J-S45004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    CHRISTOPHER DUCKETT,

                             Appellant                  No. 85 EDA 2019


            Appeal from the PCRA Order Entered December 13, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0505591-2005


BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED SEPTEMBER 30, 2019

        Appellant, Christopher Duckett, appeals pro se from the post-conviction

court’s December 13, 2018 order denying, as untimely, his petition under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The PCRA court summarized the pertinent facts and procedural history

of Appellant’s case, as follows:

        [Appellant] … was arrested and subsequently charged in
        connection with the 2004 fatal shooting of Arthur Bines in
        Philadelphia. On March 28, 2006, following a jury trial presided
        over by the Honorable Jane Cutler Greenspan, [Appellant] was
        convicted of first-degree murder, possessing an instrument of
        crime, and [a] violation of the Uniform Firearms Act. The trial
        court thereafter sentenced [Appellant] to an aggregate term of life
        imprisonment. Following a direct appeal, the Superior Court
        affirmed the judgment of sentence on December 31, 2008, and
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     the Pennsylvania Supreme Court denied [Appellant’s] petition for
     allowance of appeal on June 10, 2009.2
        2 Commonwealth v. Duckett, 965 A.2d 292 (Pa. Super.
        2008) (unpublished memorandum), appeal denied, 973
        A.2d 1005 (Pa. 2009).

         On May 11, 2010, [Appellant] timely filed his first PCRA petition
     alleging ineffective assistance of trial counsel. Counsel was
     appointed and subsequently filed an amended petition. After
     reviewing the record and the pleadings, the Honorable Benjamin
     Lerner dismissed the petition for lack of merit on July 29, 2011.
     The Superior Court affirmed the order denying relief on January
     23, 2013.3 [Appellant] did not seek allocator.
        3Commonwealth v. Duckett, 64 A.3d 284 (Pa. Super.
        2013) (unpublished memorandum).

        [Appellant] was subsequently unsuccessful in obtaining
     collateral relief through three serial petitions filed between 2013
     and 2015.

        On October 18, 2017, [Appellant] filed the instant pro se PCRA
     petition, his fifth. Pursuant to Pennsylvania Rule of Criminal
     Procedure 907, [Appellant] was served notice of the PCRA court’s
     intention to dismiss his petition on September 6, 2018.
     [Appellant] submitted a response to the Rule 907 notice on
     September 25, 2018. On December 13, 2018, the PCRA court
     dismissed his petition as untimely without exception.          On
     December 26, 2018, the instant[, pro se] notice of appeal was
     timely filed to the Superior Court.

PCRA Court Opinion, 2/26/19, at 1-2.

     The PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. On February 26, 2019,

the court filed its Rule 1925(a) opinion. Herein, Appellant states two issues

for our review:

     [I.] Whether the PCRA [c]ourt erred by ignoring the plain language
     of 42 Pa.C.S. § 9545(b)(1)(ii) when it denied Appellant’s [p]etition
     as untimely?



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      [II.] Whether the PCRA [c]ourt erred in dismissing Appellant’s
      PCRA [p]etition without ruling on the merits of [the] ineffective
      assistance of trial counsel claim?

Appellant’s Brief at 4.

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

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007). Under the PCRA, any petition for post-conviction relief, including

a second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

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

            (i) the failure to raise the claim previously was     the
            result of interference by government officials with   the
            presentation of the claim in violation of             the
            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




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              (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). Additionally, at the time Appellant’s petition

was filed, section 9545(b)(2) required that any petition attempting to invoke

one of these exceptions “be filed within sixty days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).1

       Here, Appellant’s judgment of sentence became final in 2009. Thus, his

present petition filed in 2017 is patently untimely and, for this Court to have

jurisdiction to review the merits thereof, Appellant must prove that he meets

one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S. §

9545(b).

       Appellant first argues that he meets the after-discovered evidence

exception of section 9545(b)(1)(ii) based on his discovery, on August 30,

2017, of the “Official Visiting Logs from the Philadelphia Prison System.”

Appellant’s Brief at 9. Appellant claims that these logs prove that his trial

counsel did not visit him in jail prior to trial, which Appellant claims is contrary

to testimony given by his trial counsel (presumably during the litigation of one

of Appellant’s prior PCRA petitions) that counsel did visit Appellant before the

trial commenced.

____________________________________________


1 A recent amendment to section 9545(b)(2), which became effective on
December 24, 2018, changed the language to require that a petition “be filed
within one year of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).

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      In regard to his due diligence in discovering the prison logs, Appellant

only claims, without any elaboration, that “[t]here was no possible way for

[him] to obtain the … [l]ogs … prior to August 30, 2017.” Id. Appellant does

not detail any efforts he made to get the logs, nor explain how he ultimately

obtained them in August of 2017. While Appellant attaches documents to his

appellate brief suggesting that his mother received the logs by filing a Right-

to-Know request with the Philadelphia Department of Prisons, Appellant fails

to discuss why he or his mother could not have filed that request and received

the logs earlier. Clearly, Appellant was aware that his attorney did not visit

him while he was incarcerated prior to trial; therefore, he could have sought

the prison logs to prove this fact beginning at least in 2006 when his trial

concluded, and raised his claim that counsel acted ineffectively in this regard

in his first PCRA petition filed in 2010.   Therefore, Appellant has failed to

establish that he acted with due diligence in discovering the ‘new fact’ of the

prison logs. See Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super.

2015) (stating that, in order to prove the timeliness exception of section

9545(b)(1)(ii), “[a] petitioner must explain why he could not have learned

the new fact(s) earlier with the exercise of due diligence”) (emphasis added).

      Appellant also avers that he has met the exception of section

9545(b)(1)(ii) due to his learning that that his trial counsel had “unstable

mental health” at the time he represented Appellant. Appellant’s Brief at 9.

In support of this claim, Appellant attaches to his brief a “Report and

Recommendations of the Disciplinary Board of the Supreme Court of

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Pennsylvania” (hereinafter “the report”), which sets forth a finding of fact that

Appellant’s trial counsel was diagnosed with Attention Deficit-Hyperactivity

Disorder (A.D.H.D.) and Dysthymic Disorder. See id. at Appendix A p. 4.

Appellant also attaches to his brief an order by our Supreme Court that

suspended his trial counsel from practicing law for two years.

      However, Appellant does not state when he first received the report

revealing his counsel’s mental health diagnosis, or the order suspending trial

counsel from practice. Notably, the report is dated July 18, 2014, and the

order was filed on November 13, 2014, yet Appellant did not file his present

petition asserting this ‘new evidence’ until October of 2017. Appellant fails to

offer any explanation for this three-year delay in raising this claim. Instead,

he only baldly contends that “[t]here was absolutely no possible way [he]

could have been aware that [trial counsel] was suffering from … []A.D.H.D.[]

and Dysthymic Disorder.”     Id. at 9.      Given this record, Appellant has not

proven that he      has met     the   due    diligence   requirement of section

9545(b)(1)(ii).   See Brown, supra. Consequently, we discern no error in

the PCRA court’s dismissing Appellant’s untimely petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/30/19

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