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[U] Commonwealth v. Davis

Superior Court of Pennsylvania

February 18, 2014



Appeal from the PCRA Order December 28, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0229071-1984




Tyrone Davis appeals from the December 28, 2012 order dismissing his PCRA petition as untimely. After review, we affirm.

On September 10, 1986, a jury found Appellant guilty of first-degree murder and possessing an instrument of crime ("PIC"), and the court sentenced him to life imprisonment without the possibility of parole. He filed an appeal to this Court, and we affirmed judgment of sentence on April 28, 1987. Commonwealth v. Davis, 526 A.2d 1231 (Pa.Super. 1987) (unpublished memorandum). The Supreme Court denied allocatur on September 25, 1987, and Appellant did not seek review in the United States Supreme Court. Thus, his sentence became final sixty days later, on or about November 24, 1987.[1]

On March 10, 1988, Appellant filed a timely first PCRA petition and counsel was appointed. Counsel filed a Turner/Finley[2] no-merit letter. The court permitted counsel to withdraw and denied PCRA relief. Appellant's pro se appeal to this Court was dismissed on February 28, 1992, because it was untimely filed. Commonwealth v. Davis, 288 PHL 1992 (unpublished order). Appellant filed a second PCRA petition pro se on December 4, 1996, which was dismissed as untimely on August 20, 1997, and this Court affirmed on November 16, 1999. Commonwealth v. Davis, 748 A.2d 1249 (Pa.Super. 1997) (unpublished memorandum). Appellant did not seek allowance of appeal.

On January 4, 2006, Appellant filed a petition for writ of habeas corpus, which the trial court treated as a third PCRA petition. It was dismissed on November 20, 2006, as untimely filed. Appellant appealed to this Court, and we affirmed. Commonwealth v. Davis, 935 A.2d 8 (Pa.Super. 2007) (unpublished memorandum) (finding petition untimely as it was filed eighteen years too late).

On October 22, 2007, Appellant filed his fourth PCRA petition. He asserted therein that it was timely because it was filed within sixty days of the Supreme Court's August 23, 2007 decision in Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007). In Bennett, our High Court held that a PCRA petition alleging that counsel's failure to file an appellate brief constituted abandonment and a timeliness exception under 42 Pa.C.S.§ 9545(b)(1)(ii)). Bennett, Appellant maintained, announced a new constitutional rule that applied retroactively, or alternatively, a watershed procedural rule, or after-discovered evidence. The trial court issued Rule 907 notice of its intent to dismiss the petition in twenty days as untimely and advised Appellant of his right to respond. Appellant filed a response objecting to dismissal, but the petition was dismissed on April 21, 2008. Appellant did not appeal.

Appellant filed the within pro se PCRA petition on June 20, 2012, and a supplemental petition on August 14, 2012.[3] In the petition, he checked the box indicating that, "the facts upon which the claim is predicated were unknown" and "could not have been ascertained by the exercise of reasonable diligence." PCRA Petition, 6/20/12, at 2. He averred therein that he was eligible for relief due to "the improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court." Id. at 3. In his supporting facts, Appellant alleged that he was deprived of his right to appeal the denial of relief on his October 2007 PCRA petition because he only learned on May 4, 2009, that his petition had been dismissed a year earlier. He pled that upon being so apprised, he filed another PCRA petition on May 14, 2009, seeking to reinstate his PCRA appellate rights. On May 9, 2012, when Appellant requested the status of that petition, he learned that this petition, stamped as filed, had not been docketed properly. As he was advised to do, he refiled a copy of the May 14, 2009 petition on May 14, 2012, again seeking restoration of his appellate rights nunc pro tunc, due to a breakdown in the court's administration.

On November 26, 2012, the trial court issued Rule 907 notice of its intent to dismiss Appellant's June 2012 petition in twenty days as untimely. Appellant objected to the dismissal, averring therein that there was a breakdown in the court system and that he exercised reasonable diligence after the filing of his October 22, 2007 PCRA petition. The PCRA court subsequently dismissed the petition by order dated December 28, 2012 as facially untimely and failing to invoke a timeliness exception.

Appellant filed the within appeal on January 22, 2012, raising two issues for our review:

I. Did the trial court err in denying the appellant an evidentiary hearing?
II. Did [the] trial court err in not appointing counsel for appellant in PCRA proceedings?

Appellant's brief at 2. [4]

We note preliminarily that an untimely PCRA petition renders Pennsylvania courts without jurisdiction to afford relief. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013). "The question of whether a petition is timely raises a question of law. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary." Id. (citations omitted).

The PCRA provides that all PCRA petitions must be filed within one year of the date on which judgment of sentence became final, unless one of the statutory exceptions set forth in 42 Pa.C.S. § 9545(b)(1) applies. The burden is on the petitioner to plead and prove that a statutory exception applies or suffer dismissal without an evidentiary hearing. See Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa.Super. 2008).

Title 42 Pa.C.S. § 9545(b)(1) and (2) provide:
(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:
(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.
(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).

Appellant argues that he had a constitutional right to appeal the dismissal of his fourth PCRA petition; that he filed two PCRA petitions seeking to reinstate his PCRA appellate rights; and that his efforts were obstructed by the PCRA Unit of the court of common pleas. He maintains that he acted in a timely manner by filing each of the two petitions within sixty days of learning of their dismissal, and the PCRA court erred in denying him an evidentiary hearing and counsel.

This Court has made it clear that the 60-day rule requires a petitioner to plead and prove that the information on which he relies could not have been obtained earlier, despite the exercise of due diligence. Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008). A review of Appellant's June 20, 2012 PCRA petition reveals that he pled that the failure of the court to notify him via certified mail of the April 21, 2008 dismissal of his PCRA petition constituted governmental interference within the meaning of § 9545 (b)(1)(i-iii) exceptions to the time bar. He alleges that he did not learn until May 4, 2009, that his October 2007 petition had been denied on April 21, 2008, and thus, could not file a timely appeal. However, Appellant fails to allege or prove that he exercised due diligence but could not ascertain that his petition had been dismissed. See 42 Pa.C.S. § 9545(b)(2)(ii). Appellant filed a May 14, 2009 PCRA petition seeking to reinstate his PCRA appeal rights nunc pro tunc within sixty days of learning of the dismissal, but the court mistakenly docketed it as May 14, 2008. The docket was subsequently corrected and Appellant re-filed a copy of the petition in May 2012. Herein, he maintains that he was entitled to an evidentiary hearing to prove that the timeliness exception applies.

In essence, Appellant seeks reinstatement of his PCRA appellate rights from his fourth PCRA petition, which was dismissed as untimely filed. Appellant maintains that he was entitled to an evidentiary hearing to prove that his right to appeal was obstructed by government interference and that he acted promptly, i.e., within sixty days of learning of the dismissal to seek restoration of his appellate rights nunc pro tunc. Furthermore, Appellant cites Pa.R.Crim.P. 904 as mandating that counsel be appointed since an evidentiary hearing is warranted and because the interests of justice compel it.

Appellant relies upon this Court's decision in Commonwealth v. Blackwell, 936 A.2d 497 (Pa.Super. 2007), as the basis for his claim that the within petition is timely under the governmental interference exception. In that case, the PCRA court erroneously notified Appellant that his PCRA counsel had withdrawn, and consequently, Appellant did not file an appeal from the dismissal of his first PCRA petition. Instead, he filed another PCRA petition, which he sought to withdraw. We held that the procedural errors warranted leeway in reviewing the timeliness of Blackwell's claims, and that his second PCRA should have been treated as timely filed and asserting the governmental interference exception within the meaning of 42 Pa.C.S. § 9545(b)(2). Blackwell's third petition, filed within sixty days of learning of the error, asserted the government interference exception, and claimed that the combination of events after his first PCRA petition was filed prevented him from raising his ineffective assistance of trial counsel claims properly. He pled that despite his efforts to seek clarification, he was unable to discover that PCRA counsel had not in fact withdrawn until April 2005, when the PCRA court indicated it had not received the withdrawal letter. We held that Blackwell demonstrated his diligence in attempting to ascertain facts that were unknown to him, and since his May 2005 petition containing these assertions was filed within 60 days of the April 2005 hearing at which he first discovered the PCRA court's error, it was timely. The PCRA court's erroneous notification to Appellant that PCRA counsel had withdrawn amounted to governmental interference and a newly-discovered fact for purposes of the timeliness exceptions. See 42 Pa.C.S. § 9545(b)(1)(i)-(ii).

Appellant filed the within petition with sixty days of learning, in response to an inquiry, that his earlier petition seeking reinstatement of appellate rights nunc pro tunc was dismissed years before. The PCRA court found, however, that he had failed to exercise due diligence to ascertain the status of that 2007 PCRA petition. Appellant admittedly received Rule 907 notice on March 27, 2008, and filed a response objecting to dismissal on April 10, 2008. According to the PCRA court, he was not duly diligent in waiting until May 4, 2009 to inquire about the status of that PCRA petition. Furthermore, dismissal was a matter of public record and Appellant did not assert that he could not have accessed that information. Hence, the after-discovered facts exception did not apply. Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006) (for purposes of 42 Pa.C.S. § 9545(b)(1)(ii), information is not "unknown" to a PCRA petitioner when the information was a matter of public record).

We find no abuse of discretion in the PCRA court's conclusion. All requests for reinstatement of appellate rights, including PCRA appellate rights, must meet the timeliness requirements of the PCRA. Commonwealth v. Fairiror, 809 A.2d 396, 397 (Pa.Super. 2002). We recognize that the court's failure to notify Appellant of the dismissal via certified mail may have constituted governmental interference with Appellant's right to file an appeal. However, the status of Appellant's petition was a matter of public record; he has not alleged that the information was unavailable to him, or that he exercised due diligence to ascertain the status of the petition. Hence, we agree with the PCRA court that a lack of due diligence on Appellant's part is fatal to the timeliness of his PCRA claim.

Furthermore, had Appellant filed an appeal from the dismissal of his October 22, 2007 PCRA petition, none of the exceptions to the time bar he asserted therein would have permitted us to reach the merits. Contrary to Appellant's assertion, Commonwealth v. Bennett, supra, did not announce a new constitutional rule or a watershed procedural rule. See Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011) (recognizing that Bennett Court did not recognize a new constitutional right that would fall within the timeliness exception of section 9545(b)(1)). Moreover, new decisional law does not constitute a newly-discovered fact for purposes of the timeliness exceptions. Id. (holding that "subsequent decisional law does not amount to a new 'fact' under section 9545(b)(1)(ii) of the PCRA.").[5] Finally, the facts in Bennett are inapposite. Bennett involved ineffective assistance of counsel claims based on abandonment of counsel. The fact that counsel was permitted to withdraw herein did not constitute abandonment of counsel.

Appellant was not entitled to a hearing to establish that his petition fell within a timeliness exception. Nor was Appellant entitled to counsel on this PCRA petition as the absolute right to counsel extends to the final disposition of the first PCRA petition. Commonwealth v. Kubis, 808 A.2d 196 (Pa.Super. 2002). Counsel may be appointed if there is an evidentiary hearing or if the interests of justice require it, neither of which was the case herein. See Pa.R.Crim.P. 904(D)(E).

Thus, the PCRA court properly concluded that the petition was untimely.

Order affirmed.

Judgment Entered.

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