J-S64038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                      v.

DAVID E. BARTLING

                           Appellant                   No. 346 MDA 2017


                 Appeal from the PCRA Order February 3, 2017
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0005288-2006,
                           CP-67-CR-0005291-2006

BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 13, 2017

        Appellant, David E. Bartling, appeals pro se from the order entered in

the York County Court of Common Pleas dismissing his first Post Conviction

Relief Act1 (“PCRA”) petition as untimely.        Appellant contends that his

petition was timely filed due to a newly discovered constitutional right and

asserts that his PCRA counsel was ineffective. We affirm.

        We adopt the facts and procedural history set forth by the PCRA

court’s opinion.    See PCRA Ct. Op., 5/9/17, at 1-4. Appellant raises the

following issues for review:



*   Former Justice specially assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541-9546.
J-S64038-17


         1. Whether the Court erred in denying [Appellant’s] PCRA
         petition alleging trial counsel ineffectiveness, illegal
         sentences, plea not knowing, voluntary, or intelligent, and
         plea unlawfully induced, as untimely without due
         consideration of a claim of discovery of new evidence as an
         exception to the one year filing period.[?]

         II. Whether PCRA counsel was ineffective, thus rendering
         the PCRA petition involuntarily uncounseled[?]

Appellant’s Brief at 6.

      Appellant acknowledges that his PCRA petition is facially untimely but

argues   that   an   unpublished   memorandum       issued    by     this   Court,

Commonwealth v. Singleton, 486 EDA 2014 (Pa. Super. filed Aug. 19,

2015)    (unpublished     memorandum),    set   forth   a    newly    discovered

constitutional right relevant to his case.      He specifically contends that

Singleton invalidated his sentence because this Court stated that the

imposition of a mandatory minimum sentence, as in effect at the time of

Appellant’s sentencing, would result in potential constitutional violations.

Appellant also asserts that this PCRA counsel was ineffective for failing to

adequately prepare for his PCRA hearing. No relief is due.

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”         Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

      Significantly here, we note that “[a]n unpublished memorandum

decision shall not be relied upon or cited by a Court or a party in any other



                                    -2-
J-S64038-17


action or proceeding . . .” 210 Pa.Code. § 65.37(A). Further, “[o]ur Courts

have expressly rejected the notion that judicial decisions can be considered

newly-discovered facts which would invoke the protections afforded by [42

Pa.C.S.] 9545(b)(1)(ii).”   Commonwealth v. Cintora, 69 A.3d 759, 763

(Pa. Super. 2013). Regarding Appellant’s claim of ineffective assistance of

PCRA counsel, we recognize that “[c]laims of PCRA counsel ineffectiveness

cannot be raised for the first time after a notice of appeal has been taken

from the underlying PCRA matter.”       Commonwealth v. Ford, 44 A.3d

1190, 1201 (Pa. Super. 2012)

      After careful consideration of Appellant’s brief, the record, and the

thorough decision of the Honorable Michael E. Bortner, we affirm on the

basis of the PCRA court’s opinion. See PCRA Ct. Op., at 4-12; (holding that

(1) the PCRA court lacked jurisdiction to review the merits of Appellant’s

PCRA petition where Appellant’s petition is facially untimely by over six years

and Appellant’s citation to Singleton, an unpublished memorandum, did not

establish an exception to the timeliness requirement of the PCRA and (2)

Appellant was precluded from raising a claim of PCRA counsel’s ineffective

assistance for the first time on appeal and, even if the issue had been

properly preserved, Appellant failed to prove that counsel was ineffective).

Accordingly, we affirm the PCRA court’s dismissal of Appellant’s petition.

       Order affirmed.




                                     -3-
J-S64038-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/13/2017




                          -4-
                                                                             Circulated 10/11 /2017 05:11 PM




     IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
                          CRIMINAL DIVISION

COMMONWEALTH                                             CP-67-CR-0005288-2006
        Appellce                                         CP-67-CR-0005291-2006
         v.
                                                         PCRAAPPEAL
DA YID E. BARTLING,
              Defendant/ Appellant
  :z.,,maf:e. # /I~ &'<IO
COUNSEL OF RECORD:

                   Stephanie E. Lombardo, Esquire                David E. Bartling
                   Counsel for the Commonwealth                 Pro se for the Defense


      OPINION IN' SUPPORT OF ORDER fURSUANT TO RULE 1925(a) OF THE
         .            RULES OF APPELLATE PROCEDURE

         The Court received a Notice of Appeal, docketed on February 15, 2017, that David E.

Bartling, prose, appeals to the Superior Court of Pennsylvania the Order entered in the

above-captioned cases on February 3, 2017. The Cou11 has reviewed the record. The Court

now issues this Opinion in support of our February 3, 2017 Order.

I.       Procedural History

         The relevant procedural history is as follows: On December 8, 2006, the Appellant

entered pleas in cases docketed at CP-67-CR.0005288-2006         and CP-67-CR-0005291-2006.

In CP-67-CR-0005288-2006, the Appellant plead nolo contendere to statutory sexual assault'

and indecent assault'        In CP-67~CR-000529 l-2006, the Appellant plead guilty to indecent



1 18 Pa.C.S.A. § 3 122.1.
2 l 8 Pa.C.S.A. § 3 I26(a)(8).
                                                                                         C)

                                                                                         -0
                                                                                         ::x
                                                                                         ..
                                                                                         .r:-
                                                                                         C>
                                                                                                      5
assault,' statutory sexual assault,4 involuntary deviate sexual intercourse (hereinafter: IDSI),

and sexual exploitation of children. 6 On May 1, 2007, following evaluation, the trial court

determined that the Appellant was a sexually violent predator (hereinafter: SVP) and imposed

an aggregate sentence of ten to twenty years   ir a state   correctional institution. The Appellant

appealed his being labeled an SVP based upon insufficient evidence and on December 12,

2007, in a non-precedential decision, the Superior Court affirmed the determination of the

trial   COUI1.


           The Appellant's cases laid dormant until he began requesting documents related to his

cases beginning ~n July 28, 2014. On March 4, 2015, the Appellant filed separate Post-

Conviction Relief Act (hereinafter: PCRA) p~titions in each of the case dockets listed in this

opinion. On March 9, 2015, the Appellant filed his Motion for Consolidation of Petitioner's

Post-Conviction Relief and Amendment Thereof On April 12, 2016, Karen Comery, Esquire

was appointed to represent the Appellant on his PCRA petition. Owing to a conflict of
            f.   •.




interests, on April 19, 2016, we supplanted Attorney Comery with Jennifer Smith, Esquire.

Following some back-and-forth with the Appellant about his erroneous notion that Attorney

Smith worked for the York County Public Defender's Office against whom the Appellant had

lodged his claims of ineffectiveness, a PCRA hearing was set for September 29, 2016. By a



3 18 Pa.C.S.A. § 3 l 26(a)(8).
4 18 Pa.C.S.A .. §3122.1..
5 18 Pa.C.S.A. § 3 l 23(a)(7).
6 18 Pa.C.S.A. § 6320(a).
                                                 2
prose letter of September 15, 2016, the Appellant requested a continuance necessitated by

his medical needs. This letter was supplemented by a counseled request to reschedule the

hearing on September 20, 2016. On September 20, 2016, we continued the PCRA hearing to

November 23, 2016.i Advised on Novcmber J, 2016 that the Appellant was still medically

unavailable, we continued the PCRA hearing to February 3, 2017. On January 20, 2017, the

Commonwealth requested that we dismiss the Appellant's PCRA petition sans hearing as

being untimely. Feeling that the convoluted procedural history of the Appellant's attempts to

garner PCRA relief merited a hearing, we moved forward with the PCRA hearing.
        ,
        t·r'

       Following an .on-the-record discussion on the timeliness of Appellant's PCRA

petition.we dismissed the Appellant's petition as being untimely without meeting any

exceptions. Additionally, following a colloquy, pursuant to Commonwealth v. Grazier, 713

A.2d 81 (Pa. l 998), \'Ale determined that the Appellant desired to proceed prose on appeal
                                              I




rather than with counsel who had informed him that she would be forced to argue her belief

that the Appellant had no meritorious issues upon which to appeal.

       On February. 15, 2017, the Appellant fjled his Notice of Appeal of our February 3,
                    ',
2017 Order. Pursuant to the Pennsylvania Rules of Appellate Procedure, Rule l925(b), the
               .-

Appellant was directed by an Order docketed on February 28, 2017 to file a statement of

matters complained of on appeal. On March 9, 2017, the Appellant submitted his Statement

of Matters Complained of On Appeal, R.A.l\. 1925(b), which was docketed on March 15,


                                                  3
 2017. The transcript of the February 3, 2017 PCRA Hearing became available on April 25,

 2017.

         The Appellant appeals for the following reasons: First, the Appellant avers it was

 error to deny his PCRA petition as untimely where he claimed an exception to the timeliness

 requirement in the nature of a discovery of new evidence exception. Second, the Appellant

 believes his PCRA counsel was ineffective, wpich rendered his petition involuntarily

uncounseled.

II.      Facts

         We omit this customary section as the relevant facts have already been recited in the

proceduralhistory and those facts, as applied infra, are uncomplicated.

Ill.     Matters Complained of on Appeal

         A.    Untimeliness of PCRA
         .
         TJw Appellant's first matter complained of is that this Court erred in failing to find

that the untimeliness of his PCRA petition was cured by the discovery of new evidence.

Though not exp I icidy stated in his statement of errors complained of on appeal, it is clear to

this Court that the Appellant believes we incorrectly rejected his presentation of the

unpublished case of Commonwealth v. Singleton, 20 I 6 WL 667515 I, filed August 19, 2015,

as a qualifying exception to the timeliness requirement of the PCRA for the discovery of new

evidence that was previously unavailable. In Singleton, the Superior Court stated that, "if the

assaults occurred prior to January 1, 2007, 'the imposition of the ten-year, rather than five-
                                                 4
year mandatory       minimum,    { would] have resulted in an improper application     of the terms of§

9718{,f      i .. e., potential violations of the ex post facto clauses in the United States Constitution

and Pennsylvania Constitution, respectively." 2015 WL 6675151 at 1 (quoting

Commonwealth v. Singleton, 75 A.3d 545 (Pa. Super. Ct. 2013) (unpublished memorandum

at 8)) (citing U.S. Const. Article I, §    to, Pa. Const,   Article I, § 17). The question is whether

or not this qualifies as newly discovered evidence to overcome to the time-bar of the PCRA.
                                                     !




          Neither this court, nor any other we know of, can have jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)

(citing Commonwealth v. Rienzi, 827 A.2d 369, 371 (Pa. 2003) (citations omitted)). "{A]ny

PCRA petition, including a second or subsequent petition, must be filed within one year of

the datethe judgment becomes final." Commonwealth v. Breakiron, 781 A.2d 94, 97 (Pa.

2001) (citing 42 Pa.C.S. § 9545(b)(l)). And, "{a] judgment becomes final at the conclusion

of direct review or at the expiration of time for seeking the review." Id., at 42 Pa.C.S. §

9545(b)(3)).

          In order for a•PCRA petitioner to overcome the time-bar, the petitioner must allege

and prove one of the following 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;

       (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
                                                     5
          diligence; or

          (iii)    the right asserted is a constituti onal 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.

Id., at 97-98 (citing 42 Pa.C.S. § 9545(b)(I)(i),-(iii)). Further, "[a] petition invoking one of the

above exceptions must be filed within 60 days of the date the claim could have been

presented." Id., at 98 (citing 42 Pa.C.S. § 9545(b)(2)). '°As such, when a PCRA petition is

not filed within one year of the expiration of direct review, or not eligible for one of the three

limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of the

date that the claim could have been first brought, the trial court has no power to address the

substantive merits of a petitioner's PCRA claims.:" Commonwealth v. Secreti, 134 A.3d 77,

80 (Pa. Super. Ct. 2016) (quoting Commonwealth v. Gamboa-Tay/or, 753 A.2d 780, 783 (Pa.

2000)).

          Turning to the case sub judice, The Superior Court denied the Appellant's first appeal
           h                                     .




on December 12, 2007. As the Appellant did not seek review of this decision in our Supreme

Court, his judgment became final thirty days [ater on January 11, 2008. See Commonwealth's

Motion t<,> Dismiss Untimely PCRA Petition at unnumbered page 1 (citing Commonwealth v.

Pollard, 911 A.2d 1005, 1007 (Pa. Super. Ct. 2006)). A year later, on January 12, 2009, the

time for the Appellant to file a facially timely PCRA petition ran. Breakiron, supra, at 97.

The Appellant filed his PCRA petitions on March 2, 2015. These petitions were six years too

                                                 6
late.

         To surmount the time-bar, the Appellant proffered his discovery of Commonwealth v.

Singleton, 2016 WL 6675I51, filed August 19, 20 l 5, as newly discovered evidence.

However, in Commonwealth v. Watts, our Supreme Court said, "we 'hold that subsequent

decisional law does not amount to a new 'fact' under section 9545(b)(l)(ii)   of the PCRA.» 23

A.3d 980, 987 (Pa. 2011); See also Commownealth v. Cintora, 69 A.3d 759, 763 (Pa. Super.

Ct. 2013); Commonwealth v. Brandon, 5 l A. 3d 231, 235 (Pa. Super. Ct. 2012): Id est, new

case law, favorable to a PCRA petitioner, does not qualify as a new fact under the exceptions

to the PCRA time-bar, Additionally, we mus, stress that Singleton is an unpublished case,
                  . ,.
which we are not bound by and upon which we cannot rely for support. 210 Pa. Code §

65.37. Moreover, the fact that three of the Aprellant's attorn~ys failed to recognize any

impropriety in applying the ten-to-twenty year mandatory minimum to the Appellant's case,


             .
where his offenses occurred before that mandatory went into effect on January l , 2007, is
                                               .



unavailing. (Notes ~.f Testimony, 2/3/17, at 5-.6.) Binding precedent establishes that discovery

of prior counsel's ineffective assistance does pot constitute a newly discovered fact under §

9545(b)(l)(ii).   Commonwealth v. Gamboa-Tay/or, 753 A.2d 780-785-86 (Pa. 2000).)

         For the foregoing reasons, the Appellant's PCRA petition was facially untimely and·

no exception to the timeliness requirement could overcome this deficiency. We therefore

humbly request affirmance as to this matter complained of.

        B.        Ineffectiveness of PCRA Counsel
                                                   7
          In his second matter complained of, the Appellant avers that his PCRA counsel was

 ineffective, which rendered his petition involuntarily uncounseled. Ab initio, we recognize

 that ineffective assistance of trial counsel claims are generally to be deferred to collateral

 review. Commonwealth v. Holmes, 79 A.3d 5~2, 576 (Pa. 2013). The situation we have, in

 which counsel has dismissed his PCRA counsel and has alleged ineffectiveness of his PCRA

 counsel, is far less certain. In Commonwealth y. Ford, after an exhaustive analysis of relevant

 law, the Superior Court stated that, "claims of PCRA counsel ineffectiveness cannot be raised

 for the first time after a notice of appeal has been taken from the underlying PCRA matter."
                       ··•.
44 A.3d 1190, 120L(Pa. Super. Ct. 2012); See also Commonwealth v. Henkel, 90 A.3d 16,

29-30 (Pa. Super. Ct. 2014) (Discussing how allegations of PCRA counsel ineffectiveness

have evaded appellate review.), A review of the February 3, 2017 transcript reveals that it is

devoid   of any assertion
                       .                           .
                              by the Appellant that his PCRA counsel was ineffective. This

transcript contains the last communication from the Appellant to this Court before he filed

his pro se Notice of Appeal, which, per Ford, supra, bars his claim of PCRA counsel

ineffectiveness. A reading of Henkel leaves this Court with the distinct impression that,

unless the Appellant correctly crafts his arguments, he will be forever foreclosed from

challenging Attorney Smith's representation via a PCRA petition within the state courts. 90

A.3d, at 29-30. Barring a cognizable and coient framing of the matter by the Appellant, we

believe this matter will evade review by the Superior Court and we feel compelled to request

affirmance as to it.
                                                   8
        If the Appellant is able to place this matter complained of in a proper posture for

appellate review then we must address the question of ineffectiveness. It is stated in

Strickland v. Washingtonthat, "the benchmark for judging any claim of ineffectiveness must

be whether counsel's conduct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just result." 466 U.S. 668, 686

( 1984). Pennsylvania codified this principle in the Post-Conviction Relief Act, which

provides post-conviction relief for "[ijneffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth-determining process that no

reliable adjudication of guilt or innocence couJd have taken place." 42 Pa.C.S.A. §

9543(a)(2)(ii). Pennsylvania's     Supreme Court has interpreted this to mean that to show

ineffective assistance of counsel, a petitioner must show that:

        {1.-) the claim underlying the ineffectiveness claim has arguable merit; (2)
        counsel's actions lacked any reasonable basis; and (3) counsel's actions
        resulted in prejudice to petitioner.

Commonwealth v.        Cox, 983 A.2d   666, 678 (Pa. 2009) (citing Commonwealth v. Collins, 957
                        ~ ; ..
A.2d 237,' 244 (Pa. 2808)); See also, Commonwealth v. Rollins, 738 A.2d 435, 441 (Pa. 1999)

(citations omitted).   "A chosen   strategy will not be found to have lacked a reasonable basis
          .             ~                                     .

unless it is proven 'that an alternative not chosen offered a potential for success substantially

greater than the course actually pursued.:" 9,83 A.2d 666, 678 (Pa. 2009) (quoting

Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006) (quoting Commonwealth v.

Howard, 719 A.2d 233, 237 (Pa. 1998))). In Commonwealth v. Pierce, the Pennsylvania
                                                  9
Supreme Court wrote that, "[p]rejudice in the context of ineffective assistance of counsel

means demonstrating that there is a reasonable probability that, but for counsel's error, the

outcome of the proceeding would have been different." 786 A.2d 203, 213 (Pa. 2001) (citing

Commonwealth v. Kimball, 724 A.2d 326, 33i (Pa. 1999)); See also, Commonwealth v.

Fletcher, 986 A.2d 759, 772 (Pa. 2009) (citations omitted). Lastly, "the law presumes that

counsel was effective and the burden of proving that this presumption is false rests with the

petitioner."   983 A.2d 666, 678 (Pa. 2009) (citing Commonwealth v. Basemore, 744 A.2d

717, 728 (Pa. 2000)).

         We first examine
                     .    if the claim of ineffectiveness
                                                .
                                                          possesses arguable merit. For the

reasons outlined in our response to the first matter complained of, we believe it does not. The

Appellant sought to·put an untimely petition for post-conviction relief before this Court. We
          .              '

outlined why it wasuntimely above. The Appellant has thus already failed the first prong of a

test in which all three_prongs must be met. Nonetheless, we continue on.

        We next examine whether PCRA counsel's actions lacked any reasonable basis whilst

bearing in mind that the Appellant has a duty ~o show an alternative path not taken by PCRA

counsel offered a substantially greater chance of success. Of course, the trouble with
                     \'


considering allegations of PCRA counsel's ineffectiveness that are not raised until the

statement of errors complained of on appeal becomes abundantly clear at this juncture. The
        ·. y         .
Appellant pas proposed no alternative with a substantially greater potential for success. None
                         .'··
appears in his statement of errors. There is nq real record to review. Counsel argued against
                     .·                        , 10
dismissing Appellant's     PCRA as being untimely, (N.T., 2/3/17, at 3-9.) And, in fact, PCRA

counsel presented the aforementioned     unpublished   case of Commonwealth v. Singleton,

which is the same course of action the Appellant wished to take to evade the time barrier of

the PCRA. Id., at 3. There was no alternative course of action Attorney Smith could have
                      ..
taken to get around the time-bar and to confer jurisdiction upon this Court to hear the

Appellant's underlying claims for PCRA relief. The Appellant has, at this point, failed two

prongs of the test of ineffective assistance of counsel. Nonetheless, we proceed to the third

prong.

         For the third prong, we weigh whether, as a result of PCRA counsel's actions,

prejudice inured to the Appellant's petition for relief. We ask whether the Appellant has
         ;:
              y·,
shown that, but for counsel's error, a different outcome would have occurred. We cannot find

that any different outcome
                    .      would have occurred
                                            . as this Court has found no supporting law

that would allow the Appellant to satisfy the time-bar of the PCRA.

         Remembering that the law presumes counsel was effective, we believe the Appellant

fails at a..11 three prongs of the test for ineffective assistance of counsel. Yet, we have analyzed

all three independently in the possible event that the Superior Court feels one, or more, of

those prongs has be~n met. Having completed our evaluation and satisfied ourselves that the

Appellant could nothave succeeded on any of the individual prongs, let alone together as he

must to succeed, we pray for affinnance as to this matter complained of on appeal.

IV.            .
         conclusion
                                                 11
       Based upon the reasons stated above, this Court respectfully urges affirmance of the

Order of January 6, 2017.




                                            }lYTHE COURT,




          .     a/"
DATED: ·May_t_·_, 2017
                                         ~ZJ;;~
                                          MJHAELE.B(}RTNER, JUDGE




                                                                                                         ·-
                                                                                 o·:
                                                                                 r+                   "'
                                                                                                      =
                                                                                                      -...J

                                                                                 C:: '?
                                                                                ·-·l"--J
                                                                                ;;y~ :-.::::
                                                                                (:"_:, C)
                                                                            -,,            'I
                                                                                   •u:
                                                                            \:::::
                                                                           ()Pl
                                                                           C:: t=:
                                                                           »:r :
                                                                          ·-;                                 t   .••   ;1,
                                                                          (/)
                                                                                                C.)
                                                                                                0>




                                             12
