J-S08016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ERIC COFFIELD

                        Appellant                   No. 1518 EDA 2014


               Appeal from the PCRA Order of April 22, 2014
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-027251-1991

BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                           FILED MARCH 09, 2015

      Eric Coffield appeals the April 22, 2014 order denying relief upon

Coffield’s petition under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541, et seq. We conclude that the PCRA court correctly determined that

Coffield’s petition was filed outside the PCRA’s time limit, leaving the PCRA

court without jurisdiction to address the substantive allegations contained in

that petition. We affirm.

      In light of our disposition, we need not embellish the following brief

account of the factual history underlying this case, which we provided on

another occasion when Coffield appeared before this Court:

      Coffield’s conviction arose out of an incident that occurred on
      January 4, 1991. Coffield was observed by Philadelphia police
      officers operating a stolen vehicle at a high rate of speed along
      Roosevelt Boulevard in Philadelphia, Pennsylvania.          While
      attempting to elude the police, Coffield drove recklessly and in
      excess of 100 miles per hour. Meanwhile, the passengers in the
      stolen vehicle, who were also involved in the theft of the
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     automobile, pleaded with Coffield to slow down and stop the car.
     He ignored their requests and told them to shut up. Coffield
     eventually lost control of the car and crashed into two trees
     killing the front seat passenger and seriously injuring the two
     back seat passengers.

     On September 17, 1991, Coffield was found guilty, after a bench
     trial, of murder in the third degree, [18 Pa.C.S. § 2502(c),] two
     (2) counts each of simple assault[, 18 Pa.C.S. § 2701(a),] and
     aggravated assault[, 18 Pa.C.S. § 2702(a)], and one (1) count
     each of theft [by unlawful taking, 18 Pa.C.S. § 3921(a),] and
     receiving stolen property[, 18 Pa.C.S. § 3925(a)]. Post-trial
     motions were filed, new counsel was appointed[,] and
     supplemental post-trial motions then were filed. On March 4,
     1993, the post-trial motions were denied and Coffield was
     sentenced to not less than ten (10) nor more than twenty (20)
     years for his murder conviction. He also received consecutive
     sentences of not less than ten (10) nor more than twenty (20)
     years for each aggravated assault conviction. Furthermore a
     consecutive sentence of not less than two and one[ ]half (2 ½)
     nor more than five (5) years was imposed for the theft
     conviction.1 The aggregate sentence imposed was not less than
     thirty-two and one half (32 ½) nor more than sixty-five (65)
     years’ imprisonment.

     ____________________

        1 The sentence       for   receiving   stolen   property   was
        suspended.

     Coffield filed a motion for modification of sentence that was
     subsequently denied. Thereafter, he filed an appeal with this
     Court alleging, among other things, that the trial court abused
     its discretion by imposing sentences on the aggravated assault[]
     and theft convictions outside the sentencing guidelines without
     stating the applicable sentencing ranges and the reasons for the
     deviation. This Court found that the trial court failed to state the
     applicable sentencing ranges, the prior record scores, and the
     reasons for deviating from the sentencing guideline ranges.
     Consequently, this Court vacated the judgment of sentence with
     respect to the aggravated assaults and the theft convictions and
     remanded for re-sentencing.       Commonwealth v. Coffield,
     641 A.2d 1220 (Pa. Super. 1993) (No. 944 Philadelphia 1993,
     unpublished memorandum, filed 12/28/93). On January 21,
     1994, Coffield filed a petition for allowance of appeal with the


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      Supreme Court that was subsequently denied on September 12,
      1994. Commonwealth v. Coffield, 542 Pa. 657, 668 A.2d
      1122 (1994) (No. 51 E.D. Allocatur Docket 1994, 9/12/94).

Commonwealth v. Coffield, 2409 Phila. 1997, slip op. at 1-3 (Pa. Super.

Dec. 7, 1998) (unpublished memorandum).

      On June 6, 1997, the trial court convened a re-sentencing hearing. At

that hearing, Coffield addressed the court.    The trial court acknowledged,

but was unimpressed by, Coffield’s expression of remorse. After reviewing

the   applicable   sentencing   guidelines,   and   after   underscoring     the

egregiousness of Coffield’s conduct and its tragic results, the trial court

imposed the same sentence that it imposed in the first sentencing

proceeding. Coffield appealed. In a memorandum entered on December 7,

1998, this Court affirmed Coffield’s judgment of sentence.          Id.     Our

Supreme    Court    denied   allowance   of   appeal   on   May   25,      1999.

Commonwealth v. Coffield, 739 A.2d 540 (Pa. 1999) (per curiam).

      On September 20, 1999, Coffield filed his first PCRA petition.

Appointed counsel filed an amended petition. The PCRA court denied relief

on September 18, 2001, and Coffield filed no appeal. On February 4, 2002,

Coffield filed a second PCRA petition.    On May 30, 2003, the PCRA court

dismissed Coffield’s petition as untimely. Coffield appealed and we affirmed.

Commonwealth v. Coffield, 1880 EDA 2003 (Pa. Super. Feb. 18, 2004)

(unpublished judgment order). Therein, we noted that Coffield’s judgment

of sentence became final for purposes of the PCRA’s time limit on August 23,

1999. Id. slip op. at 2. Because Coffield had not filed his PCRA petition by

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August 23, 2000, one year after his judgment of sentence became final, and

failed successfully to invoke one of the statutory exceptions to the PCRA

court’s one-year time limit, we affirmed the PCRA court’s determination that

his petition was untimely.         Id.   Coffield filed a petition for allowance of

appeal with our Supreme Court, which denied review on August 5, 2004.

Commonwealth v. Coffield, 856 A.2d 831 (Pa. 2004) (per curiam).

       Coffield filed the instant PCRA petition, his third, on July 7, 2011.

Counsel was appointed and filed an amended PCRA petition, a motion for

PCRA discovery, and a Motion for funds to hire an investigator. PCRA Court

Opinion (“P.C.O.”), 9/23/2014, at 3.             The PCRA court held hearings on

February 28 and again on April 11, 2014. During the interim, the court filed

its notice of intent to dismiss pursuant to Pa.R.Crim.P. 907. On March 18,

2014, Coffield filed a response to the PCRA court’s Rule 907 notice. On April

22, 2014, following the April 11, 2014 hearing, the PCRA court dismissed the

petition as untimely under the PCRA’s time limits.1

       On May 15, 2014, Coffield timely filed a notice of appeal from the

PCRA court’s order.       On July 10, 2014, the PCRA court entered an order

directing Coffield to file a concise statement of the errors complained of on


____________________________________________


1
      Coffield spends a great deal of time disputing what it treats as the
PCRA court’s findings regarding the merits of the substantive issues raised in
the instant petition. However, on a fair reading of its opinion, it is clear that
the PCRA court touched upon those arguments only insofar as they informed
the timeliness inquiry.



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appeal pursuant to Pa.R.A.P. 1925(b).            Coffield timely complied,2 and the

PCRA court filed its Rule 1925(a) opinion on September 23, 2014, ripening

this case for our review.

       In dismissing Coffield’s third PCRA petition as untimely, the PCRA court

necessarily determined that it lacked jurisdiction to review the claims set

forth in that petition.      See Commonwealth v. Leggett, 16 A.3d 1144,

1145 (Pa. Super. 2011).          Consequently, we must begin by reviewing the

jurisdictional question.3

       It is well-established that the PCRA time limits are jurisdictional, and

must be strictly construed, regardless of the potential merit of the claims

asserted. Leggett, 16 A.3d at 1145 (Pa. Super. 2011); Commonwealth v.

Murray, 753 A.2d 201, 202-03 (Pa. 2000), abrogated on other grounds,

943 A.2d 264 (Pa. 2008). “[N]o court may properly disregard or alter [these

filing requirements] in order to reach the merits of the claims raised in a

PCRA petition that is filed in an untimely manner.”             Murray, 753 A.2d



____________________________________________


2
      About this statement, the PCRA court observed that the statement was
“anything but terse. In fact, it’s more akin to a full-on, florid appellate
brief—and an improper one at that.” P.C.O. at 4 n.2. The court went on to
note that the statement spans eleven unnumbered and single-spaced pages
in a small font.
3
     We review a PCRA court’s ruling to determine whether it is supported
by the evidence of record and is free of legal error. Commonwealth v.
Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011).




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at 203; see Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783

(Pa. 2000).

        Despite facial untimeliness, a tardy PCRA petition nonetheless will be

considered timely if (but only if) the petitioner pleads and proves one of the

three     exceptions    to   the    one-year    time    limit   enumerated    in

subsection 9545(b) of the PCRA, which provides as follows:

        (1) Any petition under this subchapter, including a second or
        subsequent petition, shall be filed within one year of the date the
        judgment becomes final, unless the petition alleges and the
        petitioner proves that:

           (i)      the failure to raise the claim previously was the
           result of interference by government officials with the
           presentation of the claim in violation of the Constitution or
           laws of this Commonwealth or the Constitution or laws of
           the United States;

           (ii)     the facts upon which the claim is predicated were
           unknown to the petitioner and could not have been
           ascertained by the exercise of due diligence; or

           (iii)    the right asserted is a constitutional right that
           was recognized by the Supreme Court of the United States
           or the Supreme Court of Pennsylvania after the time period
           provided in this section and has been held by that court to
           apply retroactively.

        (2) Any petition invoking an exception provided in
        paragraph (1) shall be filed within 60 days of the date the claim
        could have been presented.

42 Pa.C.S. § 9545(b).

        When an appellant files a facially untimely petition under the PCRA,

and fails to plead and prove one or more of the exceptions to the PCRA’s

one-year jurisdictional time limit, the petition is untimely and we must deny



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the appellant relief.    Gamboa-Taylor, 753 A.2d at 783.         Moreover, as

reflected in the plain language of section 9545, even when one of the

exceptions may apply to a given petition, it will excuse the untimeliness only

if the petition was filed within sixty days of the date that the conditions

underlying the exception came to light. Id. at 784.

      Coffield’s brief contains no statement of the questions involved, as

required by Pa.R.A.P. 2116.      In lieu of such a statement, we accept as

exhausting all issues properly argued the following statement that introduces

the argument section of Coffield’s brief:

      Coffield’s case, at this point, is about three things: (1) trial
      counsel’s objectively unreasonable advice to Coffield to reject
      the Commonwealth’s 7 1/2 to 15[-]year plea deal and appellate
      counsel’s objectively unreasonable decision not to challenge trial
      counsel’s decision-making on direct appeal; (2) initial-review
      PCRA counsel’s pathetic representation of Coffield and his
      inexcusable abandonment of Coffield once the PCRA court
      dismissed his first (timely) PCRA petition; and (3) the
      recognition that, in order for PCRA petitioners to have a fair
      opportunity to vindicate their Sixth Amendment right to effective
      trial counsel and Due Process right to effective appellate counsel,
      this Court must raise the bar as to what’s expected from initial-
      review PCRA counsel.

Brief for Coffield at 23. Coffield admits the untimeliness of his petition and

that none of the subsection 9545(b) exceptions apply to rectify that

jurisdictional flaw.    See Brief for Coffield at 20-21; P.C.O. at 6 (“Here,

[Coffield] concedes that his petition is untimely, and at the hearings below,

admitted that no exception applies.” (emphasis in original)).




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      In an effort to avoid the consequences of this untimeliness, Coffield

frames what he styles an as-applied challenge to the constitutionality of the

PCRA’s one-year time limit under the circumstances of this case:

      Coffield’s third PCRA petition is untimely, but the PCRA’s one-
      year limitations period and exceptions to the limitations period
      are not applicable because his initial-review PCRA proceedings
      were fundamentally unfair[,] violating his state and federal
      constitutional right to a fundamentally fair PCRA proceeding and
      effective assistance of initial-review PCRA counsel.

      First, Coffield’s first PCRA petition was timely and, although
      inartfully pled, it contained the meritorious trial and appellate
      counsel ineffectiveness claims discussed supra. It also contained
      other claims requiring investigation . . . .

      Second, although initial-review PCRA counsel, Steve Laver, filed
      an amended petition, the amended petition simply restated,
      nearly verbatim, the claims Coffield raised in his pro se petition;
      in other words, Laver did not (1) thoroughly or meaningfully
      “explore” the legal issues raised by Coffield, (2) attempt to
      develop facts to meaningfully and adequately determine the
      merits of Coffield’s legal claims, or (3) coherently present, in a
      persuasive narrative, the facts supporting Coffield’s legal claims.

      Third, after the PCRA court dismissed Coffield’s first timely
      petition, Laver abandoned Coffield and did not perfect his
      appeal; likewise, Laver never filed a formal motion to
      withdraw . . . .

Brief for Coffield at 30-31.

      In support of his “as applied” constitutional challenge, Coffield relies

upon Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa. 2007), and

Commonwealth v. Brown, 943 A.2d 264 (Pa. 2008).              However, neither

Bennett nor Brown is of any benefit to Coffield’s argument. In Bennett,

our Supreme Court recognized that counsel constructively abandons a



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defendant when he fails to file a requested appeal, and that such

abandonment      is   per   se    prejudicial   for     purposes      of   evaluating   the

constitutional effectiveness of counsel.        See 930 A.2d at 1273.            Critically,

though, the Court’s grant of relief in Bennett depended in part on what it

found to be Bennett’s diligence under the circumstances of that case; the

Court emphasized that a petitioner bears the burden of establishing “that the

[after-discovered] facts were ‘unknown’ to him and that he could not

uncover them with the exercise of ‘due diligence.’”                  Id. at 1274.    Thus,

Bennett did not suggest that circumstances such as those presented in this

case somehow relieved the petitioner of the PCRA’s strictures generally.

        Coffield cites Brown for the general proposition that our Supreme

Court    “has   recognized       the   potential      availability    of   an   as-applied

constitutional challenge to the application of the PCRA’s time restriction.”

See Brown, 943 A.2d at 268 n.4 (citing Bennett, supra; Commonwealth

v. Abu-Salaam, 812 A.2d 497, 501 (Pa. 2002)).                    However, the Brown

Court did not address the application of that principle to the case then at bar

because the petitioner had failed to present any argument to that effect. Id.

        In Abu-Salaam, the Court did not grant relief on such an as-applied

constitutional challenge outside the PCRA’s requirements.                  Reinforcing this

fact, the Court expressly based its lengthy analysis upon the new

constitutional rule exception to the PCRA rather than leaving the confines of

the PCRA entirely for purposes of the constitutional argument presented.

812 A.2d at 499-502. As in Bennett and Brown, nothing in Abu-Salaam

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established any basis for evaluating the constitutional claims raised therein

without regard for the PCRA’s jurisdictional requirements.

      Later in his brief, Coffield mounts an impressive recitation of general

constitutional requirements for the performance of trial, appellate, and

collateral relief counsel.   Brief for Coffield at 31-34.   None of these cases

vitiates the application of the PCRA generally or of the due diligence

requirement specifically to establish an entitlement to relief based upon a

facially untimely petition pursuant to the after-discovered fact exception.

Furthermore, Coffield offers no nexus between the principles articulated in

the many federal and Pennsylvania precedents he cites and the facts of his

case to establish that this case falls outside the ambit of the PCRA and is

excused from the jurisdictional requirements associated with Pennsylvania’s

framework for collateral relief under the PCRA.

      In circumstances materially similar to those presented in the instant

case, this Court held that the petitioner is not relieved of the obligation to

plead the alleged violation within sixty days of its discovery, as required

generally by PCRA subsection 9545(b)(2):

      In his counseled PCRA petition, Appellant sought an equitable
      exception to the time-bar based upon prior appeal counsel’s
      failure to file an appellate brief.       Specifically, Appellant
      contended that he asked his attorney to file an appellate brief
      from the denial of his first PCRA petition, the attorney assured
      him he would file the brief, the attorney did not file the brief,
      and thereafter, this Court dismissed Appellant’s appeal.       In
      Bennett, supra, the Supreme Court recently held that such a
      claim falls within the ambit of Subsection 9545(b)(1)(ii)’s
      exception [i.e., after-discovered facts] since “the facts upon


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      which the claim is predicated could not have been ascertained by
      the exercise of due diligence.”      However, in Bennett, the
      Supreme Court also reiterated that, before a petitioner may
      benefit from Subsection 9545(b)(1)(ii)’s exception, the petitioner
      must plead [that] he filed his PCRA petition within sixty days of
      the date it could have been presented; that is, he must plead
      [that] he filed the petition within sixty days of when he
      discovered this Court dismissed his first PCRA appeal.         Id.
      at 1272 n.11.

Commonwealth v. Geer, 936 A.2d 1075, 1077-78 (Pa. Super. 2007)

(citations modified; footnotes omitted). In Geer, because the appellant did

not allege that he presented his claim within sixty days of when he

discovered it, we found that he did not qualify for the after-discovered fact

exception. Consequently, the petition was untimely and no relief was due.

      Here, Coffield simply does not plead that he filed his third PCRA

petition within sixty days of discovering that first PCRA counsel improperly

failed to file a requested appeal, nor could he do so credibly.     The PCRA

court denied Coffield’s first PCRA petition on September 18, 2001. Coffield

filed his third petition nearly ten years later, on July 7, 2011. Even if there

was no intervening procedural history, it would entirely beggar belief that he

did not learn until over nine years after the denial of his first PCRA petition

that counsel had failed to file a requested appeal from the denial of that

petition.   Moreover, on February 4, 2002, in the interim, Coffield filed a

second PCRA petition. Therein, he expressly raised the issue of first PCRA

counsel’s failure to file an appeal. See, e.g., Response to Notice of Intent to

Dismiss Under Pa.R.Crim.P. 907 or Alternatively, Amended Post-Conviction

Petition with Consolidated Memorandum of Law, 1/21/2003, at 3 ¶¶11-13.

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Thus, Coffield plainly was aware of that alleged failure in early 2002, if not

much earlier. Consequently, he does not qualify for the after-discovered fact

exception to the PCRA’s timeliness requirements, and the PCRA court

correctly concluded that it lacked jurisdiction over the instant petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2015




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