J-E04005-17

                               2018 PA Super 109


COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
ROBERT E. ROBINSON                       :
                                         :
                   Appellant             :   No. 3515 EDA 2015

               Appeal from the PCRA Order October 27, 2015
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0718101-1982


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
        SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.

OPINION BY BOWES, J.:                                  FILED MAY 02, 2018

      Robert E. Robinson appeals from an order dismissing two PCRA

petitions as untimely. Appellant alleges that he is entitled to an evidentiary

hearing with respect to the petition filed June 19, 2015, since the PCRA court

analyzed the underlying merits of his substantive claim. While we agree that

the PCRA court erred, we affirm on the basis that Appellant failed to

establish due diligence.

      We previously set forth the facts underlying Appellant’s conviction in

our order denying his third petition for PCRA relief, which we repeat herein.

      On June 25, 1982, Appellant and a cohort were in the process of
      breaking into a car for the purpose of stealing it when they were
      confronted by the car’s owner, the victim. Appellant shot the
      victim four times and escaped with his cohort in another stolen
      vehicle; the victim died. Approximately one week later, Appellant
      was questioned about the crime, and he ultimately was charged
      with murder, robbery, criminal conspiracy, and possession of an
      instrument of crime. On July 1, 1983, Appellant pled guilty to
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       second degree murder and criminal conspiracy. He received a life
       sentence for the murder conviction and a concurrent sentence of
       ten-to-twenty years confinement for conspiracy.       Appellant
       asserted on direct appeal that his trial counsel was ineffective
       and that his guilty plea was involuntary. We affirmed the
       judgment of sentence on March 1, 1985.

Commonwealth           v.   Robinson,          2347   EDA   2000   (Pa.Super.   2001)

(unpublished memorandum).

       This appeal concerns an order dismissing Appellant’s eighth and ninth

attempts to secure PCRA relief.1                The eighth petition submitted that

Appellant was entitled to relief pursuant to Miller v. Alabama, 567 U.S. 460

(2012). While that petition was pending, Appellant filed another petition,

docketed June 19, 2015.            The petition contained numerous allegations

concerning drug use by his plea counsel, Richard Michaelson, Esquire. The

petition alleged that “At the time of trial/guilty plea . . . my counsel suffered

from the effects of cocaine abuse. He was ingesting, [c]ocaine, and because

of counsel’s [c]ocaine addiction, ‘his mind was befog[ged], disordered by

paranoid thoughts and the belief that he was in control when he was not.’”

Pro se PCRA petition, 6/19/15, at 4. The petition alleged that this drug use

“impaired his ability to represent [me] in a Constitutionally sufficient

manner.” Id.
____________________________________________


1 The PCRA court disposed of the two petitions in one overarching order,
treating each as separate petitions. We recently issued Commonwealth v.
Montgomery, --- A.3d ---, 2018 WL 1311961 (Pa.Super. 2018) (en banc),
holding that PCRA courts are not jurisdictionally barred from considering
serial PCRA petitions provided that there is not a pending appeal of a PCRA
petition.



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      The petition included sworn affidavits prepared by Appellant and Bruce

Quarles, a fellow prisoner, which related the following.         Mr. Quarles

overheard Appellant complaining about trial counsel. Mr. Quarles informed

Appellant that he knew of trial counsel and supplied documentation

regarding Attorney Michaelson’s purchase of cocaine in the Caribbean

Islands   during May of    1982, around the     time   of   Appellant’s    plea.

Additionally, Mr. Quarles stated that he knew Attorney Michaelson had been

convicted of drug offenses in federal court, and told Appellant “he would

bring the transcripts and newspaper articles to the law library and I could

make photo copies of the newspaper articles and the transcripts.          This is

how I obtained the after [d]iscovered [e]vidence on April 28, 2015.” Pro se

PCRA petition, 6/19/15, at 4-A.

      Appended to the petition were three additional exhibits: a newspaper

article dated May 29, 1982, stating that Attorney Michaelson was fired from

his job as an Assistant District Attorney in Philadelphia due to an FBI

informant alleging Attorney Michaelson had purchased cocaine; a transcript

of trial counsel’s plea to possession of drugs in the Eastern District of

Pennsylvania on April 29, 1994; and, a newspaper story reporting the 1994

conviction.   The plea transcript indicates that in 1991 through June 1992,

Attorney Michaelson regularly purchased cocaine from a dealer. During the

plea hearing, Attorney Michaelson stated that he had been using cocaine

since approximately 1979.      According to Appellant, his receipt of this

statement marked the first time he was aware that trial counsel was using

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cocaine at a time period relevant to his case, prompting him to file the

untimely PCRA petition at issue.

      The PCRA court dismissed the petition on the basis it was untimely,

and explained its ruling in its Pa.R.A.P. 1925(a) opinion:

      [Appellant]’s claim does not constitute after-discovered
      evidence, and his argument is not convincing. Trial counsel
      represented [Appellant] in 1983. Counsel pled guilty to drug
      trafficking offenses that occurred between 1991 and 1992.
      [Appellant] cannot reasonably claim that trial counsel’s
      subsequent legal problems impacted his decision to plead guilty
      a decade earlier. Aside from allegations contained in an article,
      [Appellant] has not provided any evidence to suggest that
      counsel’s representation as it related to [Appellant]’s specific
      case was improper. [Appellant] has failed to demonstrate that
      any of the exceptions to the limitations of the PCRA apply to his
      case.

PCRA Court Opinion, 11/16/15, at 4.

      On appeal, a panel of this Court unanimously determined that

Appellant was not entitled to relief on his petition seeking to raise a Miller

claim.   The panel split with respect to the other petition.    The majority

determined that the PCRA court improperly considered the merits of

Appellant’s underlying claim in dismissing the PCRA petition, and, as a

result, held that a remand for an evidentiary hearing was required to

determine whether Appellant properly pled the § 9545(b)(1)(ii) exception.

The dissent, written by this author, agreed that the PCRA court applied the

wrong inquiry by assessing the merits of the claim in determining the

timeliness of the petition, but would have affirmed on the alternative basis



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that Appellant failed to establish his due diligence.            Additionally, the

dissenting memorandum opined that the petition did not set forth any facts

that could ever entitle him to relief.

      The Commonwealth filed for reargument, asserting that a remand

would result in a needless expenditure of time and expense in this and

similar cases.    We granted en banc review and appointed counsel to

represent Appellant’s interests. The parties submitted substituted briefs and

the matter is ready for our review. Appellant raises the following issue:

      Should the PCRA court have held an evidentiary hearing on
      Appellant's claim regarding trial counsel's drug offenses for
      purposes of determining whether Appellant met the timeliness
      exception for newly discovered facts?

Appellant’s brief at 3.

      Our   standard      of   review    examines   “whether   the   PCRA   court's

determination is supported by the evidence of record and free of legal error.

We grant great deference to the PCRA court's findings, and we will not

disturb those findings unless they are unsupported by the certified record.”

Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa.Super. 2017) (citation

omitted).   A PCRA petition must be filed within one year of the date the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). “This time

constraint is jurisdictional in nature, and is not subject to tolling or other

equitable considerations.”      Commonwealth v. Spotz, 171 A.3d 675, 678

(Pa. 2017) (citation omitted).          The time bar can “only be overcome by

satisfaction of one of the three statutory exceptions codified at 42 Pa.C.S. §

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9545(b)(1)(i)–(iii).”     Id.   “Questions regarding the scope of the statutory

exceptions to the PCRA's jurisdictional time-bar raise questions of law;

accordingly, our standard of review is de novo.”           Commonwealth v.

Chester, 895 A.2d 520, 522 n.1 (Pa. 2006).

       Since Appellant’s judgment of sentence became final long ago,

Appellant averred that these facts satisfied the second of the three

exceptions to the PCRA’s one-year time bar. These exceptions are:

       (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).2 Additionally, any petition seeking to invoke

one of these three exceptions “shall be filed within 60 days of the date the

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

       The instant petition was filed on June 19, 2015, over thirty years after

Appellant’s judgment of sentence became final and therefore patently
____________________________________________


2 Appellant also invoked the interference by government officials exception,
but abandoned that position on appeal.




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untimely under the PCRA. Appellant avers that he satisfied the exception set

forth at § 9545(b)(1)(ii) because he first became aware of trial counsel’s

1994 plea on October 20, 2014, and thereafter immediately sought to obtain

the transcripts from federal court.     He alleges that he received those

materials on April 28, 2015, giving him sixty days to file for relief pursuant

to 42 Pa.C.S. § 9545(b)(2).    Since the June 19, 2015 petition was within

sixty days of when he received the plea transcript, Appellant avers that the

petition is timely.

      There are two additional points germane to our review. Our Supreme

Court has made plain that the analysis of whether a PCRA petitioner has

satisfied the § 9545(b)(1)(ii) time-bar exception is analytically distinct from

the   merits of any substantive      claim   seeking relief.    As stated    in

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

      The text of the relevant subsection provides that “the facts upon
      which the claim is predicated were unknown to petitioner and
      could not have been ascertained by due diligence.” 42 Pa.C.S. §
      9545(b)(1)(ii). . . . [T]he plain language of subsection (b)(1)(ii)
      does not require the petitioner to allege and prove a claim of
      “after-discovered evidence.” Rather, it simply requires petitioner
      to allege and prove that there were “facts” that were “unknown”
      to him and that he exercised “due diligence.”

Id. at 1270.

      With respect to the exercise of due diligence, Appellant’s own petition

acknowledges that newspaper coverage from 1982 mentioned counsel’s drug

use. Therefore, a question naturally arises as to whether he acted with due

diligence in ascertaining the newly-discovered facts of the 1994 plea as

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relied upon by Appellant. In response, Appellant relies on Commonwealth

v. Burton, 158 A.3d 618 (Pa. 2017), issued after our original panel decision.

Burton held that, for purposes of § 9545(b)(1)(ii)’s requirement that the

facts be unknown, materials in the public record are not presumptively

known to an incarcerated pro se petitioner. Appellant also emphasizes that

any available facts speaking to counsel’s drug usage in general is irrelevant,

as the proper question is “when did Appellant learn that Mr. Michaelson

[was] using cocaine at a time period relevant to Appellant’s case[?]”

Appellant’s brief at 14 (emphasis in original).    Appellant argues that his

failure to discover the 1994 plea transcript does not preclude a finding of

due diligence in light of Burton, as he first learned of the plea from Mr.

Quarles.

       Taken together, Appellant maintains the following. First, pursuant to

Bennett, the PCRA court erred by considering the merits of the underlying

substantive claim, i.e. by determining counsel’s subsequent drug problems

could not be used to attack his plea a decade earlier. Next, under Burton,

he cannot be deemed presumptively aware of Attorney Michaelson’s plea to

federal charges, which became a matter of public record sometime in 1994.3

Appellant contends that the PCRA court’s error requires an evidentiary
____________________________________________


3 We assume arguendo that Burton’s rule applies retroactively and excuses
the failure to find publicly-available information from 1994 up through the
time he filed his petition.




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hearing for the purpose of establishing the applicability of the newly-

discovered fact exception to the PCRA’s time bar.

      As previously quoted, the PCRA court determined that Appellant’s

claim “does not constitute after-discovered evidence, and his argument is

not convincing.” PCRA Court Opinion, 11/18/15, at 4. The Commonwealth

agrees with Appellant’s conclusion that the PCRA court conducted a merits

analysis of the underlying claim, which is improper under prevailing law. We

likewise agree, but find that the PCRA court correctly dismissed the petition

because Appellant failed to establish his due diligence.     We affirm on this

alternative ground.   See Commonwealth v. Cox, 146 A.3d 221, 229–30

(Pa. 2016) (while PCRA court erred in applying newly-discovered fact

inquiry, order affirmed as Cox failed to act with due diligence).

      At this juncture, we briefly address the distinction between a PCRA

petition and the claims contained within a jurisdictionally proper petition.

Our analysis begins there because the connection between the facts

discovered by Appellant regarding counsel’s drug use and the underlying

claim is, as we shall explain, relevant to the due diligence inquiry.

      In Bennett, supra, our Supreme Court stated that the subsection

(b)(1)(ii) exception merely requires the PCRA petitioner “to allege and prove

that there were ‘facts’ that were ‘unknown’ to him and that he exercised ‘due

diligence.’” Id. at 1270. The fact at issue in Bennet was PCRA counsel’s

failure to file a brief on appeal from an order denying a timely PCRA petition.


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Bennett then filed an untimely PCRA petition seeking reinstatement of his

PCRA appellate rights, invoking § 9545(b)(1)(ii). Bennett determined that

“[Bennett]’s allegations bring his claim within the ambit of subsection

(b)(1)(ii) . . . he must also prove that the facts were ‘unknown’ to him and

that he could not uncover them with the exercise of ‘due diligence.’” Id. at

1274.     The Court noted that prior precedents frequently, but mistakenly,

described 42 Pa.C.S. § 9545(b)(1)(ii) as the after-discovered evidence

exception to the one-year time bar, even though “the plain language of

subsection (b)(1)(ii) does not require the petitioner to allege and prove a

claim of ‘after-discovered evidence.’” Id. at 1270 (footnote omitted).

        The tendency to erroneously label § 9545(b)(1)(ii) as the after-

discovered evidence exception is largely explained by the fact that PCRA

petitioners presenting newly-discovered facts as justification for an untimely

PCRA often, but not always, seek to raise a claim that those facts constitute

evidence that would have changed the outcome at trial.             42 Pa.C.S. §

9543(a)(2)(vi) (“The unavailability at the time of trial of exculpatory

evidence that has subsequently become available and would have changed

the outcome of the trial if it had been introduced.”). As our Supreme Court

explained in Cox, supra, that labeling error

        is not novel, especially in the context of cases in which the
        petitioner invokes both of these provisions in his or her quest for
        relief. This is not always the case, as the section 9545(b)(1)(ii)
        timeliness exception is not only invoked in connection with
        claims of after-discovered evidence as contemplated by section
        9543(a)(2)(vi); i.e., claims based on exculpatory evidence that

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      would result in a different verdict. For instance, petitioners have
      utilized the section 9545(b)(1)(ii) timeliness exception in an
      attempt to raise claims of the constructive denial of counsel,
      violations of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,
      90 L.Ed.2d 69 (1986), and claims of racial prejudice on the part
      of the trial judge. See Commonwealth v. Gamboa–
      Taylor, 620 Pa. 429, 67 A.3d 1245 (2013); Commonwealth v.
      Hackett,       598   Pa.   350,     956     A.2d    978,    982–84
      (2008); Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d
      714, 721 (2008); Commonwealth v. Lark, 560 Pa. 487, 746
      A.2d 585, 588 (2000); Commonwealth v. Abu–Jamal, 574 Pa.
      724, 833 A.2d 719, 735 (2003). In each of those cases, the
      nature of the claims raised did not implicate section
      9543(a)(2)(vi), but rather, fell under other categories of claims
      eligible for relief.

Id. at 229–30.

      Thus, while there is a natural interplay between 42 Pa.C.S. §

9545(b)(1)(ii)—which serves to create jurisdiction for the PCRA court to

entertain an otherwise untimely PCRA petition—and the merits of any claim

that could be raised under the petition once jurisdiction is actually conferred,

Bennett, as reiterated by Cox, warns against any analysis of the

substantive claim. Cox noted that a merits analysis is permissible only upon

a finding of jurisdiction: “Once jurisdiction has been properly invoked (by

establishing either that the petition was filed within one year of the date

judgment became final or by establishing one of the three exceptions to the

PCRA's time-bar), the relevant inquiry becomes whether the claim is

cognizable under the PCRA.”      Cox, supra at 227-28 (emphasis added).

Moreover, Cox does not limit that admonishment to petitions seeking to

raise a claim based on newly-discovered evidence. Id. at 230 (“In such


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cases, after concluding that the petition satisfied the section 9545(b)(1)(ii)

timeliness exception, the PCRA court would not proceed to a section

9543(a)(2)(vi) analysis.”) (emphasis added).

        Simultaneously, while Bennett and its progeny instruct courts to avoid

analyzing the merits of the underlying claim, we believe that principle cannot

go so far as to altogether preclude the courts from considering the claim the

petitioner seeks to raise in determining whether an evidentiary hearing is

warranted.      As an extreme example, suppose an incarcerated PCRA

petitioner asserted in an untimely petition that he recently discovered that

the Houston Astros won the 2017 World Series.         It would defy reason to

suggest that a PCRA court must hold an evidentiary hearing to carefully

apply the newly-discovered fact inquiry before considering how that fact

could possibly matter.       Cox stated that “The function of a section

9545(b)(1)(ii) analysis is that of a gatekeeper.”       Id. at 229 n.11.      A

gatekeeping function contemplates that there may be a reason to open the

gate.

        The instant claim is not as fanciful as the foregoing example.

Nevertheless, it is difficult to perceive the connection between trial counsel’s

legal issues which occurred almost a decade after Appellant’s guilty plea and

how that fact ultimately matters. Appellant seeks to link counsel’s drug use

to the voluntariness of his plea. “Appellant alleged that trial counsel had a

substance abuse issue in the early 1980s and that counsel's addiction


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caused Appellant to enter an invalid plea.”           Appellant’s brief at 4

(emphasis added).     Recognizing the nature of the underlying claim—as

distinguished from assessing its merits—is necessary to determine whether

Appellant acted with due diligence in unearthing the newly-discovered facts.

     For instance, in Commonwealth v. Chmiel, 173 A.3d 617 (Pa.

2017), our Supreme Court held that the PCRA court incorrectly dismissed an

untimely PCRA petition relying on newly-discovered facts.      On April 20,

2015, the Federal Bureau of Investigation (“FBI”) issued a press release

admitting that microscopic hair analysis, such as the type used in Chmiel’s

prosecution, was erroneous in the vast majority of cases. Id. at 619. That

press release disclosed the findings of an ongoing investigation summarizing

the defects in such testing.   Chmiel filed an untimely petition within sixty

days of April 20, 2015. The PCRA court had determined that the FBI press

release “was simply confirmation of information that was already available in

the public domain.” Id. at 625. Our Supreme Court rejected such a narrow

view of the pertinent newly-discovered facts.

     [T]he fact that the FBI was internally reviewing the accuracy of
     microscopic hair analysis or testimony is not the newly
     discovered fact upon which Chmiel's claim is based. Rather, the
     newly discovered facts are the FBI's admissions, as the
     proponent of microscopic hair analysis, that its examiners gave
     flawed and scientifically unsupportable testimony, and spread its
     flawed methodology to state and local analysts. Although the
     existence of the FBI's internal investigation was known, the
     press release marked the first public admission by the FBI
     regarding its conclusions about testimony premised upon
     microscopic hair analysis and the dissemination of such


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      scientifically flawed language to state and local analysts.

Id. at 626.

      In analyzing whether Chmiel could rely upon the FBI report as the

basis for his untimely PCRA petition, the Court stated, “There are two newly

discovered facts upon which Chmiel's underlying claim is predicated, both of

which were made public for the first time in the Washington Post article and

the FBI press release.” Id. at 625. Hence, a recognition of “the underlying

claim” was relevant to Chmiel’s invocation of the § 9545(b)(1)(ii) exception,

even if that analysis did not assess the strength of those newly-discovered

facts as it bore on the likelihood of ultimately achieving relief.    See id. at

626 n.7 (“We disagree with Justice Mundy's position that Chmiel must, at

this juncture, demonstrate a more ‘direct connection’ between the FBI press

release and his underlying claim.        Chmiel's underlying claim is that his

conviction rests upon unreliable hair comparison evidence in violation of the

United States    and Pennsylvania Constitutions.”); id.         at 629    (“As I

understand Bennett,     no   further    analysis   concerning   the   relationship

between the newly-discovered fact and the underlying merits-based claim is

necessary or appropriate in the jurisdictional assessment.”) (Saylor, C.J,

joined by Baer, J.).

      Having set forth these principles, we now review the particular claim

Appellant seeks to raise in order to determine whether a remand for an

evidentiary hearing is warranted.       His petition alleged that counsel was


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“befog[ged] and disordered by paranoid thoughts,” and, as a result,

Appellant’s plea was involuntarily entered.    Thus, the connection between

counsel’s alleged intoxication on the day of Appellant’s plea, the newly-

discovered fact he relies on to confer jurisdiction, and any substantive claim

Appellant would ultimately seek to raise within that petition is that counsel’s

mental state was so deteriorated that his advice was constitutionally

deficient. That claim is captured by the following test:

      A criminal defendant has the right to effective counsel during a
      plea process as well as during a trial. Hill v. Lockhart, 474 U.S.
      52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Allegations of
      ineffectiveness in connection with the entry of a guilty plea will
      serve as a basis for relief only if the ineffectiveness caused the
      defendant     to    enter    an involuntary or     unknowing plea.
      Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582 (1999).
      Where the defendant enters his plea on the advice of counsel,
      “the voluntariness of the plea depends on whether counsel's
      advice ‘was within the range of competence demanded of
      attorneys in criminal cases.’” Hill, 474 U.S. at 56, 106 S.Ct.
      366, 88 L.Ed.2d 203 (quoting McMann v. Richardson, 397 U.S.
      759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)).

Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.Super. 2002).

      Recognizing that Appellant’s claim challenges counsel’s mental state

on the day of Appellant’s plea, we find that Appellant failed to act with due

diligence in uncovering the “facts upon which [his] underlying claim is

predicated[.]”   Chmiel, supra at 625.       As the Commonwealth observes,

“Any deficiency in plea counsel’s representation . . . must necessarily have

existed (if it existed at all) at the time of the plea.” Commonwealth’s brief

at 14. We agree. In essence, Appellant argues that he had no due diligence


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obligations prior to speaking to Mr. Quarles in 2014, as Appellant was

unaware of plea counsel’s subsequent federal prosecution.         According to

Appellant, that was the first time he learned that “Mr. Michaelson [was]

using cocaine at a time period relevant to Appellant’s case.” Appellant’s

brief at 14 (emphasis in original).    This conclusion fails to account for the

fact that “Due diligence demands that the petitioner take reasonable steps to

protect his own interests.” Commonwealth v. Brown, 111 A.3d 171, 176

(Pa.Super. 2015) (citation omitted).       Appellant always “knew” that his

counsel supplied ineffective advice, and he has failed to show why he could

not have learned these newly-discovered facts at an earlier time.

      Consequently, we reject Appellant’s attempt to tailor his newly-

discovered fact analysis to Mr. Quarles’s information. There are situations in

which a petitioner may passively rely on learning information as opposed to

actively seeking out those facts. See Commonwealth v. Medina, 92 A.3d

1210 (Pa.Super. 2014) (en banc) (PCRA petition based on newly-discovered

facts was timely where witnesses contacted the defendant and recanted

their testimony, claiming that police detective coerced their statements;

Medina was not required to contact the witnesses because he had no reason

to suspect the coercion and no duty to engage in a fishing expedition as to

why witnesses lied). In contrast to Medina, counsel’s ineffectiveness would




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have been obvious to Appellant back in 1983. Therefore, he bore the duty

to seek out the facts that would support any such claim.4

       Having established that Appellant failed to exercise due diligence, we

find that Burton does not compel a different result. Burton holds only that

material in the public record is not presumptively known to an incarcerated

pro se PCRA petitioner just because that information is publicly available.

Pre-Burton, Appellant was presumably constructively charged with the

knowledge of counsel’s plea when the record became available in 1994,

therefore requiring him to file for relief within sixty days of its publication.

See 42 Pa.C.S. 9545(b)(2) (claim must be filed within sixty days of date it

could have been presented). However, it does not follow from Burton that

Appellant is relieved of his duty to seek out facts as a matter of due

diligence. Burton modifies the “unknown” nature of public facts as applied

to incarcerated pro se PCRA petitioners, but the case did not modify the due

diligence inquiry. The pertinent statutory exception requires the petitioner

____________________________________________


4  The inability to consider the merits of the underlying ineffectiveness claim
poses complexities in that it is difficult to divorce the purported newly-
discovered fact of counsel’s guilty plea from what that newly-discovered fact
would actually prove, i.e., counsel’s use of cocaine during the relevant
timeframe. “The focus of the exception is ‘on [the] newly
discovered facts, not on a newly discovered or newly willing source for
previously known facts.’” Commonwealth v. Marshall, 947 A.2d 714, 720
(Pa. 2008) (quoting Commonwealth v. Johnson, 863 A.2d 423, 427 (Pa.
2004)).




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to establish that “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.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis added).      Formerly, there

was no need to proceed to a due diligence analysis when a petitioner

untimely relied on a public record, since the public nature of the facts

rendered them known. In Commonwealth v. Chester, 895 A.2d 520 (Pa.

2006), which applied a presumption that the record of trial counsel’s DUI

arrest was known due to its public availability, Justice Baer filed a concurring

opinion which disposed of the claim on the alternative basis of due diligence:

      Whereas the majority would find that counsel's DUI arrest was
      public record, and therefore, generally discoverable through an
      exercise of due diligence on the part of [Chester], I would find
      that the particular circumstances of this case lead to the
      conclusion that PCRA counsel, through the exercise of diligence,
      should have uncovered counsel's DUI arrest. Specifically, the
      allegations made by PCRA counsel in [Chester]'s first PCRA
      petition indicate that by exercising due diligence, PCRA counsel
      would have further uncovered trial counsel's criminal history.
      Thus, I would not go so far as the majority does to hold that
      criminal defendants are generally responsible for the arduous
      task of uncovering the criminal record of their attorney, where
      no basis for such discovery exists. For the following reasons, I
      concur.

      The majority opinion posits that trial counsel's DUI arrest could
      not be characterized as “unknown” to [Chester] because the
      information was a matter of public record. I believe, however,
      that there is danger in placing such an onerous burden on a
      criminal defendant to search public records to determine
      whether there are pending charges against his attorney during
      that defendant's trial. Rather, in affirming, I would rely solely
      upon the record sub judice, and conclude that if where, as here,
      PCRA counsel, who represented Appellant at his first PCRA
      hearing, had exercised due diligence, he would have uncovered
      trial counsel's DUI arrest. Because PCRA counsel for Appellant

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       alleged during the first PCRA proceeding that trial counsel had a
       substance abuse problem and had been suspended from
       practicing law, there was some basis upon which to suspect that
       further investigation of trial counsel may have uncovered
       relevant information.

Id. at 524–25 (Baer, J., concurring).

       That analysis applies to the instant case.   The nature of Appellant’s

claim supplied a basis for Appellant to seek out information that would

support his allegation. It is readily apparent from his twenty-year delay that

he failed to do so in a duly diligent manner.        We therefore affirm the

dismissal of the PCRA petition on that alternative basis.5

____________________________________________


5   While we find that the absence of due diligence serves to affirm the
instant order, we note our belief that Appellant’s newly-discovered facts
could not lead to relief even if Appellant possessed indisputable proof that
counsel had ingested cocaine on the day of Appellant’s plea. We agree with
the United States Court of Appeals for the Ninth Circuit that the relevant
inquiry would be the reasonableness of the advice itself: “Because we
conclude . . . that [counsel]’s performance did not fall below the standard of
objective reasonableness, it is irrelevant whether [counsel] used drugs.”
Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir. 1995).

As explained at length supra, precedents from our Supreme Court direct the
courts to ignore the merits of the PCRA claim when assessing the
jurisdictional timeliness question.    Arguably, it is consistent with that
principle to simply accept that the newly-discovered facts are true in order
to winnow out claims that could not possibly lead to relief.              The
admonishment against a merits analysis of the underlying claim seems
designed to prevent a preemptive finding that the newly-discovered facts are
either not worthy of belief or would not, on balance, undermine the reliability
of the verdict even if true. On the other hand, accepting these newly-
discovered facts as true gives every benefit of the doubt to the petitioner.
Nevertheless, our Supreme Court has not sanctioned this approach to an
analysis of the newly-discovered facts, and we therefore decide this case on
the basis of due diligence.



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     Order affirmed.

     President Judge Emeritus Bender joins the opinion.

     Judge Panella joins the opinion.

     Judge Shogan joins the opinion.

     Judge Lazarus joins the opinion.

     Judge Olson joins the opinion.

     Judge Stabile joins the opinion.

     Judge Dubow joins the opinion.

     President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/18




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