J-S15024-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LARRY ROBERT STIEFEL                       :
                                               :
                       Appellant               :   No. 1390 WDA 2019

              Appeal from the PCRA Order Entered August 6, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0002541-2004


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

MEMORANDUM BY OLSON, J.:                                  FILED APRIL 3, 2020

        Appellant, Larry Robert Stiefel, appeals from the order entered on

August 6, 2019, which dismissed his petition filed under the Post Conviction

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

        We previously summarized much of the underlying facts and procedural

posture of this case:

          On October 8, 2004, Appellant pleaded nolo contendere[, in
          the Allegheny County Court of Common Pleas,] to five counts
          of robbery-serious bodily injury (at Counts One through
          Five), one count of burglary (at Count Six), and one count of
          criminal conspiracy (at Count Seven). That day, the trial
          court sentenced Appellant to serve 11 ½ to 23 months in jail
          on the first robbery count and to serve six consecutive
          one-year terms of probation on the remaining counts. The
          charges stemmed from an incident on January 19, 2004,
          where Appellant and a co-conspirator used a semi-automatic


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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       machine gun to rob a woman in the stairwell of her apartment
       building.

       On November 16, 2006, Appellant pleaded guilty to escape
       and possession of a controlled substance; he received an
       aggregate term of 11 ½ to 23 months in jail for the new
       offenses. Further, as a result of the new convictions, on
       March 14, 2007, the trial court revoked Appellant’s probation
       at Count Two (robbery-serious bodily injury), and
       resentenced Appellant to serve one to two years in jail,
       followed by four years of probation, for the conviction. N.T.
       Re-Sentencing Hearing, 3/14/07, at 11.

       In 2010, Appellant pleaded guilty, in Butler County, to
       aggravated assault, robbery, unlawful restraint, and simple
       assault. On July 26, 2011, the Butler County trial court
       sentenced Appellant to serve an aggregate term of 20 to 40
       years in prison for his convictions.

       As a result of the convictions in Butler County, the trial court
       revoked Appellant’s probation on May 15, 2012. After
       reviewing the pre-sentence report, the trial court
       re-sentenced Appellant to four to eight years’ incarceration
       at Count Two (robbery-serious bodily injury), consecutive to
       the Butler County sentence and no further penalty on the
       remaining counts.

       On August 26, 2013, the Butler County case was vacated and
       remanded for a new trial. As a result of the entire sentencing
       scheme being upset, on March 24, 2014, the Allegheny
       County case was also remanded. Appellant entered into a
       plea agreement in the Butler County case on November 30,
       2016. Specifically, Appellant pleaded guilty to simple assault
       and unlawful contact in Butler County; the Butler County trial
       court sentenced Appellant to time-served.

       On February 10, 2017, Appellant appeared before the trial
       court for re-sentencing on his probation violation. That day,
       the trial court re-sentenced Appellant to serve the same
       four-to-eight-year sentence that it had originally imposed.

       On February 22, 2017, Appellant filed a “Petition for
       Permission to File Post-Sentence Motion[] Nunc Pro Tunc”
       (hereinafter “Appellant’s Petition”). Appellant attached a

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       post-sentence motion to his petition and, within the
       post-sentence motion, Appellant asserted the following
       claim:

          The [trial] court erred in imposing a manifestly excessive
          sentence which did not comport with the dictates of the
          sentencing code, 42 [Pa.C.S.A. §§] 9721 . . . and 9781. .
          . . More specifically, the sentence imposed is erroneous
          because the sentencing court failed to consider, as it
          must, the nature and circumstances of the offense as it
          relates to the impact on the life of not only the victim but
          also the community at large; the history and
          characteristics    of   the   defendant,     including   his
          rehabilitative needs; and whether the confinement
          imposed is consistent with the protection of the public, in
          violation of 42 [Pa.C.S.A.] § 9781.          Moreover, the
          sentencing court focused solely upon the seriousness of
          the offense to the exclusion of all else, including the
          defendant’s statements that he was ready and willing to
          work hard to become a productive member of society, by
          resuming his landscaping business.

       Appellant’s Post-Sentence Motion, 2/22/17, at 2-3.

       The trial court . . . permitted Appellant to file the
       post-sentence motion nunc pro tunc; however, the trial court
       denied Appellant’s post-sentence motion on February 28,
       2017. Trial Court Order, 2/27/17, at 1; Trial Court Order,
       2/28/17, at 1.

       On March 21, 2017, Appellant filed a pro se notice of appeal
       from his judgment of sentence; Appellant’s pro se
       correspondence was dated March 16, 2017. Also on March
       21, 2017, Appellant filed a counseled notice of appeal from
       the judgment of sentence. See Appellant’s Pro Se Notice of
       Appeal, dated 3/16/17, at 1; Appellant’s Notice of Appeal,
       3/21/17, at 1.

       Appellant later requested [permission] to proceed pro se on
       appeal and, on May 5, 2017, the trial court held a Grazier[fn.1]
       hearing in response to Appellant’s request. Following the
       Grazier hearing, the trial court concluded that Appellant
       knowingly, intelligently, and voluntarily waived his right to
       counsel during the appellate proceedings. The trial court thus

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        granted Appellant’s request to proceed pro se [on] appeal.
        N.T. Grazier Hearing, 5/5/17, at 11-12.

              [fn.1] See Commonwealth v. Grazier, 713 A.2d 81 (Pa.
              1998).

Commonwealth v. Stiefel, 185 A.3d 1160 (Pa. Super. 2018) (unpublished

memorandum) at 1-4 (corrections and some quotations and citations

omitted), appeal denied, 198 A.3d 333 (Pa. 2018).

      On February 28, 2018, this Court filed a memorandum decision, which

quashed, as untimely, Appellant’s appeal from his judgment of sentence. As

we explained:

        on February 10, 2017, Appellant appeared before the trial
        court for re-sentencing on his probation violation; the trial
        court then re-sentenced Appellant to serve a term of four to
        eight years in prison for violating his probation at Count Two
        (robbery-serious bodily).      Afterwards, Appellant filed a
        motion to modify his sentence. Yet, since the trial court
        denied Appellant’s motion to modify, Appellant’s motion did
        not toll the 30-day appeal period. Pa.R.Crim.P. 708(E). As
        such, Appellant was required to file his notice of appeal on or
        before Monday, March 13, 2017. Appellant did not file his
        notice of appeal until March 21, 2017.[fn.2] Therefore, the
        current appeal is untimely. We do not have subject matter
        jurisdiction over this appeal.

              [fn.2] Even if we [would have been] permitted to consider
              Appellant’s pro se notice of appeal in addition to the notice
              of appeal filed by his counsel, the pro se filing [was] dated
              March 16, 2017; thus, even if we [would have been]
              permitted to consider the filing, we would still [have]
              quash[ed] th[e] appeal.

Id. at 5-6.

      On March 19, 2018, Appellant             filed a   pro   se   application for

reconsideration of our February 28, 2018 decision.         We denied Appellant’s


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application for reconsideration on May 16, 2018 and, on June 6, 2018,

Appellant filed a petition for allowance of appeal with the Pennsylvania

Supreme Court. The Supreme Court denied Appellant’s petition for allowance

of appeal on November 28, 2018.

      On May 13, 2019, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel to represent Appellant during the proceedings and

counsel filed an amended petition on Appellant’s behalf. Within the amended

petition, Appellant claimed that his trial counsel was ineffective for failing to

file a timely notice of appeal on his behalf.      Appellant’s Amended PCRA

Petition, 6/28/19, at 1-5.     Appellant thus requested the nunc pro tunc

restoration of his direct appeal rights. Id.

      On July 16, 2019, the PCRA court provided Appellant with notice that it

intended to dismiss his PCRA petition in 20 days, without holding a hearing,

because the petition was untimely. PCRA Court Order 7/16/19, at 1; see also

Pa.R.Crim.P. 907(1). Appellant filed a timely response to the PCRA court’s

Rule 907 notice and claimed that his petition was not untimely because: 1)

Appellant was unaware that his trial counsel filed an untimely notice of appeal

from his judgment of sentence and, thus, he satisfied the newly-discovered

fact exception to the PCRA’s one-year time-bar and 2) “[t]he PCRA [time-bar]

must be deemed unconstitutional as applied [to Appellant] because the statute

effectively restricts the exercise of a right guaranteed by the Pennsylvania

Constitution.” Appellant’s Response to Rule 907 Notice, 8/5/19, at 5-12. As

to the second issue, Appellant contended that, since the one-year time-bar

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denies Appellant’s right to a direct appeal, Appellant’s substantive claim “is

not cognizable under the PCRA” and the petition must be considered “an

application for habeas corpus.” Id. at 12.

        On August 6, 2019, the PCRA court finally dismissed Appellant’s petition

and Appellant filed a timely notice of appeal. Appellant numbers two claims

on appeal:

          [1.] Is the application of the PCRA’s time restriction
          unconstitutional as applied to [Appellant] alleging that he was
          denied his constitutional right to a direct appeal due to the
          abandonment of counsel, where counsel failed to file timely
          post-sentence motions and a timely notice of appeal?

          [2.] Did the [PCRA] court abuse its discretion in dismissing
          the petition for relief seeking reinstatement of appeal rights
          under the [PCRA] as untimely, insofar as the exception set
          forth in 42 Pa.C.S.A. § 9545(b)(1)(ii) applies?

Appellant’s Brief at 4 (some capitalization omitted).1

        First,   Appellant   claims    that    the   PCRA’s   one-year   time-bar   is

unconstitutional as applied to him because application of the time-bar would

“prevent[ Appellant] from exercising his constitutional right” to file a direct

appeal from his judgment of sentence. Id. at 14. According to Appellant,

since “[t]he issue presented [] is not cognizable under the PCRA, [Appellant’s

petition] should have been considered an application for habeas corpus.” Id.

at 20. This claim fails.



____________________________________________


1   For ease of discussion, we have renumbered Appellant’s claims on appeal.


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      At the outset, Appellant’s claim that the PCRA’s one-year time-bar is

unconstitutional is meritless, given that our Supreme Court has continuously

upheld the statute against constitutional attack.     See Commonwealth v.

Cruz, 852 A.2d 287, 292 (Pa. 2004) (“the PCRA’s time restriction is

constitutionally valid”); Commonwealth v. Peterkin, 772 A.2d 638, 643 (Pa.

1998) (“the PCRA’s time limitation upon the filing of PCRA petitions does not

unreasonably or unconstitutionally limit [a petitioner’s] constitutional right to

habeas corpus relief. At some point litigation must come to an end”).

      Further, as will be explained below, Appellant was eligible for relief

under the PCRA – he could have filed his PCRA petition within one year of the

date that his judgment of sentence became final. The fact that Appellant failed

to do so does not render the time-bar unconstitutional as applied to him. See

Commonwealth v. Descardes, 136 A.3d 493, 501 (Pa. 2016) (“the fact that

[the petitioner] was ineligible for [PCRA] relief because he was no longer

serving his sentence did not entitle him to seek relief through a writ of coram

nobis . . . [, where his] claim was cognizable under the PCRA”); c.f.

Commonwealth v. Stock, 679 A.2d 760 (Pa. 1996) (holding that the

petitioner could seek permission to file a nunc pro tunc appeal from his

summary traffic convictions outside the framework of the PCRA, where the

petitioner’s attorney failed to perfect a timely appeal and where the petitioner

was never eligible for PCRA relief, as he was never “under a sentence of

death or imprisonment or on parole or probation”).




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      Second, to the extent Appellant claims that the PCRA court erred when

it failed to consider his filing to be a petition for writ of habeas corpus, the

claim fails. The PCRA “provides for an action by which persons convicted of

crimes they did not commit and persons serving illegal sentences may obtain

collateral relief.” 42 Pa.C.S.A. § 9542. As the statute declares, the PCRA “is

the sole means of obtaining collateral relief and encompasses all other

common law and statutory remedies . . . including habeas corpus and coram

nobis.” Id.; see also Commonwealth v. Ahlborn, 699 A.2d 718, 721 (Pa.

1997). Thus, under the plain terms of the PCRA, “if the underlying substantive

claim is one that could potentially be remedied under the PCRA, that claim is

exclusive to the PCRA.” Commonwealth v. Pagan, 864 A.2d 1231, 1233

(Pa. Super. 2004) (emphasis in original).

      Within his amended petition, Appellant claimed that he was entitled to

the nunc pro tunc restoration of his direct appeal rights because his trial

counsel provided him with ineffective assistance. Appellant’s Amended PCRA

Petition, 6/28/19, at 1-5. The PCRA undoubtedly encompasses Appellant’s

claim, as the claim concerns “matters affecting [Appellant’s] conviction [or]

sentence.”    Commonwealth v. Judge, 916 A.2d 511, 520 (Pa. 2007),

quoting Coady v. Vaughn, 770 A.2d 287, 293 (Pa. 2001) (Castille, J.,

concurring); see also 42 Pa.C.S.A. § 9542 (“[the PCRA] provides for an action

by which persons convicted of crimes they did not commit and persons serving

illegal sentences may obtain collateral relief”); 42 Pa.C.S.A. § 9543(a)(2)(ii)

(“To be eligible for relief under [the PCRA], the petitioner must plead and

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prove by a preponderance of the evidence . . . (2) That the conviction or

sentence resulted from one or more of the following:      . . . (ii) Ineffective

assistance of counsel which, in the circumstances of the particular case, so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place”).

      Appellant’s claim thus falls under the rubric of the PCRA and, since the

PCRA encompasses Appellant’s claim, Appellant “can only find relief under the

PCRA’s strictures.” Pagan, 864 A.2d at 1233; see also Descardes, 136 A.3d

at 501 (“[the Pennsylvania Supreme] Court has consistently held that,

pursuant to the plain language of Section 9542, where a claim is cognizable

under the PCRA, the PCRA is the only method of obtaining collateral review”).

      The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.   This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further, since

the time-bar implicates the subject matter jurisdiction of our courts, we are

required to first determine the timeliness of a petition before we are able to

consider any of the underlying claims. Commonwealth v. Yarris, 731 A.2d

581, 586 (Pa. 1999). Our Supreme Court explained:




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        the PCRA timeliness requirements are jurisdictional in nature
        and, accordingly, a PCRA court is precluded from considering
        untimely PCRA petitions. [The Pennsylvania Supreme Court]
        also held that even where the PCRA court does not address
        the applicability of the PCRA timing mandate, th[e court
        would] consider the issue sua sponte, as it is a threshold
        question implicating our subject matter jurisdiction and
        ability to grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003) (citations

omitted).   “The question of whether a [PCRA] petition is timely raises a

question of law. Where the petitioner raises questions of law, our standard of

review is de novo and our scope of review plenary.” Commonwealth v.

Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).

      The trial court sentenced Appellant on February 10, 2017 and, since

Appellant did not file a timely notice of appeal from his judgment of sentence,

his judgment of sentence became final 30 days later, on Monday, March 13,

2017. See Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa. Super.

2019) (“In circumstances in which no timely direct appeal is filed relative to a

judgment of sentence, and direct review is therefore unavailable, the one-year

period allowed for the filing of a post-conviction petition commences upon the

actual expiration of the time period allowed for seeking direct review, as

specified in the PCRA. The initial untimely filing [of a notice of appeal] does

not serve to circumvent the clear and unambiguous language of Section

9545(b)(3) and alter the date when the judgment of sentence became final”)

(quotations, citations, and corrections omitted).




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      Under the PCRA, Appellant was required to file his petition within one

year of the date his judgment of sentence became final – or, on or before

March 13, 2018. 42 Pa.C.S.A. § 9545(b)(1).         As Appellant did not file his

current petition until May 13, 2019, the current petition is manifestly untimely

and the burden thus fell upon Appellant to plead and prove that one of the

enumerated exceptions to the one-year time-bar applied to his case. See 42

Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286

(Pa. Super. 2008) (to properly invoke a statutory exception to the one-year

time-bar, the PCRA demands that the petitioner properly plead and prove all

required elements of the relied-upon exception).

      Within Appellant’s response to the Rule 907 notice, Appellant claimed

that his petition was timely because it fell within the newly-discovered fact

exception to the PCRA’s one-year time-bar. Appellant’s Response to Rule 907

Notice, 8/5/19, at 5-12. The newly-discovered fact exception provides:

        (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:

                                      ...

            (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[]

                                      ...

        (2) Any petition invoking an exception provided in paragraph
        (1) shall be filed within one year of the date the claim could
        have been presented.

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42 Pa.C.S.A. § 9545(b).2

       As our Supreme Court explained:

         subsection (b)(1)(ii) has two components, which must be
         alleged and proved. Namely, the petitioner must establish
         that: 1) “the facts upon which the claim was predicated were
         unknown” and (2) “could not have been ascertained by the
         exercise       of     due      diligence.”     42    Pa.C.S.
         § 9545(b)(1)(ii)(emphasis added). If the petitioner alleges
         and proves these two components, then the PCRA court has
         jurisdiction over the claim under this subsection.

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis

omitted).

       Further, to properly invoke the newly-discovered facts exception, the

petitioner is statutorily required to file his petition “within one year of the date

the claim could have been presented.” 42 Pa.C.S.A. § 9545(b). Consistent

with the Pennsylvania Supreme Court’s interpretation of the prior version of

Section 9545(b)(2) – which, except for the specific time limitations, was

identical to the current version – to satisfy Section 9545(b)(2)’s “one-year

requirement,” a petitioner must “plead and prove that the information on
____________________________________________


2 Prior to December 24, 2018, Section 9545(b)(2) read: “Any petition invoking
an exception provided in paragraph (1) shall be filed within 60 days of the
date the claim could have been presented.” See 42 Pa.C.S.A. § 9545(b)(2)
(effective to December 23, 2018). However, effective December 24, 2018,
the legislature amended Section 9545(b)(2) to provide for a one-year
time-limitation. 42 Pa.C.S.A. § 9545(b)(2) (effective December 24, 2018).
This current version of Section 9545(b)(2) applies to “claims arising on
[December] 24, 2017 or thereafter.” See id. at Comment. Appellant filed his
current petition on May 13, 2019 and sought relief on a claim that arose on
February 28, 2018; thus, the current version of Section 9545(b)(2) applies to
Appellant’s claim.


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which he relies could not have been obtained earlier, despite the exercise of

due diligence.”   Commonwealth v. Stokes, 959 A.2d 306, 310-311 (Pa.

2008); Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001). We have

explained that “the due diligence inquiry is fact-sensitive and dependent upon

the circumstances presented.” Commonwealth v. Burton, 121 A.3d 1063,

1070 (Pa. Super. 2015) (en banc). Moreover, we have held that “due 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.” Id. at 1071.

      According to Appellant, his trial counsel’s failure to file a timely notice

of appeal from his judgment of sentence constitutes a newly-discovered fact

that “warrants review of [Appellant’s] otherwise untimely petition for

post-conviction relief seeking reinstatement of his appeal rights.” Appellant’s

Brief at 11-12. However, this Court quashed Appellant’s untimely appeal in

our memorandum decision entered on February 28, 2018. Thus, as of that

date, Appellant was placed on notice that his appeal was untimely and that

the PCRA’s one-year time-limitation had begun to expire. See Ballance, 203

A.3d at 1031. Since Appellant was on notice as of February 28, 2018, Section

9545(b)(2) required that Appellant file his PCRA petition on or before February

28, 2019 to satisfy the PCRA’s newly-discovered fact exception. Appellant did

not file his petition until May 13, 2019. Thus, Appellant did not satisfy the

requirements for the PCRA’s newly-discovered fact exception and the PCRA




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court properly dismissed Appellant’s petition as untimely.    We, therefore,

affirm the PCRA court’s order, which dismissed Appellant’s PCRA petition.

     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/2020




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