J-S05033-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                Appellee               :
                                       :
         v.                            :
                                       :
ADAM FLINT,                            :
                                       :
                Appellant              :
                                       :    No. 1107 WDA 2017

                 Appeal from the PCRA Order June 30, 2017
             in the Court of Common Pleas of Allegheny County
 Criminal Division at No(s): CP-02-CR-0000394-2013, CP-02-CR-0000395-
   2013, CP-02-CR-0000396-2013, CP-02-CR-0000397-2013, CP-02-CR-
0000398-2013, CP-02-CR-0000479-2013, CP-02-CR-0000604-2013, CP-02-
CR-0001674-2013, CP-02-CR-0001675-2013, CP-02-CR-0001676-2013, CP-
02-CR-0001677-2013, CP-02-CR-0001678-2013, CP-02-CR-0001681-2013,
 CP-02-CR-0001731-2013, CP-02-CR-0001732-2013, CP-02-CR-0001733-
   2013, CP-02-CR-0001735-2013, CP-02-CR-0001736-2013, CP-02-CR-
                               0001737-2013

BEFORE: OLSON, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED MARCH 29, 2018

      Adam Flint (Appellant) appeals from the June 30, 2017 order denying

his petition filed under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546, seeking reinstatement of his post-sentence motion and

appellate rights. We affirm.

      On August 1, 2013, Appellant pled guilty via an open plea agreement

to 18 counts of burglary and one count of attempted burglary charged in

nineteen separate criminal informations.   On November 1, 2013, Appellant




* Retired Senior Judge assigned to the Superior Court.
J-S05033-18


was sentenced to an aggregate term of 17 to 34 years of imprisonment.

Appellant did not file post-sentence motions or a direct appeal.

        On December 8, 2015, Appellant pro se filed a PCRA petition. Counsel

was appointed and an amended petition was filed. In his amended petition,

Appellant recognized that the petition was facially untimely. 1      However,

Appellant asserted the applicability of the newly-discovered facts time-bar

exception.     See 42 Pa.C.S. § 9545(b)(1)(ii) (“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 … 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.”). Specifically, Appellant averred that he filed his

PCRA petition within 60 days of his learning that his plea counsel failed to

file an appeal as Appellant had requested.

        Following an evidentiary hearing, the PCRA court dismissed Appellant’s

petition as untimely filed on June 30, 2017. Appellant timely filed a notice of

appeal, and both Appellant and the PCRA court complied with Pa.R.A.P.

1925.

1 “For purposes of [the PCRA], 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). Thus, Appellant’s
judgment of sentence became final on December 2, 2013 (due to December
1, 2013 occurring on a weekend), and he had one year, or until December 2,
2014, to file timely a PCRA petition.

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      On appeal, Appellant presents two issues, both of which ask us to

decide whether the PCRA court erred by determining that Appellant’s PCRA

petition failed to satisfy the newly-discovered facts time-bar exception.

Appellant’s Brief at 4. First, Appellant argues that the PCRA court’s finding

that his plea counsel never promised to file a direct appeal is unsupported by

the record. Id. Second, Appellant contends that he exercised due diligence

in ascertaining the status of the appeal, and the PCRA court erred by

determining otherwise. Id.

       On review of orders denying PCRA relief, our standard is to determine

whether the PCRA court’s ruling is free of legal error and supported by the

record.     Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super.

2017) (citation omitted).    “A PCRA court’s credibility findings are to be

accorded great deference,” and, if the findings are supported by the record,

they are binding upon a reviewing court. Id.

      Any PCRA petition, including second and subsequent petitions, must

either (1) be filed within one year of the judgment of sentence becoming

final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).

Furthermore, the petition “shall be filed within 60 days of the date the claim

could have been presented.” 42 Pa.C.S. § 9545(b)(2).       Neither this Court

nor the PCRA court has jurisdiction to address the merits of an untimely-filed

petition.    Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super.

2011).


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      The statutory exception relevant to this appeal is the newly-discovered

facts exception, which requires proof that “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.” 42 Pa.C.S. § 9545(b)(1)(ii).

“Due diligence demands that the petitioner take reasonable steps to protect

his own interests. A petitioner must explain why he could not have learned

the new fact(s) earlier with the exercise of due diligence. This rule is strictly

enforced.”   Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super.

2015) (citations omitted).    Due diligence “entails 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.” Commonwealth v. Shiloh, 170 A.3d 553, 558

(Pa. Super. 2017) (citations and quotation marks omitted).

      Here, Appellant relies upon Commonwealth v. Bennett, 930 A.2d

1264 (Pa. 2007), in which our Supreme Court held that Bennett was entitled

to invoke the newly-discovered facts exception because his counsel

abandoned him on appeal, he was not aware that his appeal had been

dismissed for counsel’s failure to file a brief, and he filed a PCRA petition

within 60 days of learning that his counsel failed to file a brief.    Appellant

argues that similar to Bennett, his plea counsel abandoned him for

purposes of appeal, he was unaware that an appeal had never been filed,




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and he exercised due diligence in determining the status of the appeal.

Appellant’s Brief at 11-14.

      In support of these contentions, Appellant points to his own testimony.

Specifically, Appellant testified that immediately after sentencing, he asked

his plea counsel to calculate how much time he received, and plea counsel

told him he was trying to figure it out, but not to worry because he would

“put appeals in” for Appellant.    N.T., 5/11/2017, at 13.      Appellant also

contends that he wrote five letters to his plea counsel following his

sentencing asking plea counsel about the status of his appeal, but plea

counsel failed to respond. Id. at 14, 23. In November 2015, almost two

years after he was sentenced, Appellant wrote to the clerk of courts and

asked if his attorney ever filed an appeal on his behalf.    Id. at 28.    After

receiving a reply indicating that no appeal was pending, Appellant filed a

PCRA petition within a month alleging ineffective assistance of counsel.

      The PCRA court determined that plea counsel did not abandon

Appellant for purposes of an appeal, and therefore Bennett is inapplicable to

Appellant’s case. The PCRA court did not find credible Appellant’s testimony

that his plea counsel volunteered to file a direct appeal and then failed to do

so.   PCRA Court Opinion, 6/30/2017, at 7.        Instead, it relied upon the

testimony of plea counsel, who testified that he did not recall Appellant

asking him in person or in writing to file a motion to reconsider his sentence

or an appeal, and if Appellant had done so, he would have.                 N.T.,


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5/11/2017, at 6, 8-9. Plea counsel acknowledged that while he did not have

a “definitive memory” about Appellant’s not asking him to file an appeal,

Appellant’s file did not contain any correspondence with such a request. Id.

at 9-10.     According to plea counsel, he acknowledges every letter he

receives by writing back and placing a copy in the file, so the absence of a

letter indicated to him that Appellant never requested him to file an appeal.

Id.

        Appellant’s argument that the PCRA court erred in solely relying on

plea counsel’s reputation instead of facts in the record when making its

credibility finding is unavailing. “A PCRA court’s credibility findings are to be

accorded great deference, and where supported by the record, such

determinations are binding on a reviewing court.”       Orlando, 156 A.3d at

1280.    Despite Appellant’s claim that he wrote five letters to plea counsel

inquiring about the status of an appeal, no such letters were located in plea

counsel’s file, and counsel testified about his normal practice of retaining

such letters.    The absence of the letters in the file was confirmed by

Appellant’s PCRA counsel, who examined the file after the record was left

open to permit him to do so.          Therefore, because Appellant failed to

establish that he requested his counsel to file an appeal or that counsel




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volunteered to file one, the PCRA court did not err in determining that plea

counsel did not abandon him.2

      Based on the foregoing, the PCRA court did not err by dismissing

Appellant’s PCRA petition due to Appellant’s failure to prove the applicability

of the newly-discovered-facts time-bar exception.      Accordingly, we affirm

the order dismissing Appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2018




2
  Even if Appellant had proven that plea counsel abandoned him for purposes
of appeal and Appellant was unaware of that fact, we agree with the trial
court that he did not establish the second prong of the newly-discovered
facts exception analysis, in that he did not exercise due diligence in
ascertaining whether plea counsel had filed an appeal. If counsel had
promised to file an appeal, Appellant certainly was entitled to trust his
lawyer to guide him through the process. However, that ceased to be the
case once plea counsel repeatedly failed to respond to his letters. Thus,
Appellant offered no reasonable explanation as to why it took him two years
to write to the clerk of courts to inquire about the status of an appeal.

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