J-S06026-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 STEVE MELICE                             :
                                          :
                    Appellant             :   No. 2303 EDA 2019

                Appeal from the Order Entered July 22, 2019
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0002853-2013


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED JULY 06, 2020

      Steve Melice (“Melice”) appeals pro se from the order entered on July

22, 2019, which dismissed as untimely his third petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We vacate

and remand.

      On January 16, 2015, a jury convicted Melice of driving under the

influence of alcohol, aggravated assault by vehicle while driving under the

influence and related offenses. On August 21, 2015, the court sentenced him

to 10½-24 years’ incarceration. After sentencing, Melice filed a post-sentence

motion, which was denied by the trial court. Melice then filed a counseled

direct appeal to this Court, which was dismissed for failure to file a docketing

statement pursuant to Pa. R.A.P. 3517. Commonwealth v. Melice, No. 3111

EDA 2015 (Pa.Super. filed Dec. 11, 2015).
J-S06026-20



      On August 15, 2016, Melice filed a counseled PCRA petition, alleging

ineffectiveness of his trial counsel. After a hearing, the court denied Melice’s

PCRA petition on March 23, 2017. Melice thereafter filed an appeal to this

Court, which was dismissed for failure to file a brief. Commonwealth v.

Melice, No. 983 EDA 2017 (Pa.Super. filed Aug. 15, 2017).

      Melice filed his second PCRA petition on December 27, 2017, claiming

his PCRA counsel was ineffective for failing to file an appellate brief. The PCRA

court dismissed the petition as untimely. This Court affirmed on the bases that

the second PCRA petition was patently untimely and Melice could not invoke

the newly-discovered fact exception to the one-year time limit under section

9545(b)(1)(ii) of the PCRA. Commonwealth v. Melice, No. 1072 EDA 2018

(Pa.Super. filed Nov. 5, 2018) (unpublished memorandum) (finding that

allegations of PCRA counsel’s ineffectiveness generally cannot be invoked as

a newly-discovered “fact” for purposes of section 9545(b)(1)(ii) and, in any

event, Melice did not file his petition within 60 days of the date on which the

claim could have been presented, as required under 42 Pa.C.S.A. §

9545(b)(2)).

      On June 7, 2019, Melice filed a pro se third PCRA petition. Melice

contended that his second PCRA attorney failed to inform him that this Court

denied relief under the PCRA on November 5, 2018, thus denying him the

opportunity to seek allowance of appeal in the Pennsylvania Supreme Court.

The PCRA court dismissed Melice’s third petition as untimely. This appeal

followed.

                                      -2-
J-S06026-20



      Melice raises one issue for our review:

         Did the PCRA Court err as a matter of law in dismissing a 3rd
         PCRA Petition that met all of the statutory requirements that
         would establish the Court’s jurisdiction to hear an otherwise
         untimely PCRA petition?

Melice’s Br. at 4.

      “Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error.” Commonwealth v. Beatty,

207 A.3d 957, 960-61 (Pa.Super. 2019). “We afford the court’s factual

findings deference unless there is no support for them in the certified record.”

Commonwealth v. Greco, 203 A.3d 1120, 1123 (Pa.Super. 2019).

      It is well-established that “[u]nder the PCRA, any petition for relief,

including second and subsequent petitions, must be filed within one year of

the date on which the judgment of sentence becomes final.” Id. at 1123. The

PCRA’s time limit is mandatory and jurisdictional in nature, and the court may

not ignore it in order to reach the merits of the petition. Commonwealth v.

Murray, 753 A.2d 201, 203 (Pa. 2000). Courts may consider a PCRA petition

filed more than one year after a judgment of sentence becomes final only if

the petitioner pleads and proves one of the following three statutory

exceptions:

         (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;


                                      -3-
J-S06026-20


          (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.A. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke these

exceptions “shall be filed within one year of the date the claim could have

been presented.” 42 Pa.C.S.A. § 9545(b)(2).1

       Instantly, this Court already determined that Melice’s judgment of

sentence became final on January 11, 2016. Commonwealth v. Melice, No.

1072 EDA 2018, unpublished memorandum at 2-3 (Pa.Super. filed Nov. 5,

2018). Therefore, this Court found Melice had until January 11, 2017 to file

any and all PCRA petitions. Id. at 3. Since Melice’s most recent PCRA petition

was filed on June 7, 2019, it is patently untimely.

       Melice, in fact, concedes that his third PCRA petition is untimely. Melice’s

Br. at 11. However, he contends that the newly-discovered fact exception

under section 9545(b)(1)(ii) renders his petition timely. Specifically, Melice

contends that his PCRA attorney failed to inform him that this Court denied

relief under the PCRA on November 5, 2018. Id. at 7. Melice argues that he


____________________________________________


1 Section 9545(b)(2) was amended, effective December 24, 2018, to extend
the time for filing from 60 days of the date the claim could have been
presented to one year.



                                           -4-
J-S06026-20



only learned of this Court’s decision in mid-March of 2019 when a former

attorney who represented Melice alerted Melice’s wife about the decision. Id.

Melice states that his wife, in turn, promptly informed him about the decision.

Id. at 8. Melice argues that he filed his third PCRA petition within 70 days of

learning of this Court’s decision (well within the one-year time limit set forth

in 42 Pa.C.S.A. § 9545(b)(2)), thus satisfying the newly-discovered fact

exception to the time bar. Id. at 8, 15. Melice maintains that counsel

abandoned him and denied him of the ability to seek review of this Court’s

order affirming the dismissal his PCRA petition in the Pennsylvania Supreme

Court. Id. at 7, 15.

      In support of his claim, Melice cites Commonwealth v. Bennett, 930

A.2d 1264 (Pa. 2007). In Bennett, counsel failed to file an appellate brief in

this Court on appeal from the denial of Bennett’s PCRA petition, which caused

the appeal to be dismissed. Our Supreme Court determined that counsel’s

failure constituted abandonment and it could serve as a newly-discovered fact

for purposes of section 9545(b)(1)(ii). Bennett, 930 A.2d at 1274.

      In Commonwealth v. Williamson, 21 A.3d 236 (Pa.Super. 2011), a

panel of this Court extended Bennett to include counsel’s failure to timely file

a petition for allowance of appeal with our Supreme Court. In Williamson,

this Court found that counsel’s failure to timely file a petition for allowance of

appeal denied Williamson review of this Court’s affirmance of the PCRA’s

court’s order dismissing his PCRA petition. Williamson, 21 A.3d at 242. The

panel held that “counsel’s failure to file a timely petition for allowance of

                                      -5-
J-S06026-20



appeal could be considered a newly-discovered fact for purposes of section

9545(b)(1)(ii).” Id.

      Here, the Commonwealth correctly notes that counsel’s ineffectiveness

does not constitute a newly-discovered fact for purposes of section

9545(b)(1)(ii). See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785

(Pa. 2000) (holding that “subsequent counsel’s review of previous counsel’s

representation and a conclusion that previous counsel was ineffective is not a

newly discovered ‘fact’ entitling Appellant to the benefit of the exception for

after-discovered evidence”). However, Melice is not claiming that counsel’s

alleged ineffectiveness warrants application of the newly-discovered fact

exception to the one-year time bar. Rather, Melice’s claim is one of prior PCRA

counsel’s abandonment. Specifically, Melice contends that counsel’s failure to

inform him that this Court denied relief under the PCRA deprived him of the

opportunity to seek allowance of appeal in our Supreme Court. Counsel’s

failure to file a timely petition for allowance of appeal was plainly recognized

in Williamson as a possible newly-discovered fact for purposes of section

9545(b)(1)(ii). As such, Melice has met the pleading requirement.

      Having concluded that Melice’s allegations are within the realm of

section 9545(b)(1)(ii), he still must prove that he satisfies the requirements

of that section. Bennett, 930 A.2d at 1274. Specifically, in order to succeed

in raising the newly-discovered fact exception under section 9545(b)(1)(ii), a

petitioner must establish that: (1) “the facts upon which the claim was

predicated were unknown” and (2) the facts “could not have been ascertained

                                     -6-
J-S06026-20



by the exercise of due diligence.” 42 Pa.C.S.A. § 9545(b)(1)(ii). “[T]he due

diligence inquiry is fact-sensitive and dependent upon the circumstances

presented.” Commonwealth v. Burton, 121 A.3d 1063, 1070 (Pa.Super.

2015) (en banc) (footnote omitted). Additionally, “due diligence requires

neither 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.” Id. at 1071.

      Such a determination requires further fact-finding. Bennett, 930 A.2d

at 1274. Thus, we are constrained to remand for the PCRA court, acting as

factfinder, to conduct an evidentiary hearing to “determine whether [Melice]

met the ‘proof’ requirement under 42 Pa.C.S. § 9545(b)(1)(ii).” Id.

      Order vacated. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/20




                                      -7-
