J-S52042-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

GEORGE DALIE

                            Appellant                No. 1267 EDA 2014


                   Appeal from the PCRA Order April 15, 2014
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0004044-2006


BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                      FILED OCTOBER 15, 2014

        Appellant, George Dalie, appeals from the order entered in the Chester

County Court of Common Pleas, dismissing as untimely his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On July 19, 2006, Appellant was involved in a fight with a fellow inmate at

Chester County Prison. Appellant punched and stomped on the head of the

victim.    At the conclusion of a two-day trial, on May 23, 2007, a jury

convicted Appellant of aggravated assault, simple assault, assault by

prisoner, and recklessly endangering another person. On August 20, 2007,

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


_____________________________

*Former Justice specially assigned to the Superior Court.
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the court sentenced Appellant to an aggregate term of nine (9) to eighteen

(18) years’ imprisonment.          Appellant timely filed a notice of appeal on

August 28, 2007. Appellant filed a pro se PCRA petition on July 19, 2010,

which the PCRA court dismissed without prejudice because Appellant’s direct

appeal was still pending.           After an extended delay involving several

appointments of new appellate counsel for Appellant, counsel sought and

this Court granted an extension of time to file an appellate brief, with a new

due date of September 3, 2010 (the Friday before Labor Day). Instead of

filing the brief, counsel sought a second extension of time to file a brief on

Tuesday, September 7, 2010, which this Court denied. Counsel filed a brief

on September 10, 2010, which a panel of this Court deemed untimely in a

judgment order on October 1, 2010, that dismissed the appeal.          Counsel

sought reconsideration, which was denied. Counsel then pursued a petition

for allowance of appeal with our Supreme Court.          On May 12, 2011, the

Pennsylvania Supreme Court denied the petition for allowance of appeal.

See Commonwealth v. Dalie, 15 A.3d 513 (Pa.Super. 2010), appeal

denied, 610 Pa. 615, 21 A.3d 1190 (2011).

       Appellant pro se filed his first PCRA petition on May 23, 2013,2 alleging

that for twenty-one months he sent counsel “a minimum of ten (10) parcels

of written correspondence via first class mail [] which went unanswered.
____________________________________________


2
  The PCRA petition was filed on May 23, 2013, under the prisoner mailbox
rule and docketed on May 31, 2013.



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Within these letters, petitioner requested, inter alia, he be notified when his

PAA was ruled upon and advised he intended to file a pro se PCRA petition to

seek restoration of his direct appeal rights nunc pro tunc.” (See Appellant’s

pro se PCRA Petition, 5/23/13, at 4 ¶ 32.)        Appellant claimed he finally

contacted the Supreme Court, which informed Appellant his PAA had been

denied on May 12, 2011. (Id. at ¶¶ 33-34).

      On June 14, 2013, the PCRA court appointed counsel.           On July 18,

2013, Appellant filed a pro se “petition for waiver of representation by

counsel and request to proceed pro se.”           Appointed counsel filed an

amended petition on August 26, 2013, and asked for a hearing on appellate

counsel’s ineffectiveness for failing to file a timely brief on direct appeal and

failing to notify Appellant of the Supreme Court’s PAA decision. The court

issued notice on December 2, 2013, of its intent to dismiss Appellant’s

petition without a hearing, pursuant to Pa.R.Crim.P. 907. The following day,

the court denied Appellant’s request to proceed pro se. The court issued an

amended Rule 907 notice on January 28, 2014, to correct a factual error and

by order of the same date dismissed Appellant’s open motion.          The court

finally dismissed the PCRA petition as untimely on April 15, 2014. Appellant

timely filed a counseled notice of appeal on April 22, 2014.          The court

ordered Appellant to file a concise statement of errors complained of on

appeal, pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.

      Appellant raises the following issue for our review:


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         WHETHER THE [PCRA] COURT ERRED BY DISMISSING
         APPELLANT’S PCRA PETITION AS UNTIMELY WHERE
         APPELLANT’S COUNSEL FAILED TO ADVISE HIM THAT HIS
         PETITION FOR ALLOWANCE OF APPEAL TO THE SUPREME
         COURT OF PENNSYLVANIA HAD BEEN DENIED AND
         APPELLANT FILED HIS PCRA PETITION BEYOND THE TIME
         LIMIT SET BY STATUTE?

(Appellant’s Brief at 3-4).

      As a preliminary matter, we must determine whether Appellant’s

current PCRA petition was timely. Commonwealth v. Hutchins, 760 A.2d

50, 53 (Pa.Super. 2000). The timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Hackett, 598 Pa. 350, 358, 956 A.2d 978,

983 (2008), cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277

(2009). A court may not examine the merits of a petition for post-conviction

relief that is untimely. Commonwealth v. Abu-Jamal, 574 Pa. 724, 735,

833 A.2d 719, 726 (2003). A PCRA petition must be filed within one year of

the date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1).

A judgment is deemed 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

review.” 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the

timeliness provisions in the PCRA allow for very limited circumstances under

which the late filing of a petition will be excused. To invoke an exception, a

petition must allege and the petitioner must prove:

         (i) the failure to raise a claim previously was the result of
         interference by government officials with the presentation

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         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)-(iii).        A petitioner asserting a timeliness

exception must file a petition within sixty days of the date the claim could

have been presented. 42 Pa.C.S.A. § 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. Gamboa-Taylor,

562 Pa. 70, 77, 753 A.2d 780, 783 (2000). For purposes of the timeliness

exception regarding the discovery of new facts, due diligence demands that

the petitioner take reasonable steps to protect his own interests, and the

petitioner must explain why he could not have obtained the new fact earlier

with   the   exercise   of   due   diligence;   this   rule   is   strictly   enforced.

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010). See

also Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007)


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(holding petitioner met exception to PCRA timeliness requirement under

subsection 9545(b)(1)(ii), where petitioner alleged in pro se second PCRA

petition that PCRA counsel’s failure to file appellate brief resulted in dismissal

of petitioner’s appeal from denial of first PCRA petition; petitioner provided

detailed description of steps he took to ascertain status of appeal, which

included writing to PCRA court and Superior Court; he consequently learned

on October 4, 2000—less than two months after appeal had been

dismissed—that PCRA counsel failed to file brief; petitioner filed second PCRA

petition on October 27, 2000, less than one month after he learned PCRA

counsel caused dismissal of appeal for failure to file brief).         Compare

Commonwealth v. Carr, 768 A.2d 1164 (Pa.Super. 2001) (holding

petitioner failed to meet exception under subsection 9545(b)(1)(ii), where

petitioner alleged he did not learn of counsel’s failure to file direct appeal

until March 25, 1999, approximately three years after petitioner’s judgment

of sentence became final on February 9, 1996; petitioner filed first PCRA

petition on April 27, 1999; petitioner did not act with due diligence to

discover if direct appeal had been filed on his behalf during one-year window

to file timely PCRA petition).

      Instantly, Appellant’s judgment of sentence became final on August

10, 2011, upon expiration of the time to file a petition for writ of certiorari

with the United States Supreme Court.         See 42 Pa.C.S.A. § 9545(b)(3);

U.S.Sup.Ct.R. 13.     Appellant filed the current PCRA petition on May 23,


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2013, over one year and nine months after his judgment of sentence

became final. Thus, Appellant’s petition is patently untimely.

      Appellant attempts to invoke the “new facts” exception to the time

restrictions of the PCRA. Appellant argues his counsel on direct appeal failed

to notify him of the Pennsylvania Supreme Court’s denial of the petition for

allowance of appeal, thereby depriving Appellant of the knowledge that his

judgment of sentence had become final, so he could file a PCRA petition to

have his direct appeal rights reinstated nunc pro tunc. Appellant asserts he

acted with due diligence by writing at least ten letters to appellate counsel

inquiring about the status of the appeal.    Appellant maintains he filed the

current PCRA petition within sixty days of April 2, 2013, when he first

learned that his petition for allowance of appeal had been denied. Appellant

concludes the court erred when it dismissed as untimely his PCRA petition.

We disagree.

      In its opinion, the PCRA court reasoned:

         Even accepting [Appellant’s] version of the events as true,
         his PCRA [p]etition fails to satisfy any of the enumerated
         exceptions that would excuse the late filing.            The
         timeliness exception contained in Section 9545(b)(1)(ii)
         requires a petitioner to demonstrate he did not know the
         facts upon which his petition was based and could not have
         learned those facts earlier by the exercise of due diligence.
         Due diligence demands that the petitioner take reasonable
         steps to protect his own interests.          Additionally, a
         petitioner must explain why he could not have learned the
         new fact earlier with the exercise of due diligence.
         Moreover, the due diligence rule is strictly enforced.

         In the instant PCRA [p]etition, it reasons that all the issues

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       raised consist of allegations claiming that [Appellant’s] due
       process rights were violated by [Appellant’s] appellate
       counsel.      Specifically, [Appellant] alleges ineffective
       assistance of counsel against [direct appeal counsel] for
       failing to timely file a brief on his behalf with the Superior
       Court of Pennsylvania. Additionally, [Appellant] contends
       that his appeal issues were never heard by the Superior
       Court because of [counsel’s] ineffectiveness. Although
       [Appellant] avers that [counsel] did not comply with...his
       instructions and provide him with the notice of the
       Supreme Court’s decision regarding his [p]etition for
       [a]llowance of [a]ppeal; [Appellant] fails to explain why he
       could not have learned the new fact earlier through the
       exercise of due diligence.

       Although [Appellant] claims that he was prevented from
       filing a timely PCRA petition because [counsel] failed to
       inform him that the Supreme Court had denied his
       [p]etition for [a]llowance of [a]ppeal; this contention is
       belied by the record. [Appellant] acknowledges that the
       Pennsylvania Supreme Court notified [counsel] of its
       denial, by letter dated May 12, 2011, but presumes the
       court was required to notify [Appellant] directly. The
       alleged failure by [counsel] to convey the Pennsylvania
       Supreme Court’s decision to [Appellant] did not relieve
       Appellant of his obligation to take reasonable steps to
       protect his own interests. It would be disingenuous to
       suggest that a client bears no responsibility in maintaining
       contact with his attorney throughout the appellate process
       or for tracking the status of the case.

       [Appellant] claims that he was stuck in limbo regarding the
       status of this appeal, [but] he waited until March of 2013
       to contact the Pennsylvania Supreme Court and request
       the status of his case. Furthermore, Appellant alleges that
       over a 21-month time period, he sent appellate counsel a
       minimum of 10 letters that all went unanswered, [but] he
       waited for over two years from the filing of his [p]etition
       [for] [a]llowance of [a]ppeal to correspond with the
       Pennsylvania Supreme Court. Consequently, [Appellant]
       did not act with due diligence.

       [T]he alleged failure by Mr. Wagner to convey the [C]ourt’s
       decision to [Appellant] did not relieve [Appellant] of his

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         obligation to act with due diligence. By exercising due
         diligence, [Appellant] could have readily discovered
         whether his [p]etition for [a]llowance of [a]ppeal had been
         ruled upon within one year.

         This is especially true in this case as [Appellant] was
         familiar with the filing and information requesting
         processes of the various Pennsylvania courts. Specifically,
         [Appellant] filed with or requested documents from the
         Court of Common Pleas, the Superior Court, and the
         Supreme Court. Moreover, the status of [Appellant’s] case
         is “public information.” The status of [Appellant’s] case
         was easily accessible via mail, telephone, or the internet.
         Accordingly, we conclude [Appellant] did not act with due
         diligence. Although [Appellant] is incarcerated and may
         not have had unlimited access to the internet, he could
         have easily corresponded with the Pennsylvania Supreme
         Court via telephone or postal mail. [Appellant’s] [p]etition
         for [a]llowance of [a]ppeal was filed on January 1, 2011[,]
         and was denied on May 12, 2011. [Appellant] had a full
         year from August 10, 2011, to learn the status of his case;
         and a mere letter or phone call to the Clerk of the
         Supreme Court would have revealed that his petition was
         denied. Furthermore, [Appellant] could have directed a
         third-party to inquire about the status of his case through
         the internet. Because appellate counsel’s failure to notify
         [Appellant] that his [petition for allowance of appeal] was
         denied was easily discoverable during [Appellant’s] one-
         year window to file a timely PCRA petition, [Appellant] did
         not act with due diligence to protect his own interests.

(PCRA Court Opinion, filed May 8, 2014, at 5-6) (internal citations removed)

(emphasis in original). We accept the court’s analysis. The Supreme Court’s

denial of Appellant’s petition for allowance of appeal was a matter of public

knowledge. Nevertheless, Appellant waited almost two years to contact the

Supreme Court to inquire about that decision. Thus, Appellant’s contention

that he could not have discovered the outcome of his petition for allowance

of appeal earlier through the exercise of due diligence is unfounded.

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      Moreover, Bennett, supra, is distinguishable, where Mr. Bennett

promptly contacted this Court and the PCRA court, and learned of the “new

fact”—PCRA counsel’s failure to file a brief in the appeal from the denial of

Mr. Bennett’s first PCRA petition. Mr. Bennett ascertained the fact less than

two months after the appeal had been dismissed and quickly filed a second

PCRA petition within a month of discovering the dismissal.           Unlike Mr.

Bennett, Appellant failed to act promptly within a reasonable time to learn

the outcome of his petition for allowance of appeal.         Although Appellant

claimed he wrote to counsel, Appellant evidently knew how to contact the

Court as well, but failed to do so. Instead, Appellant appeared to be content

with waiting for a response from counsel, even after an alleged ten efforts to

contact counsel went unanswered. Appellant had other known means at his

disposal but failed to utilize them. Appellant is therefore responsible for the

prolonged delay in ascertaining the outcome of his PAA and his belated

actions do not constitute the “exercise of due diligence.”

      Likewise, Carr, supra, affords Appellant no relief. In Carr, this Court

stated:

          Trial counsel’s failure to file a direct appeal was
          discoverable during Appellant’s one-year window to file a
          timely PCRA petition. In fact, the expiration of Appellant’s
          time to file a direct appeal initiated the PCRA’s one-year
          clock. Thus, Appellant had a full year to learn if a direct
          appeal had been filed on his behalf. A phone call to his
          attorney or the clerk of courts would have readily revealed
          that no appeal had been filed. Due diligence requires that
          Appellant take such steps to protect his own interests.


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Id. at 1168. Carr does not suggest that contacting a court or an attorney,

absent more, amounts to due diligence. On the contrary, Carr supports the

proposition that due diligence requires action without needless delay.

Like the petitioner in Carr, Appellant allowed the one-year window to file a

timely PCRA petition to expire.       Appellant’s bare allegation that he sent

appellate counsel “numerous” letters for two years requesting information on

the status of the appeal does not in itself warrant a hearing.         Appellant’s

petition did not specify when these alleged letters were sent or provide any

evidence of their actual existence.     Absent any detailed description of the

steps he took, Appellant’s assertion is simply too generic.        See Bennett,

supra. With respect to Appellant's request for an evidentiary hearing, we

note: “An evidentiary hearing…is not meant to function as a fishing

expedition for any possible evidence that may support some speculative

claim of ineffectiveness.” Commonwealth v. Scott, 561 Pa. 617, 628 n.8,

752 A.2d 871, 877 n. 8 (2000), cert. denied, 532 U.S. 949, 121 S.Ct. 1419,

149 L.Ed.2d 360 (2001). Appellant was required to set forth in his petition

an offer of sufficient facts upon which the PCRA court could conclude counsel

was ineffective.     See Commonwealth v. Pettus, 492 Pa. 558, 563, 424

A.2d 1332, 1335 (1981). As presented, Appellant’s assertions fall within the

Gamboa-Taylor line of cases which hold standard ineffectiveness of counsel

claims   generally    do   not   constitute    exceptions   to   the   PCRA   time

requirements.      Based upon the foregoing, we conclude Appellant’s PCRA


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petition remains time-barred.         See Gamboa-Taylor, supra.   Accordingly,

we affirm the dismissal of Appellant’s PCRA petition as untimely.3

       Order affirmed.

       Judge Allen joins this memorandum.

       Justice Fitzgerald files a dissenting statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2014




____________________________________________


3
  Appellant filed a pro se open motion on July 30, 2014, to stay this appeal
and remand the case to the PCRA court for a hearing pursuant to
Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998). Appellant is
currently represented by counsel on appeal. Appellant also filed his motion
after counsel had already filed a brief on Appellant’s behalf on June 10,
2014. Thus, we deny Appellant’s motion. See Commonwealth v. Jette,
611 Pa. 166, ___, 23 A.3d 1032, 1041-42 (2011) (stating that absent timely
motion for change of counsel, in which appellant can demonstrate
irreconcilable differences which preclude counsel from representing him, or
perhaps timely petition for self-representation, or retention of private
counsel, appellant must remain with appointed counsel through conclusion of
appeal). In this context, “timely” means the motion or petition must be filed
before the filing of a counseled brief. See id.



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