J-S11022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 WILLIAM LEONHAUSER                       :
                                          :
                    Appellant             :   No. 3968 EDA 2017

              Appeal from the PCRA Order November 20, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-1002581-2000


BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                             FILED APRIL 03, 2019

      William Leonhauser (Appellant) appeals pro se from the order dismissing

as untimely his serial petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court summarized the relevant factual and procedural history

as follows:

            On December 13, 2002, following a bench trial before the
      Honorable Anthony J. DeFino, Appellant was found guilty of
      [k]idnapping, [u]nlawful [r]estraint[,] and [f]alse [i]mprisonment.
      On March 3, 2003, Judge DeFino sentenced Appellant to 25 to 50
      years’ incarceration for [k]idnapping pursuant to 42 Pa.C.S. §
      9714(a)(2) (“three strikes” law), with no further penalties
      imposed on his remaining convictions.

            Appellant timely filed a direct appeal to the Pennsylvania
      Superior Court, which affirmed the judgment of sentence on
      August 3, 2004. Appellant filed a petition for allowance of appeal,
      which the Pennsylvania Supreme Court denied on December 9,
      2004. Appellant did not seek further discretionary review in the
      United States Supreme Court.
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           On March 8, 2005, Appellant timely filed a PCRA petition.
     PCRA Counsel, David Rudenstein, Esquire, was appointed, and on
     January 11, 2006, he filed an amended petition. Judge DeFino
     dismissed the petition on November 9, 2006. Appellant timely
     appealed to the Superior Court, which affirmed the dismissal on
     January 24, 2008.

           On March 10, 2008, Appellant filed a federal petition for writ
     of habeas corpus, which was dismissed on November 18, 2010.
     While that petition was pending, on August 7, 2008, he filed a
     second PCRA petition, which [the PCRA court] dismissed on May
     20, 2010.

            On June 1, 2012, Appellant filed a third PCRA petition -- the
     petition at bar -- alleging that trial counsel, Jack McMahon,
     Esquire, never informed him that the Commonwealth had made a
     plea offer. On April 2, 2013, the [PCRA court] issued a Notice of
     Intent to Dismiss pursuant to Pa.R.Crim.P. 907.

           Appellant did not file objections or otherwise respond to the
     Rule 907 Notice. The record reflects, however, that Appellant’s
     third PCRA petition was never formally dismissed. As such,
     Appellant’s third PCRA petition remains operative.

           Nonetheless, on June 25, 2015, Appellant filed an ostensible
     fourth PCRA petition, once again asserting trial counsel’s
     ineffectiveness for failing to convey the Commonwealth’s plea
     offer. Rather generously, the [PCRA court] appointed PCRA
     counsel, Sandjai Weaver, Esquire, to represent Appellant.
     Discontented with Mr. Weaver, however, Appellant filed a motion
     for new counsel; the [PCRA court] granted the motion and
     appointed Richard Blok, Esquire, to represent him.

           On May 6, 2017, Mr. Blok filed a motion to withdraw as
     counsel; the [PCRA court] granted the motion and appointed
     Lauren Baraldi, Esquire, as counsel. On June 27, 2017, Ms.
     Baraldi filed her own motion to withdraw, which the Court
     granted; Demetra Mehta, Esquire, thereafter was appointed to
     represent Appellant.

            On September 18, 2017, counsel filed a Turner/Finley
     letter and a motion to withdraw. On September 20, 2017, upon
     independent review of the record, the [PCRA court] issued a

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     Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907.
     Appellant filed a motion for extension of time to respond to said
     Notice on September 29, 2017, followed by a pro se “Rebuttal to
     PCRA Counsel[’s] No Merit Letter” on October 20, 2017.

           On November 20, 2017, counsel for the parties appeared
     before the Court to address Appellant’s rebuttal:

                 [PCRA court]: . . . So [Appellant], he did file a
           rebuttal.

                 [Attorney Mehta]: Correct.

                 [PCRA court]: And have you had a chance to
           look at that?

                 [Attorney Mehta]: I have but [] he does not
           address, to my satisfaction, how one would get around
           the time bar issue. I don’t see how he can ever be
           successful with this argument.

                 [PCRA court]: Right. So it is, as far as your
           [Finley letter, it] addressed this issue and [there] is
           not [a new] issue to be addressed?

                [Attorney Mehta]: I feel that I have.     If Your
           Honor wants me to amend it, I can.

                 [PCRA court]: No. I believe that was really the
           main issue with the [Finley letter] and it’s still the
           same issue.     So I will -- having taken note of
           [Appellant’s] pro se rebuttal to the 907 [Notice], that
           rebuttal does not state a claim upon which relief could
           be granted, so this PCRA is dismissed.

     (N.T. 11/20/17, pp. 2-3).

PCRA Opinion, 9/11/18, at 1-4 (footnotes omitted).

     At the conclusion of the November 20, 2017 hearing, the PCRA court

issued an order dismissing Appellant’s petition, and granted Attorney Mehta’s

request to withdraw as counsel of record. On December 6, 2017, Appellant


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filed the instant appeal. Both Appellant and the PCRA court have complied

with Pennsylvania Rule of Appellate Procedure 1925.

      Appellant raises the following issues:

      1. DOES PETITIONER’S CLAIM THAT TRIAL COUNSEL FAILED TO
      ADVISE HIM OF A PLEA OFFER SATISFY THE EXCEPTION
      ALLOWED BY 42 Pa. C.S. § 9545(b)(1)(ii)?

      2. THE COMMONWEALTH’S PLEA OFFER CONSTITUTES NEWLY
      DISCOVERED FACTS PREVIOUSLY UNKNOWN TO [APPELLANT].
      SEE 42 Pa. C.S. § 9545(b[)](1)(ii). THE PLEA OFFER IS AFTER
      DISCOVERED EVIDENCE UNDER 42 Pa. C.S. § 9545(a)(2)(vi).

      3. TRIAL COUNSEL DID NOT CONVEY TO APPELLANT THE
      COMMONWEALTH’S PLEA OFFER, WHICH VIOLATED APPELLANT’S
      UNITED STATES CONSTITUTIONAL RIGHTS UNDER THE SIXTH
      AMENDMENT.

      4. PCRA COUNSEL WAS INEFFECTIVE FOR FAILING [sic] A NO
      MERIT LETTER, FAILING TO APPRISE HERSELF AND RESEARCH
      APPLICABLE LAW, BY REFUSING TO REVIEW RECENT CLEARLY
      APPLICABLE APPELLATE COURT RULINGS THAT EXEMPT PRO SE
      [INCARCERATED] LITIGANTS FROM THE DUE DILIGENCE
      REQUIREMENTS OF 42 Pa. C.S. §§ 9545(a)(2) and 9545(b)(i)(i-
      iii).

      5. THE PCRA COURT ABUSED ITS DISCRETION BY FAILING TO
      CONSIDER AND REPLY TO [APPELLANT’S] REBUTTAL TO PCRA
      COUNSEL’S NO MERIT LETTER. THE COURT WAS DERELICT BY
      FAILING TO REVIEW AND APPLY RECENT APPELLATE COURT
      RULINGS AND ABUSED ITS DISCRETION BY FAILING TO HOLD
      THE REQUIRED EVIDENTIARY HEARING.

Appellant’s Brief at 1-2.

      As the PCRA court acknowledges, Appellant’s third PCRA petition filed

June 1, 2012 is still outstanding.   However, consistent with our holding in

Commonwealth v. Montgomery, 181 A.2d 359 (Pa. Super. 2018), we may

consider Appellant’s appeal from the dismissal of his subsequently-filed fourth

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petition, as “PCRA courts are not jurisdictionally barred from considering

multiple PCRA petitions relating to the same judgment of sentence at the same

time unless the PCRA court’s order regarding a previously filed petition is on

appeal, and therefore, not yet final.” Id. at 365 (footnote omitted). Thus,

the PCRA court had jurisdiction to dismiss Appellant’s petition, and Appellant’s

appeal is properly before us.

      In reviewing the denial of a PCRA petition, our review is limited to

examining whether the PCRA court’s findings are supported by the record and

free of legal error. See Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa.

2011). We view the findings of the PCRA court and the evidence of record in

the light most favorable to the prevailing party. Id.

      Section 9545 of the PCRA requires that “[a]ny petition under this

subchapter, including a second or subsequent petition, shall be filed within

one year of the date the judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1).

The timeliness requirement of the PCRA is “mandatory and jurisdictional in

nature.” Commonwealth v. McKeever, 947 A.2d 782, 784-85 (Pa. Super.

2008) (citation omitted). Therefore, “no court may disregard, alter, or create

equitable exceptions to the timeliness requirement in order to reach the

substance of a petitioner’s arguments.” Id. at 785.

      Although the timeliness requirement is mandatory and jurisdictional, “an

untimely petition may be received when the petition alleges, and the petitioner

proves, that any of the three limited exceptions to the time for filing set forth


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at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met.” Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). The three exceptions to

the timeliness requirement are:

      (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 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).

      Appellant concedes that his PCRA petition is untimely, but invokes the

newly-discovered facts exception of Section 9545(b)(1)(ii). Appellant’s Brief

at 7. Appellant argues that he had no knowledge of a written plea offer made

by the Commonwealth prior to his trial in October of 2002. Id. Appellant

alleges – consistent with his assertion in his June 1, 2012 PCRA petition

generally alleging that trial counsel never informed him of a plea offer – that

he obtained “newly discovered evidence” regarding the alleged plea offer on

May 15, 2015, when he obtained pages of his trial court docket which included

“concealed . . . on one page a hand written ‘notation’ dated November 17,

2000 of a plea offer being ‘rejected.’” Id. at 10.


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      The newly-discovered fact exception:

      has two components, which must be alleged and proved. Namely,
      the petitioner must establish that: 1) the facts upon which the
      claim was predicated were unknown 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. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (citations

omitted) (emphasis removed).

      In addition to claiming that he meets the Section 9545(b)(1)(ii)

exception to the PCRA time-bar, Appellant also alleges that because he was

never informed of the alleged plea offer prior to going to trial, his “trial counsel

rendered ineffective assistance of counsel and [Appellant’s] Sixth Amendment

[r]ights were violated.” Appellant’s Brief at 16. With regard to a claim of

ineffectiveness of counsel, no exception to the time-bar exists and such a

claim must therefore be brought within the one-year time limit prescribed by

Section 9545(1).       42 Pa.C.S.A. § 9545(b)(4) (“For purposes of this

subchapter, ‘government officials’ shall not include defense counsel, whether

appointed or retained.”); see also Commonwealth v. Edmiston, 65 A.3d

339, 349 (Pa. 2013) (“[W]e note that we have previously rejected attempts

to circumvent the timeliness requirements of the PCRA by asserting prior

counsel’s ineffectiveness[.]”); Commonwealth v. Fowler, 930 A.2d 586,

591 (Pa. Super. 2007) (“Allegations of ineffective assistance of counsel will

not overcome the jurisdictional timeliness requirements of the PCRA.”).

      In response to Appellant’s claims, the Commonwealth argues:


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              [Appellant’s] petition is facially untimely. It makes no
       difference whether the filing date is calculated using [Appellant’s]
       latest petition, or the way the PCRA court did by using [the] one
       he filed in 2012. Both were filed years after [Appellant’s]
       conviction became final.

             Nor does [Appellant] establish any statutory exception
       excusing the untimeliness of his petitions. He has neither plead
       nor proven facts that would show either was filed within 60 days
       of an event which could excuse an untimely petition, or explaining
       the delay.

             The record demonstrates that [Appellant] could have
       discovered the facts which purportedly support his claim over a
       decade ago, either when proceeding pro se or after he had been
       appointed counsel. [Appellant’s] argument relies on evidence
       outside the record, and is contradicted by the existing record
       multiple times. Accordingly, no relief is due.

Commonwealth’s Brief at 5.

       Upon review, we agree that Appellant has failed to plead and prove a

Section 9545(b)(1) exception.1 It is undisputed that Appellant’s PCRA petition

is untimely.     Although Appellant claims he met the after-discovered fact

exception to the time-bar, the record does not support that finding. Appellant

never explains why he was precluded – for more than a decade – from learning



____________________________________________


1 We note that until recently, a petition invoking an exception had to be filed
within 60 days of the date the claim could have been presented. However,
effective December 24, 2017, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), and now provides that a PCRA petition invoking a timeliness
exception must be filed within one year of the date the claim could have been
presented. See Act 2018, Oct. 24, P.L. 894, No. 146, §2 and §3 (“[T]he
amendment . . . shall apply to claims arising on Dec. 24, 2017 or thereafter.”).
The change in the law does not impact Appellant or our analysis in this case.



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about the “missing pages” and the November 17, 2000 “handwritten notation”

on the docket. The PCRA court explained:

            Here, Appellant’s primary complaint – ineffective assistance
      of counsel for failure to convey an alleged plea offer – fails. It is
      well settled that counsel ineffectiveness claims generally do not
      comprise an exception to the PCRA’s time bar provision.

            ... [Moreover,] Appellant repeatedly has failed to articulate,
      let alone demonstrate, any temporal specifics surrounding the
      “discovery” of the alleged plea offer whatsoever. Indeed, in his
      June 1, 2012 PCRA petition, Appellant merely alleged that he “was
      not aware of these facts until recently when it was found on
      Documents by the Court.”

            Similarly, in his June 25, 2015 PCRA petition, Appellant
      provided no temporal specifics whatsoever; instead, he solely
      asserted that he “was informed of said plea agreement by
      reviewing court status records.”

            Further, even in his October 20, 2017 “Rebuttal” to the Rule
      907 Notice, Appellant failed to grace us with any temporal
      information. In fact, the most he supplied was “thereafter”:
      “Thereafter, while recreating his personal case file . . . he
      discovered a typed notation [indicating a plea offer had been
      rejected].”

           Appellant’s failure to allege, much less demonstrate, the
      temporal specifics surrounding his “discovery” – in a proceeding
      where time is of the jurisdictional essence – is fatal.

PCRA Court Opinion, 9/11/18, at 6-8 (italics and underline in original, case

law and record citations omitted).

      Consistent with the foregoing, Appellant has failed to qualify for an

exception to the PCRA’s time-bar. We therefore affirm the PCRA court’s order.

Appellant’s motion regarding his reply brief is denied as moot as his reply brief

was received and filed with this Court on March 13, 2019

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/19




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