J-S02044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA


                        v.

    ALLIE SPEIGHTS

                             Appellant                  No. 151 EDA 2016


                Appeal from the PCRA Order December 17, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000767-1998


BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J. *

MEMORANDUM BY RANSOM, J.:                               FILED APRIL 16, 2018

        Appellant, Allie Speights,1 appeals from the order entered December 17,

2015, denying as untimely his serial petition for collateral relief filed under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        In November 1998, Appellant was convicted by a jury of first degree

murder, recklessly endangering another person (“REAP”), carrying a firearm

without a license, and two counts of aggravated assault.2 On February 17,

1999, he was sentenced to life imprisonment and one to two years of

incarceration to run concurrent to his life sentence on the firearms charge. He


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1 In various filings before this Court, Appellant is referred to as both “Allie
Speight” and “Allie Speights.” As Appellant predominantly refers to himself
as “Allie Speights,” we will utilize this spelling infra.

2   See 18 Pa.C.S. §§ 2502(a), 2705, 6106, and 2702, respectively.

* Retired Senior Judge Assigned to the Superior Court.
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filed post-sentence motions alleging ineffective assistance of counsel; these

motions were denied. He timely appealed, and his judgment of sentence was

affirmed. See Commonwealth v. Speight, 760 A.2d 434 (Pa. Super. 2000),

appeal denied, 764 A.2d 50 (Pa. 2000) (unpublished memorandum).

        Appellant then began serially filing PCRA petitions and appeals, creating

a convoluted procedural history. See Commonwealth v. Speight, 830 A.2d

1053 (Pa. Super. 2003) (unpublished memorandum), appeal denied, 845 A.2d

818 (Pa. 2004) (finding Appellant’s claims of trial and appellate counsel

ineffectiveness meritless); see Commonwealth v. Speights, 34 A.3d 220

(Pa. Super. 2011) (unpublished memorandum) (stating that Appellant’s

petition was untimely and adding that Graham3 would afford Appellant no

relief because he was not a juvenile at the time of the murder); see

Commonwealth v. Speights, 68 A.3d 367 (Pa. Super. 2013) (stating that

Appellant’s petition was untimely and he had not established governmental

interference and after-discovered evidence time-bar exceptions).

        Following the last affirmance, Appellant sought leave to file a petition

seeking allocatur nunc pro tunc. While that petition was pending, Appellant

re-filed his fourth PCRA, which had been dismissed while the appeal was

pending in this Court. In January 2014, the PCRA court dismissed his fourth

petition. Appellant untimely appealed.




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3   Graham v. Florida, 130 S. Ct. 2011 (2010).

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      While the appeal of his fourth petition was pending, Appellant filed a

fifth PCRA petition in April 2014.     This petition was a legal nullity.     See

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (noting that PCRA

courts do not have jurisdiction to adjudicate subsequent PCRA petitions until

the appeals of the former petitions are adjudicated by appellate courts).

However, Appellant withdrew his untimely appeal in October 2014.

      In December 2014, Appellant filed an “amendment/supplement” to his

fifth petition, which was docketed as a separate PCRA petition.          Appellant

argued that although his petition was untimely, after-discovered facts

warranted review. See PCRA Petition, 12/11/14, at 1-11. Namely, Appellant

claimed that he had been denied his constitutional right to counsel because

his attorney, Gerald Alston, Esquire, was suspended from the practice of law

at the time he represented Appellant at sentencing. Id. Appellant claimed

he did not discover this suspension until January 28, 2014, following a

conversation with a fellow inmate who suggested that Appellant research his

attorney’s background and following Appellant’s request to the Disciplinary

Board for this information. Id. Appellant argued that because Mr. Alston was

his   father’s   long-time   friend,   Appellant   trusted   in   his   competent

representation. Id.

      In August 2015, the court sent Appellant notice of its intent to dismiss

his PCRA petition as untimely. Appellant pro se filed a response. In December

2015, the court dismissed his petition.




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       Appellant timely appealed and filed a Pa.R.A.P. 1925(b) statement of

errors complained of on appeal. A year and one-half later, the PCRA court

issued a responsive opinion.4

       On appeal, Appellant presents the following issue for our review:

       Did the lower court commit an abuse of discretion when it
       dismissed Appellant’s PCRA petition as untimely “because” it
       found the underlying claim meritless?

Appellant’s Brief at 2.

       This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

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

Ragan, 923 A.2d 1169, 1170 (Pa. 2007).

       We begin by addressing the timeliness of Appellant’s petition, as the

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded     in   order    to   address     the   merits   of   his   claims.   See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for relief, including second and subsequent petitions, must

be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three exceptions:


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4 During the pendency of the instant appeal, it appears that the Delaware
County Public Defender’s Office entered its appearance and filed a sixth PCRA
on Appellant’s behalf. However, this petition is a legal nullity as it was filed
while the instant appeal was pending. See Lark, 746 A.2d at 588. It appears
that the PCRA court improperly addressed the claims raised therein in its
1925(a) opinion.

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       (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).         Any petition attempting to invoke these

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000).

       Appellant’s petition is untimely.5 Nevertheless, he contends that he is

entitled to PCRA relief due to the existence of facts unknown to him at trial

and which could not have been ascertained by due diligence.                     See

Commonwealth v. Bennett, 930 A.2d 1264, 1271 (Pa. 2007); see also 42

Pa.C.S. § 9545(b)(1)(ii).        Due diligence requires that the petitioner take



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5 Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on May 31, 2004, at the expiration of the ninety-day time period
for seeking review with the United States Supreme Court. See 42 Pa.C.S. §
9545(b)(3) (a judgment of sentence becomes final at the conclusion of direct
review or the expiration of the time for seeking the review); Commonwealth
v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (noting that Sup.Ct.R. 13
grants an Appellant ninety days to seek review with the United States
Supreme Court). Accordingly, Appellant had until May 31, 2005, to timely file
a petition. Appellant’s petition is approximately nine years untimely.

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reasonable steps to protect his own interest. See Commonwealth v. Carr,

768 A.2d 1164, 1168 (Pa. Super. 2001). Further, he must explain why he

could not have learned the new facts earlier with the exercise of due diligence.

See Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001).

      In the instant matter, the PCRA court determined that Appellant could

not overcome the timeliness requirement because even if Appellant did

establish jurisdiction, the resulting sentence – life imprisonment – would have

been the same regardless of counsel’s suspension. See PCO at 5.

      Appellant’s brief does not discuss 1) the steps he took to protect his own

interest or 2) explain why he could not have learned the new facts earlier with

the exercise of due diligence. Instead, Appellant contends that the PCRA court

erred in reaching the merits of Appellant’s claim without first determining

whether he exercised due diligence and accordingly abused its discretion in

dismissing Appellant’s petition without a hearing. See Appellant’s Brief at 7-9.

In response, the Commonwealth argues that public records, such as an

attorney’s suspended license, cannot be considered “unknown facts,” and

thus, it is immaterial if and when the petitioner knew about the suspension

because the evidence was not unknown. See Commonwealth’s Brief at 7.

      Initially, we note that regardless of the arguments advanced above, “an

appellate court may affirm a valid judgment based on any reason appearing

as of record.” See Commonwealth v. Moore, 937 A.2d 1062, 1073 (Pa.

2007).


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      The Pennsylvania Supreme Court has held that the “presumption that

information which is of public record cannot be deemed ‘unknown’ for

purposes of subsection 9545(b)(1)(ii) . . . does not apply to pro se prisoner

petitioners,” as that application is contrary to the plain language of the statute

and was imposed without any apparent consideration of a pro se prisoner’s

actual access to information of public record.        See Commonwealth v.

Burton, 158 A.3d 618, 638 (Pa. 2017). Regardless of this holding, a pro se

incarcerated prisoner is “still required to prove that the facts upon which his

claim of a timeliness exception under subsection 9545(b)(1)(ii) is based

were unknown to him and not ascertainable by the exercise of due diligence.

[This] decision merely eliminates what we conclude is an unjustifiable

presumption.” Id. at 638 n.23.

      Thus,

      consistent with the statutory language, in determining whether a
      petitioner qualifies for the exception to the PCRA's time
      requirements pursuant to subsection 9545(b)(1)(ii), the PCRA
      court must first determine whether the facts upon which the claim
      is predicated were unknown to the petitioner. In some cases, this
      may require a hearing.         After the PCRA court makes a
      determination as to the petitioner’s knowledge, it should then
      proceed to consider whether, if the facts were unknown to the
      petitioner, the facts could have been ascertained by the exercise
      of due diligence, including an assessment of the petitioner's
      access to public records.

Id. at 638 (internal quotation marks and footnote omitted) (emphasis

added).




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      Burton did not do away with the statutory requirement that Appellant

plead and prove that the information he relies upon could not have been

obtained earlier, despite the exercise of due diligence. See Commonwealth

v. Stokes, 959 A.2d 306, 310 (Pa. Super. 2008). Here, the PCRA court did

not make a determination as to whether the facts were unknown to Appellant.

Regardless of this lack of determination, we may still find that Appellant did

not exercise due diligence in attempting to access the information.

      Further, despite any due diligence Appellant may or may not have

exercised, his petition must be filed within sixty days of the date the claim

could have been presented. See Commonwealth v. Smallwood, 155 A.3d

1054, 1060 (Pa. Super. 2017).       Appellant claims that he discovered the

operative fact on January 28, 2014, but did not file his petition until December

11, 2014, almost eleven months later and far beyond the sixty-day period

allowable by statute. Id.

      Additionally, Appellant has not explained why he could not have

obtained the new facts earlier with the exercise of due diligence, particularly

where 1) Mr. Alston was a close friend of Appellant’s father; and 2) where

Appellant was represented by counsel during his first timely PCRA and we may

presume that he still had access to this information through counsel. See

Carr, 768 A.2d at 1168; see also Burton, 121 A.3d at 1072.

      Accordingly, Appellant failed to properly plead any exception to the one-

year time bar. Accordingly, we are without jurisdiction to offer Appellant any


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relief. See Bennett, 930 A.2d at 1267; see Burton, 158 A.3d at 638 n.23;

see Smallwood, 155 A.3d at 1060.

     Order affirmed. Jurisdiction relinquished.

     Judge Bowes concurs in the result.

     Judge Nichols concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/18




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