J-S07006-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

STEVEN E. KLINE,

                          Appellant                   No. 503 MDA 2015


                Appeal from the PCRA Order February 24, 2015
                In the Court of Common Pleas of Centre County
                          Criminal Division at No(s):
                           CP-14-CR-0000909-2004
                           CP-14-CR-0000910-2004
                           CP-14-CR-0001109-2004
                           CP-14-CR-0001110-2004
                           CP-14-CR-0001111-2004



BEFORE: BOWES, OTT, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED FEBRUARY 16, 2016

       Steven E. Kline appeals from the February 25, 2015 order denying his

request for reinstatement of his appellate rights from the denial of a first,

timely PCRA petition. We affirm.

       In the five criminal actions involved in this appeal, Appellant was

charged with multiple counts of involuntary deviate sexual intercourse,

indecent assault, statutory sexual assault, statutory rape, corruption of a

minor, and endangering the welfare of a child.          The charges involved


*
    Former Justice specially assigned to the Superior Court.
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Appellant’s sexual abuse of his two stepdaughters for nearly a decade. Both

victims testified at trial that Appellant, from 1989 to 1998, repeatedly

sexually abused them and told them that they would go to jail and their

mother would not love them anymore if they reported the abuse. Appellant

admitted to engaging in sexual relations with one of his stepdaughters and

to sexual contact with the other victim.   A jury convicted Appellant of all

charged offenses, and he was sentenced on December 15, 2005 to twenty-

nine and one-half to fifty-nine years in jail.    On appeal, we affirmed.

Commonwealth v. Kline, 931 A.2d 47 (Pa.Super. 2007) (unpublished

memorandum).      Our Supreme Court denied allowance of appeal on

December 3, 2007. Commonwealth v. Kline, 937 A.2d 444 (Pa. 2007).

     On September 23, 2008, Appellant filed a timely PCRA petition. The

PCRA court appointed Kelley Gillette-Walker, Esquire, as counsel, and she

filed an amended PCRA petition.     After an October 27, 2009 evidentiary

hearing, Ms. Gillette-Walker filed a petition to withdraw, and, on April 27,

2010, that petition was granted. Karen G. Muir, Esquire, was appointed as

successor PCRA counsel.

     On May 13, 2011, the court denied Appellant’s September 23, 2008

PCRA petition. Appellant was informed of this denial by Ms. Muir on May 25,

2011, and she asked Appellant to get in contact with her if he wanted to

appeal the denial. PCRA Petition, Nunc Pro Tunc, for the Reinstatement of

Defendant’s PCRA (Pro Se), 12/8/14, at ¶ 11; Id. at Exhibit A. No appeal

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was filed from the May 13, 2011 denial of PCRA relief. Three and one-half

years later, on December 8, 2014, Appellant filed a pro se petition seeking

reinstatement of his appellate rights nunc pro tunc from the May 13, 2011

order.   In that petition, Appellant invoked the newly discovered facts

exception to the one-year filing requirement for PCRA petitions. He averred

that he had asked Ms. Muir to file an appeal, she abandoned him by failing

to do so, and he did not discover that an appeal was not filed until

November 10, 2014.        By order dated February 24, 2015, the PCRA court

denied relief, and this appeal followed.   Appellant raises these contentions

on appeal:

          1. Did the trial court err in dismissing Defendant/Appellant’s
             PCRA, and without a hearing or opinion, despite his
             Petition containing an exception to the timing
             requirements for filing as specified in 42 Pa.C.S. § 9545?

          2. Did the trial court err by not appointing new counsel prior
             to denying the Petition, as Defendant/Appellant was
             claiming the ineffective assistance of prior (first) PCRA
             counsel’s abandonment during a crucial phase of the PCRA
             Proceedings?

          3. Was court-appointed PCRA counsel, Attorney Karen G.
             Muir, ineffective for failing to communicate with her client
             following her appointment, for failing to offer additional
             fact-witnesses at an Evidentiary Hearing, and for failing to
             advance Defendant/Appellant’s PCRA dismissal on appeal
             to the Superior Court of Pennsylvania following
             Defendant/Appellant’s timely request that she do so?

Appellant’s brief at 1.




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       Initially, we note that our “standard of review of the denial of a PCRA

petition is limited to examining whether the evidence of record supports the

court’s determination and whether its decision is free of legal error.”

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015).                   We

next observe that any PCRA petition, “including a second or subsequent

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

final” unless an exception to the one-year time restriction applies. 42 Pa.C.S.

§ 9545(b)(1). The PCRA's time restrictions are jurisdictional in nature, and

when    a   PCRA    petition   is   untimely,   the   courts   lack   jurisdiction.

Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006). Accordingly,

we first examine whether the present, December 8, 2014 PCRA petition was

timely filed, and to do so, we must determine when Appellant’s judgment of

sentence became final.

       “A judgment becomes 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).         In this case, Appellant’s sentence

became final on March 2, 2008, ninety days after our Supreme Court denied

review of our affirmance of Appellant’s judgment of sentence.                 See

Commonwealth v. Smith, 35 A.3d 766 (Pa.Super. 2011). Thus, Appellant

had until March 2, 2009, to file a timely PCRA petition, and his December 8,

2014 petition is patently untimely.

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      There are three exceptions to the one-year time bar of § 9545:

       (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 60 days of the date the claim could

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

      Appellant’s first contention is that the PCRA court erred in rejecting his

invocation of the second exception, and he relies upon our Supreme Court’s

decision in Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007). The

second exception has two aspects: 1) the “facts upon which the claim is

predicated were unknown” to the defendant; and 2) those facts “could not

have been ascertained by the exercise of due diligence.” 42 Pa.C.S. § 9545

(b)(1)(ii).

      In Bennett, the PCRA petitioner’s appeal from the denial of a timely

PCRA petition was dismissed due to counsel’s failure to file a brief. Bennett

then filed a pro se PCRA petition asking that his appellate rights from the



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PCRA denial be reinstated.         While that petition was filed more than sixty

days after the appeal had been dismissed, Bennett claimed that he was

unaware that the appeal was dismissed and recently discovered that fact.

Our Supreme Court held that counsel’s failure to file a brief constituted

abandonment and abandonment can be considered a newly discovered fact

under 42 Pa.C.S. § 9545(b)(1)(ii).               Our High Court remanded for a

determination      of    whether   Bennett     had    exercised   due   diligence   in

ascertaining that his appeal was dismissed due to counsel’s failure to file a

brief.     Where a PCRA petitioner does not exercise due diligence in

discovering the status of an appeal from a timely PCRA petition, a PCRA

petition seeking reinstatement of appellate rights from the denial of that

petition    will   not   be   considered    timely.     See   Commonwealth          v.

Williamson, 21 A.3d 236 (Pa.Super. 2011).

         Herein, Appellant claims that he told Ms. Muir to file an appeal after he

received the May 25, 2011 correspondence from her informing him that his

timely PCRA petition was denied.           Appellant also avers that he continually

asked her about the status of his appeal, but received no response. Finally,

Appellant asserts that he did not discover that an appeal was not filed until

November 10, 2014, when he obtained a copy of his criminal docket. PCRA

Petition, Nunc Pro Tunc, for the Reinstatement of Defendant’s PCRA (Pro

Se), 12/8/14, at ¶ 19.




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      We conclude that Appellant did not exercise due diligence in

discovering that an appeal was not filed. Despite receiving no responses to

his voluminous correspondence and no copy of a brief from Ms. Muir for over

three years, Appellant made no effort to ascertain from the court whether an

appeal had been processed. Appellant offers no reason for failing to obtain a

copy of his criminal docket sheet for three and one-half years in the face of

counsel’s unresponsiveness to his inquiries.

      Moreover, Appellant admitted that, on July 24, 2014, Ms. Muir sent

him a letter in which she stated that she did not believe that the court would

grant Appellant reinstatement of his appellate rights from the May 13, 2011

denial of PCRA relief and that she believed that Appellant had no avenue of

relief from his judgment of sentence.    Id. at Exhibit C. This letter proves

that Appellant knew prior to July 24, 2014, that an appeal had not been

filed. July 24, 2014 is more than sixty days before December 8, 2014, when

Appellant sought reinstatement of his appellate rights.     Hence, the PCRA

petition was untimely filed, and the PCRA court correctly refused to grant

Appellant an appeal nunc pro tunc from the May 13, 2011 order denying

PCRA relief.

      Appellant’s second contention is that the PCRA court should have

appointed counsel for purposes of his second PCRA.       We have held that a

PCRA petitioner is not entitled to appointed counsel for purposes of litigating

an untimely PCRA petition seeking reinstatement of his appellate rights from

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the denial of a timely PCRA petition. Commonwealth v. Kubis, 808 A.2d

196 (Pa.Super. 2002). Hence, we reject this contention.

      Appellant’s final position is that Ms. Muir was ineffective in various

respects.   It is well established that claims of ineffective assistance of

counsel do not fall within the ambit of any exception to the one-year time

bar of 9545(b)(1). Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785

(Pa. 2000) (“a claim for ineffective assistance of counsel does not save an

otherwise   untimely    petition   for   review   on   the   merits”);   see   also

Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000).                 Hence, Appellant’s

claims in this respect are untimely raised. The evidence supports the PCRA

court’s determination that the present PCRA petition was untimely, and its

decision is free of legal error. Accordingly, we affirm.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/2016




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