Com. v. Lattimer, R.

• Court: Superior Court of Pennsylvania
• Decided: July 21, 2021
• Docket: 2049 MDA 2019
• Status: Unpublished

Opinion

J-A07028-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RUSSELL EARL LATTIMER : : Appellant : No. 2049 MDA 2019

Appeal from the PCRA Order Entered December 5, 2019 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000546-2012

BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED: JULY 21, 2021

Appellant, Russell Earl Lattimer, appeals pro se from the December 5,

2019 Order entered in the Bradford County Court of Common Pleas,

dismissing his second Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-46, as untimely. After careful review, we vacate

and remand.

The relevant facts and procedural history are as follows. In 2012, the

Commonwealth charged Appellant with committing numerous sexual offenses

against victims including his biological daughter and four daughters of his

paramour. A jury convicted Appellant of Rape, Aggravated Indecent Assault,

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* Former Justice specially assigned to the Superior Court. J-A07028-21

Intimidation of Witnesses, Statutory Sexual Assault, and Indecent Assault. 1, 2

On April 2, 2013, the trial court imposed an aggregate sentence of 36 years

and 2 months to 83 years of incarceration.3 On August 1, 2014, this Court

affirmed Appellant’s Judgment of Sentence. See Commonwealth v.

Lattimer, 106 A.3d 149 (Pa. Super. 2014) (unpublished memorandum). On

January 14, 2015, the Pennsylvania Supreme Court denied Appellant’s Petition

for Allowance of Appeal. See Commonwealth v. Lattimer, 106 A.3d 725

(Pa. 2015). Appellant did not seek review by the United States Supreme

Court.

On December 4, 2015, Appellant filed pro se a timely first PCRA Petition,

asserting that his constitutional rights had been violated, that the trial court

lacked jurisdiction over him, and raising newly-discovered exculpatory

evidence and ineffective assistance of counsel claims. PCRA Petition, 12/4/15,

at 2. On December 28, 2015, the PCRA court appointed Andrew G. Hutz,

Esquire, to represent Appellant, who, on April 22, 2016, filed an Amended

1 18 Pa.C.S. §§ 3121(a)(2), 3125(a)(7), 4952(a)(2), 3122.1, and 3126(a)(7),

respectively.

2 The Commonwealth also charged Appellant with sexual offenses at Docket

No. 549-2012. Following a consolidated trial, the jury convicted Appellant of Rape, Aggravated Indecent Assault, three counts of Indecent Assault, and Sexual Assault at Docket Number 549-2012. The instant appeal concerns the dismissal of Appellant’s PCRA Petition filed at Docket 546-2012 only.

3This aggregate sentence is comprised of Appellant’s sentences at Docket Nos. 546-2012 and 549-2012.

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PCRA Petition, which raised the same newly-discovered evidence and

ineffective assistance of counsel claims.

On May 12, 2016, the PCRA court filed a notice of its intent to dismiss

Appellant’s PCRA Petition without a hearing pursuant to Pa.R.Crim.P. 907. On

May 23, 2016, Appellant, who was still represented by Attorney Hutz, filed a

pro se Response to the Rule 907 Notice in which he asserted, inter alia, that

Attorney Hutz had abandoned him. Appellant requested additional time to

amend his PCRA petition pro se. On June 29, 2016, the PCRA court dismissed

Appellant’s Petition.4

A Notice of Appeal was sent to the chambers of the PCRA court, but not

filed with the Bradford County Clerk of Courts. As a result of receiving a Notice

of Appeal in chambers, on August 19, 2016, the PCRA court issued an Order

directing Appellant to file a Rule 1925(b) Statement.5, 6

4 Later that same day, Attorney Hutz filed a Response to the Rule 907 Notice

in which he argued that Appellant’s substantive claims had merit and disputed that his ineffective assistance of counsel claim was untimely, noting that Appellant had filed his December 1, 2015 PCRA Petition within one year of the Pennsylvania Supreme Court denying his Petition for Allowance of Appeal on February 9, 2015.

5 Because a copy of the Notice of Appeal was not provided to the Bradford County Clerk of Courts, however, the Notice of Appeal does not appear on the lower court’s docket or in the certified record.

6 However, on December 23, 2016, the PCRA court entered an Order vacating

its August 19, 2016 Order directing Appellant to file a Rule 1925(b) Statement because “although [Appellant] mailed a [N]otice of [A]ppeal to the court, a [N]otice of [A]ppeal was never filed with the Clerk of Court.” Order 12/23/16.

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On October 25, 2016, the PCRA court issued a Memorandum Statement

pursuant to Pa.R.A.P. 1925(a) indicating that, as of that date, Appellant had

not complied with its Order to file a Rule 1925(b) Statement.7

On November 28, 2016, Appellant filed pro se the instant, untimely,

PCRA Petition, his second. In this Petition, Appellant raised claims similar to

those asserted in his first PCRA Petition and also alleged that Attorney Hutz

had been ineffective for abandoning him by, inter alia, not filing an appeal

from the June 29, 2016 Order dismissing Appellant’s first PCRA Petition or a

Rule 1925(b) Statement in accordance with the court’s August 19, 2016

Order.8 Petition, 11/28/16, at unpaginated 3 (asserting that counsel “had a

mandatory responsibility to file a Rule 1925(b) [Statement] and Notice of

Appeal, and to pursue an appeal but refused to do so.”), unpaginated 4.

On March 6, 2018, Appellant filed a Supplement to his November 28,

2016 PCRA Petition seeking reinstatement of his appellate rights nunc pro tunc

and the appointment of new counsel as a result of Attorney Hutz’s alleged

ineffectiveness. On July 10, 2018, the PCRA court appointed Richard Jennings,

Esquire, to represent Appellant. On September 18, 2019, the PCRA Court

directed Attorney Jennings to file an Amended PCRA Petition. Attorney

7 The lower court docket indicates that the clerk of court served both Appellant

and his counsel with a copy of this Order.

8 Appellant did not aver that he had asked counsel to file an appeal on his behalf.

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Jennings did not comply with the PCRA court’s Order to file an Amended

Petition.

On October 24, 2019, the PCRA court filed a notice of its intent to

dismiss Appellant’s PCRA Petition without a hearing pursuant to Rule. 907.

The court indicated that it had reviewed Appellant’s Petition and concluded

that there were no genuine issues concerning any material fact and that

Appellant failed to allege grounds to overcome the PCRA’s one-year

jurisdictional time bar.

On November 7, 2019, Appellant pro se filed a Response to the court’s

Rule 907 Notice. In it, he requested leave to file an Amended PCRA petition,

asserted that he had timely raised Attorney Hutz’s ineffectiveness as an

exception to the PCRA’s time-bar, and claimed that Attorney Jennings, who

still represented him, had abandoned him and been ineffective by, inter alia,

failing to file an Amended PCRA Petition as ordered by the court.

On December 4, 2019, the PCRA Court dismissed the instant Petition.

Relevantly, the court indicated that Appellant’s pro se Response to the court’s

Rule 907 Notice failed to suggest the existence of any facts that would

overcome the PCRA’s jurisdictional time bar.

On December 18, 2019, both Attorney Jennings and Appellant filed

Notices of Appeal.9

Appellant raises the following issues in his pro se Brief: ____________________________________________

9 On February 11, 2020, the PCRA court held a Grazier hearing, after which

it permitted Appellant to proceed pro se.

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1. Did the PCRA court err in denying Appellant’s PCRA asserting Appellant failed to suggest the existence of any facts which would overcome the [PCRA’s] one year time bar and where Appellant alerted the PCRA court of a defect to allow it to discern the potential for amendment where Appellant requested leave to amend pursuant to Pa.R.Crim.P. 905(A) and Commonwealth v. Rykard, 55 A.3d 1177 (Pa. Super. 2012), which was sufficient to warrant relief?

2. Did PCRA counsel, Richard Jennings, render ineffective assistance of counsel for failing to amend Appellant’s PCRA Petition as ordered on September 18, 2019, thus abandoning Appellant in the PCRA proceeding(s) rendering the proceeding(s) uncounseled pursuant to Commonwealth v. Hampton, 718 A.2d 1250, 1253 (Pa. Super. 1998), and in violation of the rule based right to counsel pursuant to Pa.R.Crim.P. 904(F)(2) and Commonwealth v. Albrecht, 720 A.2d 693, 699-700 (Pa. 1998)?

3. Did the PCRA court err in dismissing Appellant’s uncounseled PCRA [Petition]?

4. Did the PCRA court err when it refused to consider Appellant’s objection/response to the PCRA court’s 907 Notice of Intent to Dismiss due to hybrid representation where Appellant raised PCRA counsel’s ineffectiveness at the stage where he was required to pursuant to Commonwealth v. Pitts, [], 981 A.2d 875 (Pa. 2009); Commonwealth v. Henkel, 90 A.3d 16 (Pa. Super. 2014); and Pa.R.Crim.P. 907(1)?

Appellant’s Brief at 4 (reordered for ease of disposition, some capitalization

and suggested answers omitted).

Our standard of review is well settled. “When reviewing the denial of a

PCRA petition, we must determine whether the PCRA court’s order is

supported by the record and free of legal error.” Commonwealth v. Smith,

181 A.3d 1168, 1174 (Pa. Super. 2018) (citation omitted). While we are

generally bound by a PCRA court’s credibility determinations, we apply a de

novo standard of review to the court’s legal conclusions. Id.

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“A PCRA petition, including a second or subsequent one, must be filed

within one year of the date the petitioner’s judgment of sentence became final,

unless he pleads and proves one of the three exceptions outlined in 42 Pa.C.S.

§ 9545(b)(1).” Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012). A

judgment of sentence becomes final at the conclusion of direct review, or at

the expiration of time for seeking such review. Id. at 17.

Here, our Supreme Court denied Appellant’s Petition for Allowance of

Appeal on January 14, 2015. Therefore, his Judgment of Sentence became

final on April 14, 2015, when the 90-day period for filing a Petition for Writ of

Certiorari with the United States Supreme Court expired. See 42 Pa.C.S. §

9545(b)(3). Accordingly, Appellant was required to file his PCRA Petition by

April 14, 2016. Because Appellant filed the instant Petition on November 26,

2016, it is patently untimely.

However, Pennsylvania courts may consider a PCRA petition filed more

than one year after a judgment of sentence becomes final if the appellant

pleads and proves one of the exceptions to the PCRA’s one-year time-bar.

The PCRA provides three exceptions to its time-bar:

(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;

(ii) 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; or

(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court

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of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). A petitioner asserting one of these exceptions

must file a petition within 60 days of the date the claim could have first been

presented. See 42 Pa.C.S. § 9545(b)(2).10 The petitioner must plead any

exception to the time-bar in the petition, and cannot raise an exception for

the first time on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.

Super. 2007).

“The PCRA’s timeliness requirements are jurisdictional; therefore, a

court may not address the merits of the issues raised if the petition was not

timely filed.” Jones, 54 A.3d at 17. “The PCRA squarely places upon the

petitioner the burden of proving an untimely petition fits within one of the

three exceptions.” Id.

In his Petition, Appellant indicated that “governmental interference”

resulted in his failure to timely raise his claim. In particular, Appellant

asserted that “[t]rial counsel refused to challenge the Commonwealth’s

prosecuting Petition in violation of 42 Pa.C.S.§ 5552(b.1) 11 and that PCRA

10 On October 24, 2018, the General Assembly amended section 9545(b)(2)

of the PCRA statute to expand the time for filing a petition from 60 days to one year from the date the claim could have been presented. See 2018 Pa. Legis. Serv. Act 2018-146, effective December 24, 2018. Importantly, the amendment applies only to claims arising on or after December 24, 2017. See id. Here, Appellant filed his petition before that date, on November 26, 2016. As a result, the 60-day period applies.

11 Section 5552(b.1) requires that the Commonwealth commence a prosecution for “major sexual offenses” within 12 years of commission of the offense.

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counsel refused to amend the [P]etition to challenge the violation.” PCRA

Petition, 11/28/16 at 3. Appellant did not further develop this assertion by

explaining how a governmental official interfered with his timely presentation

of this claim or how Section 5552(b.1) applied to his case.

In his November 7, 2019 pro se Response to the PCRA court’s Rule 907

Notice, Appellant raised the newly-discovered facts exception to the PCRA’s

time-bar. Appellant stated that he raised his ineffective assistance of counsel

claim untimely because it was previously unknown to him. Response, 11/7/19

at 2 (citing 42 Pa.C.S. § 9545(b)(1)(ii)). He explained that he learned on

October 25, 2016, when the PCRA court issued its Memorandum Statement

pursuant to Pa.R.A.P. 1925(a), that Attorney Hutz had been ineffective by

failing to file a court-ordered Rule 1925(b) Statement and, thus, failed to

preserve Appellant’s right to appeal from the denial of Appellant’s first PCRA

Petition. Id. at 3-4. Appellant asserted that he timely filed the instant PCRA

Petition 34 days later, within 60 days of the date he could have presented his

claim. Id.

A PCRA petitioner can invoke the newly-discovered facts exception

outlined in Section 9545(b)(1)(ii) if he can establish that the facts upon which

his claim is predicated were unknown to him and could not have been

discovered through the exercise of due diligence. Commonwealth v

Bennett, 930 A.2d 1264, 1272 (Pa. 2007).

Further, discovery that prior counsel was allegedly ineffective generally

is not a “newly discovered fact” which would satisfy the unknown “facts”

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exception to the PCRA’s time bar.12 Commonwealth v. Gamboa-Taylor,

753 A.2d 780, 785-86 (Pa. 2000). A narrow exception to this general rule

exists where counsel has been per se ineffective and the defendant pleads and

proves the applicability of this exception, set forth at 42 Pa.C.S. §

9545(b)(1)(ii), in a subsequent PCRA petition. Commonwealth v.

Peterson, 192 A.3d 1123, 1130 (Pa. 2018) (citing Bennett, 930 A.2d at

1273). In all circumstances, a petitioner must also plead and prove that he

acted with due diligence by filing the subsequent petition within 60 days of

learning of the claim. Peterson, 192 A.3d at 1130-31, 42 Pa.C.S. §

9545(b)(2).

Appellant first claims that the PCRA court erred in finding that Appellant

had not overcome the PCRA’s time-bar. Appellant’s Brief at 18, 21-22. We

agree.

Appellant pleaded in his Response to the court’s Rule 907 Notice that he

had satisfied the newly-discovered facts exception to the time-bar. In

particular he asserted that, due to Attorney Hutz’s inaction, Appellant had lost

the right to appeal from the denial of his first PCRA Petition, that Appellant

learned of this on October 25, 2016, and that he timely filed a second PCRA

12 Appellant asserted in his November 28, 2016 PCRA Petition that “governmental interference” resulted in his failure to timely raise his ineffective assistance of counsel claim. Claims relating to ineffectiveness of counsel do not, however, qualify as governmental interference because 42 Pa.C.S. § 9545(b)(4) provides that defense counsel are not considered governmental officials. Commonwealth v. Abu-Jamal, 833 A.2d 719, 725 (Pa. 2003).

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Petition raising a claim that Attorney Hutz was ineffective within 60 days.

Nevertheless, the PCRA court declined to hold a hearing and concluded that

Appellant had not “suggest[ed]” the existence of any facts that would

overcome” the PCRA’s jurisdictional time bar. Order, 12/4/19.

Following our review, we conclude that the record does not support the

PCRA court’s finding that Appellant did not plead facts that would satisfy the

exception set forth at Section 9545(b)(1)(ii). Moreover, our review of the

record confirms the facial accuracy of the facts pled. Thus, we conclude that

the PCRA court erred in finding that it lacked jurisdiction to consider

Appellant’s claim that Attorney Hutz was ineffective by failing to preserve

Appellant’s right to appeal from the denial of Appellant’s first PCRA Petition.

Accordingly, we vacate and remand for the court to consider Appellant’s claim

of ineffectiveness.

Order vacated. Case remanded. Jurisdiction relinquished.

President Judge Emeritus Stevens joins the memorandum.

Judge Bowes files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/21/2021

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