 14, 2020, to file a

timely PCRA petition, but he did not file one until June 16, 2020. Id. at 514.

He claimed the judicial emergency applied as an exception to the PCRA’s time

constraints. Id. at 515. On appeal, this Court explained:

Our Supreme Court filed an emergency order on March 16, 2020, which specified that “legal papers or pleadings . . . which are required to be filed between March 19, 2020, and May 8, 2020, generally shall be deemed to have been filed timely if they are filed by the close of business on May 11, 2020.

Id. at 514 (emphasis added). While the Supreme Court extended the

statewide judicial emergency on April 28, 2020, the Court specified its prior

time-for-filing provision remained in effect, with no corresponding extension

for later pleadings. See id. at 515. This Court reasoned that because the

defendant’s PCRA deadline fell after the extended May 11, 2020, deadline for

pleadings, the emergency order did not apply. Id. Accordingly, this Court

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concluded the defendant’s PCRA petition, which did not plead any timeliness

exceptions, was untimely. Id.

Analogously, here, Appellant generally had until July 15, 2020 — a date

even later than the one-year deadline in Woolstrum — to file a PCRA petition.

See Woolstrum, 271 A.3d 514. Accordingly, the Supreme Court’s COVID-

19 orders, which provided a filing extension to pleadings due by May 8th, did

not lend relief to Appellant. See id.at 515

For the foregoing reasons, we are constrained to agree with the PCRA

court that Appellant’s PCRA petition was untimely filed. The court thus lacked

jurisdiction to review the merits of his claims. See Woolstrum, 271 A.3d at

513. We reiterate that Appellant is not foreclosed from filing a second PCRA

petition, pro se or with new counsel, seeking relief under Peterson.13

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 06/07/2022

13 We offer no opinion on the merits of any such petition.

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