J-S49045-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PERRY WALLACE
Appellant No. 593 EDA 2014
Appeal from the Order Entered January 17, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0008880-2004
BEFORE: OLSON, OTT, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 14, 2014
Appellant, Perry Wallace, appeals from the January 17, 2014 order
dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. We vacate and remand.
After a May 11, 2005 bench trial, the court found Appellant guilty of
rape, statutory sexual assault, indecent assault, terroristic threats,
possession of an instrument of crime, and corruption of minors. On January
24, 2006, the trial court imposed a sentence of three to six years of
incarceration followed by ten years of probation. Appellant was released
from prison on September 27, 2010 and arrested the next day for a positive
cocaine test. On September 9, 2011, the trial court imposed a sentence of
four to eight years of incarceration followed by ten years of probation. This
Court affirmed the judgment of sentence on May 9, 2012.
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Appellant filed his timely first PCRA petition on August 17, 2012. After
a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998),
the PCRA court found that Appellant knowingly, intentionally, and voluntarily
waived his statutory right to court-appointed counsel. The PCRA court
dismissed Appellant’s petition on September 20, 2013. Appellant did not
appeal.
On October 31, 2013, Appellant filed the instant pro se PCRA petition.
In response to the PCRA court’s December 16, 2013 notice of intent to
dismiss, Appellant asserted he never received notice of dismissal of his first
PCRA petition. The PCRA court dismissed Appellant’s second petition on
January 14, 2014. This timely appeal followed.1
In its Pa.R.A.P. 1925(a) opinion, the PCRA court concludes that it erred
and requests a remand: “Appellant claims, and the Court’s USPS Certified
Return Receipt shows, that he did not receive the Final Order of Dismissal of
the First PCRA Petition until October 28, 2013–well after the thirty-day
deadline under Rule 903(a) had passed.” PCRA Court Opinion, 4/16/14, at
4-5. The PCRA court reasoned that its administrative breakdown warrants
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1
The docket date for Appellant’s notice of appeal is February 19, 2014,
which is one day after the expiration of the thirty-day appeal period. The
postmark on Appellant’s notice of appeal indicates that Appellant mailed that
document on February 12, 2014. Pursuant to the prisoner mailbox rule,
Appellant’s appeal is timely. Commonwealth v. Jones, 700 A.2d 423,
425-26 (Pa. 1997).
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relief in the form of a nunc pro tunc appeal from the September 30, 2013
dismissal of Appellant’s timely first PCRA petition.
Before we remand, per the PCRA court’s request, we must discern
whether the PCRA court has jurisdiction over the instant petition.
Appellant’s judgment of sentence became final thirty days after our May 9,
2012 affirmance of the trial court’s judgment of sentence. The instant PCRA
petition, filed October 31, 2013, is facially untimely under § 9545(b) of the
PCRA:
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
(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). Section 9545’s timeliness provisions are
jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
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Section 9545(b)(1)(ii) applies where the petitioner’s request for relief
is predicated on previously unknown facts the petitioner could not have
ascertained through due diligence. 42 Pa.C.S.A. § 9545(b)(1)(ii). In
Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), the petitioner’s
appeal from his first PCRA petition was dismissed after counsel failed to file a
brief. Id. at 1266. Construing, § 9545(b)(1)(ii), the Court wrote that it
“simply requires petitioner to allege and prove that there were ‘facts’ that
were ‘unknown’ to him and that he exercised ‘due diligence.’” Id. at 1270.
The petitioner in Bennett alleged he was unaware of counsel’s failure to file
a brief until he received a letter from the Superior Court informing him of
the dismissal of his appeal. Id. at 1272. The PCRA court granted the
petitioner’s request for a nunc pro tunc appeal from the dismissal of the first
PCRA petition, but this Court reversed, concluding the PCRA court lacked
jurisdiction to order relief. Id. at 1267. The Supreme Court reversed,
reasoning that “subsection (b)(1)(ii) is 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.” Id. at 1273.
Instantly, counsel’s stewardship is not at issue, as counsel withdrew
pursuant to the Turner/Finley procedure. Nonetheless, the substance of
Appellant’s assertion here is precisely the same as it was in Bennett.
Appellant asserts he did not receive the review to which he was entitled
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through no fault of his own. As noted above, the PCRA court concedes that
point, as it failed to provide Appellant, whose counsel had withdrawn, of
timely notice of the dismissal of his PCRA petition. Pursuant to Bennett, the
instant facts are sufficient to trigger § 9545(b)(1)(ii).2
We next consider § 9545(b)(2) of the PCRA, which requires a
petitioner asserting a timeliness exception to raise the claim within sixty
days of the first date on which the claim could have been raised. Appellant
received the PCRA court’s tardy notice of its dismissal of Appellant’s first
petition on October 28, 2013. Appellant filed the instant petition three days
later, on October 31, 2013. Thus, Appellant has complied with
§ 9545(b)(2).
Based on the foregoing, we vacate the PCRA court’s order and remand
for further proceedings.
Order vacated. Case remanded. Jurisdiction relinquished.
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2
In analogous cases on direct appeal, our courts will accept jurisdiction of
an otherwise untimely appeal where the untimeliness results from a
breakdown in the court’s operation. See Commonwealth v. Coolbaugh,
770 A.2d 788, 791 (Pa. Super. 2001).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2014
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