J-S14041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 GARY G. MCWHORTER                         :
                                           :
                   Appellant               :   No. 966 EDA 2018

                Appeal from the PCRA Order March 1, 2018
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0715901-1982


BEFORE:    LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                        FILED APRIL 05, 2019

     Gary G. McWhorter appeals pro se from the order dismissing his second

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, as untimely. This

matter relates to Commonwealth v. McWhorter, 1895 EDA 2016, 2017 WL

4535678 (Pa. Super. 2017) (unpublished memorandum), which affirmed the

dismissal of McWhorter’s first PCRA petition as untimely. McWhorter then filed

the instant PCRA petition, alleging as a newly-discovered fact that counsel

failed to consult with him concerning further review of McWhorter.        We

vacate and remand for further proceedings.

                                      I.

     The factual history is not relevant to our resolution and we adopt the

recitation set forth in McWhorter.

     In 1983, a jury convicted Appellant, Gary McWhorter, of first-
     degree murder and possession of an instrument of crime, arising
     from allegations that he had shot and killed John Baker. The
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       Commonwealth’s primary witness at trial was Regina Smith, who
       testified that she was sitting next to Baker at a bar when
       McWhorter walked up behind Baker and shot him. Defense
       counsel impeached Smith with prior statements where she had
       claimed she was unsure of the shooter’s identity. Smith also
       recanted her testimony after the trial.

Id. at *1. McWhorter had sought PCRA relief based on the newly-discovered

fact that Eric Jackson met Smith in the aftermath of the shooting where Smith

allegedly said that she did not know who shot Baker. Further, McWhorter

alleged Jackson told Smith to implicate McWhorter as the shooter. Since he

did not previously seek PCRA relief, McWhorter was appointed counsel who

prepared an amended petition.

       McWhorter was still required to establish that one of the exceptions to

the PCRA’s one-year time bar applied1 and we concluded that he failed to do

so.   The only thing McWhorter established was that Jackson was another

source for the previously-litigated issue surrounding Smith’s testimony, as she

testified at a post-trial hearing that she was unsure who shot the victim and

partially recanted her testimony. “The fact appellant discovered yet another

conduit for the same claim of perjury does not transform his latest source into

evidence falling within the ambit of § 9545(b)(1)(ii).”    Id. at *2 (quoting

Commonwealth v. Abu–Jamal, 941 A.2d 1263, 1269 (Pa. 2008)).


____________________________________________


1 Section 9545(b) requires that a PCRA petition has to be filed within one year
of the date the judgment becomes final, "unless the petition alleges and the
petitioner proves" that one of the timeliness exceptions applies. 42 Pa.C.S. §
9545(b). A petitioner has the burden to plead and prove the applicability of
the timeliness exceptions. Commonwealth v. Pursell, 749 A.2d 911, 914
(Pa. 2000).

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       On October 11, 2017, we issued our decision denying his PCRA claim

and no further action was taken.

                                               II.

       On January 3, 2018, McWhorter filed the PCRA petition at issue here,

alleging that his counsel failed to inform him of our decision thereby depriving

him of the ability to seek further review through a Petition for Allowance of

Appeal (PAA) with our Supreme Court. McWhorter contends that the lack of

consultation qualified as an exception to the PCRA’s one-year time bar;

specifically, the newly-discovered fact exception codified at 42 Pa.C.S. §

9545(b)(1)(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”). The petition must be filed within sixty days “of the date the claim

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

petitioner must exercise due diligence in discovering the pertinent fact.

Commonwealth v. Smith, 35 A.3d 766, 771 (Pa. Super. 2011).

       McWhorter alleged the petition satisfied the newly-discovered fact

exception as discussed in Commonwealth v. Bennett, 930 A.2d 1264, 1266

(Pa. 2007), which held that attorney abandonment—in that case, the failure


____________________________________________


2Effective December 24, 2018, § 9545(b)(2) states that any petition invoking
an exception must be filed within one year of the date the claim could have
been presented. The amendment applies only to claims arising on or after
December 24, 2017.




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to file a brief—can satisfy the exception. McWhorter stated that his family

hired an attorney to appeal the dismissal of the PCRA petition and new counsel

ceased contact after he filed the brief in January of 2017.3 On November 27,

2017, McWhorter asked his girlfriend to look up his case online. She informed

him of our disposition and McWhorter then wrote to the prothonotary to

confirm, who sent him a copy of the docketing sheet on December 11, 2017.

       The PCRA court issued a notice of its intent to dismiss the petition and

McWhorter responded. The PCRA court then dismissed the petition and its

opinion supplies two reasons in support of its order. First, the PCRA court

determined that McWhorter failed to sufficiently support his claim that counsel

abandoned him. Second, the claim would fail on the merits as Bennett is

distinguishable.




____________________________________________


3Counsel was appointed to represent McWhorter at the PCRA court level. See
Amended PCRA Petition, 7/10/15, at 1 (“[P]resent counsel was appointed to
represent the petitioner.”).




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        McWhorter now appeals, alleging that the PCRA court improperly

dismissed his petition.4        He argues that the court should have held an

evidentiary hearing.5 We agree.

                                           III.

        As we find that the PCRA court misapprehended the nature of

McWhorter’s underlying claim, we begin by setting forth the law applicable to

counsel’s duties in filing a PAA.6



____________________________________________


4 “When reviewing the denial of a PCRA petition, our standard of review is
limited to examining whether the PCRA court's determination is supported by
evidence of record and whether it is free of legal error.” Commonwealth v.
Pew, 189 A.3d 486, 488 (Pa. Super. 2018) (citation omitted). At issue here
is the timeliness of the PCRA petition, which is a jurisdictional requisite that
must be met before the merits are examined. Commonwealth v. Ballance,
--- A.3d ----, 2019 WL 440987 (Pa. Super. Feb. 5, 2019). “In other words,
Pennsylvania law makes clear no court has jurisdiction to hear an untimely
PCRA petition.” Id. (emphasis in original).

5   Specifically, his brief raises the following point of error:

        The PCRA Court violated . . . Pa.R.Crim.P. 907 by summarily
        dismissing appellant’s petition for Post Conviction relief without an
        evidentiary hearing, where there was a genuine issue of material
        fact as to whether counsel[‘s] failure to inform appellant of the
        decision issued by the Superior Court of Pennsylvania, which
        affirmed appellant’s appeal[,] constituted ineffective assistance
        [of] counsel.

McWhorter’s brief at 4.

6 As discussed in the text infra, we are cognizant of our Supreme Court’s
instructions that a merits analysis has no place at the jurisdictional stage.
Here, discussion of the underlying claim is necessary with respect to the PCRA
court’s conclusion that McWhorter failed to trigger jurisdiction.


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      In Roe v. Flores–Ortega, 528 U.S. 470 (2000), the United States

Supreme Court addressed what an attorney must do during the direct appeal

process when the defendant has not clearly conveyed one way or the other

whether he wishes to appeal. Id. The Court declined to impose a per se duty

to file a notice of appeal and/or to consult the defendant. “We cannot say, as

a constitutional matter, that in every case counsel's failure to consult with the

defendant about an appeal is necessarily unreasonable, and therefore

deficient.” Id. at 479 (emphasis in original). A reviewing court is first required

to ask whether consultation occurred; if not, the court asks “whether counsel’s

failure to consult with the defendant itself constitutes deficient performance.”

Id. at 479.

      Precedents have extended the Flores-Ortega analysis to failures to

seek discretionary review with our Supreme Court, although what is required

of counsel largely depends on what instructions the client has given.          In

Commonwealth v. Liebel, 825 A.2d 630, 631 (Pa. 2003), this Court had

denied Liebel’s direct appeal and his attorney sent a letter stating “We have

thirty days to file a [PAA] with the Pennsylvania Supreme Court. I will do so.”

Id.   But the petition was never filed and Liebel subsequently sought, in a

timely PCRA filing, reinstatement of his right to file a PAA. This Court held

that Liebel failed to establish prejudice because he failed to demonstrate that

our Supreme Court would have granted review had the petition been filed.

Our Supreme Court disagreed though, holding that the right at issue is not


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the right to review but rather the right to file a petition. Liebel additionally

observed that a prejudice inquiry incorporating an assessment of whether the

High Court would have granted the petition was in practice impossible to meet,

as “[a] petitioner simply cannot be expected to speculate on the internal

operations and decisions of this Court.” Id. at 636 n.10.

      It was unclear in Liebel if the attorney’s promise to file was based an

independent decision to seek further review or if the client previously

instructed the attorney to seek that review. In Commonwealth v. Ellison,

851 A.2d 977 (Pa. Super. 2004), we interpreted Liebel to mean that an

attorney may, in some circumstances, decline to file a PAA even if the client

instructed the client to seek that review. We held that the two remaining

prongs of the ineffectiveness test, i.e., whether the claim has arguable merit

and whether the attorney had a reasonable strategic reason for declining to

file the PAA, overlapped. “If counsel was unjustified, then the underlying claim

(i.e., failure to file a PAA) has arguable merit and ineffectiveness is

established. If counsel's failure to file a PAA was justified, then there would

be no arguable merit to the claim that counsel was ineffective for failing to do

so.” Id. at 980. Ellison held a petitioner is entitled to relief upon a showing

“that the claims he would have raised in [the] PAA are not completely

frivolous, i.e., have some level of merit, regardless of whether they are

actually ‘winning’ arguments.” Id. at 980–81 (emphasis in original).




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      Finally, in Commonwealth v. Bath, 907 A.2d 619 (Pa. Super. 2006),

we discussed the scenario at issue in this proceeding: the client has not asked

the attorney to file a PAA, and the attorney fails to consult with the client

regarding any further steps. Bath stated:

      Where no request has been made, an appellant must establish
      that a duty to consult was owed. Under Roe . . . an appellant may
      establish a duty to consult by indicating issues that had any
      potential merit for further review. This does not require appellant
      to demonstrate that the Supreme Court would likely grant review
      to a petition for allowance of appeal, but only that appellant must
      show that any issue rises above frivolity.

Id. at 623–24 (citations omitted).

                                      IV.

      We now address the PCRA court’s first justification for dismissing the

petition, that McWhorter failed to adequately plead the time-bar exception.

The PCRA court apparently determined that the relevant date for the sixty-

day window was October 11, 2017, the day we issued our memorandum.

PCRA Court Opinion, 3/1/2018, at 6 (noting that McWhorter did not contact

his girlfriend until “November 27, 2017, forty-seven days after the Superior

Court issued its opinion”). The Commonwealth likewise starts the clock on

that date. “[McWhorter] failed to . . . prove that this Court’s October 11, 2017

affirmance was a ‘new fact’ that he could not have ascertained sooner through

the exercise of due diligence.” Commonwealth’s brief at 14.

      At the outset, we find that the relevant date for timeliness purposes is

not October 11, 2017, but rather November 11, 2017, the day that any


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opportunity for seeking further review expired.     That is the first date that

McWhorter could have definitively known that his attorney had no intention of

seeking review or discussing further steps.       Because McWhorter’s filing,

docketed January 3, 2018, is within sixty days of when the claim arose,7 there

was no need for him to demonstrate any due diligence.

       Next, the PCRA court misapprehended an attorney’s duties in this

situation. The opinion faults McWhorter for failing to reach out to counsel.

“Furthermore, the Petitioner fails to attach any records of correspondence he

had with PCRA counsel demonstrating that he attempted to contact him.”

PCRA Court Opinion, 3/1/2018, at 7. This inverts the responsibilities. The

legal claim is an ineffective failure to consult, not an ineffective response to

inquiries regarding the status of the appeal.8



____________________________________________


7 McWhorter did not specifically note a particular date in his pleading. We are
to liberally construe materials filed by pro se litigants. See Commonwealth
v. Lyons, 833 A.2d 245, 251–52 (Pa. Super. 2003). McWhorter specifically
stated that counsel abandoned him by failing to consult. “Petitioner was never
afford[ed] an opportunity to confer with counsel about if he would like to file
an allowance of appeal to the Pennsylvania Supreme Court, because counsel
abandoned Petitioner on appeal.” Memorandum of law supporting PCRA
petition, 1/3/18, at 4.

8 To the extent the Commonwealth and the PCRA court jointly fault McWhorter
for failing to adequately plead the claim with a supporting affidavit, we find
that his own representations are enough in light of the underlying legal claim.
Moreover, the notice of intent to dismiss did not alert McWhorter to any of
these purported defects as a basis for dismissing the petition.            See
Pa.R.Crim.P. 907(1) (the notice “shall state in the notice the reasons for the
dismissal”).


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                                       V.

      Having concluded that the PCRA court erred in its analysis of the time-

bar exception, we now review its alternative conclusion that McWhorter would

not be entitled to relief:

      The instant matter is easily distinguishable from Bennett. Unlike
      appellate counsel in that matter, here the Petitioner’s attorney
      filed a brief on the Petitioner’s behalf and the Superior Court ruled
      on Petitioner’s claims. The record further indicates that PCRA
      counsel was privately retained for the purposes of filing a direct
      appeal. The Petitioner fails to allege that he retained counsel for
      the purposes of filing a direct appeal. The Petitioner cannot claim
      that he was abandoned under these facts.

PCRA Court Opinion, 3/1/2018, at 8.

      This is a merits-based analysis which our Supreme Court has reiterated

is inappropriate at this stage of the proceedings.         We examined those

precedents in Commonwealth v. Robinson, 185 A.3d 1055 (Pa. Super.

2018) (en banc), which addressed a PCRA petition filed over thirty years after

judgment of sentence became final. Robinson pleaded guilty in 1983 and in

1994 his trial counsel was convicted of federal drug trafficking offenses.

Robinson retrieved a copy of the plea transcript in 2015, which indicated that

counsel had been using drugs in 1983. Robinson filed a PCRA petition, seeking

to establish that his counsel was under the influence of cocaine at the time he

advised Robinson. The PCRA court addressed the merits of the claim, which

we held was erroneous:

      [W]hile 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

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       jurisdiction is actually conferred, Bennett, as reiterated by
       [Commonwealth v. Cox, 146 A.3d 221 (Pa. 2016)], 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 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).

Id. at 1061.

       Pursuant to these principles, we find that the PCRA court erroneously

analyzed the merits of the claim. Unlike Robinson, McWhorter presented his

petition in a timely fashion.         Hence, a consideration of the merits was

premature and we must vacate the order and remand for further proceedings.9

       We emphasize that our disposition does not mean McWhorter has a valid

merits-based claim that he was unlawfully denied his right to file a PAA. We

simply hold that the pertinent precedents bar consideration of the merits at

this juncture.



____________________________________________


9 We emphasize that we do not find that McWhorter actually established
jurisdiction. For example, at the evidentiary hearing his counsel may testify
that he did, in fact, consult McWhorter about filing a PAA. If so, and if the
PCRA court found that testimony credible, then no jurisdiction lies.




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       Additionally, we note that the record indicates appointed counsel from

the prior PCRA proceedings did not formally withdraw upon private counsel’s

appearance. See Pa.R.Crim.P. 120(B).10 Because an evidentiary hearing was

not held, it is unclear if retained counsel’s contractual obligations ceased upon

filing of the brief. We, therefore, remand for a hearing to determine whether

counsel failed to consult with McWhorter regarding filing a PAA if that was so

required by his retainer agreement.11

       In the event the retainer agreement did not cover subsequent

proceedings, we further direct the PCRA court to determine if (1) private

counsel informed McWhorter of his rights to counsel upon cessation of his

duties, and, if not, (2) whether McWhorter was entitled to appointment of

counsel at that juncture.

       Order vacated. Remanded for further proceedings consistent with this

memorandum. Jurisdiction relinquished.


____________________________________________


10 The present circumstances are surely atypical as McWhorter was granted in
forma pauperis status during the first PCRA proceeding, was able to hire
private counsel, and then again received in forma pauperis status for purposes
of filing this appeal.

11Additionally, the PCRA court’s jurisdictional error may have factored into its
decision not to appoint counsel as obliquely requested by McWhorter. See
Memorandum of law supporting PCRA petition, 1/3/18, at 5 (stating that he
could not hire a particular attorney “d[ue] to Petitioner[‘s] financial situation.
[Counsel] . . . suggested that if the Court would appoint him he would gladly
accept[.]”). Nothing prevents McWhorter from renewing his request upon
remand, and the Rules of Criminal Procedure applicable to PCRA proceedings
state that “The judge shall appoint counsel to represent a defendant whenever
the interests of justice require it.” Pa.R.Crim.P. 904(E).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/5/19




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