J-S39045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
              v.                          :
                                          :
                                          :
 CHRISTOPHER BRUNKEL                      :
                                          :
                    Appellant             :
                                          :   No. 1597 EDA 2018

                 Appeal from the PCRA Order April 27, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0003830-2013


BEFORE:    GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                      FILED AUGUST 21, 2019

      Appellant, Christopher Brunkel, appeals from the order entered in the

Court of Common Pleas of Philadelphia County dismissing his first petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as

untimely. Appellant contends dismissal was erroneous where he presented

ample proof that he exercised due diligence in seeking nunc pro tunc PCRA

relief upon learning plea counsel had not filed a requested direct appeal. We

affirm.

      The PCRA court aptly sets forth the pertinent procedural history, as

follows:

      On June 5, 2013, Appellant pled guilty before this Court, to the
      charges of Aggravated Assault, Robbery, Burglary, Conspiracy to
      Commit Burglary, and Possession of an Instrument of Crime [filed
      in connection with his forcible entry into the home of a 94 year-
      old woman, whom he repeatedly punched, threatened with a
      needle, and bound with duct tape before taking her jewelry].

____________________________________
* Former Justice specially assigned to the Superior Court.
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     Pursuant to the negotiated plea Appellant was sentenced to
     thirteen to twenty-six years of incarceration.

     On July 26, 2013, Appellant’s [plea] counsel filed a Motion for
     Reconsideration of Sentence. On November 12, 2013, the Motion
     for Reconsideration was denied by operation of law.

     On August 1, 2015, Appellant sent to the Philadelphia District
     Attorney’s Post-Conviction Relief Act Unit an “Amended Petition
     for Post Conviction Collateral Relief.” Commonwealth’s Motion to
     Dismiss at Exhibit A. On August 21, 2015, Appellant filed pro se
     a Motion for the Appointment of Counsel. On October 26, 2015,
     Appellant filed pro se a Nunc Pro Tunc Notice of Appeal along with
     a Continuation of Informa Pauperis Status for Purposes of Appeal
     Nunc Pro Tunc.

     On May 26, 2016, Appellant filed pro se an Application for Post-
     Conviction Collateral Relief. On December 1, 2016, Appellant’s
     attorney filed an Amended PCRA petition.

     On March 24, 2017, the PCRA court held an evidentiary hearing
     as [to] whether Appellant’s rights should be reinstated nunc pro
     tunc. On March 23, 2018, the PCRA court issued a Letter of Intent
     to Dismiss . . . because Appellant’s petition was untimely filed and
     did not invoke an exception to the timeliness provision of the
     PCRA. On April 27, 2018, the PCRA court formally dismissed
     Appellant’s PCRA petition.

     On May 25, 2018, Appellant filed a Notice of Appeal of the PCRA
     court’s April 27, 2018 Order. On June 18, 2018, Appellant was
     ordered to submit a Statement of Matters Complained [of] on
     Appeal, in accordance with [Pa.R.A.P.] 1925(b), within twenty-
     one days. Appellant filed [his] Statement July 9, 2018.

PCRA Court Opinion, filed 8/29/18, at 2-3.

     Appellant raises one issue for our consideration:

     Did the [PCRA] court err when it dismissed Brunkel’s [PCRA]
     petition as untimely or non-meritorious where 1) Brunkel was
     abandoned by his prior counsel, who did not file a requested direct
     appeal; 2) Brunkel was incarcerated, without access to public
     records, and because he trusted his prior counsel to handle the
     appeal, he cannot be considered not to have been “duly diligent”

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       in ascertaining the status of his appeal when, after not hearing
       from his own attorney for months, he decided to investigate
       himself as to its status and write to the Clerk of Courts directly;
       3) upon learning that his counsel had not filed a requested direct
       appeal, Brunkel acted within days and filed a PCRA seeking the
       reinstatement of his rights to an appeal?

Appellant’s brief, at 4.

       In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court's hearing, viewed

in the light most favorable to the prevailing party.” Commonwealth v. Sam,

952 A.2d 565, 573 (Pa. 2008) (internal quotation omitted). Because most

PCRA appeals involve questions of fact and law, we employ a mixed standard

of review. Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009). We defer

to the PCRA court's factual findings and credibility determinations supported

by the record. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014)

(en banc). In contrast, we review the PCRA court's legal conclusions de novo.

Id.

       There is no dispute that Appellant’s PCRA petition is facially untimely

under 42 Pa.C.S. § 9545(b)(1). Therefore, for our courts to have jurisdiction

over his petition, Appellant must plead and prove a timeliness exception under

Section 9545(b)(1)(i-iii).1      In this vein, he attempts to invoke the newly-

____________________________________________


1 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). To invoke an
exception, a petition must allege and the petitioner must prove:




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J-S39045-19



discovered facts exception to the PCRA’s time-bar by claiming plea counsel

abandoned him after the denial of his post-sentence motion, he was not aware

that counsel failed to file a requested direct appeal, and he filed a PCRA

petition within 60 days of learning, through the exercise of due diligence, that

his counsel failed to file the direct appeal. See Commonwealth v. Bennett,

930 A.2d 1264 (Pa. 2007) (holding petitioner entitled to invoke newly-

discovered facts exception to PCRA time-bar where he files PCRA petition

within 60 days of learning former counsel abandoned direct appeal).

       The PCRA court, however, presided over an evidentiary hearing and

made a finding of fact that plea counsel credibly testified she notified Appellant

immediately about the denial of his post-sentence motion and received no
____________________________________________


       (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. § 9545(b)(1)(i)-(iii). The petitioner bears the burden of pleading
and proving the applicability of any exception. 42 Pa.C.S. § 9545(b)(1).
Further, under the present facts, Appellant needed to have filed his petition
“within 60 days of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2). But see 2018 Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective
December 24, 2018 (amending subsection 9545(b)(2) to extend time for filing
petition from 60 days to one year from date claim could have been presented).



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request from Appellant to file a direct appeal. See N.T. 3/24/17, at 46-47;

PCRA Court Opinion, at 5-6. The court, furthermore, determined Appellant

failed to exercise due diligence in waiting nearly two years to ascertain the

status of his appeal despite receiving such notice from counsel. Id., at 6. The

record supports the court’s determinations in this regard.

      Thus, we conclude Appellant filed his PCRA petition belatedly and failed

to plead and prove a PCRA time-bar exception with the PCRA court.

Accordingly, we affirm the order dismissing Appellant’s PCRA petition.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2019




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