J-S70037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
            v.                            :
                                          :
SHAWN BISHOP,                             :
                                          :
                  Appellant               :           No. 3747 EDA 2015

                  Appeal from the Order November 16, 2015
            in the Court of Common Pleas of Philadelphia County,
             Criminal Division, No(s): CP-51-CR-1208991-2002

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED NOVEMBER 15, 2016

      Shawn Bishop (“Bishop”), pro se, appeals from the Order dismissing

his second Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court set forth in its Opinion the relevant procedural history

underlying this appeal, which we incorporate as though fully set forth herein.

See PCRA Court Opinion, 3/22/16, at 1-3.

      In this timely appeal, Bishop presents the following questions for our

review:

      1. Did the PCRA court err[] in dismissing [Bishop’s] PCRA
         Petition by conflating the [PCRA’s] timeliness requirements
         with merit[]s review, contravening [the Pennsylvania]
         Supreme Court’s decision in Commonwealth v. Bennett,
         930 A.3d 1264 (Pa. 2007)?

      2. Did the PCRA court err[] by dismissing [Bishop’s] successive
         PCRA Petition as untimely where the Petition was filed within
         sixty days of PCRA Counsel (James Bruno[, Esquire
J-S70037-16


         (hereinafter “PCRA counsel”),]) informing [Bishop] personally
         by letter that [PCRA counsel] was temporarily disbarred?

      3. [Whether] the PCRA court erred by dismissing [Bishop’s]
         PCRA Petition based[,] to any degree[,] on a finding that
         [Bishop] could not establish prejudice where PCRA counsel’s
         mental condition interfered with counsel’s ability to provide
         [Bishop] with his rule[-]base[d] right (Pa.R.Crim.P. 904) to
         effective assistance of counsel on his first PCRA Petition?

      4. Did the PCRA court err[] by appointing [Bishop] an attorney
         who had a long[-]documented history of disciplinary issues[,]
         dating back to 1998, and accepting [Bishop’s] pro se filings
         ([Bishop’s response to the PCRA court’s Pa.R.Crim.P.] 907
         Notice, [and the] Notice of Appeal) below while [PCRA]
         counsel was still counsel of record?

      5. Did the PCRA court err[] by not restoring [Bishop’s] PCRA
         rights where [PCRA] counsel failed to perform his duties as
         required under Pa.R.Crim.P. 904?

Brief for Appellant at 4 (some capitalization omitted).

      We review an order dismissing a petition under the PCRA in the light

most favorable to the prevailing party at the PCRA level. Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The review is limited to the findings

of the PCRA court and the evidence of record.          Id.   The PCRA court’s

decision will be upheld if it is supported by the record and free of legal error.

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

      Under the PCRA, any PCRA petition “shall be filed within one year of

the date the judgment [of sentence] becomes final.”               42 Pa.C.S.A.

§ 9545(b)(1). A judgment of sentence becomes final “at the conclusion of

direct review, including discretionary review in the Supreme Court of

Pennsylvania, or at the expiration time for seeking the review.”             Id.


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J-S70037-16


§ 9545(b)(3).    The PCRA’s timeliness requirements are jurisdictional in

nature, and a court may not address the merits of the issues raised if the

PCRA petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d

1091, 1093 (Pa. 2010).

      Here, Bishop’s judgment of sentence became final on July 21, 2009,

when the time to file a petition for writ of certiorari with the United States

Supreme Court expired.     See Commonwealth v. Wilson, 911 A.2d 942,

945 (Pa. Super. 2006). Therefore, Bishop’s instant PCRA Petition, which was

filed over six years later, is facially untimely.          See 42 Pa.C.S.A.

§ 9545(b)(3).

      However, Pennsylvania courts may consider an untimely PCRA petition

if the appellant can explicitly plead and prove one of the three exceptions set

forth at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). To establish an exception to the

timeliness requirement, the Petitioner must plead and prove 1) the failure to

raise the claim was the result of government interference; 2) the facts upon

which the claim is predicated were unknown and could not have been

discovered with due diligence (hereinafter “the newly-discovered facts

exception”); or 3) the right asserted is a Constitutional right recognized by

the Supreme Court of the United States or the Supreme Court of

Pennsylvania after the time period provided in the section, and the court has

held that it applies retroactively.   Id.   Any petition invoking one of these




                                  -3-
J-S70037-16


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

been presented.” Id. § 9545(b)(2).

      We will address all of Bishop’s claims simultaneously, as they are

related. Bishop argues that the PCRA court improperly dismissed his second

PCRA Petition because he (1) met the requirements of the newly-discovered

facts exception; and (2) filed the PCRA Petition within 60 days of the date

his claim concerning this exception could have been presented.           See Brief

for Appellant at 12, 15-16. Specifically, Bishop contends that the letter that

PCRA counsel sent to Bishop on March 22, 2013 (hereinafter “the

Suspension    Letter”),   informing    Bishop   of   PCRA    counsel’s   temporary

suspension from the practice of law,1 constitutes a newly-discovered fact

that meets the timeliness exception. Id. at 12-13, 15. According to Bishop,

PCRA counsel’s “ADHD [] caused [counsel] to abandon [Bishop] on his first

PCRA [P]etition[,]” and PCRA counsel’s representation was ineffective.          Id.

at 14, 19; see also id. at 18 (arguing that the Amended first PCRA Petition

that PCRA counsel filed on behalf of Bishop “was so boilerplate and

insufficient[,] in that it was substantially lacking in citation to any legal

authorities and without any meaningful argument.            In all likelihood[,] the

deficient document is the result of [PCRA counsel’s] cognitive disorders.


1
  Bishop attached to his brief a Report and Recommendation issued by the
Disciplinary Board of the Pennsylvania Supreme Court, which detailed PCRA
counsel’s diagnosis of Attention Deficit-Hyperactivity Disorder (“ADHD”) and
depression, and counsel’s violations of the Rules of Professional Conduct.
See Brief for Appellant, Exhibit B.


                                      -4-
J-S70037-16


[PCRA counsel] never consulted or communicated with [Bishop] throughout

the PCRA proceedings.”) (internal citation omitted).

     In its Opinion, the PCRA court addressed Bishop’s claims, concisely

summarized the law pertaining to the newly-discovered facts exception, and

determined that Bishop failed to meet this exception.      See PCRA Court

Opinion, 3/22/16, at 5-7. We affirm with regard to Bishop’s issues based on

the PCRA court’s sound rationale, see id., with the following addendum.

     Generally, claims of ineffective assistance of counsel, such as Bishop’s

claim, will not save an otherwise untimely petition from the application of

the time restrictions of the PCRA. Commonwealth v. Edmiston, 65 A.3d

339, 349 (Pa. 2013); Commonwealth v. Gamboa-Taylor, 753 A.2d 780,

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

determined that a PCRA petitioner’s discovery that his counsel has

abandoned him (by failing to file a requested appeal from an order denying

his timely first PCRA petition, a court-ordered Pa.R.A.P. 1925(b) concise

statement, or an appellate brief) can permit the petitioner to circumvent the

PCRA time bar under the newly-discovered facts exception. Bennett, 930

A.2d at 1273;2 see also id. (stating that “subsection 9545(b)(1)(ii) is a

limited extension of the one-year time requirement under circumstances

where a petitioner has not had the review to which he was entitled due to a

circumstance that was beyond his control.”).

2
  Bishop invoked Bennett in both his appellate brief and second PCRA
Petition.


                                 -5-
J-S70037-16


      In the instant case, unlike in Bennett, Bishop was not deprived of his

right to a counseled first PCRA appeal. Although PCRA counsel undeniably

failed to file a court-ordered Rule 1925(b) concise statement on Bishop’s

behalf (regarding Bishop’s appeal from the denial of his first PCRA Petition),

after PCRA counsel withdrew his representation, the PCRA court appointed

Bishop new counsel, and this Court decided Bishop’s appeal on the merits.

Accordingly, Bennett is of no avail to Bishop, and the PCRA court properly

determined that Bishop failed to establish the newly-discovered facts

exception.

      Accordingly, because we conclude that Bishop did not meet any of the

time timeliness exceptions necessary to save his facially untimely second

PCRA Petition, and his ineffectiveness claim is unavailing, the PCRA court

properly dismissed the Petition.

      Order affirmed.

      Judge Ott joins the memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/15/2016




                                   -6-
J-S70037-16




              -7-
                                                                                       Circulated 10/19/2016 02:17 PM



                IN THE COURT OF COMMON PLEAS OF PHILADELPHIA

                                CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA                                         CP-51-CR-1208991-2002

       V.                                                             3747 EDA 2015

SHAWN BISHOP
                                                                                FILED
                                                                                  MAR 2 2 20\6 .
                                            OPINION
                                                                              Cf\m\na\ App~a\~ Unit .
Rose Marie DeFino-Nastasi, J.                                               firstJud\cia, o,stnctot PA
                                   PROCEDURAL HISTORY

       On November 12, 2003, Petitioner was found guilty after a jury trial, presided over by the

Honorable Jane Cutler Greenspan, of First Degree Murder, 18 Pa.C.S. § 2502(a)_, as a felony of

the first degree; and Conspiracy, 18 Pa.C.S. § 903, as a felony of the first degree.

        On January 9, 2004, Petitioner was sentenced to life imprisonment for the first degree

murder conviction; ten (10) years to twenty (20) years for the conspiracy conviction, to run

concurrently.

        On July 22, 2005, the Superior Court affirmed the judgment of sentence.

        Following the reinstatement of Petitioner's right to file a petition for allowance of appeal

with the Pennsylvania Supreme Court, his appeal was denied on April 22, 2008.

       ·on January 26, 2009, Petitioner filed a pro se petition under the Post Conviction Relief

Act (PCRA). James Bruno, Esq. was appointed PCRA counsel and filed an amended petition.

        On August 10, 2011, the Commonwealth filed a Motion to Dismiss.

        On March 14, 2012, Petitioner's first PCRA petition was formally dismissed.

        On April 12, 2012, Petitioner filed a prose notice of appeal to the Superior Court.
        On March 22, 2013, Attorney Bruno sent Petitioner           a letter stating that he has been
placed on temporary suspension by the Pennsylvania Supreme Court, effective March 28, 2013.

See Petitioner's January 26, 2015 PCRA Petition at Exhibit P2. That same day, Attorney Bruno

filed a Motion to Withdraw as Counsel and for Remand to Appoint Counsel, which was granted

by the Superior Court on April 10, 2013.1

        Lee Mandell, Esq. was appointed PCRA counsel by the Court Appointments Unit and

entered his appearance on April 19, 2013.

        On May 16, 2014, the Superior Court affirmed the Order formally dismissing Petitioner's

first PCRA petition. In its Opinion, the Court stated that although Attorney Bruno failed to file a

Rule 1925(b) Statement of Matters Complained of on Appeal, it was unnecessary to remand for

the filing of a Rule 1925(b) statement nunc pro tune because the PCRA court addressed all of the

issues PetitionerraisedinhisPCRApetition.            Com. v. Bishop, 1205 EDA2012atpp.4-5              n. 3.

        On July 11, 2014, Petitioner filed the instant, second PCRA petition, prose, broadly

asserting claims of ineffective assistance of PCRA counsel.

        On August 13, 2014, Teri Himebaugh, Esq. entered her appearance as privately retained

PCRA counsel.

        On January 14, 2015, the Supreme Court denied the Petition for Allowance of Appeal

from Petitioner's first PCRA petition.

        On January 26, 2015, Attorney Himebaugh filed an amended petition.

        On July 23, 2015, the Commonwealth filed a motion to dismiss.

        On September 4, 2015, Petitioner filed a response to the Commonwealth's Motion to

Dismiss.

I
  On November 13, 2014, the Supreme Court of Pennsylvania suspended Attorney Bruno from the practice of law
for a period of two years retroactive to February 26, 2013. See Petitioner's January 26, 2015 PCRA Petition at
Exhibit PS.

                                                                                                                 2
        On October 14, 2015, the Court issued a 907 notice.

        On November 16, 2015, Petitioner's second PCRA petition was formally dismissed.

        On December 15, 2015, Petitioner filed the instant appeal the Superior Court.2

        On February 4, 2016, Petitioner filed a Rule 1925(b) statement, pursuant to an Order of

the Court, claiming that:

        l. The PCRA court erred in dismissing Petitioner's second PCRA petition "by

            conflating the timeliness requirements with a merit's review, contravening" Com. v.

            Bennett, 930 A.3d 1264 (Pa. 2007).

        2. The PCRA Court erred in dismissing Petitioner's second PCRA petition where the

            petition was filed within 60 days of PCRA counsel James Bruno, Esq. informing

            Petitioner that he was temporarily disbarred.

        3. The PCRA court erred in dismissing Petitioner's second PCRA petition based on a

            finding that Petitioner could not establish prejudice where PCRA counsel's mental

            condition interfered with counsel's ability to provide Petitioner with effective

            assistance of counsel.

        4. The PCRA court erred by appointing Petitioner an attorney "who had a long

             documented history of disciplinary issues dating back to 1997" and "by accepting

            Petitioner's prose filings (907 Notice, Notice of Appeal) below while Attorney

             Bruno was still counsel of record."

        5. · The PCRA court erred by failing to restore Petitioner's PCRA rights "where counsel

             failed to perform his duties as required under Pa.RCrim.P. 904."

2
   On December 29, 2015, Attorney Himebaugh, whom Petitioner privately retained, filed a Motion to Withdraw in
the Superior Court. On December 31, 2015, Petitioner flied a motion to proceed prose. On January 20, 2016, the
Superior Court remanded to the PCRA court to conduct a hearing pursuant to Com. v. Grazier, 713 A.2d 81 (Pa.
 1998). On March 21, 2016, the Court conducted a hearing and determined that since this was Petitioner's second
PCRA petition, he was not entitled to court-appointed counsel.

                                                                                                                  3
                                            ANALYSIS

      Petitioner's PCRA petition is untimely. The Pennsylvania Supreme Court denied his

Petition for Allowance of Appeal on April 22, 2008. Petitioner's judgment of sentence became

final on July 21, 2008, after the ninety-day period to file a writ of certiorari with the United

States Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3) ("For purposes of this subchapter, a

judgment becomes final at the conclusion of direct review ... or at the expiration oftime for

seeking the review."). A petition for relief under the PCRA must be filed within one year of the

date the PCRA petitioner's judgment of sentence becomes final, unless the petitioner alleges and

proves that an exception to the one-year time-bar is met. Com. v. Taylor, 65 A.3d 462, 468 (Pa.

Super. 2013) (citing 42 Pa.C.S. § 9545). Thus, Petitioner had until July 21, 2009, to file a timely

petition, making his July 11, 2014 second PCRA petition patently untimely.

      The timeliness of a PCRA petition is a jurisdictional requirement. Com. v. Robinson, 12

A.3d 477 (Pa. Super. 2011). The Act provides three, very limited exceptions to the requirement

that a PCRA petition be filed within one year of finality of the judgment of sentence:

      (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
                                          I
                                                     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.



                                                                                                      4
42 Pa.C.S. § 9545(b)(l)(i)-(iii).

        Additionally, any petition invoking an exception must be filed within sixty (60) days of

the date the claim could have been presented. 42 Pa.C.S. § 9545(b )(2). "As such, when a PCRA

petition is not filed within one year of the expiration of direct review, or not eligible for one of

the three limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of

the date that the claim could have been first brought, the [PCRA] court has no power to address

the substantive merits of a petitioner's PCRA claims." Com. v. Monaco, 996 A.2d 1076, 1080

(Pa. Super. 2010) (quoting Com. v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000)).

        Since Petitioner's PCRA petition is untimely, Petitioner must plead and prove the

applicability of one of the above-stated exceptions to the PCRA's one-year time-bar for this

Court to have jurisdiction over his appeal. Petitioner has failed to meet this burden.

                                                Issue I

        In his Rule 1925 (b) statement, Petitioner asserts that the PCRA court erred in dismissing

his second PCRA petition "by conflating the timeliness requirements with a merit's review,

contravening" Com. v. Bennett, 930 A.3d 1264 (Pa. 2007). This is not an exception to the

jurisdictional time bar. Com. v. Taylor, 67 A.3d 1245, 1249 (Pa. 2013) (claim that PCRA court

conflated the issues of timeliness and merits is not an exception to the PCRA time requirement).

Thus, Petitioner's claim is without merit.

                                              Issue Il- V

         Issues two through five in Petitioner's Rule 1925(b) statement will be addressed together.

 Since Petitioner's July 11, 2014 PCRA petition is untimely, he attempts to circumvent the PCRA

jurisdictional requirements by claiming after-discovered evidence in the form of a March 22,

 2013 letter James Bruno, Esq., counsel for Petitioner's first PCRA petition, sent Petitioner



                                                                                                       5
stating that he was being suspended from the practice oflaw. See Section 9545(b)(l)(ii).

Petitioner alleges that this evidence demonstrates that Attorney Bruno rendered ineffective

assistance during Petitioner's first PCRA petition.

       Under the "after-discovered facts" exception to the PCRA timeliness requirement, a

petitioner must establish that (1) he did not know the facts upon which he based his petition, and

(2) he could not have learned those facts earlier with the exercise of due diligence. Com. v.

Burton, 121 A.3d 1063, 1068 (Pa. Super. 2015) (citing 42 Pa.C.S. § 9545(b)(l)(ii)). The claim

must be raised within sixty days of the date that the claim could have been presented. Com. v.

Feliciano, 69 A.3d 1270, 1275 (Pa. Super. 2013) (citing 42 Pa.CS. § 9545(b)(2)).

        Where a petitioner relies on public information to establish the newly-discovered facts

exception found in§ 9545(b)(l)(ii), Pennsylvania courts have repeatedly and consistently held

that he must file his petition within 60 days from the emergence of a "fact" into the public

domain. Taylor, 67 A.3d at 1248; Com. v. Lopez, 51 A.3d 195, 196 (Pa. 2012) (information

related to defense counsel's disciplinary issues was publicly available seven years before

defendant's trial and 23 years before second PCRA petition; thus, newly-discovered facts

exception did not apply); Feliciano, 69 A.3d at 1278 (information relating to suspension of trial

counsel's license to practice law did not constitute a newly-discovered fact since information was

publicly available 11 years before defendant filed PCRA petition).

        In this case, information related to Attorney Bruno's disciplinary issues was publicly

available for years, including when Petitioner's first PCRA petition was being prepared.These

facts were easily discoverable and in the public record for longer than 60 days before the instant,

second PCRA petition was filed on July 11, 2014.




                                                                                                      6
        Furthermore, even if Attorney Bruno's March 22, 2013, letter to Petitioner regarding his

suspension could. be considered "after-discovered evidence,"
                                                        .
                                                             Petitioner did not file his petition

within 60 days of receiving the letter. Since Petitioner's petition is time-barred and no exceptions

to the timeliness requirement exist, this Court lacks jurisdiction to address the merits of

Petitioner's claims.

                                          CONCLUSION

        Based on the foregoing, the Court's denial of the PCRA petition should be affirmed.

                                                       By the Court:




                                                                                                       7
