J-S29038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                                             :
                    v.                       :
                                             :
TOMMIE JONATHAN ELDER                        :
                                             :
                            Appellant        :
                                             :     No. 1673 WDA 2015

                  Appeal from the PCRA Order October 6, 2015
       in the Court of Common Pleas of Jefferson County Criminal Division
                        at No(s): CP-33-CR-0000236-2013

BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED DECEMBER 22, 2017

        This matter returns to us after the record was supplemented with the

transcript of the hearing on the first Post Conviction Relief Act (“PCRA”)

petition filed by Appellant, Tommie Jonathan Elder. Appellant appeals from

the order of the Jefferson County Court of Common Pleas dismissing his first

PCRA petition as untimely.        Appellant claims that he timely filed his first

petition after he discovered prior counsel abandoned him.         We agree and

reverse.

        On November 6, 2013, Appellant entered a negotiated guilty plea to

involuntary deviate sexual intercourse with a child.1 That same day, the trial

court sentenced him to ten to thirty years’ imprisonment, as agreed to by

*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S. § 3123(b).
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the parties.2 Appellant was represented by Richard H. Milgrub, Esq. at the

plea and sentencing proceedings.

     The PCRA summarized the events that followed Appellant’s sentencing.

        [On November 22, 2013, Appellant] sent a letter to
        [Attorney] Milgrub that read, “I am writing to inform you
        that I want you to withdraw my guilty plea. I am not
        guilty of the charges that are brought against me and I
        feel that I was pressured to accept my sentence.”

            In response to [Appellant’s] claim, [Attorney] Milgrub
        immediately sent letters to the Court and Public Defender’s
        Office [on November 26, 2013,] explaining the situation
        and his intended course of action. [On November 27,
        2013, Attorney Milgrub] also filed a nunc pro tunc motion
        seeking leave for [Appellant] to withdraw his guilty plea
        and a motion to withdraw as counsel and have [John M.
        Ingros, Esq., of] the Public Defender’s Office appointed to
        the case. [That same day, Attorney Milgrub] sent a letter
        to [Appellant] explaining what he was doing and advising
        him to seek alternate representation. He further informed
        [Appellant] that he had only 30 days from the date of
        sentencing to file an appeal and concluded, “If I don’t hear
        from you, I will file an appeal to protect your appellant
        [sic] rights and withdraw as your counsel shortly
        thereafter.” [Appellant] did not respond.

            As the record reflects, [Attorney] Milgrub did not even
        allow time for [Appellant] to receive the letter before filing
        his motion to withdraw as counsel, and nor did he file a
        notice of appeal with the Clerk of Courts’ Office. Appointed
        to represent [Appellant] just two days before his appeal

2 See 18 Pa.C.S. § 3123(d)(1) (authorizing maximum sentence of forty
years for a violation of Section 3123(b)). We note that the United States
Supreme Court decided Alleyne v. United States, 133 S. Ct. 2151 (2013),
on June 17, 2013, almost five months before Appellant entered his plea and
was sentenced.       The PCRA court suggested that Attorney Milgrub
“presumably knew that 42 Pa.C.S.A. § 9718 dictated [the ten-year minimum
sentence] but was unaware of the future implications [of Alleyne] . . . .”
PCRA Ct. Op., 10/6/15, at 2.



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            period was set to expire, Attorney Ingros did not file one,
            either, as Milgrub had led him to believe it had already
            been done. Accordingly, [Attorney] Ingros only instructed
            his secretary to expect further direction from Superior
            Court.

                After receiving a letter from [Appellant] in July of 2014,
            [Attorney] Ingros discovered that [Attorney] Milgrub had
            not filed a notice of appeal. Based on what [Appellant]
            told him in that initial missive, however, [Attorney] Ingros
            advised him that the [PCRA] was the more appropriate
            mechanism for seeking review. He also asked [Appellant]
            to more clearly articulate the issues he would raise if he
            went that route, and in letters dated October 13 and
            October 14, 2014, [Appellant] did precisely that.
            [Attorney] Ingros did not receive either one, though. He
            then forgot about the case until receiving [Appellant’s]
            letter asking about the status of his PCRA petition.
            [Attorney] Ingros answered him on January 23, 2015,
            explaining that he had not received his earlier
            correspondence and asking him to reiterate his claims. He
            also noted that he would be requesting an extension of
            time to file a PCRA petition. [Appellant, on February 20,
            2015,] replied with a hand-written letter outlining his
            complaints anew. He knew as he drafted it that Ingros
            was awaiting his reply before filing.

PCRA Ct. Op. at 2-3 (record citations omitted).

      On June 29, 2015, the PCRA court received Appellant’s first pro se

PCRA petition.3       Appellant alleged, inter alia, that Attorney Ingros was

ineffective and abandoned him when he sought to file a facially timely PCRA

petition.    Additionally, Appellant asserted Attorney Milgrub was ineffective


3Although the PCRA Court received Appellant’s pro se PCRA petition on June
29, 2015, the record does not establish when Appellant deposited his
petition with prison officials for mailing. See Commonwealth v. Little, 716
A.2d 1287, 1289 (Pa. Super. 1998).




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for failing to seek withdrawal of his plea or filing a direct appeal. The PCRA

court appointed George N. Daghir, Esq., on July 7, 2015. On September 24,

2015, the court convened a hearing at which Appellant and Attorneys

Milgrub and Ingros testified.4   Additionally, the correspondence between

Appellant and Attorneys Milgrub and Ingros were as presented exhibits.

      On October 6, 2015, the PCRA court dismissed Appellant’s petition as

untimely. The PCRA court concluded that “[Attorney] Ingros’s abandonment

does not allow [Appellant] to take advantage of the § 9545(b)(1)(ii)

exception, because it was not that abandonment that caused him to lose the

opportunity to file a PCRA petition; it was his own lack of due diligence.”

See PCRA Ct. Op. at 5. The court found that by October 2014, Appellant

was informed that the one-year time-bar for filing a PCRA petition would

expire in early December 2014.     Id. The court determined that Appellant

had “approximately 8 weeks to file. Although he had not heard back from

[Attorney] Ingros, however, he failed to inquire about the status of his case

until it was already 7 days too late to file a timely petition.   This was an

unreasonable course of action.” Id. The court thus suggested that Attorney

Ingros’s “actions evolved into abandonment” when he failed to file a facially

timely PCRA petition, and Appellant “forfeited his PCRA rights.” See id.




4 At the PCRA hearing, the Commonwealth did not object to the timeliness of
Appellant’s pro se PCRA hearing and suggested that the PCRA court proceed
to consider the merits of Appellant’s ineffectiveness claims.



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      The PCRA court also considered whether Appellant acted within sixty

days of the abandonment. Id. (discussing 42 Pa.C.S. § 9545(b)(2)). The

court suggested that even if Appellant only discovered the abandonment

after the period for filing a facially timely PCRA petition ended, the fact that

he filed his pro se PCRA petition in June 2015 violated the requirement that

he file within sixty days of the date he discovered or should have discovered

the abandonment. Id. The court found Appellant’s assertion that he could

not have filed earlier due to a two-month prison lockdown was not credible

or too vague to establish due diligence.      Id.   Thus, the court concluded

Appellant failed to establish jurisdiction under the PCRA.

      Appellant timely filed a notice of appeal and complied with the PCRA

court’s order to submit a Pa.R.A.P. 1925(b) statement. 5       The PCRA court

filed a responsive opinion.

      Appellant presents the following question for review:

         Did the [PCRA] court err in its [October 6, 2015] opinion
         and order, which dismissed [Appellant’s] PCRA claim that
         abandonment of him by prior counsel entitled him to file a
         [PCRA] petition beyond one year from the date his
         judgment became final pursuant to 42 Pa.C.S.[ §]
         9545(b)(1)(ii)?

Appellant’s Brief at 4.


5  As noted above, this Court previously remanded this matter for a
determination of responsibility for the absence of the PCRA court hearing
transcripts. The trial court found that a breakdown caused the failure to
have the notes of testimony from the hearing transcribed. The court has
supplemented the record with the transcripts.



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      Appellant contends the PCRA court erred in determining that he was

aware that the deadline was jurisdictional in nature. Appellant asserts that

he timely filed his petition because he continued to rely on Attorney Ingros’s

representation that counsel could obtain an extension of time for him and

would file a PCRA petition on his behalf once counsel received a list of his

claims. We conclude that Appellant is entitled to relief.

      The standards governing our review are well settled.

         [O]ur scope of review is limited by the parameters of the
         [PCRA]. Our standard of review permits us to consider
         only whether the PCRA court’s determination is supported
         by the evidence of record and whether it is free from legal
         error.

Commonwealth v. Blackwell, 936 A.2d 497, 499 (Pa. Super. 2007)

(citations omitted).

      The timeliness of a PCRA petition is a threshold question that

implicates the jurisdiction of a court to consider the merits of the relief

requested. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014).

         To be timely, a PCRA petition must be filed within one year
         of the date that the petitioner’s judgment of sentence
         became final, unless the petition alleges and the petitioner
         proves one or more of the following 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 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


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            (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).

            We emphasize that it is the petitioner who bears the
         burden to allege and prove that one of the timeliness
         exceptions applies. In addition, a petition invoking any of
         the timeliness exceptions must be filed within 60 days of
         the date the claim first could have been presented. 42
         Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy the 60–
         day requirement of Section 9545(b) if he or she fails to
         explain why, with the exercise of due diligence, the claim
         could not have been filed earlier.

Commonwealth v. Marshall, 947 A.2d 714, 719-20 (Pa. 2008) (some

citations omitted).   “[A]n 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 the petition, set forth at [42 Pa.C.S. § 9545]

are met.”   Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014)

(footnote omitted).

      Generally, the ineffective assistance of counsel will not give rise to a

PCRA time-bar exception. Commonwealth v. Gamboa-Taylor, 753 A.2d

780, 785 (Pa. 2000).       However, the Pennsylvania Supreme Court has

recognized a limited “extension of the one-year time requirement under

circumstances when a petitioner has not had the review to which he was

entitled due to a circumstance that was beyond his control”—that is, when

the claim of ineffectiveness “emanates from the complete denial of counsel.”


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Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa. 2007).               Thus, a

petitioner may state an exception under Section 9545(b)(1)(ii) “when

counsel abandons his client for purposes of appeal.”      Id.   The petitioner

must demonstrate that he that the fact of the abandonment “were ‘unknown’

to him and that he could not uncover them with the exercise of ‘due

diligence.’”   Id. at 274.   Additionally, the petitioner must file a petition

pleading the exception under Section 9545(b)(1)(ii) within sixty days of

when the claim “could have been presented.”              Id. at 1272 n.11;

Commonwealth v. Geer, 936 A.2d 1075, 1078 (Pa. Super. 2007).

      Instantly, Appellant’s judgment of sentence became final on December

6, 2013, when the time for taking a direct appeal expired. See 42 Pa.C.S. §

9545(b)(1), (3); Pa.R.A.P. 903(a). The one-year period for filing a facially

timely PCRA petition ended Monday, December 8, 2014. See 42 Pa.C.S. §

9545(b)(1); 1 Pa.C.S. § 1908. Thus, Appellant’s petition filed in late June

2015, nearly seven months later, was untimely on its face.

      As to Appellant’s efforts to have a PCRA petition filed on his behalf, 6

the PCRA court found, and we agree in part, that Attorney Ingros abandoned

Appellant by failing to file a PCRA petition within the one-year time


6 There is no dispute that Appellant pleaded a meritorious claim of
abandonment in his direct appeal. Appellant averred that Attorney Milgrub,
Appellant’s retained counsel through post-sentencing proceedings, promised
he would file a direct appeal on Appellant’s behalf, but withdrew without
perfecting an appeal. Attorney Ingros also did not file a timely direct appeal,
believing Attorney Milgrub had done so.



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limitation.   However, our review of Attorney Ingros’s conduct in this case

merits further discussion.

      At the outset, we note that the trial court did not enter an order

appointing Attorney Ingros as post-sentence or direct appeal counsel, and

there is no indication in the record that Attorney Ingros formally entered an

appearance on behalf of Appellant.         Nevertheless, Attorney Ingros sent a

letter informing Appellant that he was counsel for the purpose of direct

appeal. Thus, an attorney-client relationship arose.

      Attorney      Ingros’   continued    representation   of   Appellant   after

discovering that a direct appeal was not filed by Attorney Milgrub is more

problematic. Appellant made clear his intention to seek a reinstatement of

his direct appeal rights, and Attorney Ingros was Appellant’s putative

counsel at least two days before the direct appeal period lapsed. Therefore,

Attorney Ingros was precluded from acting as PCRA counsel.                   See

Commonwealth v. Spotz, 18 A.3d 244, 329 n.52 (Pa. 2011) (“to the

extent that . . .     PCRA attorneys are asserting their own ineffectiveness,

such an assertion violates the general rule that counsel cannot argue his or

her own ineffectiveness” (citation omitted)).

      Attorney Ingros did not inform Appellant of this conflict. Instead, he

told Appellant that a reinstatement of his direct appeal rights did not make

sense and he needed to file under the PCRA.         Attorney Milgrub instructed

Appellant to send him the issues Appellant wished to raise with respect to



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Attorney Milgrub’s performance during the plea. This resulted in Appellant

making several unsuccessful attempts to send Attorney Ingros his list of

issues. By the time Appellant was able to contact Attorney Ingros with his

issues, the one-year period to file a timely PCRA petition lapsed.

      Although the PCRA court concluded that Attorney Ingros abandoned

Appellant by failing to file a facially timely PCRA petition on December 8,

2014, Attorney Ingros’s improper conduct continued beyond that time.

Appellant contacted Attorney Ingros by a letter dated December 14, 2014,

and Attorney Ingros responded on January 23, 2015. Rather than disclose

the abandonment, Attorney Ingros continued to hold himself out as

Appellant’s counsel and asked Appellant to resubmit a list of his PCRA issues.

Attorney Ingros represented that he would have to seek an extension of

time from the PCRA court.     Appellant sent a list of his issues to Attorney

Ingros on February 20, 2015, which Attorney Ingros received.          Attorney

Ingros approached the court regarding an “extension of time,” and the court

directed Attorney Ingros to file a petition.   Appellant’s case, however, was

lost amid Attorney Ingros’s other work, and Appellant filed his pro se PCRA

petition in late June 2015.

      Thus, Attorney Ingros not only failed to file a facially timely PCRA

petition, but also actively misrepresented his status as proper counsel, failed

to inform Appellant of the jurisdictional nature of the PCRA time-limitations,

and imparted a false impression that he would be able to obtain an



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extension of time in which to file a PCRA petition. At no time did Attorney

Ingros disclose his abandonment, and he proceeded under the mistaken

assumption that he could obtain an extension of time up to the point

Appellant filed his pro se PCRA petition. Indeed, Attorney Ingros continued

to maintain that he intended to file a motion for extension of time at the

time of the PCRA hearing.

        Therefore, the PCRA court erred in focusing solely on Appellant’s

knowledge that Attorney Ingros did not file a PCRA petition as the operative

previously unknown fact. Attorney Ingros actively misrepresented his status

as counsel and his abandonment of Appellant throughout the history of this

case.    See Commonwealth v. Huddleston, 55 A.3d 1217, 1222 (Pa.

Super. 2012) (discussing counsel’s abandonment over four years and delay

of almost one year between quashal of direct appeal nunc pro tunc and filing

of PCRA petition, where counsel advise the petitioner of the quashal, and the

petitioner acted promptly when informed of the quashal and need to file

PCRA petition); accord Bennett, 930 A.2d at 1275 (“it is illogical to believe

that a counsel that abandons his or her client for a requested appeal will

inform his client that his case has been dismissed because of his own

failures”).   It is well settled that a PCRA petitioner is entitled to effective

representation in his first PCRA proceeding. Here, Appellant was denied that

opportunity by factors beyond his control.




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      Thus, under these unique circumstances, we conclude that Appellant

acted with reasonable diligence in protecting his own rights. Appellant was

entitled to believe that Attorney Ingros was his counsel and rely on his legal

advice.   In light of Attorney Ingros’s continuing misrepresentations, we

conclude that Appellant adequately proved that a timeliness exception under

Section 9545(b)(1)(ii) and (b)(2) for June 29, 2015 PCRA petition.

Therefore, we reverse the order dismissing Appellant’s petition as untimely

and remand for further proceedings to consider whether to reinstate

Appellant’s direct appeal rights or to consider his claims of ineffectiveness

against Attorney Milgrub as plea counsel.

      Order reversed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2017




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