J-S29006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LOUIS DOTTLE,

                            Appellant                  No. 642 WDA 2015


              Appeal from the PCRA Order Entered March 16, 2015
               In the Court of Common Pleas of Lawrence County
              Criminal Division at No(s): CP-37-CR-0000230-1990


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED JUNE 1, 2016

        Appellant, Louis Dottle, appeals pro se from the post-conviction court’s

March 16, 2015 order denying, as untimely, his petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The PCRA court summarized the procedural history of Appellant’s case,

as follows:

               On February 7, 1991[,] [Appellant] was convicted of first-
        degree murder in the shooting death of his wife. On April 10,
        1991, [Appellant] was sentenced by the [c]ourt to life
        imprisonment. [He] filed a post-sentence motion, which was
        denied on July 29, 1992[,] and, after appeal, [Appellant’s
        judgment of sentence was] affirmed by the Superior Court on
        July 8, 1993. [Commonwealth v. Dottle, 633 A.2d 1221 (Pa.
        Super. 1993) (unpublished memorandum). Appellant did not
        petition for allowance of appeal with our Supreme Court.]

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*
    Former Justice specially assigned to the Superior Court.
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            [Appellant’s] first PCRA petition was timely filed on May
     14, 1994. The [c]ourt denied that petition on May 23, 1996.
     [Appellant] filed a timely appeal of the [c]ourt’s decision to the
     Superior Court, and the Superior Court affirmed that decision on
     December 11, 1996. [Commonwealth v. Dottle, 697 A.2d 274
     (Pa. Super. 1996) (unpublished memorandum).] [Appellant]
     filed a petition for review before the Supreme Court of
     Pennsylvania, [which] was denied by Order dated April 29, 1997.
     [Commonwealth v. Dottle, 693 A.2d 586 (Pa. 1997).] On
     December 16, 1997, [Appellant] filed a second pro se PCRA
     petition. That petition was initially dismissed but was re-instated
     by Order dated March 3, 1999, and Attorney Thomas W. Leslie
     was assigned by the [c]ourt as counsel for [Appellant]. Attorney
     Leslie filed a Second Amended PCRA petition for [Appellant] on
     August 27, 1999. An Opinion and Order were filed on December
     13, 1999[,] which denied [Appellant’s] Second Amended PCRA
     petition.    [Appellant] appealed the [c]ourt’s decision to the
     Superior Court of Pennsylvania. The Superior Court affirmed
     that decision and concluded that the PCRA [c]ourt’s decision was
     supported by evidence of record and free of legal error.
     [Commonwealth v. Dottle, 769 A.2d 1202 (Pa. Super. 2000)
     (unpublished memorandum).] Upon the denial of relief by the
     Superior Court, [Appellant] sought allowance of appeal by the
     Supreme Court of Pennsylvania and that was denied on June 19,
     2001. [Commonwealth v. Dottle, 781 A.2d 139 (Pa. 2001).]

     …

            On May 22, 2012[,] [Appellant] filed the instant[,] [t]hird
     pro se PCRA petition based on the United States Supreme
     Court’s recent decisions in Missouri v. Frye, 132 S.Ct. 1399
     (2012); Lafler v. Cooper, 132 S.Ct. 1376 (2012); and,
     Martinez v. Ryan, 132 S.Ct. 1309 (2012). [Appellant] raises
     claims that he was not advised of a plea bargain offer until after
     he had been found guilty of the charges[,] and that trial counsel
     failed to call known and available witnesses to testify as to the
     violent character of the victim. [Appellant] filed a Motion for
     Appointment of Counsel and Attorney Joseph Kearney was
     assigned by the [c]ourt as [c]ounsel for [Appellant]. On August
     3, 2012[,] the Commonwealth filed a Motion to Dismiss
     [Appellant’s] petition as being untimely and without merit.
     Appointed counsel requested several continuances to review the
     extensive record, to consult with [Appellant], and to allow for
     guidance from the Pennsylvania appellate courts on the issues of
     the retroactivity of the cases that [Appellant] relied upon in his

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      petition. On May 7, 2014[,] Attorney Kearney filed a Motion to
      [W]ithdraw      consistent     with   the     requirements     of
      Commonwealth v. Turner, [544 A.2d 927] ([Pa.] 1988)[,] and
      Commonwealth v. Finley, … 550 A.2d 213 ([Pa. Super.]
      1988), citing that [Appellant’s] instant PCRA [petition] is
      untimely and lacks merit.         The [c]ourt granted Attorney
      Kearney[’s] … Motion to Withdraw, and advised [Appellant] that
      he could proceed on his own or secure counsel himself.
      [Appellant] petitioned for assignment of counsel and that request
      was denied…. On June 4, 2014, [Appellant], pro se, filed this
      Third Amended PCRA petition and a Supplement to the Amended
      Petition.

PCRA Court Opinion (PCO), 3/16/15, at 1-4.

      On September 5, 2014, the PCRA court conducted a hearing, at which

Appellant represented himself and presented argument, but no witnesses.

On March 16, 2015, the court issued an order denying Appellant’s petition.

On April 20, 2015, Appellant filed a pro se notice of appeal with this Court.

While facially untimely, the date Appellant specified on his pro se notice of

appeal was April 15, 2015, which was 30 days from the entry of the March

16, 2015 order denying his petition. Appellant also stated on the notice that

April 15th was the date “he handed to prison officials[,] to place in the United

States mail, a true and correct copy of the foregoing Notice of Appeal….”

Notice of Appeal, 4/20/15.      In an abundance of caution, we will deem

Appellant’s pro se notice of appeal as timely-filed under the prisoner mailbox

rule. See Commonwealth v. Cooper, 710 A.2d 76, 78 (Pa. Super. 1998)

(stating that the prisoner mailbox rule provides “that, for prisoners

proceeding pro se[,] a notice is deemed filed as of the date it is deposited in

the prison mail system[,]” and holding that this rule is not limited to



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instances where a prisoner is challenging his or her own sentence or

conviction, but is applicable to all appeals filed by prisoners proceeding pro

se).

       On appeal, Appellant raises three issues for our review:
       I. Whether Appellant was denied effective representation during
       a “critical stage” in his criminal proceedings in relation to plea[]
       negotiations in violation of the Sixth Amendment of the United
       States Constitution?

       II. Whether the PCRA court violated Appellant’s due process
       rights when the court granted counsel’s “no merit” letter that
       relied on law that was inapplicable to Appellant’s timely filed
       successive post-conviction relief petition?

       III. Whether the decision in Missouri v. Frye … provides, in
       essence[,] a new theory or method of obtaining relief for
       Appellant on collateral review and, thus, satisfies an exception to
       the timing requirements of the PCRA?

Appellant’s Brief at 7 (unnecessary capitalization omitted).

       This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.       Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.     Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007).      Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of




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the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (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 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 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 attempting to invoke one of

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

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

      Here, Appellant’s judgment of sentence became final in 1993, making

his current petition, filed in May of 2012, patently untimely. Thus, Appellant

must prove that he meets one of the exceptions to the timeliness

requirements set forth in 42 Pa.C.S. § 9545(b).

      All three of Appellant’s issues center on a claim that his trial counsel

acted ineffectively by not conveying to him a plea offer presented by the



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Commonwealth.     Only in Appellant’s third issue does he attempt to plead

and prove the applicability of any of the above-stated exceptions to this

underlying ineffectiveness claim; accordingly, we will address that issue first.

      Appellant avers that he satisfies the timeliness exceptions of section

9545(b)(1)(i) and (iii) based on the United States Supreme Court’s decisions

in Frye, as well as Lafler and Martinez.      For ease of disposition, we will

address his reliance on Martinez first. In that case, the Supreme Court held

that, “[w]here, under state law, claims of ineffective assistance of trial

counsel must be raised in an initial-review collateral proceeding, a

procedural default will not bar a federal habeas court from hearing a

substantial claim of ineffective assistance at trial if, in the initial-review

collateral proceeding, there was no counsel or counsel in that proceeding

was ineffective.” Martinez, 132 S.Ct. at 1320. The Martinez Court made

clear that its holding was not a “constitutional ruling….”        Id. at 1319.

Additionally, this Court has declared that “[w]hile Martinez represents a

significant development in federal habeas corpus law, it is of no moment

with respect to the way Pennsylvania courts apply the plain language of the

time bar set forth in section 9545(b)(1) of the PCRA.” Commonwealth v.

Saunders, 60 A.3d 162, 165 (Pa. Super. 2013). Accordingly, Appellant has

not convinced us that Martinez satisfies any timeliness exception to trigger

our jurisdiction to review his underlying plea-negotiation ineffectiveness

claim.




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      Likewise, neither Frye nor Lafler meet an exception to the PCRA’s

time-bar.

          In Frye, the United State Supreme Court merely clarified that
      [the] right [to effective representation] “extends to the
      negotiation and consideration of plea offers that lapse or are
      rejected.” Frye, 132 S.Ct. at 1404 (emphasis added). In other
      words, the Frye Court held “that, as a general rule, defense
      counsel has the duty to communicate formal offers from the
      prosecution to accept a plea on terms and conditions that may
      be favorable to the accused.” Id. at 1408. In determining
      whether counsel has satisfied this obligation, the two-part test
      set forth in Strickland [v. Washington, 466 U.S. 668 (1984),]
      applies. See id. at 1409. In Lafler, the Court explained that to
      meet the prejudice prong of the Strickland test where the
      alleged ineffectiveness of counsel involves the defendant's
      rejection of a plea offer, the defendant must show,

         that but for the ineffective advice of counsel there is a
         reasonable probability that the plea offer would have been
         presented to the court (i.e., that the defendant would have
         accepted the plea and the prosecution would not have
         withdrawn it in light of intervening circumstances), that
         the court would have accepted its terms, and that the
         conviction or sentence, or both, under the offer's terms
         would have been less severe than under the judgment and
         sentence that in fact were imposed.

      Lafler, 132 S.Ct. at 1385.

Commonwealth v. Feliciano, 69 A.3d 1270, 1276-77 (Pa. Super. 2013)

(footnote omitted).    In Feliciano, this Court held that the appellant’s

“reliance on Frye and Lafler in an attempt to satisfy the timeliness

exception of section 9545(b)(1)(iii) is unavailing.”     Id. at 1277.     We

reasoned that neither case “created a new constitutional right[,]” but

instead, “simply applied the Sixth Amendment right to counsel, and the

Strickland test for demonstrating counsel’s ineffectiveness, to the particular


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circumstances at hand, i.e.[,] where counsel’s conduct resulted in a plea

offer lapsing or being rejected to the defendant’s detriment.” Id. Under our

holding in Feliciano, Appellant’s reliance on Frye and Lafler to satisfy the

timeliness exception of section 9545(b)(1)(iii) clearly fails.

      We also reject Appellant’s argument that Frye and Lafler demonstrate

that the circumstances of his case satisfy the exception of section

9545(b)(1)(i).   Essentially, Appellant argues that the PCRA court, and this

Court, have previously rejected his claim that defense counsel acted

ineffectively by not conveying a plea offer to him, and did so on the basis

that there is no Sixth Amendment right to effective representation at that

stage of the proceedings. According to Appellant, if Frye and Lafler do not

create a new constitutional right, then they necessarily reveal that Appellant

has always had a right to effective counsel during the plea negotiation stage

of the proceedings.    Consequently, the PCRA court’s and this Court’s prior

decisions were incorrect at the time they were issued, and served to impede

Appellant’s ability to raise this claim of ineffectiveness, thus constituting

governmental interference under section 9545(b)(1)(i).

      While we appreciate the ingenuity of Appellant’s pro se argument, he

misstates the record.      Appellant first presented his claim that defense

counsel ineffectively handled an ostensible plea offer in his initial PCRA

petition filed in 1994. At that point, Appellant was represented by David J.

DeFazio, Esq., who raised several claims in Appellant’s petition, including the

at-issue ineffectiveness claim.      However, Attorney DeFazio essentially

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abandoned that claim, and several others, in favor of pursuing a single

argument that trial counsel acted ineffectively by failing to call character

witnesses on Appellant’s behalf. See PCRA Court Opinion, 12/13/99, at 1-3.

Ultimately, then, the PCRA court did not rule on the merits of the claim of

ineffectiveness regarding counsel’s handling of plea negotiations because

Attorney DeFazio had abandoned it.

     Then, in Appellant’s second PCRA petition filed in 1997, he asserted

that Attorney DeFazio had acted ineffectively by not pursuing the plea-

negotiation ineffectiveness claim pertaining to trial counsel. The PCRA court

ruled that this ineffectiveness claim was not cognizable under the PCRA as

amended in 1995.     See Commonwealth v. Dottle, No. 122 WDA 2000,

unpublished memorandum at 6-7 (Pa. Super. filed Dec. 5, 2000).            On

appeal, this Court agreed with the PCRA court’s determination, relying on

Commonwealth v. Korb, 617 A.2d 715 (Pa. Super. 1992), which “held that

a claim that trial counsel was ineffective for failing to communicate a plea

offer to his client was cognizable under section 9543(a)(2)(v) of the PCRA,

which was deleted pursuant to the 1995 amendments.”         Dottle, No. 122

WDA 2000, unpublished memorandum at 7 (citing also Commonwealth v.

Boyd, 688 A.2d 1172, 1175 (Pa. 1997) (applying Korb in a pre-1995

amendment case)). We concluded in Dottle that “[s]ince the amendments

to the PCRA deleted section 9543(a)(2)(v), … Appellant’s underlying claim of




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trial counsel ineffectiveness is no longer cognizable under the PCRA.”        Id.

(emphasis added).1

       In sum, the PCRA court and this Court previously rejected Appellant’s

plea-negotiation ineffectiveness claim based on the non-cognizability of that

claim, not on the basis that Appellant had no Sixth Amendment right to

counsel during the plea negotiation stage of the proceedings. 2 Accordingly,
____________________________________________


1
  Just six months after this Court’s decision in Dottle, our Supreme Court
overruled Boyd and Korb, and expanded the scope of ineffective assistance
of counsel claims reviewable under the PCRA. See Com. ex rel. Dadario v.
Goldberg, 773 A.2d 126, 128, 130 (Pa. 2001) (holding that “[s]ection
9543(a)(2)(ii) … encompass[es] all constitutionally-cognizable claims of
ineffective assistance of counsel, i.e., all claims that the petitioner was
deprived of his or her Sixth Amendment and Article I, Section 9 rights to
counsel[,]” including “claims of ineffective assistance of counsel arising from
the plea-bargaining process”). However, Appellant did not file a PCRA
petition seeking relief under the decision in Goldberg.
2
 We also note that in Dottle, we offered the following alternative analysis of
Appellant’s plea-negotiation ineffectiveness claim:
              Moreover, even if the underlying claim regarding the
       failure to communicate a plea bargain [was] cognizable under
       the PCRA, the evidence supports a finding that Attorney DeFazio
       was not ineffective in the first PCRA for failing to pursue the
       question of trial counsel’s ineffectiveness. As Attorney DeFazio
       testified that the testimony given by trial counsel and Appellant
       was contradictory as to this issue, it is not clear that the issue
       had arguable merit or that Attorney DeFazio could have had no
       reasonable strategy in failing to pursue this issue. Moreover, it
       is not at all clear that, but for Attorney DeFazio’s decision not to
       pursue the issue, the outcome of the first PCRA proceeding
       would have been different.
Dottle, No. 122 WDA 2000, unpublished memorandum at 8-9.                   Our
alternative analysis in Dottle further clarifies that we were not rejecting the
merits of Appellant’s ineffectiveness claim on the basis that he had no right
to effective representation during the plea negotiation process.



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the holdings of Frye and Lafler do not reveal that the PCRA court and/or

this Court interfered with Appellant’s ability to raise “a claim that had merit

the entire time during the proceedings.”      Appellant’s Brief at 21.    Thus,

Appellant has failed to prove the applicability of the exception in section

9545(b)(1)(i).

      In Appellant’s remaining two issues, he argues the merits of his

underlying plea-negotiation ineffectiveness claim, and also maintains that

Attorney Kearney, who was appointed to represent him in the disposition of

the instant petition, improperly sought to withdraw when he should have

presented a “layered” ineffectiveness claim regarding Appellant’s trial

counsel and his initial PCRA counsel, Attorney DeFazio. Appellant does not

argue, let alone prove, that these claims satisfy a timeliness exception, and

“[i]t is well settled that allegations of ineffective assistance of counsel will

not overcome the jurisdictional timeliness requirements of the PCRA.” See

Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (citations

omitted).   Accordingly, Appellant’s remaining two issues also do not meet

any of the above-stated exceptions.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: June 1, 2016


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