J-S54038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
            v.                            :
                                          :
JEFFREY DONALD PETERSON                   :
                                          :
                 Appellant                :           No. 141 WDA 2016

                Appeal from the PCRA Order March 4, 2014
            in the Court of Common Pleas of Crawford County,
            Criminal Division, No(s): CP-20-MD-0000925-1992

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                  Appellant               :
                                          :
            v.                            :
                                          :
JEFFREY DONALD PETERSON                   :           No. 181 WDA 2016

               Appeal from the PCRA Order January 6, 2016
            in the Court of Common Pleas of Crawford County,
            Criminal Division, No(s): CP-20-MD-0000925-1992

BEFORE: BENDER, P.J.E., OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                   FILED SEPTEMBER 29, 2016

      Jeffrey Donald Peterson (“Peterson”) appeals, nunc pro tunc, from the

March 4, 2014 Order denying his first Petition for relief pursuant to the Post

Conviction Relief Act (“PCRA”).    See 42 Pa.C.S.A. §§ 9541-9546.         The

Commonwealth of Pennsylvania has filed a cross-appeal from the January 6,

2016 Order, granting Peterson leave to appeal, nunc pro tunc, the denial of

his first PCRA Petition based on ineffectiveness of counsel. We reverse the
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January 6, 2016 Order and dismiss Peterson’s appeal of the March 4, 2014

Order as moot.

     This Court previously set forth the relevant underlying facts as follows:

     [Peterson] was charged on October 16, 1992, with two counts of
     criminal homicide-first-degree murder and one count of burglary
     in connection with the September 28, 1992 shooting of two
     victims. [Peterson] was found at the scene with a self-inflicted
     gunshot wound to the head. The Commonwealth subsequently
     provided [N]otice it would seek the death penalty.            On
     September 16, 1993, [Peterson] entered a plea of guilty to two
     counts of first-degree       murder in exchange       for    the
     Commonwealth entering a nolle prosse on the burglary charge
     and withdrawing its intention to seek the death penalty. On
     November 3, 1993, the trial court sentenced [Peterson] to two
     consecutive terms of life imprisonment. [Peterson] did not file
     any post-sentence motion or a direct appeal.

     On January 17, 1997, [Peterson] filed a counseled PCRA
     [P]etition. … On July 16, 1997[, the PCRA court] entered a
     Memorandum and Order which was docketed of record on July
     17, 1997. The Order stated that the Court Administrator was
     directed to schedule an evidentiary hearing[,] and the record
     indicates that a copy was provided to the Court Administrator.
     For some unknown reason[,] that evidentiary hearing was never
     scheduled and that failure was not brought to the attention of
     the [PCRA court] by [Peterson’s] counsel or anyone else until
     [Peterson] sent a letter to the Clerk of Courts[,] dated
     September 24, 2012[,] and docketed on October 2, 2012. …

     In his PCRA [P]etition and at the PCRA hearing, [Peterson],
     citing his head injury, challenged his competency in 1993 to
     enter a voluntary, intelligent, and knowing guilty plea and
     challenged the effectiveness of his plea counsel for permitting
     the plea to be entered when he was incompetent. On March 4,
     2014, the PCRA court issued a [M]emorandum and [O]rder
     denying relief on [Peterson’s] PCRA [P]etition, based on its
     merits.

Commonwealth       v.   Peterson,   118    A.3d   459   (Pa.   Super.   2015)

(unpublished memorandum at 1-3) (citations and paragraph break omitted).


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        This Court affirmed the PCRA court’s March 4, 2014 Order, albeit on

different grounds. This Court concluded that Peterson’s first PCRA Petition

was untimely filed by one day, and that Peterson failed to invoke any of

three timeliness exceptions at 42 Pa.C.S.A. § 9545(b)(1).      See Peterson,

118 A.3d 459 (unpublished memorandum at 7-8).

        On March 31, 2015, Peterson filed a second PCRA Petition, invoking

the newly-discovered fact timeliness exception at section 9545(b)(1)(ii)

based on his first PCRA counsel’s ineffectiveness for failing to file a timely

PCRA Petition. After holding a hearing on Peterson’s Petition, the PCRA court

entered an Order granting Peterson leave to appeal the March 4, 2014

Order, nunc pro tunc. Thereafter, Peterson filed an appeal, nunc pro tunc,

from the March 4, 2014 Order.        The Commonwealth filed a timely cross-

appeal from the January 6, 2016 Order.1

        On appeal, Peterson raises the following questions for our review:

        1. Did the lower court err by finding that … Peterson’s [] plea
           was knowingly, intelligently and voluntarily entered into
           where the lower court misle[d] Peterson during the plea
           colloquy by advising him that, although he was pleading to a
           life sentence, he had a right to go before the Board of
           Pardons and have the life sentence modified to include a
           lesser, minimum sentence and an eligibility for parole?

        2. Where Peterson suffered the violent destruction and removal
           of a substantial portion of the frontal lobes of his brain and
           other bullet[-] impact brain damage, did the lower court err
           by failing to credit the uncontroverted evidence and testimony
           from the only medical expert presented in the case[,]
           neuropsychiatrist Lawson Bernstein, M.D., that [Peterson]

1
    On March 21, 2016, this Court consolidated the appeals, sua sponte.


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         suffered a brain injury and damage that rendered him
         incompetent to make reasoned decisions, participate in his
         defense, and enter a knowing, voluntary and intelligent plea
         of guilty to two counts of first[-]degree murder?

Brief for Appellant at 5.

       On cross-appeal, the Commonwealth raises the following question for

our review: “On the Commonwealth’s cross[-]appeal, should the lower court

have dismissed [Peterson’s] second PCRA [P]etition as being filed untimely

instead of granting [Peterson] the right to appeal the denial of his first PCRA

[P]etition nunc pro tunc?” Brief for the Commonwealth at 7.

       “[O]ur standard of review calls for us to determine whether the ruling

of the PCRA court is supported by the record and free of legal error. The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Lewis, 63 A.3d 1274,

1278 (Pa. Super. 2013) (citation omitted). Further, “this Court applies a de

novo    standard   of   review   to    the   PCRA   court’s   legal   conclusions.”

Commonwealth v. Medina, 92 A.3d 1210, 1215 (Pa. Super. 2014)

(citation omitted).

       We will first address the Commonwealth’s claim on cross-appeal. The

Commonwealth contends that the PCRA court should have dismissed

Peterson’s second PCRA Petition as being untimely filed.              Brief for the

Commonwealth at 8. The Commonwealth argues that the PCRA court erred

in finding that Peterson’s first PCRA counsel was ineffective for filing an

untimely Petition, and that counsel’s ineffectiveness was a newly-discovered


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fact under the timeliness exception at 42 Pa.C.S.A. § 9545(b)(1)(ii). Id. at

8-9. The Commonwealth asserts that while an ineffectiveness claim where

counsel abandons the petitioner may constitute a newly-discovered fact,

Peterson’s first PCRA counsel never abandoned him and represented

Peterson throughout the proceedings.        Id. at 8.   The Commonwealth thus

claims that first PCRA counsel’s ineffectiveness did not invoke a timeliness

exception and that the PCRA court should have dismissed Peterson’s second

PCRA Petition. Id. at 9-10.

         Initially, under the PCRA, any PCRA petition, “including a second or

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

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). The PCRA’s

timeliness requirements are jurisdictional in nature and a court may not

address the merits of the issues raised if the PCRA petition was not timely

filed.    Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of

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

have been presented.” 42 Pa.C.S.A. § 9545(b)(2); Albrecht, 994 A.2d at

1094.

         Generally, claims of ineffective assistance of counsel do not satisfy the

exception to the PCRA time-bar. See Commonwealth v. Gamboa-Taylor,



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753 A.2d 780, 785 (Pa. 2000) (stating that “a claim for ineffective assistance

of counsel does not save an otherwise untimely petition for review on the

merits.”); see also Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.

1999). However, the Supreme Court of Pennsylvania has determined that a

PCRA petitioner’s discovery that PCRA counsel has abandoned him during his

appeal from the order denying his timely first PCRA petition permitted him

to circumvent the PCRA time bar under § 9545(b)(1)(ii). Commonwealth

v. Bennett, 930 A.2d 1264, 1273 (Pa. 2007); see also id. (stating that

section   9545(b)(1)(ii)   is   a   limited   extension   of   the     one-year   time

requirement under circumstances where a petitioner has not had the review

to which he was entitled due to a circumstance that was beyond his control).

The   Supreme      Court    distinguished      appellant’s     claim    of   counsel’s

abandonment from those claims of ineffectiveness that “narrowed the ambit

of appellate review,” and could not fall within the purview of section

9545(b)(1)(ii). Id. (citation omitted)

      In granting Peterson’s second PCRA Petition, the PCRA court stated the

following:

           As the Superior Court noted in [Commonwealth] v.
      Blackwell, 936 A.2d 497, 500 (Pa. Super. 2007):

          The Supreme Court of Pennsylvania has recently noted that
          it has “allowed PCRA petitioners some leeway in the
          preservation of claims in their petitions when [the Court]
          determined that the circumstances demanded it.”
          [Bennett, 930 A.2d at 1268] (citing and quoting
          [Commonwealth] v. McGill, 574 Pa. 574, 832 A.2d 1014



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          (2003), and [Commonwealth] v. Hernandez, 572 Pa.
          477, 817 A.2d 479 (2003)[)].

        When[,] clearly[, Peterson’s] prior counsel missed the filing
        deadline by one day and therefore[,] counsel was ineffective and
        [Peterson] could not have known that the deadline was missed
        by the exercise of due diligence until the January 30, 2015
        Superior Court Memorandum [O]pinion, we believe it would be
        grossly unfair to conclude that [Peterson] should not be
        permitted to have the issues that were raised before th[e PCRA
        court] as a result of the first PCRA petition heard on the merits
        on appeal by the Superior Court.

PCRA Court Opinion, 1/6/16, at 2.

        Here, unlike in Bennett, Peterson’s first PCRA counsel did not

abandon Peterson on appeal. Indeed, Peterson’s first PCRA counsel filed a

detailed, albeit untimely, PCRA Petition and an appellate brief on behalf of

Peterson following the denial of PCRA relief on his first PCRA petition.

Therefore, contrary to the PCRA court’s finding, Peterson’s claim regarding

first   PCRA    counsel’s    defective     representation     did    not   constitute

“abandonment” and fails to satisfy the “unknown facts” exception to the

PCRA’s timeliness requirements.2         See Gamboa-Taylor, 753 A.2d at 785

(stating that “review of previous counsel’s representation and a conclusion

that previous counsel was ineffective is not a newly discovered ‘fact’ entitling

[a]ppellant    to   the   benefit   of   the   exception    for   [newly]-discovered

evidence.”); Commonwealth v. Pursell, 749 A.2d 911, 916 (Pa. 2000)

(noting that “the allegation of ineffectiveness of counsel for failure to put

2
  We note the Supreme Court of Pennsylvania has not addressed this specific
issue. Nevertheless, Peterson’s first PCRA counsel’s action did not constitute
abandonment under Bennett.


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forward available claims does not excuse compliance with the timeliness

requirements of the PCRA.”).3      While the PCRA timeliness requirements

sometimes require harsh outcomes, the PCRA confers no authority “to

fashion   ad    hoc   equitable    exceptions    to    the   PCRA    time-bar.”

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011). Thus, the PCRA

court erred in finding that Peterson properly invoked the newly-discovered

evidence exception and granting Peterson the right to file a nunc pro tunc

appeal of his first PCRA Petition. See Bennett, 930 A.2d at 1267 (stating

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded to address the merits of the petition).4




3
  It is well-settled that courts may permit a party to file a nunc pro tunc
appeal where there was fraud or a breakdown in the court’s operations has
occurred, or where non-negligent actions by the appellant, his counsel, or a
third party caused a delay in the filing of an appeal. See Commonwealth
v. Stock, 679 A.2d 760, 763-64 (Pa. 1996); see also Commonwealth v.
Capaldi, 112 A.3d 1242, 1245 (Pa. Super. 2015). Here, Peterson does not
argue, nor did his first PCRA counsel testify to any extraordinary
circumstances that might excuse the late filing.
4
  While the PCRA court cites to Hernandez and Blackwell in granting
Peterson’s Petition, we note neither of those cases invoke the exception set
forth at section 9545(b)(1)(ii). See Hernandez, 817 A.2d at 483-84
(allowing petitioner to file a petition for leave to file direct appeal nunc pro
tunc instead of a petition under the PCRA where petitioner adhered to the
law at the time and pointing out that regardless of the title of the petition,
appellant filed his request within one year of his judgment of sentence
becoming final); Blackwell, 936 A.2d at 502 (stating that “the PCRA court’s
erroneous notification to [a]ppellant that PCRA counsel had withdrawn
amounted to governmental interference” that excused his untimely filing of
third PCRA petition alleging ineffective assistance by PCRA counsel).
Regardless, the holdings in these cases do not entitle Peterson to relief.


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      Based upon the foregoing, we reverse the PCRA court’s January 6,

2016 Order granting Peterson’s second PCRA Petition, and remand for

further proceedings in accordance with this Memorandum.     Further, based

upon this conclusion, we cannot address the merits of Peterson’s first PCRA

Petition.

      January 6, 2016 Order reversed. Nunc pro tunc appeal from March 4,

2014 Order dismissed as moot.     Case remanded for further proceedings.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2016




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