J-S56044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MAX C. STINE                             :
                                          :
                    Appellant             :   No. 1851 EDA 2019

             Appeal from the PCRA Order Entered May 29, 2019
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0005987-2013


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                      FILED DECEMBER 10, 2019

      Appellant Max C. Stine appeals pro se from the order dismissing his

untimely first petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546.      Appellant claims that the abandonment of prior counsel

provides an exception to the PCRA’s time-bar. We affirm.

      The PCRA court set forth the relevant facts of this appeal as follows:

      [Appellant] was sentenced on September 18, 2014 following his
      conviction for first-degree murder, two counts of aggravated
      assault, two counts of recklessly endangering another person, and
      possessing an instrument of a crime. Those convictions were a
      result of the shooting death of Jesus Mendoza. On July 11, 2011,
      [Norristown Borough Police Officer Michael] Bishop hear[d]
      automatic gunfire while responding to another call. Upon his
      arrival [at] the location of the gunfire, he found [Mendoza]
      unresponsive, bleeding, and clutching a knife in his hand. Mr.
      Mendoza died of multiple gunshot wounds. Twenty-six shell
      casings were recovered from the scene and were [an] “AK type of
      ammunition.” [Appellant] had been at a party at Paul Hernandez’s
      apartment when Hernandez was involved in an altercation with a
      group of men. [Appellant] was informed of the altercation and
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       retrieved an AK-47 weapon from his vehicle. When Hernandez
       saw Mendoza later that night, he went to confront him with a
       knife, but before the men could physically engage, shots were
       fired and Mendoza collapsed. [Appellant] was seen with the AK-
       47 before Hernandez helped [Appellant] dispose of the gun. Two
       bystanders, who were witnesses, were injured by stray gunfire.

       Following his conviction, [Appellant] filed a direct appeal and the
       Superior Court affirmed on July 21, 2016. Thereafter, [Appellant]
       failed to file a Petition for Allowance of Appeal to the Pennsylvania
       Supreme Court. On October 3, 2017, [Appellant] sent a letter to
       [the trial judge] asking that a new attorney be appointed “for my
       appeal.” On or about October 18, 2018, [Appellant] wrote another
       letter to the [c]ourt seeking a new attorney for his appeal because
       he claimed his current attorney would not speak to him. On
       November 8, 2018, [Appellant] sent another letter to the [c]ourt
       stating “I’m at my PCRA right now.” No PCRA [petition] had been
       filed at that time. [Appellant] again requested a new attorney.
       Finally, on December 31, 2018, [Appellant] sent [the c]ourt a
       letter stating he had been abandoned by his attorney, that his
       PCRA was time barred, and that he “needed his appeal rights
       back.” The court construed that letter as a request for some form
       of relief possibly cognizable under the PCRA, and appointed
       [PCRA] counsel [on January 17, 2019]. On May 1, 2019, [PCRA]
       counsel . . . filed a Finley[1] Letter and Petition to Withdraw as
       Counsel. On May 2, 2019, [the PCRA c]ourt [granted PCRA
       counsel’s request to withdraw and] filed its Notice of lntent to
       Dismiss, and on May 29, 2019, following a response, [the PCRA
       c]ourt dismissed the Petition.

PCRA Ct. Op., 7/16/19, at 1-2 (footnote omitted).

       Appellant timely filed a pro se notice of appeal, which was postmarked

on June 10, 2019. On July 11, 2019, Appellant timely filed a court-ordered

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The

PCRA court filed a responsive opinion on July 16, 2019.          The PCRA court



____________________________________________


1   Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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concluded that prior counsel did not abandon Appellant, and Appellant’s own

inaction resulted in his failure to file a timely PCRA petition.

       Appellant now raises one question for our review:

       Was counsel ineffective for failing to file a timely PCRA petition
       after advising Appellant that he would file the same, resulting in
       the loss of Appellant’s appeal rights?

Appellant’s Brief at 4 (full capitalization omitted).

       Appellant contends that he received appointed counsel for his direct

appeal.2    Id. at 6.     After this Court affirmed the judgment of sentence,

Appellant insists that direct appeal counsel promised to “file a counseled PCRA

petition on [Appellant’s] behalf, and that [Appellant] should have his family

provide [direct appeal counsel] with a list of character witnesses that [direct

appeal counsel] could use in perfecting the PCRA” petition.          Id. at 6-7.

Although his family provided the list of character witnesses, Appellant claims

that direct appeal counsel subsequently abandoned him, refusing to respond

to any correspondence. Id. at 7. Appellant asserts that he did not learn about

direct appeal counsel’s failure to file a PCRA petition until after the PCRA court

appointed new counsel. Id.

       Appellant argues that “[a]lthough [direct appeal counsel] was not

appointed or retained to file a PCRA petition, he nonetheless was required to

do the same after he made the specific promise to Appellant that he would.”

Id.   Appellant further argues that direct appeal counsel’s “failure to file
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2Specifically, the trial court appointed Francis M. Walsh, Esq. to represent
Appellant on May 29, 2015.

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Appellant’s first PCRA petition constituted ineffectiveness per se, as it

completely deprived [Appellant] of any consideration of his collateral claims

under the PCRA.” Id. at 8. Appellant relies on Commonwealth v. Bennett,

930 A.2d 1264 (Pa. 2007), for the proposition that counsel’s abandonment

can constitute a newly discovered “fact” and trigger an exception to the PCRA’s

time-bar. Id. Based upon the foregoing, Appellant maintains that this Court

must vacate the order dismissing his PCRA petition and remand the matter

“to permit Appellant the opportunity to file a timely PCRA petition.” Id. at 9.

      Our standard of review for the dismissal of a PCRA petition is limited to

“whether the record supports the PCRA court’s determination and whether the

PCRA court’s decision is free of legal error.” Commonwealth v. Lawson, 90

A.3d 1, 4 (Pa. Super. 2014) (citation omitted).

      It is well-settled that “the timeliness of a PCRA petition is a jurisdictional

[pre]requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super.

2015) (citation omitted). “A PCRA petition, including a second or subsequent

petition, shall be filed within one year of the date the underlying judgment

becomes final.” Id. (citation omitted). “A judgment is deemed 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.’”         Id. (quoting 42 Pa.C.S. §

9545(b)(3)).




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

judgment of sentence becomes final only if the petitioner pleads 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 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 invoking an exception provided

in paragraph (1) shall be filed within one year of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).3

       In   Bennett,      the   Pennsylvania      Supreme   Court   held   that   the

abandonment of a client by counsel constitutes a “fact” within the meaning of

Section 9545(b)(1)(ii). Bennett, 930 A.2d at 1274. For purposes of Section

9545(b)(1)(ii), abandonment means the complete deprivation of the

petitioner’s right to review by a court. See Commonwealth v. Peterson,

192 A.3d 1123, 1131 (Pa. 2018).                Further, Bennett does not relieve a
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3 On October 24, 2018, the General Assembly amended Section 9545(b)(2),
and extended the time for filing a petition from sixty days to one year from
the date the claim could have been presented. See 2018 Pa. Legis. Serv. Act
2018-146 (S.B. 915), effective December 24, 2018. The amendment applies
only to claims arising one year before the effective date of this section,
December 24, 2017, or thereafter.

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petitioner from exercising due diligence when discovering the fact of counsel’s

abandonment. See Bennett, 930 A.2d at 1274.

      Instantly, the PCRA court determined that Appellant’s December 31,

2018 pro se letter constituted an untimely first PCRA petition, and Appellant

could not overcome the PCRA’s time-bar:

      [Appellant] had until August 20, 2017 to file his PCRA petition, or
      one year from the date his judgement of sentence became final.
      [Appellant] sent his first letter to the [PCRA c]ourt on October 3,
      2017. Even if that letter could be construed as a PCRA [petition],
      . . . it would be time barred. [Appellant’s] letter of December 31,
      2018, which contained a request for relief possibly cognizable
      under the PCRA was thus much too late. Consequently, the
      petition was facially untimely.

                                  *    *    *

      [Appellant] claims in his letters to [the PCRA c]ourt that he was
      abandoned by counsel. . . . Such claims are belied by letters
      attached as Exhibit D and E to PCRA [c]ounsel’s Petition to
      Withdraw as Counsel and Finley Letter. Exhibit D is [a letter from
      Appellant to direct appeal counsel, containing] negotiations over
      the content of what [Appellant] wishes direct appeal counsel to
      include in his PCRA [petition], and the letter also asks counsel to
      amend [Appellant’s] PCRA [petition].         This letter is dated
      November 8, 2018, well outside the [period for filing a timely
      PCRA petition].

                                  *    *    *

      Further, direct appeal counsel’s [December 7, 2018] response to
      that letter, in Exhibit E, memorializes an agreement that direct
      appeal counsel would file a PCRA [petition] if he received a list of
      character witnesses from [Appellant’s] mother. When [Appellant]
      failed to provide those witnesses until after the PCRA [petition]
      was time barred, direct appeal counsel informed [Appellant’s]
      family that no PCRA [petition] could be filed. Thus, [Appellant’s]
      own failures led to the failure to file a PCRA petition, not those of
      counsel.


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PCRA Ct. Op. at 4-5 (citation omitted).

       Our review of the record, including PCRA counsel’s Finley letter,

confirms the PCRA court’s findings. Contrary to Appellant’s assertions, direct

appeal counsel did not abandon him.             Rather, Appellant and direct appeal

counsel exchanged letters in 2018.             Significantly, direct appeal counsel’s

December 2018 letter informed Appellant that (1) he had requested a list of

character witnesses from Appellant in June 2017; (2) Appellant’s mother did

not provide the list until January 2018; and (3) counsel subsequently informed

Appellant’s father that “we lacked jurisdiction to file a PCRA” petition. 4 See

Pet. to Withdraw as Counsel, 5/1/19, at Ex. E. Therefore, the record belies

Appellant’s assertion of abandonment, and Appellant does not have a basis to

invoke Section 9545(b)(1)(ii). See Peterson, 192 A.3d at 1131; Bennett,

930 A.2d at 1274.        Accordingly, the PCRA court did not err in dismissing

Appellant’s petition as untimely.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/19
____________________________________________


4 Direct appeal counsel also advised Appellant to consider filing a habeas
corpus petition in federal court. See Pet. to Withdraw as Counsel at Ex. E.

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