J-S33007-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JERRY EUGENE SHRUBB

                               Appellant               No. 637 WDA 2015


                  Appeal from the PCRA Order March 18, 2015
          in the Court of Common Pleas of Elk County Criminal Division
                       at No(s): CP-24-CR-0000330-2005

BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 17, 2016

        Appellant, Jerry Eugene Shrubb, appeals from the order entered in the

Elk County Court of Common Pleas dismissing his second Post Conviction

Relief Act1 (“PCRA”) petition, filed pro se.     Appellant contends the PCRA

court erred when it determined (1) it was without authority to reinstate

Appellant’s right to file a petition for allowance of appeal and (2) Appellant

did not meet the exception for untimely petitions pursuant to 42 Pa.C.S.

§ 9545(b)(1)(ii) and (2). We affirm.

        On May 31, 2007, a jury convicted Appellant of five counts of receiving

stolen property2 and three counts each of arson3 and burglary.4       The trial


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 3925(a).
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court sentenced Appellant on August 17, 2007, and this Court affirmed on

June 13, 2010.         Commonwealth v. Shrubb, 327 WDA 2008 (Pa. Super.

June 10, 2010) (unpublished memorandum).           The Pennsylvania Supreme

Court denied Appellant’s petition for allowance of appeal on March 16, 2011.

Commonwealth v. Shrubb, 20 A.3d 487 (Pa. 2011).                Appellant did not

seek further review in the United States Supreme Court.

        On June 22, 2011, Appellant filed a timely, counseled PCRA petition.5

The PCRA court, following a hearing, denied the petition on June 22, 2012.

Order, 6/22/12. Appellant timely appealed, and this Court affirmed on April

10, 2013. Commonwealth v. Shrubb, 1147 WDA 2012 (Pa. Super. Apr.

10, 2013) (unpublished memorandum). Appellant did not file a petition for

allowance of appeal in the Pennsylvania Supreme Court. On April 24, 2014,6

Appellant      filed     with   this   Court   a   pro    se      “motion    for

reconsideration/reargument/reinstatement.”7 Appellant requested to amend


3
    18 Pa.C.S. § 3301(a)(ii).
4
    18 Pa.C.S. § 3502(a).
5
  We note the counseled petition is titled “Amended Motion for Post
Conviction Collateral Relief.” Am. PCRA Pet., 6/22/11, at 1. The record
does not contain an initial petition.
6
 Appellant’s motion was docketed on April 30, 2014. See Commonwealth
v. Jones, 700 A.2d 423, 426 (Pa. 1997) (discussing prisoner mailbox rule).
7
  On October 30, 2015, Appellant filed an “Application for Judicial Notice”
with this Court. Appellant seeks to have this Court take judicial notice of
“the contents” of his appellate brief and motion to reconsider that was



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the issues raised in his PCRA petition to include a claim of PCRA counsel

abandonment and contended, “his matter should be held under the Equitable

Tolling standard.”   Mot. for Recons., 4/24/14, at 3-4.     This Court denied

Appellant’s motion on May 12, 2014. Per Curiam Order, 5/12/14.

      On September 10, 2014,8 Appellant filed, pro se, his second PCRA

petition, which gives rise to this counseled appeal.        Therein, he cited

numerous claims of prosecutorial misconduct, challenged the sufficiency of

the evidence supporting his convictions,9 and asserted ineffective assistance

of his trial counsel and first PCRA counsel. See Pro Se PCRA Pet., 9/10/14,

at 1-10.10 Appellant averred government interference prevented him from

timely filing his PCRA petition because

            [t]he Department of Corrections did censor and
            failed to forward ‘privileged correspondence’ between
            [Appellant’s] attorney of record and [Appellant] of

submitted in his appeal from the denial of his first PCRA petition. Application
for Judicial Notice, 10/30/15, at 2 (unnumbered). We construe Appellant’s
request as a motion to supplement the record, and grant the motion.
8
  Appellant’s PCRA petition was received and docketed on October 1, 2014.
Appellant included in the record a cash slip time-stamped by the Department
of Corrections indicating he deposited his petition for mailing with prison
authorities on September 10, 2014. Thus, we deem his petition filed on that
date. See Jones, 700 A.2d at 426.
9
  We note Appellant raised a sufficiency of evidence argument in his direct
appeal, and this Court concluded he was not entitled to relief on that claim.
See Shrubb, 327 WDA 2008, at 13-21.
10
   Appellant inserted in his petition, between pages four and five, a separate,
nine-page document explaining the facts supporting his petition. We will cite
to this material as “Pro Se PCRA Pet. at Ex. 1.”



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            the Final Order / Superior Court Decision [affirming
            the dismissal of Appellant’s first PCRA petition] . . .
            which is absent service in the legal mail logbook,
            before [Appellant’s] counsel, Blair H. Hindman, Esq.,
            abandoned his case.

Id. at 3.

      Appellant indicated, “the following facts were previously unknown to”

him: “[t]he fact that Corpus Delecti has not been established in this instant

matter.” Id.

      Regarding PCRA counsel’s stewardship, Appellant alleged:

               On P.C.R.A., [Appellant] was ill-advised to drop
            two of his long-standing issues, and subsequently
            the P.C.R.A. was denied. A P.C.R.A. appeal was then
            submitted and was later abandoned by his attorney
            of record, Blair H. Hindman. On or about, May 12,
            2014, a copy of the Superior Court Decision . . . Final
            Order was first afforded to [Appellant].

Id. at Ex. 1, 6-7.

      On January 15, 2015, the PCRA court filed its notice of intent to

dismiss Appellant’s petition pursuant to Pa.Crim.P. 907.      With respect to

Appellant’s claim that the Department of Corrections interfered with his

receipt of notice of the Superior Court’s April 10, 2013 decision, the PCRA

court concluded “[petitioner] has not demonstrated that he complied with

the requirement of filing his second PCRA petition within 60 days of his

purported receipt of the April 10, 2013 Superior Court denial of the appeal of

his first PCRA petition on or about May 12, 2014 . . . .” Rule 907 Notice,

1/15/15, at 4.   The PCRA court found Appellant failed to plead and prove



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that his untimely petition was the result of previously unknown facts, i.e.,

“that Corpus Delecti has not been established in the instant case.” Id. The

court reasoned, “[t]he [petitioner] has asserted no timeline whatsoever in

terms of when evidence purportedly became available or what that evidence

may be.” Id.

      On February 2, 2015, Appellant filed a response to the Rule 907

notice.   He contended that he first received notice of the Superior Court’s

decision on April 16, 2014. Appellant’s Resp. to Rule 907 Notice, 2/2/15, at

1. Contra Pro Se PCRA Pet. at Ex. 1, 6-7 (stating Appellant first received

notice of the decision on May 12, 2014).          He further argued he “was

prejudiced by being denied service of a timely order which prevented any

furtherance of review to the Supreme Court of Pennsylvania . . .                .”

Appellant’s Resp. to Rule 907 Notice at 1; see also id. at 2.

      On    March   18,   2015,   the   PCRA   court   issued   an   opinion   and

accompanying order dismissing Appellant’s petition.         On April 16, 2015,

Appellant filed a counseled notice of appeal. Appellant filed a court-ordered

Pa.R.A.P. 1925(b) statement, and the PCRA court filed a Rule 1925(a)

response.

      On appeal, Appellant raises the following issues:

             1. Whether the [PCRA c]ourt erred in concluding
             that, even if it found that [Appellant’s] pro se PCRA
             Petition was timely, it did not have the power to
             reinstate [Appellant’s] right to file a Petition for
             Allowance of Appeal in the Supreme Court?



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              2. Whether the [PCRA c]ourt erred in dismissing
              [Appellant’s] PCRA Petition, without a hearing, on
              the basis that it was untimely under 42 Pa.C.S.
              § 9545(b)(1),     when     the     facts  underlying
              [Appellant’s] ineffectiveness claim against his First
              PCRA Counsel were previously unknown and could
              not have been ascertained by the exercise of due
              diligence?

              3. Whether the [PCRA c]ourt erred in dismissing
              [Appellant’s] PCRA Petition, without a hearing, on
              the basis that it was untimely under 42 Pa.C.S.
              § 9545(b)(2), when the Petition was indeed timely
              under that subsection because, within sixty days of
              belatedly receiving the Superior Court’s Order
              affirming the denial of his First PCRA Petition,
              [Appellant] filed a pro se pleading in the Superior
              Court asserting an ineffectiveness claim against
              PCRA Counsel?

Appellant’s Brief at 5.

        First, Appellant argues he received ineffective assistance of counsel

from his first PCRA counsel,11 and the PCRA court erroneously concluded

that it was without authority to reinstate Appellant’s right to file a petition of

allowance of appeal from this Court’s April 10, 2013 decision. See id. at 28-

32. Next, Appellant claims the PCRA court erred in dismissing his petition

because he met the timeliness exception under 42 Pa.C.S. § 9545(b)(1)(ii).

Id. at 33.     Specifically, Appellant avers he did not receive a copy of this

Court’s April 10, 2013 decision “until April 2014. Thus, [Appellant] did[ not]

learn until around that time that PCRA Counsel’s abandonment would

prevent him from continuing his appeal.”       Id. at 35-36 (footnote omitted

11
     See 42 Pa.C.S. § 9543(a)(2)(ii).



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and emphasis added).      Finally, Appellant argues his petition was timely

under 42 Pa.C.S. § 9545(b)(2) because he filed “a pro se document in the

Superior Court” “on or about April 30, 2014,” within sixty days of his

discovery of this Court’s April 10, 2013 decision. For the reasons that follow,

we disagree.

      Our review is limited to whether the findings of the PCRA court are

supported by the record and free of legal error. Commonwealth v. Miller,

102 A.3d 988, 992 (Pa. Super. 2014). Our standard of review of the PCRA

court’s legal conclusions is de novo. Id.

      However,

            [b]efore we may address the merits of Appellant’s
            arguments, we must first consider the timeliness of
            Appellant’s PCRA petition because it implicates the
            jurisdiction of this Court and the PCRA court.
            Pennsylvania law makes clear that when a PCRA
            petition is untimely, neither this Court nor the trial
            court has jurisdiction over the petition. . . .
            However, an 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.A
            § 9545(b)(1)(i), (ii), and (iii) are met. The PCRA
            provides, in relevant part, as follows.

               § 9545. Jurisdiction and proceedings

                                  *    *    *

               (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



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                  judgment becomes final, unless the petition
                  alleges and the petitioner proves that:

                     (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 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 chapter
                     and has been held by that court to apply
                     retroactively.

                  (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.A § 9545(b).

Id. at 992-93 (quotation marks and some citations omitted).

      The   jurisdictional   filing   mandates       of   the   PCRA   “are   strictly

construed.”    Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super.

2013) (citation omitted and emphasis added).              Moreover, “the period for

filing a PCRA petition is not subject to the doctrine of equitable tolling, save




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to    the   extent   the   doctrine   is   embraced   by   §   9545(b)(1)(i)-(iii).”

Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999).

        In the case sub judice, Appellant’s judgment of sentence became final

on June 14, 2011, ninety days after the Pennsylvania Supreme Court denied

his petition for allowance of appeal.            See Sup.Ct.R. 13; 42 Pa.C.S.

§ 9545(b)(3). Appellant filed the instant pro se petition on September 10,

2014. Thus, it is facially untimely. Appellant claimed in his petition that he

met the government interference exception at 42 Pa.C.S. § 9545(b)(1)(i)

because the Department of Corrections prevented him from receiving

correspondence from his appellate counsel which informed him of the

Superior Court’s April 10, 2013 decision. Pro Se PCRA Pet. at 3. Liberally

construing his petition,12 he alternatively posits he did not learn of the April

10, 2013 decision because he was abandoned by appellate counsel.13 See

id. at Ex. 1, 6-7. He therefore argues in the instant appeal that he fulfilled

the newly-discovered facts exception at 42 Pa.C.S. § 9545(b)(1)(ii) because

he did not discover counsel’s “abandonment” until April 2014.                  See

Appellant’s Brief at 33-37.




12
     See In re Ullman, 995 A.2d 1207, 1211 (Pa. Super. 2010).
13
  We note Appellant included in his opposition to the PCRA court’s Rule 907
notice a letter from his appellate counsel’s law office which read, in part, “a
copy of the Superior Court Order dated April 10, 2013 was mailed to you on
May 14, 2013[.]” Appellant’s Resp. to Rule 907 Notice at Ex. F.



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      Appellant acknowledges he learned of this Court’s April 10, 2013

decision on April 16, 2014.      Appellant’s Resp. to Rule 907 Notice at 1;

Appellant’s Brief at 35-36.   Accordingly, in order to satisfy any exception to

the jurisdictional time-bar, Appellant needed to file his petition on or before

June 16, 2014. See 42 Pa.C.S. § 9545(b)(2); see Fahy, 737 A.2d at 222.

Consequently, Appellant did not meet the strict jurisdictional filing mandates

of the PCRA because he filed the instant petition on September 10, 2014, in

excess of sixty days from when the claim could have been presented.14 See

Taylor, 65 A.3d at 468.       Based on the foregoing, we conclude the PCRA

court properly dismissed Appellant’s petition as untimely. See Miller, 102

A.3d at 992.

      Order affirmed. Motion to supplement the record granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/17/2016

14
  Moreover, Appellant’s motion for reconsideration, which was filed after the
Superior Court’s decision affirmed the denial of his first PCRA petition,
sought to amend his first PCRA petition. Mot. for Recons. at 3-4. It was
not, as Appellant now suggest on appeal, a second PCRA petition. Further,
Appellant did not argue in the instant petition that his motion for
reconsideration met the time-bar exception at 42 Pa.C.S. § 9545(b)(1)(ii)
and (2). See Commonwealth v. Roney, 79 A.3d 595, 611 (Pa. 2013)
(noting PCRA petitioner waived his claim for failure to raise it before the
PCRA court).



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