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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
RAYMOND CHARLES WHITE,                      :
                                            :
                          Appellant         :     No. 655 WDA 2014


                 Appeal from the PCRA Order February 24, 2014
               In the Court of Common Pleas of Allegheny County
               Criminal Division No(s).: CP-02-CR-0013548-2000

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 12, 2015

        Appellant, Raymond Charles White, appeals pro se from order of the

Allegheny County Court of Common Pleas dismissing his second Post

Conviction Relief Act1 (PCRA) petition as untimely filed.          This Panel

previously remanded the matter twice to determine the status of appointed

counsel.      Commonwealth v. White, 655             WDA 2014     (unpublished

memorandum) (Pa. Super. Mar. 5, 2015); Commonwealth v. White, 655

WDA 2014 (unpublished memorandum) (Pa. Super. Jan. 7, 2015).              The




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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PCRA court conducted a Grazier2 hearing at which Appellant elected to

proceed pro se based on the briefs he previously submitted to this Court.3

This matter is now properly before us, and we affirm.

        We previously outlined the extended procedural history giving rise to

this appeal from the dismissal of Appellant’s second PCRA petition from the

August 2004 conviction for third-degree murder and conspiracy.        White,

655 WDA 2014, at 2-6 (Pa. Super. Jan. 7, 2015).            We reiterate that

following his conviction, Appellant unsuccessfully appealed to this Court, see

Commonwealth v. White, 2072 WDA 2002 (unpublished memorandum)

(Pa. Super. Aug. 24, 2004), but did not file a petition for allowance of

appeal. Appellant then filed an untimely first PCRA, the dismissal of which

was affirmed by the Court.      See Commonwealth v. White, 1881 WDA

2007 (unpublished memorandum) (Pa. Super. June 2, 2008).          Appellant’s

petition for allowance of appeal was denied.       The instant petition was

received by the PCRA court on October 27, 2008, and dismissed by the order

of February 24, 2014.4


2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
3
    See N.T., 3/18/15, at 10.
4
  As discussed in White, 655 WDA 2014 , at 2-6 (Pa. Super. Jan. 7, 2015),
the PCRA court initially dismissed Appellant’s second and third PCRA
petitions. This Court, in a previous appeal from the dismissal of Appellant’s
third PCRA petition, remanded for the reinstatement of Appellant’s second
PCRA petition.      See Commonwealth v. White, 910 WDA 2012
(unpublished memorandum) (Pa. Super. Jan. 28, 2013).



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       Appellant, in his pro se brief, contends his second PCRA petition fell

within the time-bar exception at 42 Pa.C.S. § 9545(b)(1)(ii) and he is

entitled to an evidentiary hearing on his claim of abandonment by direct

appeal counsel.     He asserts he was abandoned when his then-privately

retained direct appeal counsel refused to file a requested PAA with the

Pennsylvania Supreme Court.           He does not dispute that the underlying

judgment of sentence became final on September 23, 2004.                    He avers,

however, he only knew a PAA in his direct appeal was not filed as of

December 11, 2005, when he received a court docket. He further outlines

the following chronology.      First, he filed his first PCRA petition in January

2006, within sixty days of his alleged discovery of direct appeal counsel’s

abandonment.        Second,     the    Pennsylvania     Supreme       Court   decided

Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), on August 23,

2007, after the PCRA court dismissed his first petition as untimely and while

his appeal from that order was pending. Third, he filed the instant second

petition in October 2008, within sixty days of the conclusion of his appeal

from    the   dismissal   of   his    first   PCRA   petition.       See   generally

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding second

PCRA petition may be considered timely filed if it is filed within sixty days of

order which finally resolves previous PCRA petition).            Appellant asserts his

second PCRA petition must be deemed timely under the principles set forth




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in Bennett and this Court’s decision in Commonwealth v. Smith, 35 A.3d

766 (Pa. Super. 2011). We disagree.

     When reviewing an order dismissing a PCRA petition, we consider

“whether the determination of the PCRA court is supported by evidence of

record and is free of legal error.”   Commonwealth v. Brandon, 51 A.3d

231, 233 (Pa. Super. 2012). We reiterate,

           Our Supreme Court has stressed that “[t]he PCRA’s
           timeliness requirements are jurisdictional in nature
           and must be strictly construed; courts may not
           address the merits of the issues raised in a petition if
           it is not timely filed.” It is well settled that “[a]ny
           and all PCRA petitions must be filed within one year
           of the date on which the petitioner’s judgment
           became final, unless one of three statutory
           exceptions applies.” “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).

        The exceptions to the PCRA’s timing requirements are set
        forth in 42 Pa.C.S.[ ] § 9545, as follows:

           (b) Time for filing petition.—

               (1) 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:

                                  *    *    *

                  (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


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                                *    *    *

                (2) Any petition invoking an exception provided
               in paragraph (1) shall be filed within 60 days of
               the date the claim could have been presented.

        42 Pa.C.S.[ ] § 9545(b)(1) and (2).

                                *    *    *

        . . . The plain language of section 9545(b)(1)(ii) and
        section 9545(b)(2) creates a three-part test: 1) the
        discovery of an unknown fact; 2) the fact could not have
        been learned by the exercise of due diligence; and 3) the
        petition for relief was filed within 60 days of the date that
        the claim could have been presented. . . . In our view, the
        third inquiry must involve a bifurcated analysis. If the
        claim does not involve a new theory or method of
        obtaining relief on collateral review, a petition must be
        filed within sixty days of discovering the fact exercising
        due diligence. If the claim does involve a new theory or
        method of obtaining relief on collateral review, a petition
        must have been filed within sixty days of discovering the
        factual predicate for the claim exercising due diligence. In
        addition, the denial of such claim on the basis of
        untimeliness must then have been appealed to our
        Supreme Court, and the petition seeking relief under
        section 9545(b)(1)(ii) must have been filed within sixty
        days of the new theory or method of obtaining relief being
        recognized.

Smith, 35 A.3d at 768-69, 711 (some citations omitted).

     In Commonwealth v. Huddleston, 55 A.3d 1217 (Pa. Super. 2013),

this Court summarized the decisional law discussed in Smith:

           In Bennett, supra, our Supreme Court found that
        attorney abandonment may constitute a factual basis for
        the section 9545(b)(1)(ii) timeliness exception. In that
        case, the appeal from the dismissal of Bennett’s first,
        timely, PCRA petition was dismissed by this Court because
        counsel failed to file a brief. Bennett filed a second PCRA


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       petition alleging that he had attempted to find out the
       status of his PCRA appeal, did not learn that it was
       dismissed due to counsel’s failure to file a brief until he
       received a letter from this Court explaining what had
       transpired, and filed a new PCRA petition within 60 days of
       so learning. The PCRA court granted Bennett leave to
       appeal the dismissal of his first PCRA petition nunc pro
       tunc, but this Court quashed the appeal as untimely. Our
       Supreme Court reversed this Court, holding that Bennett
       sufficiently alleged that he had been abandoned by counsel
       on his first PCRA petition and acted with due diligence in
       ascertaining the fact of the abandonment to satisfy the
       timeliness exception of the PCRA found at section
       9545(b)(1)(ii).

           In Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980
       (2011), Watts’s direct appeal was dismissed in 2002
       because counsel failed to file a docketing statement.
       Within 60 days of learning of the dismissal in August 2003,
       Watts filed a PCRA petition seeking reinstatement of his
       direct appeal rights nunc pro tunc.       The PCRA court
       dismissed the petition as untimely, and this Court affirmed
       in August 2005, noting that Watts did not exercise due
       diligence in determining the status of his appeal. Watts
       did not seek review of our decision by our Supreme Court.
       In 2007, Watts filed a second PCRA petition, again alleging
       attorney abandonment, but claiming that his petition met
       the timeliness exception of section 9545(b)(1)(ii) because
       it was filed within 60 days of the Bennett decision. The
       PCRA court dismissed the petition as untimely, this Court
       reversed, and our Supreme Court reversed us, holding that
       the PCRA court properly dismissed Watts’ second PCRA
       petition. The Court held that the Bennett decision was
       not a fact upon which Watts could rely in meeting the
       timeliness exception of section 9545(b)(1)(ii). Id. at 986.
       The factual predicate of Watts’ claim was his counsel's
       abandonment, which Watts discovered in 2003, within the
       one-year PCRA deadline. As such, the abandonment could
       not serve to satisfy section 9545(b)(1)(ii) for a petition
       filed in 2007. Id.

         This Court sought to explain the interplay of the
       Bennett and Watts decisions and the language of section
       9545(b) in Commonwealth v. Smith, 35 A.3d 766 (Pa.


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         Super. 2011). In that case, Smith’s first, timely, PCRA
         petition was dismissed in 2001 after counsel did not file a
         brief on appeal. Less than two weeks after the appeal was
         dismissed, Smith filed a second PCRA petition seeking
         reinstatement of his direct appeal rights nunc pro tunc,
         which the PCRA court granted. This Court quashed the
         nunc pro tunc appeal in 2005, determining that Smith’s
         second PCRA petition was untimely, and the Pennsylvania
         Supreme Court denied allowance of appeal. In 2007,
         within 60 days of the filing of the Bennett decision, Smith
         filed a third PCRA petition, claiming that the petition was
         timely because Bennett afforded him a new method for
         obtaining collateral review. The PCRA court dismissed the
         petition as untimely. This Court reversed, holding that
         because Smith, unlike Watts, had attempted to “become
         Bennett” by seeking allowance of appeal from our
         Supreme Court, yet had his diligent efforts to avail himself
         of the opportunities of the PCRA thwarted by counsel’s
         initial abandonment, he was now entitled to have the
         merits of his PCRA petition addressed by a court. Although
         the factual predicate of Smith’s claims for purposes of
         section 9545(b)(1)(ii) was the dismissal of his first PCRA
         petition in 2001 due to counsel’s abandonment, the
         subsequent change in law that occurred in 2007 with the
         Bennett decision afforded Smith his first opportunity to
         present his claim pursuant to section 9545(b)(2).
         Therefore, this Court held that Smith’s third PCRA petition
         satisfied the section 9545(b)(1)(ii) timeliness exception
         because it was filed within 60 days of the Bennett
         decision, i.e., within 60 days of the date that the claim
         could have been presented.

Huddleston, 55 A.3d at 1220-21 (citations omitted).

      Presently, as to Appellant’s contention that he discovered direct appeal

counsel’s abandonment on December 11, 2005, this Court previously

suggested such a claim would be disingenuous in the appeal from the

dismissal of Appellant’s first PCRA petition:

            The key substantive claim raised in [Appellant]’s [first]
         pro se petition is that prior appellate counsel was


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        ineffective for effectively “abandoning” him and failing to
        file a PAA with the Supreme Court after our Court affirmed
        his judgment of sentence.          However, [Appellant]
        acknowledges that he was notified by letter dated
        September 2, 2004 of [privately retained] counsel’s
        intent not to file a PAA due to lack of funds. (See
        Appellant’s Brief at 10.) Thus, [Appellant] was clearly
        aware of this ineffectiveness claim as early as September
        2004, but he did not file his [first] petition until January
        2006. Regardless of whether he had access to his still
        unidentified “legal materials,” [Appellant] could have filed
        a PCRA petition asserting counsel’s ineffectiveness well
        before September 2005 when the one-year filing period
        was set to expire.

White, 1881 WDA 2007, at 4 (emphasis added).

     Thus, we could consider this issue previously litigated. In any event,

we discern no basis to reconsider our prior conclusion that Appellant’s

present claim was not timely presented in his first PCRA petition, let alone

conclude that the underlying second PCRA petition was timely filed based

on Appellant’s claim of abandonment.5

     As to Appellant’s legal argument based on Bennett and Smith, we

initially note that those cases considered the abandonment of counsel with

respect to PCRA appeals.   Nevertheless, Bennett was decided seven days

after the PCRA court dismissed Appellant’s first PCRA petition.        Bennett

5
  Furthermore, even if we were to reconsider Appellant’s factual allegations
regarding when he discovered direct appeal counsel’s abandonment, we
would conclude that he was on notice that direct appeal counsel refused
further representation on May 13, 2005. On that date, privately retained
counsel sent a letter informing Appellant informing that the attempts to
secure funding for the filing of a PAA failed. Thus, Appellant’s reliance on
December 11, 2005 as the date of discovery is meritless as he was on notice
of counsel’s inaction no later than May 13, 2005.



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thus constituted the law under which this Court decided Appellant’s appeal

from the dismissal of his first petition and the Pennsylvania Supreme Court

denied Appellant’s PAA from our order.            Cf.    Commonwealth v.

Montgomery, 938 a2d 981 (Pa. 2007) (remanding, per curiam, decision of

this Court for further consideration in light of Bennett); Commonwealth v.

Lasky, 934 A.2d 120, 123 (Pa. Super. 2007) (applying Bennett in appeal

taken before Bennett was decided by Pennsylvania Supreme Court, but

appeal remained     pending when     Bennett    was decided).        Therefore,

Appellant, unlike Smith, had the benefit of Bennett being the law during his

appeal from the dismissal of his first PCRA petition.         In light of the

foregoing, we discern no merit to Appellant’s argument that Bennett and

Smith control the alleged timeliness of his second petition.      Rather, this

case is closer to Watts, as Appellant seeks to rely on Bennett as a

predicate “fact” giving rise to his claim for a time-bar exception under

Section 9545(b)(1)(ii).

      Having reviewed Appellant’s pro se arguments, the record, and the

legal principles relevant to this appeal, we conclude Appellant did not

establish his right to relief under Section 9545(b)(1)(ii). Accordingly, as we

discern no abuse of discretion or error of law in the PCRA court’s dismissal of

Appellant’s second PCRA petition on timeliness grounds, we affirm.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/12/2015




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