Com. v. White, R.

Opinion

J. S67031/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : RAYMOND CHARLES WHITE, : : Appellant : No. 655 WDA 2014

Appeal from the PCRA Order February 24, 2014 In the Court of Common Pleas of Allegheny County Criminal Division No(s).: CP-02-CR-0013548-2000

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MAY 12, 2015

Appellant, Raymond Charles White, appeals pro se from order of the

Allegheny County Court of Common Pleas dismissing his second Post

Conviction Relief Act1 (PCRA) petition as untimely filed. This Panel

previously remanded the matter twice to determine the status of appointed

counsel. Commonwealth v. White, 655 WDA 2014 (unpublished

memorandum) (Pa. Super. Mar. 5, 2015); Commonwealth v. White, 655

WDA 2014 (unpublished memorandum) (Pa. Super. Jan. 7, 2015). The

* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J. S67031/14

PCRA court conducted a Grazier2 hearing at which Appellant elected to

proceed pro se based on the briefs he previously submitted to this Court.3

This matter is now properly before us, and we affirm.

We previously outlined the extended procedural history giving rise to

this appeal from the dismissal of Appellant’s second PCRA petition from the

August 2004 conviction for third-degree murder and conspiracy. White,

655 WDA 2014, at 2-6 (Pa. Super. Jan. 7, 2015). We reiterate that

following his conviction, Appellant unsuccessfully appealed to this Court, see

Commonwealth v. White, 2072 WDA 2002 (unpublished memorandum)

(Pa. Super. Aug. 24, 2004), but did not file a petition for allowance of

appeal. Appellant then filed an untimely first PCRA, the dismissal of which

was affirmed by the Court. See Commonwealth v. White, 1881 WDA

2007 (unpublished memorandum) (Pa. Super. June 2, 2008). Appellant’s

petition for allowance of appeal was denied. The instant petition was

received by the PCRA court on October 27, 2008, and dismissed by the order

of February 24, 2014.4

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). 3 See N.T., 3/18/15, at 10. 4 As discussed in White, 655 WDA 2014 , at 2-6 (Pa. Super. Jan. 7, 2015), the PCRA court initially dismissed Appellant’s second and third PCRA petitions. This Court, in a previous appeal from the dismissal of Appellant’s third PCRA petition, remanded for the reinstatement of Appellant’s second PCRA petition. See Commonwealth v. White, 910 WDA 2012 (unpublished memorandum) (Pa. Super. Jan. 28, 2013).

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Appellant, in his pro se brief, contends his second PCRA petition fell

within the time-bar exception at 42 Pa.C.S. § 9545(b)(1)(ii) and he is

entitled to an evidentiary hearing on his claim of abandonment by direct

appeal counsel. He asserts he was abandoned when his then-privately

retained direct appeal counsel refused to file a requested PAA with the

Pennsylvania Supreme Court. He does not dispute that the underlying

judgment of sentence became final on September 23, 2004. He avers,

however, he only knew a PAA in his direct appeal was not filed as of

December 11, 2005, when he received a court docket. He further outlines

the following chronology. First, he filed his first PCRA petition in January

2006, within sixty days of his alleged discovery of direct appeal counsel’s

abandonment. Second, the Pennsylvania Supreme Court decided

Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), on August 23,

2007, after the PCRA court dismissed his first petition as untimely and while

his appeal from that order was pending. Third, he filed the instant second

petition in October 2008, within sixty days of the conclusion of his appeal

from the dismissal of his first PCRA petition. See generally

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding second

PCRA petition may be considered timely filed if it is filed within sixty days of

order which finally resolves previous PCRA petition). Appellant asserts his

second PCRA petition must be deemed timely under the principles set forth

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in Bennett and this Court’s decision in Commonwealth v. Smith, 35 A.3d

766 (Pa. Super. 2011). We disagree.

When reviewing an order dismissing a PCRA petition, we consider

“whether the determination of the PCRA court is supported by evidence of

record and is free of legal error.” Commonwealth v. Brandon, 51 A.3d

231, 233 (Pa. Super. 2012). We reiterate,

Our Supreme Court has stressed that “[t]he PCRA’s timeliness requirements are jurisdictional in nature and must be strictly construed; courts may not address the merits of the issues raised in a petition if it is not timely filed.” It is well settled that “[a]ny and all PCRA petitions must be filed within one year of the date on which the petitioner’s judgment became final, unless one of three statutory exceptions applies.” “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).

The exceptions to the PCRA’s timing requirements are set forth in 42 Pa.C.S.[ ] § 9545, as follows:

(b) Time for filing petition.—

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:

* * *

(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

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(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.

42 Pa.C.S.[ ] § 9545(b)(1) and (2).

. . . The plain language of section 9545(b)(1)(ii) and section 9545(b)(2) creates a three-part test: 1) the discovery of an unknown fact; 2) the fact could not have been learned by the exercise of due diligence; and 3) the petition for relief was filed within 60 days of the date that the claim could have been presented. . . . In our view, the third inquiry must involve a bifurcated analysis. If the claim does not involve a new theory or method of obtaining relief on collateral review, a petition must be filed within sixty days of discovering the fact exercising due diligence. If the claim does involve a new theory or method of obtaining relief on collateral review, a petition must have been filed within sixty days of discovering the factual predicate for the claim exercising due diligence. In addition, the denial of such claim on the basis of untimeliness must then have been appealed to our Supreme Court, and the petition seeking relief under section 9545(b)(1)(ii) must have been filed within sixty days of the new theory or method of obtaining relief being recognized.

Smith, 35 A.3d at 768-69, 711 (some citations omitted).

In Commonwealth v. Huddleston, 55 A.3d 1217 (Pa. Super. 2013),

this Court summarized the decisional law discussed in Smith:

In Bennett, supra, our Supreme Court found that attorney abandonment may constitute a factual basis for the section 9545(b)(1)(ii) timeliness exception. In that case, the appeal from the dismissal of Bennett’s first, timely, PCRA petition was dismissed by this Court because counsel failed to file a brief. Bennett filed a second PCRA

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petition alleging that he had attempted to find out the status of his PCRA appeal, did not learn that it was dismissed due to counsel’s failure to file a brief until he received a letter from this Court explaining what had transpired, and filed a new PCRA petition within 60 days of so learning. The PCRA court granted Bennett leave to appeal the dismissal of his first PCRA petition nunc pro tunc, but this Court quashed the appeal as untimely. Our Supreme Court reversed this Court, holding that Bennett sufficiently alleged that he had been abandoned by counsel on his first PCRA petition and acted with due diligence in ascertaining the fact of the abandonment to satisfy the timeliness exception of the PCRA found at section 9545(b)(1)(ii).

In Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980 (2011), Watts’s direct appeal was dismissed in 2002 because counsel failed to file a docketing statement. Within 60 days of learning of the dismissal in August 2003, Watts filed a PCRA petition seeking reinstatement of his direct appeal rights nunc pro tunc. The PCRA court dismissed the petition as untimely, and this Court affirmed in August 2005, noting that Watts did not exercise due diligence in determining the status of his appeal. Watts did not seek review of our decision by our Supreme Court. In 2007, Watts filed a second PCRA petition, again alleging attorney abandonment, but claiming that his petition met the timeliness exception of section 9545(b)(1)(ii) because it was filed within 60 days of the Bennett decision. The PCRA court dismissed the petition as untimely, this Court reversed, and our Supreme Court reversed us, holding that the PCRA court properly dismissed Watts’ second PCRA petition. The Court held that the Bennett decision was not a fact upon which Watts could rely in meeting the timeliness exception of section 9545(b)(1)(ii). Id. at 986. The factual predicate of Watts’ claim was his counsel's abandonment, which Watts discovered in 2003, within the one-year PCRA deadline. As such, the abandonment could not serve to satisfy section 9545(b)(1)(ii) for a petition filed in 2007. Id.

This Court sought to explain the interplay of the Bennett and Watts decisions and the language of section 9545(b) in Commonwealth v. Smith, 35 A.3d 766 (Pa.

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Super. 2011). In that case, Smith’s first, timely, PCRA petition was dismissed in 2001 after counsel did not file a brief on appeal. Less than two weeks after the appeal was dismissed, Smith filed a second PCRA petition seeking reinstatement of his direct appeal rights nunc pro tunc, which the PCRA court granted. This Court quashed the nunc pro tunc appeal in 2005, determining that Smith’s second PCRA petition was untimely, and the Pennsylvania Supreme Court denied allowance of appeal. In 2007, within 60 days of the filing of the Bennett decision, Smith filed a third PCRA petition, claiming that the petition was timely because Bennett afforded him a new method for obtaining collateral review. The PCRA court dismissed the petition as untimely. This Court reversed, holding that because Smith, unlike Watts, had attempted to “become Bennett” by seeking allowance of appeal from our Supreme Court, yet had his diligent efforts to avail himself of the opportunities of the PCRA thwarted by counsel’s initial abandonment, he was now entitled to have the merits of his PCRA petition addressed by a court. Although the factual predicate of Smith’s claims for purposes of section 9545(b)(1)(ii) was the dismissal of his first PCRA petition in 2001 due to counsel’s abandonment, the subsequent change in law that occurred in 2007 with the Bennett decision afforded Smith his first opportunity to present his claim pursuant to section 9545(b)(2). Therefore, this Court held that Smith’s third PCRA petition satisfied the section 9545(b)(1)(ii) timeliness exception because it was filed within 60 days of the Bennett decision, i.e., within 60 days of the date that the claim could have been presented.

Huddleston, 55 A.3d at 1220-21 (citations omitted).

Presently, as to Appellant’s contention that he discovered direct appeal

counsel’s abandonment on December 11, 2005, this Court previously

suggested such a claim would be disingenuous in the appeal from the

dismissal of Appellant’s first PCRA petition:

The key substantive claim raised in [Appellant]’s [first] pro se petition is that prior appellate counsel was

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ineffective for effectively “abandoning” him and failing to file a PAA with the Supreme Court after our Court affirmed his judgment of sentence. However, [Appellant] acknowledges that he was notified by letter dated September 2, 2004 of [privately retained] counsel’s intent not to file a PAA due to lack of funds. (See Appellant’s Brief at 10.) Thus, [Appellant] was clearly aware of this ineffectiveness claim as early as September 2004, but he did not file his [first] petition until January 2006. Regardless of whether he had access to his still unidentified “legal materials,” [Appellant] could have filed a PCRA petition asserting counsel’s ineffectiveness well before September 2005 when the one-year filing period was set to expire.

White, 1881 WDA 2007, at 4 (emphasis added).

Thus, we could consider this issue previously litigated. In any event,

we discern no basis to reconsider our prior conclusion that Appellant’s

present claim was not timely presented in his first PCRA petition, let alone

conclude that the underlying second PCRA petition was timely filed based

on Appellant’s claim of abandonment.5

As to Appellant’s legal argument based on Bennett and Smith, we

initially note that those cases considered the abandonment of counsel with

respect to PCRA appeals. Nevertheless, Bennett was decided seven days

after the PCRA court dismissed Appellant’s first PCRA petition. Bennett

5 Furthermore, even if we were to reconsider Appellant’s factual allegations regarding when he discovered direct appeal counsel’s abandonment, we would conclude that he was on notice that direct appeal counsel refused further representation on May 13, 2005. On that date, privately retained counsel sent a letter informing Appellant informing that the attempts to secure funding for the filing of a PAA failed. Thus, Appellant’s reliance on December 11, 2005 as the date of discovery is meritless as he was on notice of counsel’s inaction no later than May 13, 2005.

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thus constituted the law under which this Court decided Appellant’s appeal

from the dismissal of his first petition and the Pennsylvania Supreme Court

denied Appellant’s PAA from our order. Cf. Commonwealth v.

Montgomery, 938 a2d 981 (Pa. 2007) (remanding, per curiam, decision of

this Court for further consideration in light of Bennett); Commonwealth v.

Lasky, 934 A.2d 120, 123 (Pa. Super. 2007) (applying Bennett in appeal

taken before Bennett was decided by Pennsylvania Supreme Court, but

appeal remained pending when Bennett was decided). Therefore,

Appellant, unlike Smith, had the benefit of Bennett being the law during his

appeal from the dismissal of his first PCRA petition. In light of the

foregoing, we discern no merit to Appellant’s argument that Bennett and

Smith control the alleged timeliness of his second petition. Rather, this

case is closer to Watts, as Appellant seeks to rely on Bennett as a

predicate “fact” giving rise to his claim for a time-bar exception under

Section 9545(b)(1)(ii).

Having reviewed Appellant’s pro se arguments, the record, and the

legal principles relevant to this appeal, we conclude Appellant did not

establish his right to relief under Section 9545(b)(1)(ii). Accordingly, as we

discern no abuse of discretion or error of law in the PCRA court’s dismissal of

Appellant’s second PCRA petition on timeliness grounds, we affirm.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/12/2015

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