J-S64042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CLARENCE CRAIG,                          :
                                          :
                    Appellant.            :   No. 2111 EDA 2017


                 Appeal from the PCRA Order, June 1, 2017
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division at No(s): CP-51-CR-1028731-1991.


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                      FILED JANUARY 10, 2019

      Clarence Craig appeals pro se from the order denying his serial petition

under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The pertinent facts and procedural history may be summarized as

follows: In 1991, Craig shot the victim in the head killing him. As part of the

police investigation three men, Kerry Ransome, Thomas Brantley, and Levi

McWarren, identified Craig as the shooter. Following his arrest, a jury trial

commenced in July of 1992.          At trial all three men recanted their

identifications, and the Commonwealth confronted them with their prior

signed statements. McWarren’s cousin, Ophelia Yates, testified that McWarren

had told her that he had been offered $500 by someone named “Cubie” to

deny his identification of Craig as the shooter.    The Commonwealth also

introduced evidence that Craig had fired a 9-mm Glock handgun ten months
J-S64042-18



before, and that the shell casings recovered from that incident matched the

four casings recovered from the murder scene.

      The jury convicted Craig of first-degree murder and possession of an

instrument of crime. After a penalty hearing, trial court sentenced Craig to

the mandatory term of life imprisonment. Thereafter, the trial court imposed

a consecutive 2 ½ to 5-year term of imprisonment for his possession of an

instrument of crime conviction. Craig filed a timely appeal to this Court, and

we affirmed his judgment of sentence on March 29, 1995. Commonwealth

v. Craig, 660 A.2d 651 (Pa. Super. 1995) (unpublished memorandum). On

August 10, 1995, our Supreme Court denied Craig’s allocatur petition.

Commonwealth v. Craig, 664 A.2d 972 (Pa. 1995).

      Subsequently, Craig filed serial PCRA petitions in 1997, 2001, 2006, and

2009. On each occasion, the PCRA court dismissed the petition. In 2010,

Craig filed a fifth PCRA petition. This Court has summarized the contents of

this petition, as well as the pertinent procedural history regarding its

disposition, as follows:


         In this petition, [Craig] acknowledged the PCRA’s time bar
         but alleged that he had established the “after-discovered
         fact” exception, 42 Pa.C.S.A. section 9545(b)(1)(ii), with a
         sworn affidavit from Ransome. In this affidavit, Ransome
         averred that Ophelia Yates falsely testified at [Craig’s] trial
         that Ransome told her that another Commonwealth witness,
         McWarren, had been bribed to offer perjured testimony
         supportive of [Craig’s] defense. On November 2, 2010, the
         PCRA court issued Pa.R.Crim.P. 907 notice of intent to
         dismiss [Craig’s] latest petition as untimely. [Craig] filed a
         response to this notice on November 2, 2010. On July 19,


                                      -2-
J-S64042-18


          2011, the PCRA court dismissed the petition as untimely,
          and [Craig] filed a timely appeal to this Court.

              In his appeal, [Craig] asserted that the PCRA court erred
          by failing to properly review his claim regarding his
          exception to the time bar. In an unpublished memorandum
          filed on April 2, 2012, this Court agreed with [Craig],
          vacated the PCRA court’s order denying relief, and
          remanded the case so that the PCRA court could consider
          [Craig’s]    claim    under    the   appropriate   standard.
          Commonwealth v. Craig, 43 A.3d 466 (Pa. Super. 2012).

             Following remand, the PCRA court re-evaluated [Craig’s]
          petition according to the correct standard, and again
          determined that [Craig’s] petition was untimely and did not
          properly invoke a time-bar exception. On July 17, 2012, the
          PCRA court issued Pa.R.Crim.P. 907 notice of its intent to
          dismiss [Craig’s] petition. [Craig] filed a timely response.
          By order entered August 17, 2012, the PCRA court
          dismissed [Craig’s] petition.

Commonwealth v. Craig, 83 A.3d 1055 (Pa. Super. 2013), unpublished

memorandum at 4-5.

       Craig again appealed the PCRA court’s determination to this Court.

Craig asserted that the PCRA court erred and ignored our instructions on

remand by failing to review his newly discovered facts claim under the proper

legal standard. Id. at 6. We disagreed, and affirmed the order denying post-

conviction relief. Id. at 9. On January 21, 2014, our Supreme Court denied

Craig’s petition for allowance of appeal. Commonwealth v. Craig, 84 A.3d

1062 (Pa. 2014).1
____________________________________________


1Prior to filing his petition for allowance of appeal, Craig filed his fifth untimely
pro se PCRA petition, on August 22, 2013, in which he again alleged the newly-
discovered fact exception to the PCRA’s time bar based upon an affidavit of a



                                           -3-
J-S64042-18



       On February 24, 2016, Craig filed another PCRA petition, in which he

alleged a newly-discovered fact.         According to Craig, he had only recently

discovered that James Bruno, Esquire, who represented him during post-

verdict motions and on direct appeal in the 1990s, was suspended from the

practice of law by the Pennsylvania Supreme Court on November 13, 2014.

On February 22, 2017, the PCRA court sent Pa.R.Crim.P. 907 notice of its

intention to dismiss the petition without a hearing. On March 17, 2017, Craig

filed a response. By order entered June 1, 2017, the PCRA court dismissed

Craig’s sixth petition as untimely. This appeal followed. The PCRA court did

not require Pa.R.A.P. 1925 compliance.

       Before addressing the issues Craig raises on appeal, we must first

determine if this appeal is properly before us.

       This Court’s standard of review regarding an order dismissing a petition

under the PCRA is to ascertain whether “the determination of the PCRA court

is supported by the evidence of record and is free of legal error. The PCRA

court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92

(Pa. Super. 2013) (citations omitted). Moreover, a PCRA court may decline
____________________________________________


fellow inmate, Frank Fluellen. The PCRA did not act on this petition while
Craig’s petition for allowance of appeal was pending. The PCRA court treated
Craig’s 2016 filing as a supplement to the 2013 petition, and therefore
addressed both. Craig claims that the 2016 filing is a separate PCRA petition,
and “had nothing to do with” the 2013 petition. Craig’s Brief at 8. Thus,
although the PCRA court addressed the Fluellen affidavit, we will limit our
review to the dismissal of Craig’s 2016 PCRA petition as untimely.


                                           -4-
J-S64042-18



to hold a hearing on the petition if the PCRA court determines that petitioner’s

claim is patently frivolous and is without a trace of support in either the record

or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011, 1104

(Pa. Super. 2001).

        Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges, and the petitioner proves, that he meets an

exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii).2 A PCRA petition invoking one of these statutory

exceptions must “be filed within 60 days of the date the claims could have

been presented.” See Commonwealth v. Hernandez, 79 A.3d 649, 651-

52 (Pa. Super. 2013) (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).


____________________________________________


2   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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.A. §§ 9545(b)(1)(i), (ii), and (iii).


                                           -5-
J-S64042-18



Asserted exceptions to the time restrictions for a PCRA petition must be

included in the petition, and may not be raised for the first time on appeal.

Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016).

        Here, because Craig did not seek further review following our Supreme

Court’s denial of his petition for allowance of appeal on August 10, 1995, his

judgment of sentence became final ninety days thereafter, or on November 8,

1995.     See 42 Pa.C.S.A. § 9545(b); U.S.Sup.Ct.R. 13.          Because Craig’s

judgment of sentence became final prior to the effective date of the 1995

amendments to the PCRA, in order to be timely, Craig had to file his first PCRA

petition, as well as any subsequent ones, within one year of the effective date,

or January 16, 1997. See generally, Commonwealth v. Voss, 838 A.2d

795 (Pa. Super. 2003). As Craig filed the instant petition in 2016, it is patently

untimely unless he has satisfied his burden of pleading and proving that one

of the enumerated exceptions applies. See Hernandez, supra.

        Craig has failed to plead and prove an exception to the PCRA’s time bar.

Craig claims that he meets the time-bar exception based upon “newly

discovered facts” under 42 Pa.C.S.A. section 9545(b)(1)(ii).        According to

Craig, he:

           only recently learned about Attorney James S. Bruno’s
           mental disability when he read an article in the Graterfriends
           new[s]letter. The Graterfriends new[s]letter was received
           at the Mahanoy prison Law Library on January 9, 2016. In
           the article, it describes Attorney Bruno’s mental illness as a
           “psychistic [sic] disorder” and says he receives the
           medication Adderall for it. As a direct result of Attorney
           Bruno’s mental disability, he was found to have committed
           misconduct in numerous criminal cases which ultimately led

                                       -6-
J-S64042-18


          to his suspension from the practice of law. None of [these]
          facts were ever made known to [Craig] until he read about
          them in the [Graterfriends newsletter].

See Craig’s Brief at 12. Craig further asserts that “upon reading the news of

Attorney Bruno’s mental disability, [he] promptly filed his PCRA Petition.” Id.

at 13.3

       Subsection 9545(b)(1)(ii) has two components that must be alleged and

proved. Namely, the PCRA petitioner must establish that: 1) the facts upon

which the claim is predicated were unknown to him and 2) could not have

been ascertained by the exercise of due diligence. If the petitioner alleges

and proves these two components, then the PCRA court has jurisdiction over

the claim under this subsection. Commonwealth v. Brown, 111 A.3d 171,

176-77 (Pa. Super. 2015) (emphasis in original).

       The PCRA court concluded that Craig did not meet this burden:

             Despite formulating his claim in terms of the discovery of
          new facts not previously known to him, [Craig’s] claim, in
          essence, is challenging prior counsel’s effectiveness. See
          [Rule] 907 response, 3/17/17 at 3 (“Attorney Bruno’s
          mental disability is [per se] ineffectiveness . . . .”). It is
          well-settled, however, that claims of ineffective assistance
          of counsel cannot serve to invoke the “new facts” exception
          to    the   PCRA’s     timeliness   requirements.        See
          Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007)
          (stating generally that allegations of PCRA counsel’s
          ineffectiveness do not invoke [the] “new fact” exception to
          PCRA’s time-bar); see also Commonwealth v. Gamboa-
          Taylor, 753 A.2d 780 (Pa. 2000) (analyzing supposed
____________________________________________


3 Although Craig does not provide an exact date when he read the article, it is
clear from our review of the record that he filed his PCRA petition within sixty
days of the prison’s receipt of the newsletter.


                                           -7-
J-S64042-18


          newly discovered evidence claim and recognizing that it
          actually was a position that prior counsel was ineffective).

             Furthermore, because Bruno’s mental disorders had no
          bearing on [Craig’s] ability to litigate claims of ineffective
          assistance, Bruno’s diagnosis does not constitute a new fact
          for purposes of subsection 9545(b)(1)(ii). . . . [Craig’s]
          attempt to resurrect claims of malfeasance by advancing the
          purported cause of Bruno’s misconduct was unavailing.

PCRA Court Opinion, 10/19/18, at 4-5.

      Our review of the record supports the PCRA court’s conclusions. It is

well-settled that “a conclusion that previous counsel was ineffective is not a

newly discovered fact entitling [a PCRA petitioner] to the benefit of the time-

bar exception for newly-discovered facts. In sum, a conclusion that previous

counsel   was   ineffective   is   not   the   type   of   [newly-discovered   fact]

encompassed by the exception.”           Commonwealth v. Mitchell, 141 A.3d

1277, 1285 (Pa. 2016) (citation omitted).

      There is, however, an exception to this general rule if a PCRA petitioner

discovers that prior counsel abandoned him. Commonwealth v. Bennett,

930 A.2d 1264 (Pa. 2007). In such cases, a petitioner can satisfy the newly-

discovered fact exception if he files the petition within 60 days of learning of

the abandonment. Id.

      Here, the PCRA court found that the disciplinary action taken against

Attorney Bruno more than twenty years after he represented Craig did not

constitute ineffectiveness per se. See Commonwealth v. Robinson, 185

A.2d 1055, 1062 (Pa. Super. 2018) (en banc) (discussing PCRA petitioner’s

newly-discovered fact claim and stating that “it is difficult to perceive the


                                         -8-
J-S64042-18



connection between trial counsel’s legal issues which occurred almost a

decade later after [the petitioner’s] guilty plea and how that fact ultimately

matters”); See also Commonwealth v. Peterson, 192 A.2d 1123, 1130

(Pa. 2018) (discussing how ineffectiveness of cannot constitute a newly

discovered “fact” unless counsel was ineffective per se, that is, his or her

inaction or malfeasance resulted in the petitioner’s complete failure to obtain

appellate review).

      Moreover, Craig’s claim that the PCRA court improperly considered the

underlying merits of his “newly discovered fact” is not true. See Craig’s Brief

at 15.     In rejecting Craig’s newly discovered fact of his prior counsel’s

disciplinary proceedings, the PCRA court considered the underlying claim only

to the extent that the court concluded it did not involve per se ineffectiveness.

See Robinson, 185 A.3d at 1061 (Pa. Super. 2018) (“while Bennett and its

progeny instruct courts to avoid analyzing the merits of the underlying claim,

we believe that principle cannot go as far as to altogether preclude the courts

from considering the claim the petitioner seeks to raise in determining whether

an evidentiary hearing is warranted”).        Our review of the record clearly

indicates that Attorney Bruno did not abandon Craig at any time while he

represented him.

      In sum, for all of the above reasons, the PCRA court correctly denied

Craig’s sixth PCRA petition.    We therefore affirm the PCRA court’s order

denying Craig post-conviction relief.

      Order affirmed.

                                        -9-
J-S64042-18



     Judge Bowes joins the Memorandum.

     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/19




                                  - 10 -
