J-S29038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
TOMMIE JONATHAN ELDER                       :
                                            :
                            Appellant       :
                                            :     No. 1673 WDA 2015

                  Appeal from the PCRA Order October 6, 2015
       in the Court of Common Pleas of Jefferson County Criminal Division
                        at No(s): CP-33-CR-0000236-2013

BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED SEPTEMBER 20, 2016

        Appellant, Tommie Jonathan Elder, appeals from the order of the

Jefferson County Court of Common Pleas dismissing his first Post Conviction

Relief Act (“PCRA”) petition as untimely.       Appellant claims that the PCRA

court erred in rejecting his claim his petition was timely after he discovered

prior counsel abandoned him. We remand this matter for a determination of

responsibility for the failure to transmit a complete record in this appeal.

        On November 6, 2013, Appellant entered a negotiated guilty plea to

involuntary deviate sexual intercourse with a child.1 That same day, the trial

court sentenced him to ten to thirty years’ imprisonment, as agreed to by



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3123(b).
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the parties.2 Appellant was represented by Richard H. Milgrub, Esq. at the

plea and sentencing proceedings.

     The PCRA summarized the events that followed Appellant’s sentencing.

        [On November 22, 2013, Appellant] sent a letter to
        [Attorney] Milgrub that read, “I am writing to inform you
        that I want you to withdraw my guilty plea. I am not
        guilty of the charges that are brought against me and I
        feel that I was pressured to accept my sentence.”

           In response to [Appellant’s] claim, [Attorney] Milgrub
        immediately sent letters to the Court and Public Defender’s
        Office [on November 26, 2013,] explaining the situation
        and his intended course of action. [On November 27,
        2013, Attorney Milgrub] also filed a nunc pro tunc motion
        seeking leave for [Appellant] to withdraw his guilty plea
        and a motion to withdraw as counsel and have [John M.
        Ingros of] the Public Defender’s Office appointed to the
        case. [That same day, Attorney Milgrub] sent a letter to
        [Appellant] explaining what he was doing and advising him
        to seek alternate representation. He further informed
        [Appellant] that he had only 30 days from the date of
        sentencing to file an appeal and concluded, “If I don’t hear
        from you, I will file an appeal to protect your appellant
        [sic] rights and withdraw as your counsel shortly
        thereafter.” [Appellant] did not respond.

            As the record reflects, [Attorney] Milgrub did not even
        allow time for [Appellant] to receive the letter before filing
        his motion to withdraw as counsel, and nor did he file a
        notice of appeal with the Clerk of Courts’ Office. Appointed
        to represent [Appellant] just two days before his appeal

2
  See 18 Pa.C.S. § 3123(d)(1) (authorizing maximum sentence of forty
years for a violation of Section 3123(b)). We note that the United States
Supreme Court decided Alleyne v. United States, 133 S. Ct. 2151 (2013),
on June 17, 2013, almost five months before Appellant entered his plea and
was sentenced. The PCRA court suggested that Attorney Milgrub
“presumably knew that 42 Pa.C.S.A. § 9718 dictated [the ten-year minimum
sentence] but was unaware of the future implications [of Alleyne] . . . .”
PCRA Ct. Op., 10/6/15, at 2.



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         period was set to expire, Attorney Ingros did not file one,
         either, as Milgrub had led him to believe it had already
         been done. Accordingly, [Attorney] Ingros only instructed
         his secretary to expect further direction from Superior
         Court.

             After receiving a letter from [Appellant] in July of 2014,
         [Attorney] Ingros discovered that [Attorney] Milgrub had
         not filed a notice of appeal. Based on what [Appellant]
         told him in that initial missive, however, [Attorney] Ingros
         advised him that the Post Conviction Relief Act was the
         more appropriate mechanism for seeking review. He also
         asked the defendant to more clearly articulate the issues
         he would raise if he went that route, and in letters dated
         October 13 and October 14, 2014, [Appellant] did precisely
         that. [Attorney] Ingros did not receive either one, though.
         He then forgot about the case until receiving [Appellant’s]
         letter asking about the status of his PCRA petition.
         [Attorney] Ingros answered him on January 23, 2015,
         explaining that he had not received his earlier
         correspondence and asking him to reiterate his claims. He
         also noted that he would be requesting an extension of
         time to file a PCRA petition. [Appellant, on February 20,
         2015,] replied with a hand-written letter outlining his
         complaints anew. He knew as he drafted it that Ingros
         was awaiting his reply before filing.

PCRA Ct. Op. at 2-3 (record citations omitted).

      On June 29, 2015, the PCRA court received Appellant’s first pro se

PCRA petition. Appellant alleged, inter alia, Attorney Ingros was ineffective

and abandoned him when he sought to file a facially timely PCRA petition.

Additionally, Appellant asserted Attorney Milgrub was ineffective for failing to

seek withdrawal of his plea or filing a direct appeal.        The PCRA court

appointed George N. Daghir, Esq., on July 7, 2015.         On September 24,

2015, the court convened a hearing at which Appellant and Attorneys




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Milgrub and Ingros testified.     Additionally, the correspondence between

Appellant and Attorneys Milgrub and Ingros were presented exhibits.

      On October 6, 2015, the PCRA court dismissed Appellant’s petition as

untimely. The PCRA court concluded that “[Attorney] Ingros’s abandonment

does not allow [Appellant] to take advantage of the § 9545(b)(1)(ii)

exception, because it was not that abandonment that caused him to lose the

opportunity to file a PCRA petition; it was his own lack of due diligence.”

See PCRA Ct. Op. at 5. The court found that by October 2014, Appellant

was informed that the one-year time-bar for filing a PCRA petition would

expire in early December 2014.      Id. The court determined that Appellant

had “approximately 8 weeks to file. Although he had not heard back from

[Attorney] Ingros, however, he failed to inquire about the status of his case

until it was already 7 days too late to file a timely petition.    This was an

unreasonable course of action.” Id. The court thus suggested that Attorney

Ingros’s “actions evolved into abandonment” on December 6, 2014, when he

failed to file a facially timely PCRA petition, and Appellant “forfeited his PCRA

rights.” See id.

      The PCRA court also proceeded to consider whether Appellant acted

within sixty days of the abandonment.          Id. (discussing 42 Pa.C.S. §

9545(b)(2)). The court suggested that even if Appellant only discovered the

abandonment after December 6, 2014, the fact that he filed his pro se PCRA

petition in June 2015, violated the requirement that he file within sixty days



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of the date he discovered or should have discovered the abandonment. Id.

The court found Appellant’s assertion that he could not have filed earlier due

to a two-month prison lockdown was not credible or was too vague to

establish due diligence.   Id.   Thus, the court found Appellant failed to

establish jurisdiction under the PCRA.

      Appellant timely filed a notice of appeal and complied with the court’s

order to submit a Pa.R.A.P. 1925(b) statement.          The court permitted

Appellant to proceed in forma pauperis.

      Appellant presents the following question for review:

         Did the [PCRA] court err in its [October 6, 2015] opinion
         and order, which dismissed [Appellant’s] PCRA claim that
         abandonment of him by prior counsel entitled him to file a
         [PCRA] petition beyond one year from the date his
         judgment became final pursuant to 42 Pa.C.S.A. Sec.
         9545(b)(1)(ii)?

Appellant’s Brief at 4.

      The principles governing our review are well settled.

         [O]ur scope of review is limited by the parameters of the
         [PCRA]. Our standard of review permits us to consider
         only whether the PCRA court’s determination is supported
         by the evidence of record and whether it is free from legal
         error.

Commonwealth v. Blackwell, 936 A.2d 497, 499 (Pa. Super. 2007)

(citations omitted).

      The timeliness of a PCRA petition is a threshold question that

implicates the jurisdiction of a court to consider the merits of the relief

requested. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014).


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         To be timely, a PCRA petition must be filed within one year
         of the date that the petitioner’s judgment of sentence
         became final, unless the petition alleges and the petitioner
         proves one or more of the following statutory exceptions:

            (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).

            We emphasize that it is the petitioner who bears the
         burden to allege and prove that one of the timeliness
         exceptions applies. In addition, a petition invoking any of
         the timeliness exceptions must be filed within 60 days of
         the date the claim first could have been presented. 42
         Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy the 60–
         day requirement of Section 9545(b) if he or she fails to
         explain why, with the exercise of due diligence, the claim
         could not have been filed earlier.

Commonwealth v. Marshall, 947 A.2d 714, 719-20 (Pa. 2008) (some

citations omitted).   “[A]n 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 the petition, set forth at [42 Pa.C.S. § 9545]

are met.”   Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014)

(footnote omitted).


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      The general rule is that ineffective assistance of counsel will not give

rise to a PCRA time-bar exception.      See Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 785 (Pa. 2000); see also 42 Pa.C.S. § 9545(b)(4)

(indicating that the interference by government officials exception to the

PCRA time bar does not include “defense counsel, whether appointed or

retained”).   However, the Pennsylvania Supreme Court has recognized a

limited “extension of the one-year time requirement under circumstances

when a petitioner has not had the review to which he was entitled due to a

circumstance that was beyond his control”—that is, when the claim of

ineffectiveness   “emanates   from    the   complete   denial   of   counsel.”

Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa. 2007). Thus, the

general rule set forth in Gamboa-Taylor “does not apply to situations when

counsel abandons his client for purposes of appeal.” Id.

      Instantly, Appellant’s judgment of sentence became final on December

6, 2013, when the time for taking a direct appeal expired. See 42 Pa.C.S. §

9545(b)(1), (3); Pa.R.A.P. 903(a). The one-year period for filing a facially

timely PCRA petition ended Monday, December 8, 2014. See 42 Pa.C.S. §

9545(b)(1); see also 1 Pa.C.S. § 1908. Thus, Appellant’s petition filed in

late June 2015, nearly seven months later, was untimely on its face.

      The principal argument on appeal is whether Appellant should have

known that he was abandoned as of December 8, 2014.          The PCRA court

concludes Appellant failed to exercise due diligence because he was aware of



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the one-year deadline for filing a timely PCRA petition and failed to contact

Attorney Ingros before the December 8, 2014 deadline. Appellant responds

that there was no support for the court’s determination that he was aware

that the deadline was jurisdictional in nature.    Appellant further seeks to

support his claim that he timely filed his petition because he continued to

rely on Attorney Ingros’s representation that counsel could obtain an

extension of time for him and would file a PCRA petition on his behalf.

      Preliminarily, we note that Appellant has demonstrated not only PCRA

counsel’s passive neglect, i.e. the failure to file a timely PCRA petition, but

also possible misrepresentations, i.e. counsel’s representations that he could

obtain an extension of time.3    Under these circumstances, we agree with

Appellant that careful consideration of Attorney Ingros’s representations

after the PCRA’s one-year filing requirement is critical to determining

whether he acted diligently in discovering PCRA counsel’s abandonment.

See Bennett, 930 A.2d at 1275.

      However, Appellant’s brief mentions that “PCRA counsel, despite

request for transcripts made at time of filing the Notice of Appeal was not in

possession of the 9-24-2015 evidentiary hearing transcripts at the time of

filing the within brief.” Appellant’s Brief at 14. This Court made an informal

3
   Neither the PCRA court nor Appellant addressed whether Attorney Ingros
should have held himself out as possible PCRA counsel for Appellant in the
first instance. We note that because Attorney Ingros was apparently acting
as direct appeal counsel, he would have had to claim his own inattentiveness
in an initial PCRA petition seeking reinstatement of Appellant’s direct appeal.



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inquiry regarding the status of the transcript.   We received indication that

the transcript of the PCRA hearing was not prepared because the

stenographer had not received payment.

      It is well settled that an appellant bears the burden of ensuring that

this Court has a complete record for review, even if he is indigent.     See

Commonwealth v. Lesko, 15 A.3d 345, 410 (Pa. 2011); Commonwealth

v. Bongiorno, 905 A.2d 998, 1000 (Pa. Super. 2006) (en banc).             The

Lesko Court recognized, however, that “if a party is indigent, and is entitled

to taxpayer-provided transcripts or portions of the record, he will not be

assessed costs.” Lesko, 15 A.3d at 410.

      Although PCRA counsel complied with the threshold requirement that

he request the record, he inexplicably took no further action after receiving

notice that no transcript of the PCRA hearing was included in the record. He

apparently prepared his brief based on his recollection of the PCRA hearing.

See Appellant’s Brief at 10.     Nevertheless, we note that Appellant was

granted in forma pauperis status, but that the preparation of the transcript

may have been delayed due to a payment issue. In light of this controversy,

we remand this matter for a supplemental determination by the PCRA court

regarding responsibility for the failure to include the transcripts in the

record.   If the court determines that PCRA counsel was not at fault for the

inclusion of the transcripts and the exhibits admitted at the PCRA hearing,

the court shall transmit those materials as a supplemental record.      If the



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court finds PCRA counsel was at fault, it shall enter its findings and

conclusions and transmit them to this Court.   The court shall comply with

these instructions within thirty days of this memorandum.

     Case remanded. Jurisdiction retained.




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