Com. v. Shears, D.

• Court: Superior Court of Pennsylvania
• Decided: January 10, 2023
• Docket: 670 WDA 2022
• Status: Unpublished

Opinion

J-S36043-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAARON ANTHONY SHEARS : : Appellant : No. 670 WDA 2022

Appeal from the PCRA Order Entered August 10, 2022 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0001660-2011

BEFORE: STABILE, J., KING, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: JANUARY 10, 2023

Appellant, Daaron Anthony Shears, appeals pro se from the order

entered in the Fayette County Court of Common Pleas (trial court), which

dismissed his sixth petition filed pursuant to the Post Conviction Relief Act

(PCRA)1 without a hearing as untimely. We affirm.

On July 13, 2012, a jury convicted Appellant of rape, sexual assault, and

statutory sexual assault. The trial court sentenced Appellant on November 2,

2012, to a mandatory minimum term of 10 to 20 years’ incarceration for the

rape conviction, pursuant to 42 Pa.C.S. § 9718. The court imposed a

consecutive term of 3 months to 10 years’ incarceration for sexual assault and

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* Retired Senior Judge assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541–9546. J-S36043-22

no further penalty for statutory sexual assault. Appellant filed a post-sentence

motion on November 6, 2012. On November 8, 2012, the court amended the

sentence to impose a consecutive term of 3 months to 10 years’ incarceration

for statutory sexual assault and no further penalty for sexual assault.

Appellant filed a notice of appeal on December 11, 2012, which this Court

quashed as untimely on May 23, 2013. Commonwealth v. Shears, No. 1954

WDA 2012, unpublished order (Pa. Super. filed May 23, 2013). Appellant did

not file a petition for allowance of appeal.

On September 10, 2014, Appellant filed a pro se first PCRA petition. The

PCRA court appointed counsel, who filed an amended PCRA petition on January

6, 2015. Following a hearing, the court dismissed this PCRA petition as

untimely on June 2, 2015. On October 14, 2015, this Court affirmed the

dismissal of that PCRA petition. Commonwealth v. Shears, No. 937 WDA

2015, unpublished judgment order (Pa. Super. filed October 14, 2015). On

September 19, 2016, the Pennsylvania Supreme Court denied Appellant’s

petition for allowance of appeal from that order. Commonwealth v. Shears,

158 A.3d 67 (Pa. 2016).

On April 30, 2018, Appellant filed a second PCRA petition and filed three

additional PCRA petitions between that date and November 8, 2019. On March

9, 2020, the trial court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

these PCRA petitions without a hearing, and Appellant filed a response to this

Rule 907 notice on March 16, 2020. On August 6, 2020, the trial court entered

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an order dismissing Appellant’s second, third, fourth, and fifth PCRA petitions.

Appellant appealed that order, arguing that those PCRA petitions allegedly

presented meritorious claims that he was entitled to a new trial based on after-

discovered exculpatory evidence, that his trial and direct appeal counsel were

ineffective, that the trial court lacked jurisdiction because the crime allegedly

did not occur in Fayette County, and that the prosecutor’s peremptory

challenges in jury selection violated Batson v. Kentucky, 476 U.S. 79

(1986). On December 21, 2021, this Court affirmed the dismissal of

Appellant’s second, third, fourth, and fifth PCRA petitions on the ground that

they were all barred as untimely. Commonwealth v. Shears, No. 984 WDA

2020 (Pa. Super. filed December 21, 2021) (unpublished memorandum).

On February 18, 2022, Appellant filed the instant sixth PCRA petition, in

which he asserted a claim that the trial court’s dismissal of his first PCRA as

untimely was based on false information provided by the Commonwealth and

also reasserted the same claims as his second through fifth PCRA petitions.

2/18/22 PCRA Petition at 4. On May 27, 2022, the trial court entered a Rule

907 notice of its intent to dismiss this PCRA petition without a hearing on the

ground that it was time-barred, and Appellant filed no response to this Rule

907 notice. On August 10, 2022, the trial court dismissed Appellant’s 2022

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PCRA petition. Trial Court Order, 8/10/22. Appellant has timely appealed that

order.2

Appellant raises as issues in this appeal both the argument that the trial

court erred in holding that the 2022 PCRA petition was time-barred and the

same claims that he raised in his appeal from the dismissal of his second

through fifth PCRA petitions.3 We conclude that Appellant has failed to satisfy

any exception to the PCRA’s time bar and therefore affirm the dismissal of his

2022 PCRA petition without reaching the merits of the substantive PCRA claims

that he again seeks to raise.

The PCRA provides that “[a]ny petition under this subchapter, including

a second or subsequent petition, shall be filed within one year of the date the

judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A PCRA petition may be

filed beyond the one-year time period only if the convicted defendant pleads

and proves one of the following three exceptions:

2 Appellant filed his appeal prematurely on May 31, 2022 in response to the trial court’s Rule 907 notice. Because the order dismissing Appellant’s 2022 PCRA petition was subsequently entered on August 10, 2022, his appeal is timely and is properly before us. Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof”). 3 Indeed, 5 of the 11 pages in the argument section of Appellant’s brief in this appeal are copies of pages from the argument section of his brief in his appeal from the dismissal of his second through fifth PCRA petitions and at least 3 other pages of his argument section contain large amounts of material from that prior brief.

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(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.

Id. In addition, these exceptions can apply only if Appellant filed the PCRA

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

42 Pa.C.S. § 9545(b)(2). The PCRA’s time limit is jurisdictional, and a court

may not ignore it and reach the merits of an untimely PCRA petition.

Commonwealth v. Fahy, 737 A.2d 214, 222-23 (Pa. 1999);

Commonwealth v. Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019);

Commonwealth v. Pew, 189 A.3d 486, 488 (Pa. Super. 2018).

Appellant's judgment of sentence became final on December 10, 2012,

upon expiration of the 30-day period to file an appeal to this Court.4 42

Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a); Whiteman, 204 A.3d at 450. The

instant PCRA petition was filed more than nine years after the judgment

became final and is therefore untimely unless Appellant alleged and proved

4The 30-day period extended to December 10, 2012 because the thirtieth day, December 8, 2012, was a Saturday.

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one of the three limited exceptions set forth in Sections 9545(b)(1)(i)-(iii) and

he filed this PCRA petition within one year after he first could have done so.

The only exceptions to the PCRA’s time bar that Appellant asserts are

the exception for newly discovered facts and the exception for government

interference. 2/18/22 PCRA Petition at 3, 8; Appellant’s Brief at 7-9, 11.

Neither of these exceptions is satisfied here.

The newly discovered facts exception applies only where the convicted

defendant shows both that he did not know the facts upon which he bases his

PCRA petition and that he could not have learned of those facts earlier by the

exercise of due diligence. 42 Pa.C.S. § 9545(b)(1)(ii); Commonwealth v.

Sanchez, 204 A.3d 524, 526 (Pa. Super. 2019). Merely showing that the

defendant did not learn of facts until shortly before the PCRA petition was

filed, without any allegations and proof of timely efforts or inability to discover

that information earlier, is insufficient to satisfy Section 9545(b)(1)(ii)’s

exception for newly discovered facts. Sanchez, 204 A.3d at 526-27; Pew,

189 A.3d at 489-90.

Here, the only facts that Appellant has asserted that he discovered in

the year prior to this 2022 PCRA petition are facts concerning dates that he

was in certain restricted prison housing in 2013, which allegedly prevented

him from filing a timely first PCRA petition. 2/18/22 PCRA Petition at 3-4 &

Exs. A & B. Although Appellant attached to his 2022 PCRA petition inmate

request forms showing that he received this information on January 6 and

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February 4, 2022, id. Exs. A & B, he has not made any showing as to when

he first attempted to obtain this information or that he could not have obtained

it years earlier. Indeed, the documents that he attached to show this newly

discovered information indicate that he requested the information on January

4 and February 2, 2022, just two days before he received it. Id. Because the

information has been in existence since 2013 and Appellant has not alleged,

let alone shown, that he made any attempt to request it before 2022, even

though he knew of its importance at the time of his first PCRA petition in 2014

and 2015, or that he could not have obtained it years earlier if he had sought

it, the information that Appellant obtained in 2022 cannot satisfy the PCRA’s

time-bar exception for newly discovered facts. Sanchez, 204 A.3d at 526-

27; Pew, 189 A.3d at 489-90.

Appellant’s remaining claims of government interference and newly

discovered facts concern matters that, by Appellant’s own admissions, are well

outside the one-year period before he filed his 2022 PCRA petition. Appellant

asserts that he knew of his after-discovered evidence claim in 2019 and that

the alleged government interference with raising that claim ended in 2019

when allegedly withheld trial court records were provided to him. Appellant’s

Brief at 8. To the extent that Appellant contends that the period that he was

in restricted prison housing or alleged false information supplied by the

Department of Corrections in connection with his first PCRA petition

constituted government interference with his ability to file a PCRA petition,

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that alleged interference ceased more than six years before this PCRA petition

was filed. The only period that he alleges that his prison housing situation

interfered with his ability to file legal papers was in 2013 and the information

allegedly supplied in connection with his first PCRA occurred in 2014 or 2015.

2/18/22 PCRA Petition at 3-4 & Exs. A & B. Appellant has not shown that he

could not have filed a PCRA petition after the restricted housing ended or that

he could not have obtained the information showing that the information

supplied by the Department of Corrections was false before 2021.

Because Appellant has not shown that the allegedly newly discovered

facts on which he based his 2022 PCRA petition could not have been

discovered by the exercise of due diligence before February 18, 2021 or that

any alleged government interference with his ability to file a PCRA continued

until February 18, 2021, he cannot satisfy the time-bar exceptions of Sections

9545(b)(1)(i) and (ii) of the PCRA. We therefore affirm the trial court’s

dismissal of Appellant’s 2022 PCRA petition as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/10/2023

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