J-S25039-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AUGUSTUS SIMMONS : : Appellant : No. 253 EDA 2021
Appeal from the PCRA Order Entered December 30, 2020, In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0005175-2011
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 13, 2021
Augustus Simmons (Simmons) appeals from the order of the Court of
Common Pleas of Montgomery County (PCRA court) dismissing his third
petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. We affirm.
On March 8, 2012, Simmons entered a negotiated guilty plea to several
offenses across six cases. In this case, Simmons pleaded guilty to conspiracy
to commit homicide and conspiracy to commit arson. That same day, the trial
court imposed an agreed-upon sentence of 25 to 50 years’ imprisonment.
Simmons filed neither post-sentence motions nor a direct appeal. As a result,
his judgment of sentence became final in April 2012.
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* Retired Senior Judge assigned to the Superior Court. J-S25039-21
Simmons filed his first PCRA petition in January 2013. Counsel was
appointed and requested to withdraw by filing a no-merit letter. The PCRA
court issue notice of its intent to dismiss without a hearing under Pa.R.Crim.P.
907 and Simmons filed a response. In June 2014, the PCRA court dismissed
the petition and allowed counsel to withdraw. This Court affirmed in June
2015 and our Supreme Court denied Simmons’s petition for allowance of
appeal in October 2015. See Commonwealth v. Simmons, 122 A.3d 1129
(Pa. Super. 2015) (unpublished memorandum), appeal denied, 125 A.3d 1201
(Pa. 2015).
Simmons filed his second petition in December 2015 but failed to plead
any exceptions to the PCRA’s jurisdictional time bar. As a result, in February
2016, the PCRA court dismissed the petition, following which Simmons filed a
timely notice of appeal. This Court affirmed in January 2017 and our Supreme
Court denied the petition for allowance of appeal in July 2017. See
Commonwealth v. Simmons, 160 A.3d 256 (Pa. Super. 2017), appeal
denied, 169 A.3d 105 (Pa. 2017).
On September 10, 2019, Simmons filed this, his third PCRA petition,
asserting various grounds for relief based on the Commonwealth failing to
inform him that Leon Lobban (Lobban), a co-defendant who gave an
incriminating statement against him, was an illegal immigrant. According to
Simmons, at the time he gave his statement, Lobban was detained by U.S.
Immigration and Customs Enforcement (ICE), thus giving him an incentive to
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lie to avoid being deported. If he had known about this information, Simmons
claims he would not have agreed to enter the guilty plea.
Turning to timeliness, Lobban asserted that his petition was timely
because he filed it within one year of finding out about Lobban’s immigration
status. Simmons claimed that he learned of the new information in January
2019 when a fellow inmate found a 2013 memorandum opinion from the U.S.
District Court of the Middle District of Pennsylvania denying a habeas petition
filed by Lobban.
On July 8, 2020, the PCRA court issued its Rule 907 notice of intent to
dismiss the petition without a hearing. Besides finding that Simmons failed
to prove any of the timeliness exceptions, the PCRA court noted that he failed
to include any affidavits or certifications to support his allegations. After
receiving a response from Simmons, the PCRA court formally dismissed the
petition on December 30, 2020, following which Simmons filed a timely notice
of appeal.1
1 On April 14, 2021, this Court issued a Rule to Show Cause, as the notice of
appeal failed to state the date of the order being appealed. Simmons responded by acknowledging the mistake and clarifying that he was appealing from the PCRA court’s December 30, 2020 final order dismissing his petition.
Under Pa.R.A.P. 904(e), “[t]he notice of appeal shall include a statement that the order appealed from has been entered on the docket.” We find, however that the notice of appeal, which was timely filed on January 19, 2021, was sufficient. See In re McElhatton, 729 A.2d 163, 165 (Pa. Cmwlth. 1999) (““A failure to comply with Pa.R.A.P. 904 will not result in a dismissal of the (Footnote Continued Next Page)
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Before considering the merits of Simmons’s PCRA petition, we must first
determine whether his petition is timely under the PCRA's jurisdictional time-
bar.2 “A PCRA petition, including a second and subsequent petition, shall be
filed within one year of the date the underlying judgment becomes final.”
Commonwealth v. Graves, 197 A.3d 1182, 1185 (Pa. Super. 2018) (citation
omitted); see also 42 Pa.C.S. 9545(b)(1). “[A] judgment becomes 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. § 9545(b)(3). Because
the timeliness requirements of the PCRA are jurisdictional, no court may
consider the merits of an untimely petition. Commonwealth v. Small, 238
A.3d 1267, 1280 (Pa. 2020).
Simmons’s judgment of sentence became final in April 2012 after he
declined to file a direct appeal. See 42 Pa.C.S. § 9545(b)(3). Because
Simmons filed this petition in September 2019, his petition is facially untimely.
Consequently, he must plead and prove one of the exceptions to the PCRA’s
timeliness requirements.
notice of appeal as long as the notice of appeal is timely filed.”) (citation omitted). Thus, we decline to quash this appeal.
2 Whether a PCRA petition is timely filed is a question of law over which our
standard of review is de novo and our scope of review is plenary. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).
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There are three exceptions to the PCRA’s jurisdictional 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 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). Additionally, any petition invoking an
exception to the time bar “shall be filed within one year of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2).3
Simmons asserts that his petition was timely under either the
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J-S25039-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AUGUSTUS SIMMONS : : Appellant : No. 253 EDA 2021
Appeal from the PCRA Order Entered December 30, 2020, In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0005175-2011
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 13, 2021
Augustus Simmons (Simmons) appeals from the order of the Court of
Common Pleas of Montgomery County (PCRA court) dismissing his third
petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. We affirm.
On March 8, 2012, Simmons entered a negotiated guilty plea to several
offenses across six cases. In this case, Simmons pleaded guilty to conspiracy
to commit homicide and conspiracy to commit arson. That same day, the trial
court imposed an agreed-upon sentence of 25 to 50 years’ imprisonment.
Simmons filed neither post-sentence motions nor a direct appeal. As a result,
his judgment of sentence became final in April 2012.
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S25039-21
Simmons filed his first PCRA petition in January 2013. Counsel was
appointed and requested to withdraw by filing a no-merit letter. The PCRA
court issue notice of its intent to dismiss without a hearing under Pa.R.Crim.P.
907 and Simmons filed a response. In June 2014, the PCRA court dismissed
the petition and allowed counsel to withdraw. This Court affirmed in June
2015 and our Supreme Court denied Simmons’s petition for allowance of
appeal in October 2015. See Commonwealth v. Simmons, 122 A.3d 1129
(Pa. Super. 2015) (unpublished memorandum), appeal denied, 125 A.3d 1201
(Pa. 2015).
Simmons filed his second petition in December 2015 but failed to plead
any exceptions to the PCRA’s jurisdictional time bar. As a result, in February
2016, the PCRA court dismissed the petition, following which Simmons filed a
timely notice of appeal. This Court affirmed in January 2017 and our Supreme
Court denied the petition for allowance of appeal in July 2017. See
Commonwealth v. Simmons, 160 A.3d 256 (Pa. Super. 2017), appeal
denied, 169 A.3d 105 (Pa. 2017).
On September 10, 2019, Simmons filed this, his third PCRA petition,
asserting various grounds for relief based on the Commonwealth failing to
inform him that Leon Lobban (Lobban), a co-defendant who gave an
incriminating statement against him, was an illegal immigrant. According to
Simmons, at the time he gave his statement, Lobban was detained by U.S.
Immigration and Customs Enforcement (ICE), thus giving him an incentive to
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lie to avoid being deported. If he had known about this information, Simmons
claims he would not have agreed to enter the guilty plea.
Turning to timeliness, Lobban asserted that his petition was timely
because he filed it within one year of finding out about Lobban’s immigration
status. Simmons claimed that he learned of the new information in January
2019 when a fellow inmate found a 2013 memorandum opinion from the U.S.
District Court of the Middle District of Pennsylvania denying a habeas petition
filed by Lobban.
On July 8, 2020, the PCRA court issued its Rule 907 notice of intent to
dismiss the petition without a hearing. Besides finding that Simmons failed
to prove any of the timeliness exceptions, the PCRA court noted that he failed
to include any affidavits or certifications to support his allegations. After
receiving a response from Simmons, the PCRA court formally dismissed the
petition on December 30, 2020, following which Simmons filed a timely notice
of appeal.1
1 On April 14, 2021, this Court issued a Rule to Show Cause, as the notice of
appeal failed to state the date of the order being appealed. Simmons responded by acknowledging the mistake and clarifying that he was appealing from the PCRA court’s December 30, 2020 final order dismissing his petition.
Under Pa.R.A.P. 904(e), “[t]he notice of appeal shall include a statement that the order appealed from has been entered on the docket.” We find, however that the notice of appeal, which was timely filed on January 19, 2021, was sufficient. See In re McElhatton, 729 A.2d 163, 165 (Pa. Cmwlth. 1999) (““A failure to comply with Pa.R.A.P. 904 will not result in a dismissal of the (Footnote Continued Next Page)
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Before considering the merits of Simmons’s PCRA petition, we must first
determine whether his petition is timely under the PCRA's jurisdictional time-
bar.2 “A PCRA petition, including a second and subsequent petition, shall be
filed within one year of the date the underlying judgment becomes final.”
Commonwealth v. Graves, 197 A.3d 1182, 1185 (Pa. Super. 2018) (citation
omitted); see also 42 Pa.C.S. 9545(b)(1). “[A] judgment becomes 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. § 9545(b)(3). Because
the timeliness requirements of the PCRA are jurisdictional, no court may
consider the merits of an untimely petition. Commonwealth v. Small, 238
A.3d 1267, 1280 (Pa. 2020).
Simmons’s judgment of sentence became final in April 2012 after he
declined to file a direct appeal. See 42 Pa.C.S. § 9545(b)(3). Because
Simmons filed this petition in September 2019, his petition is facially untimely.
Consequently, he must plead and prove one of the exceptions to the PCRA’s
timeliness requirements.
notice of appeal as long as the notice of appeal is timely filed.”) (citation omitted). Thus, we decline to quash this appeal.
2 Whether a PCRA petition is timely filed is a question of law over which our
standard of review is de novo and our scope of review is plenary. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).
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There are three exceptions to the PCRA’s jurisdictional 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 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). Additionally, any petition invoking an
exception to the time bar “shall be filed within one year of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2).3
Simmons asserts that his petition was timely under either the
governmental interference exception or the newly discovered facts exception.
Under the former, “the petitioner must plead and prove that the failure to
3 On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
to expand the time in which a petitioner may invoke a PCRA time-bar exception from 60 days to one year from the date that the claim arises. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018]. This amendment applies to claims arising one year before December 24, 2017, the effective date of the amendment. Id. at § 3. Because Simmons filed his petition on September 10, 2019, the amendment applies to him.
In his brief, Simmons alleges that the PCRA court applied the former 60-day time bar to him rather than the one year. This is incorrect. As explained below, the PCRA court’s dismissal did not hinge on which version of subsection 9545(b)(2) applied, and instead was based on its finding that Simmons was not diligent in discovering the information.
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previously raise these claims was the result of interference by government
officials, and that the information could not have been obtained earlier with
the exercise of due diligence.” Commonwealth v. Smith, 194 A.3d 126, 133
(Pa. Super. 2018) (citation omitted).
The newly discovered facts exception, meanwhile, “requires a petitioner
to demonstrate that 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)
(citation omitted). “Due diligence demands that the petitioner take
reasonable steps to protect his own interests and explain why he could not
have learned the new facts earlier with the exercise of due diligence.”
Commonwealth v. Diggs, 220 A.3d 1112, 1117 (Pa. Super. 2019) (citation
omitted). Due diligence 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. Brensinger, 218 A.3d 440, 449 (Pa.
Super. 2019) (citation omitted). This being the case, “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.” Id.
(citation omitted).
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The PCRA court found neither exception applicable because Simmons
failed to show that he acted with due diligence in finding out about the District
Court’s 2013 decision involving Lobban. In so finding, the PCRA court
explained:
[Simmons’s] claim fails [] because he provides no explanation whatsoever as to why that federal court opinion that alerted him to the fact that [Lobban] was subject to immigration proceedings, to which [Simmons] or those helping him obviously had access while imprisoned, could not have been discovered by [Simmons] for a period of almost 6 years after the opinion was filed in 2013 (i.e., almost 5 years after time deadline expired). Or, put another way, [Simmons] provides no explanation why he could not have discovered the opinion (and thus, the fact of the immigration proceedings) with the exercise of due diligence within one year of the opinion’s publication.
PCRA Court Opinion, 3/25/21, at 5-6 (footnotes omitted).
We agree with this analysis, as Simmons fails to explain why he could
not have learned about Lobban’s immigration status earlier than January
2019, especially since the source of that information was a judicial decision
that a fellow inmate found. Simmons does not recount any efforts he made
in the intervening six years to learn more about Lobban but was unsuccessful.
Thus, he failed to show that he acted with due diligence.
Aside from this deficiency, we also agree with the Commonwealth about
the speculative nature of Simmons’s primary claim. The District Court’s
opinion reveals that Lobban, who was a citizen of Jamaica, arrived in the
United States in October 2002 as a permanent resident. In January 2011, he
was convicted of drug charges in Montgomery County and eventually taken
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into ICE custody in May 2013. See Lobban v. Decker, No. 13-1442, 2013
WL 2471608, at *1 (M.D. Pa. June 7, 2013).
Besides mischaracterizing Lobban as an illegal immigrant, Lobban
pleaded guilty in Montgomery County in January 2011—over a year before
Simmons entered his guilty plea. Moreover, Simmons presents no evidence
in support of his claim that Lobban gave any false statements in exchange for
consideration to avoid deportation. Instead, Simmons merely speculates that
this is the case simply because he had a detainer from ICE and was facing
possible deportation. This being the case, we find no error in the PCRA court
dismissing the serial petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/13/2021
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