Com. v. Schriver, K.

• Court: Superior Court of Pennsylvania
• Decided: February 16, 2023
• Docket: 610 MDA 2022
• Status: Unpublished

Opinion

J-S28036-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : KENZELL JAMES SCHRIVER : : Appellant : No. 610 MDA 2022

Appeal from the PCRA Order Entered March 17, 2022 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0001097-2014

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY KING, J.: FILED FEBRUARY 16, 2023

Appellant, Kenzell James Schriver, appeals from the order entered in

the Franklin County Court of Common Pleas, which denied as untimely his

second petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm.

The relevant facts and procedural history of this case are as follows. On

February 13, 2015, Appellant pled guilty to one count of rape of a child. On

July 1, 2015, the trial court found that Appellant was a sexually violent

predator (“SVP”) and sentenced him to ten to twenty years of imprisonment.

Appellant did not file a direct appeal.

On March 28, 2018, Appellant filed a pro se motion, which the trial court

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1 42 Pa.C.S.A. §§ 9541-9546. J-S28036-22

treated as a PCRA petition and appointed PCRA counsel. The court conducted

an evidentiary hearing and dismissed the PCRA petition as untimely on

September 24, 2018. Appellant did not appeal.

Appellant filed a second PCRA petition on October 27, 2021. The PCRA

court held a hearing on March 17, 2022. At the conclusion of the hearing, the

court entered an order finding that Appellant’s petition was untimely and did

not satisfy any of the exceptions to the PCRA time-bar. Appellant timely filed

a notice of appeal on Monday, April 18, 2022. The court subsequently ordered

Appellant to file a concise statement per Pa.R.A.P. 1925(b), and Appellant

complied on May 10, 2022.

Appellant raises one issue for our review:

Whether the PCRA Court erred in its Order of March 17, 2022 dismissing [Appellant’s] Petition for Post-Conviction Collateral Relief for lack of jurisdiction when [Appellant] provided sufficient evidence to prove the applicability of the timeliness exception pursuant to 42 Pa. Stat. and Cons. Stat. Ann. § 9545(b)(ii)?

(Appellant’s Brief at 4).

As the timeliness of a PCRA petition is separate from the merits of the

petitioner’s underlying claim, we must first determine whether the petition is

timely filed. Commonwealth v. Brensinger, 218 A.3d 440, 447-48

(Pa.Super. 2019) (en banc) (citing Commonwealth v. Stokes, 598 Pa. 574,

959 A.2d 306 (2008)). The timeliness of a PCRA petition is a jurisdictional

prerequisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016).

Pennsylvania law makes clear that no court has jurisdiction to hear an

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untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837

A.2d 1157 (2003). A PCRA petition shall be filed within one year of the date

the underlying judgment of sentence becomes final. 42 Pa.C.S.A. §

9545(b)(1). A judgment of sentence is deemed 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).

Instantly, the trial court sentenced Appellant on July 1, 2015. Appellant

did not file a direct appeal. Accordingly, Appellant’s judgment of sentence

became final 30 days later, on July 31, 2015. See Pa.R.A.P. 903(a). Hence,

Appellant had until July 31, 2016, to file a timely PCRA petition. Appellant

filed the instant PCRA petition on October 27, 2021, which is facially untimely.

See 42 Pa.C.S.A. § 9545(b)(1). Therefore, for the court to have jurisdiction

over Appellant’s claim, Appellant must prove he is eligible under one of the

three exceptions to the PCRA’s time-bar.

To obtain merits review of a PCRA petition filed more than one year after

the judgment of sentence became final, the petitioner must allege and prove

at least one of the three timeliness 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

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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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Additionally, a PCRA petitioner must file his

petition within one year of the date the claim could have been presented. See

42 Pa.C.S.A. § 9545(b)(2).

Here, Appellant attempts to invoke the “newly-discovered facts”

exception to the PCRA time-bar, claiming that he was previously unaware that

his prior PCRA counsel had failed to file an appeal on his behalf following the

denial of his first PCRA petition. Appellant insists that he asked counsel to file

an appeal after the court denied PCRA relief in September 2018, and was told

that such appeal would take about two years. Then, in August 2021, when he

had not yet heard anything about his appeal, Appellant asserts that he reached

out to this Court for a copy of his docket sheet. Appellant also asserts that he

asked family and friends to contact prior counsel; however, they could not

reach him. When this Court notified Appellant that no appeal had been filed,

Appellant maintains that he promptly filed the instant PCRA petition in October

2021. Appellant concludes that he exercised due diligence in discovering PCRA

counsel’s failure to file the appeal, and that the PCRA court erred by dismissing

his petition as untimely. We disagree.

To meet the “newly-discovered facts” timeliness exception set forth in

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Section 9545(b)(1)(ii), a petitioner must demonstrate “he did not know the

facts upon which he based his petition and could not have learned those facts

earlier by the exercise of due diligence.” Commonwealth v. Brown, 111

A.3d 171, 176 (Pa.Super. 2015), appeal denied, 633 Pa. 761, 125 A.3d 1197

(2015). “The focus of the exception is on [the] newly discovered facts, not

on a newly discovered or newly willing source for previously known facts.”

Commonwealth v. Burton, 638 Pa. 687, 704, 158 A.3d 618, 629 (2017)

(internal citation and quotation marks omitted). This Court has recognized

that appellate counsel’s failure to file a requested notice of appeal falls “within

the ambit of subsection (b)(1)(ii);” however, Appellant “must still prove that

it meets the requirements therein.” Commonwealth v. Bennett, 593 Pa.

382, 400, 930 A.2d 1264, 1274 (2007).

Due diligence requires that the petitioner “take reasonable steps to

protect his own interests.” Commonwealth v. Monaco, 996 A.2d 1076,

1080 (Pa.Super. 2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011)

(citations omitted).

However, it does not require “perfect vigilance nor punctilious care, but rather it requires reasonable efforts by a petitioner, based on the particular circumstances to uncover facts that may support a claim for collateral relief.” Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa.Super. 2017) (citation omitted). As such, “the due diligence inquiry is fact-sensitive and dependent upon the circumstances presented.” Id. (citation omitted). “A petitioner must explain why he could not have obtained the new fact(s) earlier with the exercise of due diligence.” Monaco[, supra] at 1080.

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Brensinger, supra at 449.

In Commonwealth v. Small, 662 Pa. 309, 238 A.3d 1267 (2020), our

Supreme Court made clear there is no longer a “public record presumption”

pursuant to which a court may find that information available to the public is

not a fact that was previously “unknown” to the petitioner. Nevertheless, the

Court clarified, “that [Appellant] is relieved of the public record presumption

does not mean that [Appellant] prevails.… The textual requirements of the

time-bar exception remain.” Id. at ___, 238 A.3d at 1286. Therefore,

“although Small eliminates the public record presumption, it does not

abrogate the requirement that petitioners perform due diligence to discover

the facts upon which their claim is predicated.” Commonwealth v. Keener,

No. 1165 WDA 2021, 2022 WL 2359373, at *4 (Pa.Super. June 30, 2022)

(unpublished memorandum).2

Here, the PCRA court conducted a hearing to ascertain whether

Appellant exercised due diligence in discovering that prior PCRA counsel had

not filed an appeal on Appellant’s behalf. At the hearing, Appellant testified

that he asked counsel to file an appeal from the denial of his first PCRA

petition. He then waited two years before investigating whether an appeal

had been filed because he was told that it would take two years for it to be

processed. (N.T. Hearing, 3/17/22 at 8-9). During the two-year interim

2 See Pa.R.A.P. 126(b) (stating we may rely on non-precedential decisions from this Court filed after May 1, 2019, for persuasive value).

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period, Appellant never reached out to his counsel himself, but claimed that

he had some family and friends try to call counsel to no avail. (Id. at 10).

After nearly three years had passed, Appellant wrote to the Prothonotary of

this Court to check on the status of his appeal and was told that one had not

been filed. (Id. at 12).

At the conclusion of the hearing, the PCRA court explained:

The testimony, accepting it at face value, is that counsel is instructed to file an appeal, [Appellant] assumed the appeal was filed, he assumed it would take two years, based on what [PCRA counsel] told him, and that he took no action or conducted any other investigation or otherwise monitored the appeal until the two-year period was up. And the action he took at that point was to try to communicate with [PCRA counsel] through family and friends. [Appellant] did not try to place phone calls to [PCRA counsel] and did not send him any letters.

There’s no evidence that he did any[] of those things directly to his attorney. There is no evidence before the [PCRA c]ourt that [Appellant] asked his family and friends to conduct any internet search regarding the status of the appeal or if he didn’t have access in the SCI or take other action to determine whether the appeal in fact had been filed, let alone contacting [PCRA counsel]. Did nothing to determine whether the appeal had been filed until he wrote the Superior Court Prothonotary almost [a] year later, which would be a total of three years after the PCRA had been denied. That, the [PCRA c]ourt finds, does not demonstrate due diligence.

…There was certainly lots of things [Appellant] could have done that he didn’t, but strictly looking at what he did do, wait the full two years before attempting to have contact with [PCRA counsel], waiting an additional year before contacting the Superior Court and/or this Court to determine the status of any appeal that had been filed, that’s just simply not due diligence. Due diligence required some reasonable modicum of effort, consistent with what an

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objective person would do under the circumstances.

We’ve taken into account…and we think it’s appropriate, the circumstances of [Appellant], which is he was incarcerated, had limited access to internet capabilities, a rudimentary understanding of how to look things up in the law library and those types of things, but even with that understanding, what he did do is not [exercise due diligence]. At a minimum, attempting communication directly with counsel has to be done. Counsel has no obligation to communicate with friends and family. It’s between the attorney and the client.

(Id. at 24-26).

We agree with the PCRA court’s analysis. Appellant has not established

that he exercised the required due diligence in determining whether counsel

had failed to appeal on his behalf. See Brensinger, supra; Monaco, supra.

Therefore, Appellant’s claim does not satisfy the newly-discovered fact

exception to the PCRA time bar. See Brown, supra. Consequently,

Appellant’s current PCRA petition remains time barred. See Zeigler, supra.

Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/16/2023

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