J-A07042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 ROBERT DA-JUAN GAINES                   :
                                         :   No. 1430 MDA 2017
                    Appellant            :

                Appeal from the PCRA Order August 21, 2017
    In the Court of Common Pleas of Franklin County Criminal Division at
                      No(s): CP-28-CR-0001303-2009


BEFORE:     PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                          FILED MAY 25, 2018

      Appellant, Robert Da-Juan Gaines, appeals from the order entered in

the Court of Common Pleas of Franklin County dismissing his second petition

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546, as

untimely.   Specifically, Appellant contends that his petition qualified for a

“newly discovered facts” exception to the PCRA’s one-year time bar.        We

affirm.

      The PCRA court aptly provides the pertinent facts and procedural history

of the case sub judice, as follows:

      The following factual and procedural history has been extracted
      from the Superior Court’s Opinion from [Commonwealth v.
      Gaines, 127 A.3d 15 (Pa.Super. 2015)]:

            On September 8, 2009, the Commonwealth filed an
            information charging Appellant with two counts each
            of unlawful delivery of a controlled substance, criminal

____________________________________
* Former Justice specially assigned to the Superior Court.
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          conspiracy, and criminal use of a communication
          facility. On October 11, 2010, Appellant proceeded to
          a jury trial, at the conclusion of which the jury found
          Appellant guilty of all counts except for one count of
          unlawful delivery of a controlled substance.         On
          November 17, 2010, the trial court imposed an
          aggregate sentence of 102 to 360 months’
          imprisonment. On December 17, 2010, Appellant
          filed a timely notice of appeal to [the Superior] Court.
          [The Superior] Court affirmed the judgment of
          sentence on August 15, 2011. Appellant did not file a
          petition for allowance of appeal with our Supreme
          Court.

          On September 14, 2012, Appellant filed a timely,
          counseled PCRA petition. Among the claims therein,
          Appellant argued that “[his c]ounsel failed to bring to
          the attention of the [s]entencing [c]ourt the
          miscalculation of [his prior record score], leading to a
          standard range sentence that did not accurately
          reflect a proper calculation of his prior record.” The
          Commonwealth filed its answer on October 8, 2012.
          On April 12, 2013, the PCRA court entered an order
          scheduling resentencing in accordance with a
          stipulation between Appellant and the Commonwealth
          that Appellant’s original sentence was based on an
          improperly calculated prior record score. On April 25,
          2013, Appellant filed a petition to amend his PCRA
          petition, which the PCRA court granted on May 1,
          2013. Appellant filed an amended PCRA petition on
          May 21, 2013. The PCRA court conducted a hearing
          on June 19, 2013. On July 15, 2013, the PCRA court
          entered an order denying Appellant’s request for PCRA
          relief. . . .   On July 17, 2013, the trial court
          resentenced Appellant to an aggregate term of 64 to
          156 months’ imprisonment with credit for time
          served. On July 29, 2013, Appellant filed a motion to
          modify sentence, which was granted the next day to
          include that Appellant was RRRI eligible. On August
          19, 2013, Appellant filed a notice of appeal.

          On July 14, 2014, [the Superior Court] filed an
          unpublished memorandum quashing Appellant’s
          appeal as untimely. Appellant filed a timely petition

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            for reargument en banc on July 23, 2014.            On
            September 22, 2014, [the Superior Court] entered an
            order granting Appellant’s petition for reargument en
            banc. Both Appellant and the Commonwealth filed
            substituted briefs; however, neither addressed the
            issue the original panel found dispositive, i.e.,
            whether the untimeliness of Appellant’s notice of
            appeal divested [the Superior Court] of jurisdiction to
            consider Appellant’s claims. Therefore, on April 21,
            2015, [the Superior Court] entered an order directing
            the parties to file supplemental briefs addressing the
            jurisdictional issue, with which both parties complied.

      [Gaines, 127 A.3d at 15-17 (internal citations omitted)]. The
      Superior Court held that Appellant’s Notice of Appeal of [the PCRA]
      court’s July 13, 2013 Order and Opinion denying Appellant’s
      Petition for Post-Conviction Collateral Relief was untimely and was
      therefore quashed.

      Appellant filed the present PCRA petition on August 10, 2016,
      claiming ineffective assistance of PCRA counsel for failing to file a
      timely Notice of Appeal of [the PCRA] court’s July 13, 2013 Order
      and Opinion…. On August 17, 2016, the Honorable Judge Angela
      R. Krom appointed Matthew A. Sembach to represent Appellant
      and granted Appellant thirty (30) days to file an Amended PCRA
      Petition.

      ...

      [Eventually, after several motions for extensions of time and a
      hearing on counsel’s motion to withdraw], Attorney Sembach filed
      an Amended PCRA Petition on April 4, 2017. On April 4, 2017, the
      [PCRA] court ordered the Commonwealth to file a response and
      scheduled a PCRA hearing, which took place on June 1, 2017.

PCRA Court Opinion, filed 8/21/17, at 1-3.

      In its Order and Opinion of August 21, 2017, the PCRA court determined

that it had no jurisdiction to address the merits of Appellant’s facially untimely

second PCRA petition. In so concluding, the court rejected the contention that

first PCRA counsel’s failure to file a timely Notice of Appeal from the PCRA


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J-A07042-18



court’s order dismissing his first PCRA petition constituted a “newly-discovered

fact”   exception    for   PCRA   timeliness   purposes    under    42   Pa.C.S.A.

9545(b)(1)(ii), infra. This timely appeal followed.

        Appellant presents the following question for our review:

        DID THE [PCRA] COURT ERR IN DENYING APPELLANT’S
        AMENDED MOTION FOR POST CONVICTION RELIEF WHERE
        HIS COUNSEL OF RECORD (GEOFF McINROY) ABANDONED
        HIM BY:

        A:   FAILING TO FILE A TIMELY [APPEAL FROM] THE JULY
        15, 2013 ORDER DENYING HIS [FIRST] PCRA PETITION;[]

        B:  CONTINUING APPELLATE LITIGATION THROUGH
        NOVEMBER OF 2015 DESPITE HAVING KNOWINGLY FILED
        AN UNTIMELY APPEAL; AND

        C:   FAILING  TO   ENSURE   THE   FILING  OF  AN
        APPROPRIATE PETITION UNDER THE POST CONVICTION
        RELIEF ACT ON BEHALF OF THE APPELLANT FOR THE
        PURPOSE OF REQUESTING RELIEF RELATING TO THE
        UNTIMELY FILING OF APPELLANT’S [APPEAL FROM THE
        DENIAL OF HIS FIRST PCRA PETITION] AT ANY POINT
        BETWEEN AUGUST 19, 2013 (THE DATE OF COUNSEL’S
        UNTIMELY [FIRST PCRA] APPEAL FILING) AND WITHIN A
        PROPER TIME AFTER THE SUPERIOR COURT’S DECISION
        ISSUED NOVEMBER 5, 2015?

Appellant’s brief, at 8.

        Our standard of review of the dismissal of a PCRA petition is as follows:

        We review an order dismissing a petition under the PCRA in the
        light most favorable to the prevailing party at the PCRA level. This
        review is limited to the findings of the PCRA court and the evidence
        of record. We will not disturb a PCRA court's ruling if it is
        supported by evidence of record and is free of legal error. This
        Court may affirm a PCRA court's decision on any grounds if the
        record supports it. Further, we grant great deference to the
        factual findings of the PCRA court and will not disturb those


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J-A07042-18


      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      The   timeliness   of   a   post-conviction   petition    is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).                    A

PCRA court is precluded from reaching the merits of an untimely petition.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014).

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final. 42 Pa.C.S. § 9545(b)(1). 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.”    42 Pa.C.S. § 9545(b)(3).          An

appellant has thirty days after a decision of this Court to request review by

the Supreme Court of Pennsylvania. Pa.R.A.P. 1113.             “[A]ll requests for

reinstatement of appellate rights, including PCRA appellate rights, must meet

the timeliness requirements of the PCRA.” Commonwealth v. Fairiror, 809

A.2d 396, 397 (Pa.Super. 2002) (emphasis added), appeal denied, 827 A.2d

429 (Pa. 2003).

      Exceptions to the timeliness requirements apply when the petition

alleges and the petitioner proves one of the following:



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J-A07042-18


      (i) the failure to raise the claim previously was the result of
      interference of 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).

      A PCRA petition invoking one of these statutory exceptions “must be

filed within sixty days of the date the claim could first have been presented.”

Hernandez, 79 A.3d at 651–52; see also 42 Pa.C.S. § 9545(b)(2). Asserted

exceptions to the time restrictions in the PCRA must be included in the petition

and may not be raised for the first time on appeal.         Commonwealth v.

Burton, 936 A.2d 521, 525 (Pa. Super. 2007), appeal denied, 959 A.2d 927

(Pa. 2008).

      Here, the PCRA court determined that the instant PCRA petition was

untimely where Appellant filed it more than one year after his judgment of

sentence became final and where no time-bar exception applied. Appellant

first responds by claiming his patently untimely petition qualifies for a Section

9545(b)(1)(ii) timeliness exception because he pled and proved that prior

PCRA counsel effectively abandoned him by filing an untimely appeal from the

PCRA court’s order dismissing his first PCRA petition.




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      Specifically, Appellant argues the facts of his case come squarely under

the Pennsylvania Supreme Court’s decision in Commonwealth v. Bennett,

930 A.2d 1264 (Pa. 2007), which recognized a Section 9545(b)(1)(ii)

exception may arise from abandonment by counsel. As we have previously

observed:

      In Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264
      (2007), counsel failed to file an appellate brief on appeal from the
      denial of appellant's first PCRA petition, and as a result the appeal
      was dismissed. Our Supreme Court determined that counsel's
      failure to perfect appellant's appeal constituted abandonment by
      counsel and could serve as a newly discovered fact for purposes
      of section 9545(b)(1)(ii) (newly discovered facts exception). In
      so holding, the Court distinguished Bennett's claim of counsel's
      abandonment from those claims of ineffectiveness that simply
      “narrowed the ambit of appellate review,” and could not fall within
      the purview of section 9545(b)(1)(ii). See Gamboa–Taylor, 753
      A.2d at 785–86 (holding claim that PCRA counsel's ineffectiveness
      was after-discovered fact will not establish jurisdiction under
      section 9545(b)(1)(ii)); Commonwealth v. Bronshtein, 561 Pa.
      611, 752 A.2d 868 (2000) (couching claim in terms of ineffective
      assistance of prior counsel does not establish section
      9545(b)(1)(ii) exception to PCRA one-year time limitation, which
      exception allows untimely claims when facts were unknown);
      Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 916
      (2000). Ultimately, the Court remanded the matter for a hearing
      where appellant could prove, under section 9545(b)(1)(ii), that
      counsel's failure was unknown to the petitioner and could not have
      been discovered through the use of due diligence.

Commonwealth v. Williamson, 21 A.3d 236, 241–42 (Pa.Super. 2011).

      We agree that Bennett applies to the facts before us, as counsel’s

failure to file a timely PCRA appeal with this Court did not merely narrow the

scope of claims for review but altogether denied Appellant review of the PCRA

court’s dismissal of his timely-filed first PCRA petition. See Williamson, 21


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A.3d at 242 (holding counsel’s failure to file a timely petition for allowance of

appeal was a newly-discovered fact for purposes of section 9545(b)(1)(ii)).

       Our inquiry does not end here, as we must next determine whether

Appellant complied with § 9545(b)(2) and its requirement that “[a]ny petition

invoking an exception provided in paragraph (1) shall be filed within 60 days

of the date the claim could have been presented.” Facially, Appellant has not

satisfied this requirement, as he filed his second petition nine months after

the date he could have presented the claim.

       Specifically, Appellant concedes in his second PCRA petition that he

learned of this Court's en banc decision quashing his first PCRA appeal as

untimely from his correspondence with counsel on or about the November 5,

2015, filing date of the decision.1 It was also at this time that counsel advised

Appellant to file, either pro se or through new counsel, a second PCRA petition

alleging counsel’s ineffective failure to file a timely first PCRA appeal. See

Second Petition for PCRA Relief, filed 8/10/16. Appellant eventually filed his

second petition on August 10, 2016, well after the 60-day time frame

expressed in section 9545(b)(2) had run.

       Appellant maintains, however, that he missed the 60-day deadline

because counsel misled him to believe he had until December 5, 2016,2 to file


____________________________________________


1The parties stipulate that counsel advised Appellant of the Superior Court’s
en banc decision on or about the November 5, 2015, date of the decision.




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a second PCRA petition challenging counsel’s failure to file a timely first PCRA

appeal. Given the facts of the present case, Appellant may gain no relief from

this position.

       The record shows counsel advised Appellant at the time of the en banc

decision to file a second PCRA petition either pro se or through new counsel,

but Appellant resisted this advice, choosing instead to make repeated calls to

counsel requesting that he remain his attorney. Counsel’s June 3, 2016, letter

to Appellant formally reiterating that he could not assert his own

ineffectiveness and that Appellant must file pro se or through new counsel the

ineffectiveness claim in a new PCRA petition confirms Appellant had delayed

initiating action necessary to file a second PCRA petition for approximately

seven months.

       Indeed, counsel clearly indicated that it would be up to Appellant to file

a timely second PCRA petition without counsel’s assistance.       While counsel

misstated the deadline for doing so, he did not prevent Appellant from

ascertaining the applicable PCRA deadline himself or through new counsel.

Appellant maintains his failure to file a second PCRA petition within 60 days

resulted from counsel’s erroneous advice, but the fact is that counsel was



____________________________________________


2Presumably, counsel mistakenly believed that Appellant could timely file a
new PCRA petition one year from the date on which his time to appeal this
Court’s en banc decision to the Pennsylvania Supreme Court would expire.




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effectively withdrawing from representation at that moment,3 and Appellant

refused to heed counsel’s advice to proceed without him.

       This Court has previously deemed the requirements of section

9545(b)(2) unsatisfied under very similar facts.       In Williamson, counsel

working on the petitioner’s first collateral appeal filed a petition for allowance

of appeal (“PAA”), which the Supreme Court of Pennsylvania denied as

untimely. Counsel cited his own ineffectiveness in a second PCRA petition

seeking permission to file a petition for allowance of appeal nunc pro tunc.

The PCRA court allowed counsel to withdraw representation and appointed

new counsel, whom it charged with presenting facts showing the petitioner

had filed the second counseled PCRA petition seeking nunc pro tunc relief

within 60 days of learning of first counsel’s ineffectiveness.

       Based on the evidence presented, the PCRA court determined the

petitioner learned of first counsel’s late filing of the PAA in January of 2009

and was advised at that time to file a second pro se PCRA petition asserting

counsel’s ineffectiveness. The petitioner chose, instead, to keep working with

first counsel, who filed the second PCRA petition on petitioner’s behalf on

December of 2009. The PCRA court, therefore, determined the petitioner’s

counseled second PCRA petition seeking to raise a section 9545(b)(1)(ii)

exception had not been filed within 60 days as required by section 9545(b)(2).
____________________________________________


3 It does not appear that first PCRA counsel withdrew from representation
prematurely, as Appellant does not allege he requested counsel to file a
petition for allowance of appeal from this Court’s November 5, 2015, en banc
decision.

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      On appeal, we affirmed, holding the petitioner was responsible to file his

section 9545(b)(1)(ii) claim within 60 days of being advised by counsel that

he needed to file the second PCRA petition. Although we acknowledged the

petitioner’s equitable arguments pertaining to counsel’s ultimate decision to

keep working with him only to fail to meet the 60-day deadline, we noted the

“Supreme Court has clearly established that there are no equitable exceptions

to the jurisdictional one-year time bar pertaining to post-conviction petitions.”

Id., at 243 n.7.

      Here, as in Williamson, we decline to find that counsel’s arguable

contribution to Appellant’s failure to file his section 9545(b)(1)(ii) claim within

60 days qualifies as an exception to the one-year time bar, where counsel

clearly placed the onus upon Appellant, himself, to file a second PCRA petition

in a timely manner. Accordingly, we discern no error with the PCRA court’s

conclusion that it lacked jurisdiction to address Appellant’s claims on the

merits.

      Order affirmed.

      Judge Panella joins the memorandum.

      Judge Olson concurs in the result.




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J-A07042-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/25/18




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