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[U] Commonwealth v. Brighter

Superior Court of Pennsylvania

February 24, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
MARK ANTHONY BRIGHTER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA order entered January 30, 2013 in the Court of Common Pleas of Bucks County, Criminal Division, at No(s): CP-09-CR-0000821-2006.

BEFORE: BENDER, P.J.E., WECHT, J. and STRASSBURGER, [*] J.

MEMORANDUM

STRASSBURGER, J.

Mark Anthony Brighter (Appellant) appeals from the January 30, 2013 order dismissing his second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm the PCRA court's order denying Appellant relief on the basis that Appellant has failed to demonstrate that his petition was filed timely.[1]

A prior panel of this Court summarized the relevant history of this case as follows.

[On March 27, 2006, Appellant] pled guilty to rape, involuntary deviate sexual intercourse, sexual assault, kidnapping, unlawful restraint, false imprisonment, robbery, theft, receiving stolen property, burglary, criminal trespass, terroristic threats, carrying a firearm without a license, burglary, aggravated indecent assault, indecent assault, simple assault, recklessly endangering another person and conspiracy. On September 26, 2006, the trial court sentenced [Appellant] to an aggregate term of imprisonment of not less than fifteen (15) years to not less than thirty (30) years. [Appellant's] co-defendants ultimately received aggregate minimum sentences of twenty to forty years' imprisonment.
[Appellant] filed post-trial motions, and eventually was granted the right to a direct appeal nunc pro tunc. [This Court affirmed Appellant's judgment of sentence on September 12, 2008, Commonwealth v. Brighter, 963 A.2d 562 (Pa.Super. 2008) (unpublished memorandum)]. Thereafter, on October 6, 2009, [Appellant] executed and placed in the prison mail [his first] petition for PCRA relief.
Attorney [Ronald H.] Elgart was subsequently appointed to represent [Appellant] in his pursuit of PCRA relief. On July 19, 2010, the PCRA court held a hearing on [Appellant's] petition. Thereafter, on July 26, 2010, the PCRA court entered an order denying [Appellant's] PCRA petition. [Appellant] appealed from the PCRA court's decision on August 23, 2010. However, after reviewing the evidentiary record and [Appellant's] claims for relief, Attorney Elgart filed a no-merit letter with this [C]ourt along with a motion to withdraw as counsel.

Commonwealth v. Brighter, 2407 EDA 2010, at 1-4 (Pa.Super. filed April 26, 2011).

On April 26, 2011, following a review of the substantive claims raised by counsel in his no-merit letter, this Court affirmed the PCRA court's order denying Appellant relief and granted Attorney Elgart's petition to withdraw as counsel. Appellant retained new counsel and, on April 17, 2012, filed a second, counseled PCRA petition raising multiple claims of trial and appellate counsel ineffectiveness.[2] In response, the Commonwealth filed a "Motion to Dismiss Without a Hearing Petitioner's PCRA Petition as Time Barred." A hearing was held on January 22, 2013. On that day, the PCRA court denied the Commonwealth's petition, stating that this Court's decision in Commonwealth v. Willis, 29 A.3d 393 (Pa.Super. 2011) created an exception to the PCRA's timeliness requirements, N.T., 1/22/2013, at 6, and proceeded to a hearing on the merits of the petition. After the hearing, the PCRA court issued an order denying Appellant's substantive claims and dismissing his petition as without merit. Appellant filed a timely notice of appeal with this Court. Both Appellant and the PCRA court complied with the requirements of Pa.R.A.P. 1925.

Before we reach Appellant's substantive arguments, we must first consider whether Appellant has complied with the timeliness requirements of the PCRA. See Commonwealth v. Whitney, 817 A.2d 473, 478 (Pa. 2003) (where the PCRA court does not address the applicability of the PCRA timeliness requirements, the appellate courts may consider the issue sua sponte, "as it is a threshold question implicating our subject matter jurisdiction and ability to grant the requested relief.")

Initially, we note that this Court's review of the PCRA court's denial of post-conviction relief is limited to an examination of "whether the lower court's determination is supported by the evidence of record and whether it is free of legal error." Commonwealth v. Wharton, 886 A.2d 1120, 1123 n. 6 (Pa. 2006) (citation omitted). However, "[q]uestions regarding the scope of the statutory exceptions to the PCRA's jurisdictional time-bar raise questions of law; accordingly, our standard of review is de novo." Commonwealth v. Chester, 895 A.2d 520, 522 n.1 (Pa. 2006).

Generally, a PCRA petition must be filed within one year from the date a judgment becomes final. 42 Pa.C.S. § 9545(b)(1). There are three exceptions to this time requirement: (1) interference by government officials in the presentation of the claim; (2) newly discovered facts; and (3) an after-recognized constitutional right. 42 Pa.C.S. § 9545(b)(1)(i-iii). When a petitioner alleges and proves that one of these exceptions is met, the petition will be considered timely. A PCRA petition invoking one of these exceptions must be filed within 60 days of the date the claims could have been presented. The timeliness requirements of the PCRA are jurisdictional in nature and, accordingly, a PCRA court cannot hear untimely petitions.

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012) (citations and quotations omitted).

Appellant's second PCRA petition is patently untimely as it was filed over three years after his judgment of sentence became final.[3] Accordingly, the PCRA court had no jurisdiction to entertain Appellant's petition unless he pleaded and offered proof of one of the three statutory exceptions to the PCRA time bar. See 42 Pa.C.S. § 9545(b).

Preliminarily, we note that the burden is on Appellant to plead and prove a timeliness exception in his petition. 42 Pa.C.S. § 9545(b)(1). Appellant did not raise a timeliness exception in his PCRA petitions; instead, at the PCRA hearing, Appellant argued that this Court's decision in Willis, supra, constitutes "after discovered evidence" and, as such, "there is an exception" to the PCRA timeliness requirements. N.T., 1/22/2013, at 5-6.

Willis, like Appellant, was represented during his first PCRA petition by Attorney Ronald H. Elgart. On appeal from the denial of his PCRA petition, a panel of this Court determined, inter alia, that Attorney Elgart violated his duty to advocate on Willis' behalf by conducting Willis' PCRA hearings in a manner that was calculated to support counsel's contention that all of Willis' issues were meritless. Willis, 29 A.3d at 397-399. Thus, this Court concluded that Willis was effectively denied his right to PCRA counsel.

In both his PCRA petition and his amended petition, Appellant argues that as in Willis, Attorney Elgart failed to advocate on Appellant's behalf. Appellant's Amended PCRA Petition, 5/25/2013, citing Willis, at 403 n.2. Thus, Appellant contends that the decision in Willis is after-discovered evidence of counsel's ineffectiveness and, as such, provides the basis for an exception to the PCRA time bar. The PCRA court agreed and determined that, based on Willis, Appellant's petition was filed timely. We disagree.

We begin by noting that

[o]ur courts have expressly rejected the notion that judicial decisions can be considered newly-discovered facts which would invoke the protections afforded by section 9545(b)(1)(ii). See Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011) (holding[ that] a judicial opinion does not qualify as a previously unknown "fact" capable of triggering the timeliness exception set forth in section 9545(b)(1)(ii) of the PCRA; "section 9545(b)(1)(ii) applies only if the petitioner has uncovered facts that could not have been ascertained through due diligence, and judicial determinations are not facts"); Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa.Super. 2012) (same).

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa.Super. 2013). Further, the Willis court's determination that Attorney Elgart failed in his duties to Willis is not a newly-discovered fact that would satisfy Appellant's duty to plead and prove a timeliness exception for his PCRA petition.

Even assuming, arguendo, that Appellant's reference to Willis is a poorly-crafted attempt to invoke the newly-discovered facts exception to time bar, Appellant's assertion fails. With respect to the timeliness exception set forth in Section 9545(b)(1)(iii), the 60-day period begins to run on the date of the underlying judicial decision. Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.Super. 2007). This rule is strictly enforced. See Commonwealth v. Baldwin, 789 A.2d 728 (Pa.Super. 2001). The decision in Willis was filed on September 23, 2011. Appellant's PCRA petition was filed in April of 2012, far outside the 60-day deadline set forth by the PCRA.

Finally, while we recognize that, in light of Willis, the PCRA court faced significant equitable considerations in this matter, our jurisprudence is clear: "[t]he PCRA confers no authority upon [courts] to fashion ad hoc equitable exceptions to the PCRA time-bar in addition to those exceptions expressly delineated in the Act." Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa. 2004) (citations omitted).

Thus, we hold that the PCRA court erred in finding that Appellant's second PCRA petition was timely filed. Notwithstanding this conclusion, we nevertheless agree that Appellant's petition was subject to dismissal and, accordingly, affirm the PCRA court's order denying Appellant relief. See In re Jacobs, supra.

Order affirmed.

Judgment Entered.


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