Com. v. Mixon, B.

• Court: Superior Court of Pennsylvania
• Decided: June 2, 2023
• Docket: 1391 MDA 2022
• Status: Unpublished

Opinion

J-S12010-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BETINA D. MIXON : : Appellant : No. 1391 MDA 2022

Appeal from the PCRA Order Entered October 3, 2022, in the Court of Common Pleas of Berks County, Criminal Division at No(s): CP-06-CR-0000737-2019.

BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED: JUNE 2, 2023

Betina D. Mixon appeals from the order denying her first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-

46. We are constrained to affirm.

The pertinent facts and partial procedural history may be summarized

as follows: On September 28, 2020, a jury convicted Mixon of two counts of

aggravated assault and related charges stemming from a fight she had with

another female. The next day, the trial court sentenced Mixon to an aggregate

term of 78 to 156 months of imprisonment. On October 5, 2020, Mixon filed

a post-sentence motion, which the trial court denied. Mixon appealed. On

June 15, 2021, this Court rejected Mixon’s claims and affirmed her judgment

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* Retired Senior Judge assigned to the Superior Court. J-S12010-23

of sentence. Commonwealth v. Mixon, 258 A.3d 527 (Pa. Super. 2021)

(non-precedential decision). Mixon did not seek further review.

The PCRA court described Mixon’s attempt to secure post-conviction

relief, the denial of her petition, and the resultant appeal, as follows:

On July 26, 2022, PCRA counsel filed the instant petition pursuant to the [PCRA]. The petition alleged ineffectiveness of trial counsel for failure to submit an alibi defense, as communicated by Mixon, and the failure [to call] character witnesses. Notably, the petition averred that Mixon’s judgment of sentence had been affirmed by the Superior Court on July 27, 2021 [(instead of June 15, 2021)]. This court, not immediately recognizing the discrepancy, scheduled the matter for an evidentiary hearing on September 29, 2022.

At the September 29, 2022, hearing, prior to the presentation of any evidence, the Commonwealth moved to dismiss the petition as untimely. Citing to the PCRA’s time restrictions, and the fact that the Superior Court had actually filed its memorandum opinion on June 15, 2021, the Commonwealth noted that the instant petition, filed July 26, 2022, is therefore facially untimely. PCRA counsel responded that he recognized the error and that the Superior Court’s filed [in the trial court] on July 27, 2021, but acknowledged the error in the petition. Accordingly, this court dismissed the petition as untimely.

That same day, Mixon, through [PCRA counsel] file a notice of appeal. In response to our concise statement order pursuant to Pa.R.A.P. 1925(b), Mixon alleged solely that “[Mixon’s] right to file a first PCRA petition should be reinstated as she is asserting ineffectiveness of PCRA counsel for failing to timely file a PCRA petition at the first possible opportunity, this appeal, and the ineffectiveness of [PCRA counsel] is plainly established in the record.”

We submit this opinion pursuant to Pa.R.A.P. 1925(a) and we implore the Superior Court to reinstate Mixon’s right to file a first PCRA petition.

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PCRA Court Opinion, 10/27/22, at 2 (capitalization adjusted; footnote and

citations omitted). The PCRA court then stated its agreement with Mixon that

PCRA counsel’s mistake constituted ineffectiveness per se and asked this

Court to “reinstate Mixon’s right to file a timely PCRA petition.” Id. at 3 (citing

Commonwealth v. Peterson, 192 A.3d 1123, 1132 (Pa. 2018)).

Mixon raises the following issue on appeal:

1. Whether [Mixon’s] right to file a first PCRA petition should be reinstated where the ineffectiveness of PCRA counsel in failing to timely file a first PCRA [petition] is plainly established in the record?

Mixon’s Brief at 5. For the reasons that follow, while we agree that Mixon is

entitled to relief, the remedy is not the reinstatement of her right to file a first

PCRA petition.

Mixon challenges the denial of her first attempt to obtain post-conviction

relief. Using the applicable standard of review, we must determine whether

the ruling of the PCRA court is supported by the record and is free of legal

error. Commonwealth v. Blakeney, 108 A.3d 739, 749-50 (Pa. 2014)

(citations omitted). We apply a de novo standard of review to the PCRA court’s

legal conclusions. Id.

Initially, we note the parties do not dispute that Mixon’s first PCRA

petition was untimely filed. The timeliness of a post-conviction petition is

jurisdictional. Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.

2013). Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

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becomes final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition is met.

The three narrow statutory exceptions to the one-year time bar are as

follows: “(1) interference by government officials in the presentation of the

claim; (2) newly discovered facts; and (3) an after-recognized constitutional

right.” Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)

(citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). In addition, exceptions to the PCRA’s

time bar must be pled in the petition and may not be raised for the first time

on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.

2007); see also Pa.R.A.P. 302(a) (providing that issues not raised before the

lower court are waived and cannot be raised for the first time on appeal).

Moreover, a PCRA petitioner must file his petition “within one year of date the

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

Finally, if a PCRA petition is untimely and the petitioner has not pled and

proven an exception “neither this Court nor the [PCRA] court has jurisdiction

over the petition. Without jurisdiction, we simply do not have the legal

authority to address the substantive claims.” Commonwealth v.

Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).

Here, Mixon’s judgment of sentence became final on July 15, 2021,

thirty days after this Court affirmed her judgment of sentence and the time

for filing a petition for allowance of appeal to our Supreme Court expired. See

42 Pa.C.S.A. § 9545(b)(3). Therefore, Mixon had until July 15, 2022, to file

a timely PCRA petition. Because Mixon filed her first petition on July 26, 2022,

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it is untimely unless she has satisfied her burden of pleading and proving that

one of the enumerated exceptions applies. See Hernandez, supra.

Mistakenly believing her first petition was timely, Mixon did not raise a

timeliness exception.

Relying on Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021),

Mixon asserts that she properly raised PCRA counsel ineffectiveness at her

first opportunity to do so in this appeal. Mixon’s reliance upon Bradley is

misplaced. In Bradley, our high 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). Unlike the

instant case, the PCRA petition at issue in Bradley was timely filed.

Moreover, in Bradley, although our Supreme Court held that a

defendant could raise a claim of PCRA counsel’s ineffectiveness for the first

time on appeal, our high court rejected a claim that the ineffectiveness of prior

PCRA counsel would satisfy the “new fact” time-bar exception. As our high

court explained:

We decline to adopt the approach, suggested by Appellee and Amicus Pennsylvania Innocence Project, that would deem a petitioner’s “discovery” of initial PCRA counsel’s ineffective assistance to constitute a “new fact” that was unknown to petitioner, allowing such petitioner to overcome, in a successive petition, the PCRA’s time bar provision under the “new fact” exception. See 42 Pa.C.S. § 9545(b)(1)(iii). We have repeatedly rejected such an understanding of the “new fact” exception to the PCRA’s one-year time bar. See Commonwealth v. Gamboa- Taylor, 562 Pa. 70, 753 A.2d 780, 785 (2000)(“[S]ubsequent

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counsel’s review of previous counsel’s representation and a conclusion that previous counsel was ineffective is not a newly discovered ‘fact’ entitling Appellant to the benefit of the exception for [newly]-discovered evidence.”); [Commonwealth v. Pursell, 749 A.2d 911, 916-17 (Pa. 2000)] (finding claim of ineffectiveness assistance of counsel layered upon a claim of trial counsel ineffectiveness was based upon facts that existed at the time of trial, and did not fall within the “new facts” exception to the time bar).

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

Here, Mixon’s first PCRA was untimely filed, and, therefore, the

jurisdiction of the PCRA court, as well as this Court is implicated. Derrickson,

supra. Although on appeal, PCRA counsel raises his own ineffectiveness for

mistaking the applicable filing deadline, as noted in Bradley, supra claims of

ineffectiveness historically have been found not to establish the “new fact”

exception to the PCRA’s time bar. Hence, we lack jurisdiction to reinstate

Mixon’s right to file a first PCRA petition. To hold otherwise, would be

essentially establishing a new equitable exception to the PCRA; something we

have no authority to do. See Commonwealth v. Harris, 972 A.2d 1196,

1200 (Pa. Super. 2009) (explaining that the PCRA confers no authority upon

the Superior Court to fashion ad hoc equitable to the PCRA time bar in addition

to those exceptions enumerated in the statute).

Prior to Bradley, however, our Supreme Court considered the proper

remedy for a PCRA petitioner whose post-conviction review was completely

foreclosed by PCRA counsel’s miscalculation of a filing deadline. In

Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018), after being

sentenced to consecutive life sentence for first-degree murder, Peterson filed

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a PCRA petition in 1997. Although the docket reflected that an evidentiary

hearing was scheduled, it never took place, and there was no further activity

in the case for over a decade. Ultimately, after holding hearings in 2013, the

PCRA court dismissed the petition on its merits. On appeal, this Court quashed

the appeal because it had been filed one day beyond the PCRA’s applicable

timeliness requirements. See Commonwealth v. Peterson, 118 A.3d 459

(Pa. Super. 2015)(non-precedential decision).

Peterson then filed a second petition, seeking the reinstatement of his

PCRA appellate rights, nunc pro tunc, based on initial PCRA counsel’s

ineffectiveness for filing his first petition one day late, so that he could

challenge the order dismissing his first PCRA petition. The PCRA court held

an evidentiary hearing, and based on its factual findings, determined that

Peterson’s second petition was timely because he essentially established the

“new fact” time-bar exception to the PCRA. The PCRA court then denied

Peterson post-conviction relief for the same reasons it had denied his first

Peterson appealed the denial of relief to this Court and the

Commonwealth cross-appealed the PCRA court’s determination that

Peterson’s second PCRA petition was timely filed. We granted the

Commonwealth’s cross-appeal and ruled that Peterson’s second petition was

untimely. See Commonwealth v. Peterson, 158 A.3d 191 (Pa. Super.

2016) (non-precedential decision). In so doing, we distinguished our Supreme

Court’s previous decision in Commonwealth v. Bennett, 930 A.2d 1264 (Pa.

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2007), in which our high court found that counsel’s abandonment of a PCRA

petitioner, thereby completely foreclosing post-conviction review, satisfied the

“new fact” exception to the PCRA’s time bar. This Court noted that Peterson’s

counsel did not “abandon” him because counsel filed, albeit late, a first PCRA

petition on Peterson’s behalf. Id. In addition, while we acknowledged the

harsh result, we emphasized that the PCRA did not permit us “to fashion ad

hoc exceptions to the PCRA time-bar.” Id. (quoting Commonwealth v.

Watts, 23 A.3d 980, 983 (Pa. 2011)).

Our Supreme Court granted discretionary review and reversed this

Court’s quashal of Peterson’s second petition on timeliness grounds. Our high

court ruled that counsel’s untimely filing of Peterson’s first PCRA petition

constituted ineffectiveness per se, “as it completely deprived Peterson of any

consideration of his collateral claims under the PCRA. Peterson, 192 A.3d at

1132. Additionly, our high court held that counsel’s ineffectiveness per se in

the late filing of Peterson’s first petition was a newly discovered “fact” under

Section 9545(b)(1)(ii), because the PCRA court had already made factual

findings that Peterson did not know about the untimely filing and could not

have ascertained this fact through the exercise of due diligence. Peterson,

192 A.3d at 1130-31. Thus, our Supreme Court concluded Peterson could

invoke the new fact exception to permit the filing of his second PCRA petition

beyond the one-year time bar.

As summarized above, in Peterson, the PCRA court had already

considered Peterson’s second petition to be timely filed. Here, by contrast,

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Mixon has yet to file a second PCRA petition, as the mistake in filing her first

petition was discovered, the petition was dismissed as untimely, and this

appeal was taken. Here, because the first and only PCRA petition was

untimely filed, we have no jurisdiction to reinstate Mixon’s right to file a first

PCRA petition. Derrickson, supra. Nonetheless, although we affirm the

PCRA court’s order denying Mixon’s first PCRA petition, Peterson provides

Mixon the opportunity to file a second petition beyond the one-year filing

deadline and invoke the new fact exception based on PCRA counsel’s

ineffectiveness per se.1

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 06/02/2023

1 We note that should PCRA counsel file the second PCRA petition he will be asserting his own ineffectiveness. Although generally counsel cannot do so, new counsel need not be appointed when it is clear from the record that counsel was ineffective. Commonwealth v. Ciptak, 665 A.2d 1161, 1162 (Pa. 1995). The facts of this case present such a scenario. Further, although the filing of a second petition may seem a waste of judicial resources, we are unable to proceed otherwise.

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