J-S26005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                           IN THE SUPERIOR COURT
                                                                      OF
                                                                 PENNSYLVANIA
                             Appellee

                        v.

    MICHAEL SMITH,

                             Appellant                          No. 1812 EDA 2017


               Appeal from the PCRA Order Entered May 19, 2017
              In the Court of Common Pleas of Philadelphia County
                           Criminal Division at No(s):
                            CP-51-CR-0701861-2006
                            CP-51-CR-0701881-2006


BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                                    FILED JUNE 26, 2018

        Appellant, Michael Smith, appeals pro se from the order dismissing, as

untimely, his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. Appellant claims his petition meets a timeliness

exception for newly-discovered evidence, based on his ostensibly recent

discovery that his prior attorney had failed to file an appeal on his behalf from

the denial of his first PCRA petition. After careful review, we affirm.

        On October 24, 2005, Appellant fatally shot Andre Burley following a

disagreement about how to divide the proceeds of their drug sales. Appellant

subsequently      confessed      to   his      crime   to   a   Philadelphia   detective.


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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Subsequently, a jury convicted Appellant of first-degree murder and carrying

a firearm without a license and, on August 14, 2007, the trial court sentenced

Appellant to life imprisonment without the possibility of parole for murder, and

an additional term of 3½-7 years’ incarceration for the firearm offense.

        Appellant filed a timely notice of appeal on September 13, 2007. His

appellate counsel failed to file a court-ordered Pa.R.A.P. 1925(b) statement

on Appellant’s behalf and, instead, filed with this Court a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.

McClendon, 434 A.2d 1185 (Pa. 1981). Subsequently, this Court remanded

for counsel to either file a Rule 1925(b) or Rule 1925(c)(4) statement. See

Commonwealth v. Smith, No. 2352 EDA 2007, unpublished memorandum

at 6-7 (Pa. Super. filed October 31, 2008). Counsel complied and filed a Rule

1925(b) statement on Appellant’s behalf.         Nevertheless, on November 30,

2009,    this   Court   affirmed   Appellant’s   judgment   of   sentence.   See

Commonwealth v. Smith, No. 2352 EDA 2007, unpublished memorandum

at 3 (Pa. Super. filed November 30, 2009). Appellant did not seek further

review from that decision.

        On December 28, 2009, Appellant filed a timely, pro se PCRA petition at

CP-51-CR-0701861-2006, and another timely, pro se PCRA petition at CP-51-

CR-0701881-2006 on April 9, 2010. The PCRA court appointed counsel to

represent Appellant on November 23, 2010. PCRA counsel then filed amended

PCRA petitions at each docket. In both petitions, Appellant claimed that direct

appeal counsel was ineffective for failing to file with our Supreme Court a

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petition for allowance of appeal from this Court’s November 30, 2009

memorandum decision affirming his judgment of sentence. The PCRA court

issued an order dismissing the petitions on April 20, 2012. Appellant did not

appeal that decision.

        On January 17, 2017, Appellant filed a pro se PCRA petition, which is

the subject of the instant appeal. On April 10, 2017, the PCRA court issued a

notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss the petition without

a hearing. Appellant filed a timely response thereto on April 21, 2017. The

PCRA court then issued an order dismissing the petition on May 19, 2017.

Appellant filed a timely notice of appeal on May 30, 2017. The PCRA court

subsequently issued its Pa.R.A.P. 1925(a) opinion on July 31, 2017.1

        Appellant now presents the following questions for our review:

        1. In Commonwealth v. Bennett, 930 A.2d 1264 [(Pa. 2007)],
        the Pennsylvania Supreme Court clarified the provisions a
        petitoner must prove to succeed under [Section] 9545 (b)(1)(ii).

           i. The [PCRA] court reviewed Appellant's PCRA petition
           under the customary newly-discovered evidence standard
           which ordinar[i]ly applied the misnomer standard. Should
           the Court reverse the [PCRA] court's application of this
           highly d[e]ferential standard in light of Bennett? And more
           recently, Commonwealth v. Burton, 158 A.3d 618 (Pa.
           2017)?

        2. Whether the [PCRA] court abused its discretion in dismissing
        Appellant's PCRA petition as being untimely filed without granting
        an evidentiary hearing pursuant to Commonwealth v. Pagan,
        950 A.2d 270 [(Pa. 2008)]?


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1   The PCRA court did not order Appellant to file a Rule 1925(b) statement.

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         i. In Pagan, the Pennsylvania Supreme Court stated the
         basis for individuals who satisfy the requirements of
         [Section] 9545 (b)(1)(ii).

      3. Whether the PCRA court erred and/or abused its discretion in
      dismissing Appellant's PCRA petition as untimely, because (1)
      Counsel's abandonment satisfied the "newly-discovered evidence"
      exception to the PCRA's statute of limitations, and (2) Appellant
      filed his PCRA petition within sixty (60) days of discovering that
      his petition was dismissed and counsel failed to file a timely appeal
      without notifying Appellant?

Appellant’s Brief at v.

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

filed 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. Bennett, 930 A.2d at 1267. Under

the PCRA, any petition for post-conviction relief, including a second or

subsequent one, must be filed within one year of 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

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            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).

      Appellant claims that the patent untimeliness of his PCRA petition is

excused by the newly-discovered evidence exception, Section 9545(b)(1)(ii).

Specifically, he claims that it was previously unknown to him, until December

of 2016, that his PCRA counsel (for his 2009 and 2010 PCRA petitions) had

failed to file an appeal on his behalf from the April 20, 2012 order dismissing

the consolidated, amended petition. In December of 2016, Appellant received

a copy of his case’s docket sheet through his prison counselor, which indicated

that no appeal had been filed following the PCRA court’s April 20, 2012 order.

Appellant avers that until that time, he believed that his PCRA counsel had

filed an appeal on his behalf, and that the matter was still pending.

      The PCRA court rejected application of Section 9545(b)(1)(ii), finding

that Appellant failed to demonstrate that he acted with due diligence in




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uncovering the newly-discovered fact of PCRA counsel’s alleged abandonment.

Specifically, the court found that Appellant failed to aver in his petition

        what action(s) he took to determine the status of the appeal …
        prior to the request for his docket sheets from his counselor
        almost five years after the [c]ourt dismissed his petitions.
        Appellant’s bald assertion that he could not have discovered this
        information through the exercise of due diligence is unavailing.
        Due diligence demands that Appellant take reasonable steps to
        protect his own interests and he must explain why he could not
        have learned the new fact(s) earlier with the exercise of due
        diligence.

PCRA Court Opinion (PCO), 7/31/17, at 4.

        In his brief, Appellant claims that he did take numerous steps from 2012

through 2016 to try to determine the status of the 2009/2010 petitions. See

Appellant’s Brief at 5. He provides some documentation to corroborate those

actions, including two affidavits from family members indicating that PCRA

counsel had essentially ignored their repeated attempts at communication

over that time period,2 and several letters sent by Appellant to PCRA counsel

during those years.3

        The Commonwealth argues that Appellant’s invocation of Section

9545(b)(1)(ii) fails on several fronts. First, the Commonwealth believes that

Appellant is essentially asserting a claim of PCRA counsel’s infectiveness which

it claims, categorically, can never satisfy the requirements of Section

9545(b)(1)(ii). Second, the Commonwealth contends that the affidavits and

____________________________________________


2   See Appellant’s Brief, Exhibit B.

3   See Appellant’s Brief, Exhibit C.

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letters offered to demonstrate Appellant’s due diligence in his brief are not

part of the record in this case, as such evidence was not presented in

Appellant’s petition.       Third, the Commonwealth asserts that even if those

documents were part of the record, they nevertheless undermine Appellant’s

claim that he was unaware until December of 2016 that PCRA counsel had

failed to file the desired appeal on his behalf. We reject the Commonwealth’s

first argument, but agree with respect to the second and third.

       First, while “[i]t is well settled that allegations of ineffective assistance

of   counsel    [(‘IAC’)]    will   not   overcome   the   jurisdictional   timeliness

requirements of the PCRA[,]” the Commonwealth overstates the breadth of

this legal standard. Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa.

2005). However, the Wharton rule4 does not extend to claims alleging the

complete abandonment of counsel.               As our Supreme Court subsequently

explained in Bennett:

              In Gamboa–Taylor and subsequent cases, we addressed
       situations when PCRA counsel had allegedly ineffectively narrowed
       the class of claims raised by not including all of the viable claims
       in the first petition. In such instances, we concluded that by
       allowing the claim to go forward “the timeliness requirements
       crafted by the legislature would thus effectively be eviscerated by
       any petitioner who was willing to file serial PCRA petitions alleging
       ineffective assistance of counsel.”          [Commonwealth v.]
       Howard, 788 A.2d [351,] 355 [(Pa. 2002)] (citing Gamboa–
       Taylor supra). Thus, we firmly rejected any such attempts “to
       circumvent the one-year time limitation” via claims of PCRA
____________________________________________


4We identify this rule as such given the Commonwealth’s citation of Wharton.
However, the rule itself was earlier articulated by our Supreme Court in
Commonwealth v. Gamboa-Taylor, 753 A.2d 780 (Pa. 2000), and
Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000).

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     counsel ineffectiveness. Id. This interpretation is consistent with
     the federal constitutional standard guiding claims of appellate
     counsel's ineffectiveness, which allow counsel to choose among
     nonfrivolous claims and select the best issues for purposes of
     appeal.

            Those cases, however, have no relevance when the claim
     emanates from the complete denial of counsel. Rather, in such
     instances, the United States Supreme Court mandates the
     presumption of prejudice because the process itself has been
     rendered “presumptively unreliable” under the Sixth Amendment.
     See Roe v. Flores–Ortega, 528 U.S. 470, 481–82, 120 S.Ct.
     1029, 145 L.Ed.2d 985 (2000) (quoting United States v. Cronic,
     466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). The Court
     has extended the presumptively prejudicial reasoning to the
     failure to appoint counsel for purposes of direct appeal. Penson
     v. Ohio, 488 U.S. 75, 88, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
     Likewise, the Court has declared that counsel's failure to file a
     requested notice of appeal was presumptively prejudicial.
     Flores–Ortega, 528 U.S. at 483, 120 S.Ct. 1029.

            Consistent with this jurisprudence, this Court has
     recognized a distinction between situations in which counsel has
     narrowed the ambit of appellate review by the claims he has raised
     or foregone versus those instances, as here, in which counsel has
     failed to file an appeal at all.

Bennett, 930 A.2d at 1272-73.      Thus, Bennett instructs that IAC claims

involving per se or presumed prejudice can potentially satisfy Section

9545(b)(1)(ii). As such, Appellant’s claim that counsel failed to appeal from

the denial of his 2009/2010 PCRA petitions is not categorically barred under

the Wharton rule.

     Nevertheless, the mere allegation that counsel failed to file an appeal

does not fully satisfy Section 9545(b)(1)(ii). As noted in Bennett, prejudice

is only presumed for IAC purposes when counsel “fail[s] to file a requested

notice of appeal….” Bennett, 930 A.2d at 1273 (emphasis added). Here, the


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PCRA court dismissed Appellant’s petition, in part, because he did not “claim

that he requested that PCRA counsel file an appeal….” PCO at 4. However,

Appellant claims that he was unware that his 2009/2010 PCRA petitions were

denied until December of 2016 and, thus, he asserts or, at least, implies, that

he would have requested an appeal had he been aware of the status of his

case. Whether Appellant would have requested an appeal had he become

aware of the denial of his 2009/2010 PCRA petitions in a timely manner is a

factual question that could only be determined at an evidentiary hearing.

Accordingly, Appellant’s failure to specifically allege that he requested that

appeal was not fatal to his invocation of Section 9545(b)(1)(ii).

      In the circumstances of this case, however, Section 9545(b)(1)(ii) also

requires Appellant to demonstrate that he could not have discovered the

status of his 2009/2010 PCRA petitions prior to December 2016 through the

exercise of due diligence. “[D]ue diligence requires neither perfect vigilance

nor punctilious care, but rather it requires reasonable efforts by a petitioner,

based on the particular circumstances, to uncover facts that may support a

claim for collateral relief.” Commonwealth v. Burton, 121 A.3d 1063, 1071

(Pa. Super. 2015), aff'd, 158 A.3d 618 (Pa. 2017). Proof of due diligence in

particular circumstances may ultimately require an evidentiary hearing.

Initially, however, Appellant must first allege facts in his PCRA petition which,

if deemed credible at a later hearing, could satisfy the due diligence

standard. See 42 Pa.C.S. § 9545(b)(1) (requiring an untimely PCRA petitioner




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to “allege[]” in the petition, and subsequently “prove[,]” that one of the

enumerated exceptions to the PCRA’s time-bar applies).

      The PCRA court indicates that, in his petition, Appellant only made a

“bald assertion that he could not have discovered this information through the

exercise of due diligence” in the nearly five years between the denial of his

2009/2010 petitions, and his discovery of that denial in December of 2016.

PCO at 4. We agree.

      In his petition, Appellant only alleged that he first learned of the

dismissal of his 2009/2010 petitions in December of 2016, when he received

a copy of his case’s docket from a counselor. Appellant made no allegations

in the petition regarding why he was unable to present a similar request to his

counselor in 2013, 2014, or 2015, or why he failed to make any other efforts,

whatsoever, to learn the status of his case, from April of 2012 (when the

petitions were denied) until December of 2016 (when he discovered the

denial). While the judicial system often moves at a snail’s pace, Appellant’s

inaction for nearly five years is not justifiable on that basis alone.

      Contrary to Appellant’s arguments, our Supreme Court’s decision in

Burton does not explain this delay. In Burton, our Supreme Court held that

the presumption that information which is of public record cannot be deemed

“unknown,” for purposes of Section 9545(b)(1)(ii), does not apply to

incarcerated, pro se petitioners.    Burton, 158 A.3d at 638.        Absent that

presumption, it still remains the PCRA petitioner’s burden to demonstrate due

diligence in unveiling the newly-discovered fact at issue. Thus, while we will

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not assume that Appellant had easy access to the public record containing the

evidence that his 2009/2010 petitions were denied in 2012, Appellant must

still both allege and prove that he made reasonable efforts to discover that

fact prior to December of 2016. To warrant an evidentiary hearing on the

question of due diligence, Appellant must at least allege facts that, if believed

by the factfinder, might demonstrate that he acted with due diligence in

discovering the status of his case from 2012 until 2016. He alleged no such

facts in his petition.

      In his brief, Appellant attaches affidavits from family members which

purport to show their efforts to communicate with Appellant’s PCRA counsel

regarding the status of his case during the time period in question.        See

Appellant’s Brief, Exhibit B.   Appellant also provides letters he purportedly

wrote to counsel from 2012 to 2016, wherein he inquires as to the status of

his case. See Appellant’s Brief, Exhibit C. The Commonwealth correctly notes

that these documents were not presented to the PCRA court in Appellant’s

petition, nor in his response to the court’s Rule 907 notice. As such, they are

not part of the certified record before this Court. Most importantly, they were

not before the PCRA court when it issued its order dismissing Appellant’s

petition and, therefore, cannot retroactively undermine the judgment of that

court. Indeed, the letters set forth in Exhibit B are both dated after the order

denying Appellant’s PCRA petition and, thus, could not possibly have been

before the lower court when it issued its decision.




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       Moreover, even if Appellant’s letters were authentic, and even if he had

presented them in a timely fashion in his PCRA petition, the Commonwealth

perceptively notes that they fundamentally undermine Appellant’s attempt to

demonstrate that he acted with due diligence in this matter. In the letter

dated May 5, 2012, Appellant writes, verbatim, “I’ve been notified by the

District Attorney my P.C.R.A. Petition has been Denied.” Appellant’s Brief,

Exhibit C.5    If Appellant knew his petition was denied on May 5, 2012, he

cannot plausibly claim that fact was newly-discovered in December of 2016.

       Based on the forgoing, we conclude that the PCRA court correctly

dismissed Appellant’s PCRA petition as untimely, and without a hearing, as

that decision was supported by the record and free of legal error.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/18




____________________________________________


5 Appellant also appears to request an appeal in the subsequent letter, dated
June 18, 2012, further demonstrating his knowledge that his 2009/2010
petitions had been denied. Id.

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