Com. v. McElveen, G.

• Court: Superior Court of Pennsylvania
• Decided: December 13, 2022
• Docket: 2602 EDA 2021
• Status: Unpublished

Opinion

J-S31030-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GREGG MCELVEEN : : Appellant : No. 2602 EDA 2021

Appeal from the PCRA Order Entered November 15, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008535-2015

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

MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 13, 2022

Appellant Gregg McElveen appeals from the order denying his first Post

Conviction Relief Act1 (PCRA) petition as untimely. Appellant argues that the

PCRA court erred in concluding that he failed to establish the newly discovered

fact exception to the PCRA time bar. We affirm.

The underlying facts and procedural history of this matter are well

known to the parties. Briefly, Appellant pled guilty to possession of a

prohibited firearm2 in 2016. On May 19, 2016, the trial court sentenced

Appellant to a term of four to ten years’ incarceration. Appellant filed a motion

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* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. § 6105(a)(1). J-S31030-22

for reconsideration, which the trial court denied on August 15, 2016.

Appellant did not file a direct appeal.

On September 25, 2020, Appellant filed a pro se PCRA petition. The

PCRA court appointed counsel who subsequently filed an amended petition on

Appellant’s behalf. Therein, PCRA counsel argued that trial counsel was

ineffective for failing to file a requested direct appeal and requested that the

trial court reinstate Appellant’s direct appeal rights nunc pro tunc. Am. PCRA

Pet., 2/15/21, at 2. PCRA counsel also filed a second amended petition in

which he reiterated the ineffectiveness claim against trial counsel and argued

that “[t]he discovery of counsel’s alleged ineffectiveness may form the basis

of [the Section] 9545(b)(1)(ii) exception to the PCRA time-bar.” Second Am.

PCRA Pet., 6/24/21, at 3. PCRA counsel also included a letter from members

of Appellant’s family who stated that Appellant had directed trial counsel to

file a direct appeal on his behalf. See id. at Ex. A.

On September 28, 2021, the PCRA court issued a Pa.R.Crim.P. 907

notice of intent to dismiss Appellant’s petition without a hearing. Therein, the

PCRA court explained that (1) Appellant’s petition was facially untimely; and

that (2) Appellant failed to establish the newly discovered fact exception to

the PCRA time bar. Rule 907 Notice, 9/28/21, at 1. That same day, PCRA

counsel sent a letter to the PCRA court alleging that Appellant discovered trial

counsel’s failure to file a direct appeal in 2017. On November 15, 2021, the

PCRA court issued an order dismissing Appellant’s PCRA petition.

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On November 29, 2021, Appellant filed a timely notice of appeal.3 The

PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement, and

Appellant did not file one. The PCRA court issued an order in lieu of a Rule

1925(a) opinion directing this Court to the dismissal order which set forth the

PCRA court’s reasons for dismissing Appellant’s petition as untimely.4

On appeal, Appellant raises a single issue for review: “Did the [PCRA]

court err by dismissing the PCRA petition?” Appellant’s Brief at 3.

Appellant argues that he successfully met the newly discovered fact

exception to the PCRA time bar. Id. at 8-11. Specifically, Appellant asserts

that “he instructed his defense counsel to file a direct appeal from his

sentence” and that “[h]e believed this was done and that his appeal was

denied.” Id. at 11. Further, Appellant argues that because he has been

incarcerated since his sentencing hearing, it has “hampered his ability to

determine if his case had been appealed.” Id. Therefore, Appellant concludes

that the PCRA court erred in denying his PCRA petition.

3 We note that Appellant filed a pro se notice of appeal while he was represented by PCRA counsel. Although hybrid representation is not permitted, this Court is required to docket a pro se notice of appeal, “even in instances where the pro se appellant was represented by counsel[.]” Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016) (citation omitted and formatting altered). Therefore, Appellant’s pro se notice of appeal does not affect our review.

4 On January 7, 2022, PCRA counsel filed a motion to withdraw as counsel and requested that the PCRA court appoint new counsel for purposes of Appellant’s PCRA appeal. However, the PCRA court did not rule on PCRA counsel’s motion. In any event, PCRA counsel remains Appellant’s attorney of record and has filed an appellate brief on Appellant’s behalf.

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Our review of the denial of PCRA relief is limited to “whether the record

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

decision is free of legal error.” Commonwealth v. Lawson, 90 A.3d 1, 4

(Pa. Super. 2014) (citations omitted).

“[T]he timeliness of a PCRA petition is a jurisdictional requisite.”

Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015) (citation

omitted). A PCRA petition, “including a second or subsequent petition, shall

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

petitioner pleads and proves one of three statutory exceptions. 42 Pa.C.S. §

9545(b)(1). A judgment of sentence becomes final for PCRA purposes “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. § 9545(b)(3).

Courts may consider a PCRA petition filed more than one year after a

judgment of sentence becomes final if the petitioner pleads and proves one of

the following three statutory exceptions:

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

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

must file a petition within one year of the date the claim could have first been

presented. See 42 Pa.C.S. § 9545(b)(2).5 Further, it is the petitioner’s

“burden to allege and prove that one of the timeliness exceptions applies.”

Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010) (citations

omitted and some formatting altered).

To establish the newly discovered fact exception to the PCRA time bar,

“the petitioner must establish that: 1) the facts upon which the claim was

predicated were unknown and 2) could not have been ascertained by the

exercise of due diligence.” Brown, 111 A.3d at 176-77 (citation omitted and

formatting altered). Due diligence requires that the petitioner take reasonable

steps to protect his own interests. Id. at 176. A petitioner raising this

exception “must explain why he could not have learned the new fact(s) earlier

with the exercise of due diligence.” Id. (citations omitted). However, Section

9545(b)(1)(ii) “does not require any merits analysis of an underlying after-

discovered-evidence claim.” Id. at 177 (citation and footnote omitted).

Here, the PCRA court concluded that Appellant failed to meet the

requirements for the newly discovered fact exception to the PCRA time bar.

Specifically, the PCRA court explained:

5 On October 24, 2018, the General Assembly amended Section 9545(b)(2) and extended the time for filing a petition from sixty days to one year from the date the claim could have been presented.

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[Appellant] asserts his [trial] counsel was ineffective in failing to file a notice of appeal, after [Appellant] asked him to do so. The time to raise his claim of ineffectiveness of counsel in failing to file an appeal ran one year and thirty days after the date of the denial of [Appellant’s] motion to reconsider sentence on August 15, 2016. [Appellant’s] pro se [PCRA] petition was not filed until October 1, 2020 - three (3) years late. To the extent [Appellant] was claiming a “new fact” exception to the PCRA, he was required to prove both (1) that the facts upon which the claim is predicated were unknown to you and (2) these facts could not have been ascertained by the exercise of due diligence. 42 Pa.C.S. § 9545(b)(1)(ii). Additionally, any petition invoking an exception to the PCRA time-bar must be filed within one year of the date the claim could have been presented. Id. at (b)(2). [Appellant] failed to allege facts sufficient to demonstrate that the exception is applicable to him, including when he discovered the appeal had not been filed, and why he was not able to ascertain through an exercise of reasonable diligence that the appeal had not been filed within the [twelve-month] period after denial of his motion to reconsider. Accordingly, the petition must be dismissed.

PCRA Ct. Order, 11/15/21, at 1.

Following our review of the record, we find no error in the PCRA court’s

conclusion that Appellant’s petition was facially untimely and that he failed to

establish an exception to the PCRA time bar. See Lawson, 90 A.3d at 4.

Therefore, we affirm on the basis of the PCRA court’s analysis of this issue.

See PCRA Ct. Order, 11/15/21, at 1. Accordingly, Appellant is not entitled to

relief.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/13/2022

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