J-S44020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 PAUL BROWN                              :
                                         :
                   Appellant             :   No. 776 EDA 2018

               Appeal from the PCRA Order February 6, 2018
    In the Court of Common Pleas of Monroe County Criminal Division at
                      No(s): CP-45-CR-0002030-2014


BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                             FILED JULY 27, 2018

     Paul Brown (Appellant) appeals pro se from the order denying as

untimely his second petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541–9546. We reverse.

     On April 29, 2015, Appellant pled guilty to attempted homicide and

aggravated assault.    This Court previously summarized the procedural

background:

     [Appellant] entered a guilty plea to attempted homicide-serious
     bodily injury with respect to the attack on his wife, and aggravated
     assault-serious bodily injury for his attack on his son. Following a
     written guilty plea colloquy and an on-the-record oral colloquy,
     the court accepted [Appellant’s] plea. On July 28, 2015, the court
     sentenced [Appellant] to fifteen to forty years’ incarceration.
     [Appellant] did not file post-sentence motions or a direct appeal.
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Commonwealth v. Brown, 1798 EDA 2016 (Pa. Super. filed April 18, 2017)

(unpublished judgment order adopting the opinion of the PCRA court). 1

       Because Appellant did not file a direct appeal, his judgment of sentence

became final 30 days later, on August 27, 2015, when the time for taking a

direct appeal expired.          See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.Crim.P.

720(A)(3). On February 4, 2016, Appellant filed a timely pro se petition for

PCRA relief.    After appointing counsel and conducting a hearing, the PCRA

court, by order dated May 25, 2016, denied Appellant’s petition. This Court

affirmed the judgment of sentence. Brown, supra.

       On September 14, 2017, Appellant filed a second pro se PCRA petition.

The PCRA court dismissed the petition without a hearing on February 6, 2018.

Appellant filed a timely appeal.         Both the PCRA court and Appellant have

complied with Pa.R.A.P. 1925.

       Appellant raises the following issue for our review:

       Whether the PCRA court erred by dismissing [Appellant’s] petition
       for Post Conviction Relief as untimely in lieu of considering the
       merits of the issues raised therein, namely [Appellant’s] viable
       claim of newly discovered evidence, Counsel ineffectiveness for
       failing to perfect a requested appeal, to object to the defective
       colloquy, and the illegal sentence of 15 to 40 years.

Appellant’s Brief at 3.




____________________________________________


1We note that the parties failed to adhere to this Court’s instruction “to attach
a copy of the PCRA court’s Rule 1925(a) Opinion in the event of further
proceedings in this case.” See id.

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      Our standard of review of an order denying PCRA relief is “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 petitioner must establish a claim by a

preponderance of the evidence. Commonwealth v. Gibson, 925 A.2d 167,

169 (Pa. 2007).

      Further, before reaching the merits of a petitioner’s claim, section 9545

of the PCRA requires that “[a]ny petition under this subchapter, 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). A judgment becomes

final “at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review.”          42 Pa.C.S.A. §

9545(b)(3).

      This Court has held that the timeliness requirement of the PCRA is

“mandatory and jurisdictional in nature.”    Commonwealth v. McKeever,

947 A.2d 782, 784-785 (Pa. Super. 2008) (citing Commonwealth v. Davis,

916 A.2d 1206, 1208 (Pa. Super. 2007)). Therefore, “no court may disregard,

alter, or create equitable exceptions to the timeliness requirement in order to

reach the substance of a petitioner’s arguments.” Id. at 785.


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        Although the timeliness requirement is mandatory and jurisdictional, “an

untimely petition may be received when the petition alleges, and the petitioner

proves, that any of the three limited exceptions to the time for filing set forth

at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met.” Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). The three exceptions to

the timeliness requirement 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.A. § 9545(b)(1)(i)-(iii).            A PCRA petition invoking an exception

“shall be filed within 60 days of the date the claim could have been presented.”

42 Pa.C.S.A. § 9545(b)(2).

        As noted above, Appellant’s judgment of sentence became final on

August 27, 2015. He thus had until August 29, 2016 to file a timely PCRA

petition.2 Because he filed his petition on September of 2017, it is untimely.



____________________________________________


2   August 27, 2016 was a Saturday.

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      However, Appellant acknowledges the PCRA’s time bar, and claims the

newly discovered evidence exception, citing his “due diligence in obtaining the

information that his attorney failed to file a requested appeal.” Appellant’s

Brief at 6. Appellant states that “he discovered on July 12, 2017 that his

counsel of record failed to file an appeal with Superior Court, whereas

Petitioner with promptness filed a PCRA [petition] on September 10, 2017,

well within the 60 day time frame allotted . . . ”     Id. at 6-7.   To clarify,

Appellant’s claim is that PCRA counsel was ineffective for failing to file a

petition for allowance of appeal with the Pennsylvania Supreme Court, and

Appellant did not learn that the appeal was not filed until July 12, 2017.

Appellant continues: “As stated supra, Petitioner informed counsel that he

wished to appeal his denial [of his appeal from his first PCRA petition] from

the Superior Court and it was not until July 12, 2017 when petitioner

discovered that counsel failed to file an appeal as requested.” Id. at 10. See

also PCRA Petition, 9/14/17, at 3 (stating, “Appellate counsel failed to file

petition for allowance of appeal to the Supreme Court, informed by Superior

Court prothonotary via docket sheet.”).

      Sixty days from Appellant’s asserted July 12, 2017 discovery of new

evidence – that his PCRA counsel did not file a petition for allowance of appeal

– is Sunday, September 10, 2017. Therefore, Appellant had until Monday,

September 11, 2017 to file his PCRA petition to meet the 60 requirement

under 42 Pa.C.S.A. § 9545(b)(2).          The trial court docket shows that


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Appellant’s second petition was filed on September 14, 2017.            However,

Appellant cites the prisoner mailbox rule in support of his claim that he filed

his petition on September 10, 2017. The prisoner mailbox rule provides that

a pro se petitioner’s document is deemed filed on the date he delivers it to

prison authorities for mailing. Commonwealth v. Jones, 700 A2d 423, 426

(Pa. 1997).    Appellant states that “as evidence of the date upon which

Petitioner gave his PCRA petition to prison authorities for mailing, Petitioner

offers a cash slip indicating that his prison account was charged for the

postage for mailing his PCRA petition on September 10, 2017. See Exhibit E.”

Appellant’s Brief at 7; Exhibit E. Appellant’s PCRA petition contains a copy of

his handwritten proof of service stating that he placed the petition “in the

hands of prison official for mailing to the Court of Common Pleas, Monroe

County.” The stamped “inmate mail” envelope is also appended, and although

the date stamp is difficult to discern, it is logical that a letter given to prison

officials on Sunday, September 10, 2017 at SCI-Smithfield in Huntington,

Pennsylvania, would be docketed on September 14, 2017 in Monroe County.

On this record, we find merit to Appellant’s claim that he filed his PCRA petition

within 60 days of discovering the new evidence that PCRA counsel had not

petitioned for allowance of appeal with the Supreme Court as requested.

      In rejecting Appellant’s argument, the PCRA court reasoned:

      [T]he Petition remains untimely. The Superior Court rendered its
      decision on April 18, 2017. “Any petition invoking an exception
      provided in paragraph (1) shall be filed within 60 days of the date
      the claim could have been presented.” As such, [Appellant] would

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      have had until July 17, 2017 to file a Petition under a § 9545(b)(1)
      exception. [Appellant’s] Petition was filed well over the sixty day
      time limit set forth in 42 Pa.C.S.A. § 9545(b)(1).

PCRA Court Order, 2/6/18, at 2. Upon review of the aforementioned record,

in conjunction with our holding in Commonwealth v. Burton, 121 A.3d 1063

(Pa. Super. 2015) (en banc), aff’d sub nom, Commonwealth v. Burton,

158 A.3d 618 (Pa. 2017), we are constrained to disagree.

      In Burton, we 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.   We also “recognize[d] a limited

exception to the ‘public records’ rule, which presumes that petitioners have

access to information available in the public domain.”     Id. at 1066.      With

specific reference to a petitioner’s access to his own criminal docket, we

stated:

      . . . If our Supreme Court has recognized expressly that, without
      the benefit of counsel, we cannot presume a petitioner has access
      to information contained in his own public, criminal docket, then
      surely it cannot be that we presume a pro se petitioner’s access
      to public information contained elsewhere.

Burton, 121 A.3d at 1073, citing Bennett, 930 A.2d 1264, 1266 (Pa. 2007)

(stating that the Superior Court’s order dismissing appellant’s appeal was a

matter of public record “only in the broadest sense,” and where counsel had

abandoned appellant, “the matter of ‘public record’ does not appear to have

been within Appellant’s access.”).


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      Here, Appellant claims “newly discovered evidence that [PCRA] counsel

failed to file a requested appeal, therefore abandoning appellant.” Appellant’s

Brief at 15. Consistent with both the record and prevailing legal authority, we

conclude that the PCRA court erred in determining that Appellant had only

until July 17, 2017 to raise his claim of PCRA counsel’s ineffectiveness, and in

turn dismissing Appellant’s second PCRA petition without a hearing.

Accordingly, we reverse the February 6, 2018 order, and remand for an

evidentiary hearing on Appellant’s claim of PCRA ineffectiveness.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/18




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