J-S86026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

CLARENCE LAMONT BUTLER

                            Appellant                       No. 597 WDA 2016


                    Appeal from the PCRA Order March 1, 2016
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0015888-2004


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

MEMORANDUM BY MOULTON, J.:                                 FILED MARCH 28, 2017

       Clarence Lamont Butler appeals from the March 1, 2016 order of the

Allegheny County Court of Common Pleas dismissing as untimely his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-9546. We affirm.

       On December 12, 2005, a jury convicted Butler of second-degree

murder (18 Pa.C.S. § 2502(b)).1                On February 8, 2006, the trial court

sentenced him to life imprisonment.2              Butler did not file a post-sentence
____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
           At trial, Christopher Conrad (“trial counsel”) represented Butler.
       2
        At docket number CP-02-CR-0017235-2004, the same jury convicted
Butler of robbery-inflicts serious bodily injury (18 Pa.C.S. § 3701(a)(1)(i));
carrying a firearm without a license (18 Pa.C.S. § 6106(a)(1)); and criminal
conspiracy (18 Pa.C.S. § 903(a)(1)). The trial court sentenced him to 72 to
(Footnote Continued Next Page)
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motion or direct appeal. On July 10, 2006, following a PCRA petition, the

PCRA court reinstated Butler’s direct appeal rights nunc pro tunc.       Butler

timely filed a notice of appeal to this Court on August 3, 2006. On August 7,

2007, we affirmed Butler’s judgment of sentence.          Butler did not file a

petition for allowance of appeal with the Pennsylvania Supreme Court.

      On October 19, 2007, Butler filed a timely PCRA petition, which the

trial court dismissed.       Butler appealed to this Court, and we affirmed on

August 17, 2009.

      Butler filed the instant PCRA petition, his second, on January 6, 2016.

On February 1, 2016, the PCRA court filed a notice of intent to dismiss

pursuant to Pa.R.Crim.P. 907(1). Butler timely objected, and the PCRA court

issued an order dismissing his petition on March 3, 2016. Butler timely filed

a notice of appeal.           The PCRA court did not order Butler to file a

Pennsylvania Rule of Appellate Procedure 1925(b) statement and, on May 6,

2016, issued an opinion.

      On appeal, Butler raises the following issues:

          I.    WHETHER THE TRIAL COURT ERRED BY DISMISSING
                P.C.R.A. PETITION   FOR NEWLY   DISCOVERED
                EVIDENCE AS UNTIMELY.

          II.   WHETHER           NEWLY    DISCOVERED    EVIDENCE
                PRESENTED          WARRANT[ED]   AN   EVIDENTIARY
                HEARING.
                       _______________________
(Footnote Continued)

144 months’ incarceration consecutive to his sentence of life imprisonment
in this case.



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         III. WHETHER THE TRIAL/P.C.R.A. COURT AND THE
              ALLEGHENY COUNTY DISTRICT ATTORNEY WAS [sic]
              AWARE OF CHRISTOPHER CONRAD’S CRIMINAL ACTS,
              AND CONCEALED THESE CRIMINAL ACTS FROM
              [BUTLER], AND ELECTED TO APPOINT MR. CONRAD
              FOR REPRESENTATION FOR UNSEEN REASONS.

Butler’s Br. at 1.

      Our review of an order denying PCRA relief is limited to determining

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

record and is free of legal error.” Commonwealth v. Melendez–Negron,

123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s

factual findings “unless there is no support for [those] findings in the

certified record.”   Id.   It is well settled that “the timeliness of a PCRA

petition is a jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d

171, 175 (Pa.Super. 2015), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA

petition, “including a second or subsequent petition, shall be filed within one

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

judgment is 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. § 9545(b)(3).

      Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner alleges and proves

one of the following three statutory exceptions:

         (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

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           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); see Brown, 111 A.3d at 175. In addition,

when invoking an exception to the PCRA time bar, the petition must “be filed

within 60 days of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2).

       The trial court sentenced Butler on February 8, 2006. He appealed to

this Court, and we affirmed his judgment of sentence on August 7, 2007.

Butler did not seek allowance of appeal with the Pennsylvania Supreme

Court. Thus, Butler’s judgment of sentence became final 30 days later, on

September 6, 2007. Butler had one year from that date, or until September

8, 2008,3 to file a timely PCRA petition. His current petition, filed on January

6, 2016, is therefore facially untimely.

       Butler’s petition remains untimely unless it alleges and proves a PCRA

time-bar exception.        Butler claims he meets the “new facts” exception

____________________________________________


       3
        Butler had until Monday, September 8, 2008 to file a timely PCRA
petition. 1 Pa.C.S. § 1908 (when last day of time period “fall[s] on Saturday
or Sunday, . . . such day shall be omitted from the computation”).




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because he filed his petition within 60 days of learning that his trial counsel

had been convicted of driving under the influence (“DUI”) in 2004 and 2007

and that trial counsel’s law license had been suspended from 2012 to 2015.4

       Butler must show that “the facts upon which the claim was predicated

were unknown” to him and “could not have been ascertained by the exercise

of due diligence.”         42 Pa.C.S. § 9545(b)(1)(ii); Commonwealth v.

Bennett, 930 A.2d 1264, 1272 (Pa. 2007). This “new-facts” exception does

not require us to analyze the merits of the case or the underlying claim.

Brown, 111 A.3d at 177.

       Butler alleges that he first learned of trial counsel’s DUIs on October

28, 2015, when he received a letter from Angelea Allen Mitas, Counsel-in-

Charge with the Office of Disciplinary Counsel (“ODC”). He claims that he

requested trial counsel’s disciplinary information after hearing rumors about

trial counsel’s DUI arrests. Butler further claims that this information was

unknown to him prior to this date and that he filed his PCRA petition within

60 days.5
____________________________________________


       4
         To the extent Butler claims trial counsel’s law-license suspension
constitutes a “new fact,” we reject this argument. He alleges that trial
counsel’s license was suspended from 2012 to 2015, which was well after
Butler’s 2005 trial.
       5
        Butler claims that he delivered his PCRA petition to the prison staff
for mailing on December 27, 2015, which he argues would fall within the 60
days in which he had to bring his claim. The docket indicates the petition
was filed on January 6, 2016. See Docket Entry No. 57. While there is no
date on Butler’s petition and no dated envelope in the certified record, we
(Footnote Continued Next Page)


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      Butler   relies     on   Commonwealth       v.   Burton,   121    A.3d   1063

(Pa.Super. 2015), app. granted, 134 A.3d 446 (Pa. 2016), for his “new

facts” claim. In Burton, the appellant was convicted of first-degree murder

and conspiracy to commit murder in September 1993.                 Id. at 1066.

Appellant filed a PCRA petition claiming the “new-facts” exception on July

11, 2013, after receiving a letter from the Pennsylvania Innocence Project

on May 30, 2013. Id. Enclosed with the letter was a copy of a motion to

expunge filed by a co-defendant, wherein the co-defendant admitted to

killing the victim in self-defense and alleged that an innocent man had gone

to jail for a crime that the co-defendant had committed.          Id.    The PCRA

court dismissed the petition without a hearing. Id. at 1067.

      On appeal, this Court vacated the PCRA court’s order and remanded

the case for an evidentiary hearing. Id. at 1066. In doing so, we concluded

“that due diligence requires neither perfect vigilance nor punctilious care,

but rather it requires reasonable efforts by a petitioner, based on the

particular circumstances, to uncover facts that may support a claim for

collateral relief.” Id. at 1071. We explained that while the general rule is

“that publicly available information cannot predicate a timeliness exception,


                       _______________________
(Footnote Continued)

will assume he submitted the petition to prisoner staff on December 27,
2015 because the Commonwealth does not object to this claim in its brief.
See Commonwealth v. Chambers, 35 A.3d 34, 39 (Pa.Super. 2011)
(“[T]he prisoner mailbox rule provides that a pro se prisoner's document is
deemed filed on the date he delivers it to prison authorities for mailing.”).



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beyond the 60-day grace period,” id., “a pro se petitioner does not have

access to information otherwise readily available to the public,” id. at 1072.6

Furthermore, we stated that the PCRA court could not make credibility

determinations as to when the appellant had learned of the co-defendant’s

filings without an evidentiary hearing. Id. at 1073-74.

         Here, Butler has pled that the “new facts” regarding his trial counsel

were unknown to him before his receipt of the ODC’s October 28, 2015

letter. The Commonwealth argues that Butler was aware of the “new facts”

earlier, when he sent his letter to ODC requesting information about trial

counsel.       However, Butler alleges that he had only heard rumors at that

point.       After hearing those rumors, he exercised reasonable diligence in

writing to the ODC to determine whether the rumors were substantiated. As

we stated in Burton, “due diligence requires neither perfect vigilance nor

____________________________________________


         6
        In holding that there is no presumption that a pro se petitioner has
access to public information, we clarified that

             [a]n untimely petitioner’s pro se status merely eliminates
             the presumption of his access to public information. The
             Commonwealth is free, of course, to adduce evidence
             sufficient to establish such access. When it does, a PCRA
             court can engage in a real, fact-based inquiry. A finding of
             access may well preclude a petitioner from invoking the
             after-discovered facts exception to the PCRA timeliness
             requirement (just as the general public records rule works
             where the petitioner is represented by counsel).

Burton, 121 A.3d. at 1073 n.7.




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punctilious care, but rather it requires reasonable efforts by a petitioner.”

121 A.3d at 1071.     After learning of trial counsel’s DUIs on October 28,

2015, Butler filed his PCRA petition within 60 days. As in Burton, we will

not presume that Butler, who is a pro se petitioner, had access to this

publicly available information.

      Although Butler has satisfied the “new facts” exception to the PCRA’s

time bar, we conclude that his underlying ineffective assistance of counsel

claim fails. Butler claims that because trial counsel had been convicted of a

DUI conviction before Butler’s trial in 2005, trial counsel had alcoholism

problems and added stress at the time of Butler’s trial and, therefore,

rendered ineffective assistance of counsel. See 42 Pa.C.S. § 9543(a)(2)(ii).

It is well-settled that “counsel is presumed to have rendered effective

assistance.” Commonwealth v. Lesko, 15 A.3d 345, 374 (Pa. 2011). To

succeed on an ineffective assistance of counsel claim, Butler has the burden

of establishing:

         (1) the underlying claim has arguable merit; (2) no
         reasonable basis existed for counsel’s actions or failure to
         act; and (3) petitioner suffered prejudice as a result of
         counsel’s error such that there is a reasonable probability
         that the result of the proceeding would have been different
         absent such error.

Id. at 373.

      Butler has failed to suggest how trial counsel’s alleged drinking issues

rendered his assistance ineffective.    See Commonwealth v. Burton, 417

A.2d 611, 614 (Pa. 1980) (holding there was no indication appellant’s trial


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counsel rendered ineffective assistance because he had been drinking before

appearing in court); see also Commonwealth v. McCloy, 574 A.2d 87, 91

(Pa.Super. 1990) (holding that “defense counsel’s personal, legal troubles

are unrelated to those of the client whom he is representing” and ”there is

no per se rule which commands that counsel be deemed constitutionally

ineffective”). In McCloy, we held that “in order to be entitled to relief from

a conviction . . . the defendant must affirmatively show that his right to a

fair trial was prejudiced by his counsel's representation.” 574 A.2d at 91.

Butler does not allege any actions or inactions of trial counsel that could

arguably be perceived as ineffective.        Furthermore, Butler has not

established how the outcome of the trial would have been different had

counsel not had a DUI conviction.

      Because we conclude that Butler’s ineffectiveness claim fails, we need

not address his remaining issues.

      Order affirmed.


      President Judge Emeritus Stevens joins the memorandum.


      President Judge Gantman concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2017




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