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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
RAYMOND CHARLES WHITE, :
:
Appellant : No. 655 WDA 2014
Appeal from the PCRA Order February 24, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division No(s).: CP-02-CR-0013548-2000
BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 12, 2015
Appellant, Raymond Charles White, appeals pro se from order of the
Allegheny County Court of Common Pleas dismissing his second Post
Conviction Relief Act1 (PCRA) petition as untimely filed. This Panel
previously remanded the matter twice to determine the status of appointed
counsel. Commonwealth v. White, 655 WDA 2014 (unpublished
memorandum) (Pa. Super. Mar. 5, 2015); Commonwealth v. White, 655
WDA 2014 (unpublished memorandum) (Pa. Super. Jan. 7, 2015). The
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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PCRA court conducted a Grazier2 hearing at which Appellant elected to
proceed pro se based on the briefs he previously submitted to this Court.3
This matter is now properly before us, and we affirm.
We previously outlined the extended procedural history giving rise to
this appeal from the dismissal of Appellant’s second PCRA petition from the
August 2004 conviction for third-degree murder and conspiracy. White,
655 WDA 2014, at 2-6 (Pa. Super. Jan. 7, 2015). We reiterate that
following his conviction, Appellant unsuccessfully appealed to this Court, see
Commonwealth v. White, 2072 WDA 2002 (unpublished memorandum)
(Pa. Super. Aug. 24, 2004), but did not file a petition for allowance of
appeal. Appellant then filed an untimely first PCRA, the dismissal of which
was affirmed by the Court. See Commonwealth v. White, 1881 WDA
2007 (unpublished memorandum) (Pa. Super. June 2, 2008). Appellant’s
petition for allowance of appeal was denied. The instant petition was
received by the PCRA court on October 27, 2008, and dismissed by the order
of February 24, 2014.4
2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
3
See N.T., 3/18/15, at 10.
4
As discussed in White, 655 WDA 2014 , at 2-6 (Pa. Super. Jan. 7, 2015),
the PCRA court initially dismissed Appellant’s second and third PCRA
petitions. This Court, in a previous appeal from the dismissal of Appellant’s
third PCRA petition, remanded for the reinstatement of Appellant’s second
PCRA petition. See Commonwealth v. White, 910 WDA 2012
(unpublished memorandum) (Pa. Super. Jan. 28, 2013).
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Appellant, in his pro se brief, contends his second PCRA petition fell
within the time-bar exception at 42 Pa.C.S. § 9545(b)(1)(ii) and he is
entitled to an evidentiary hearing on his claim of abandonment by direct
appeal counsel. He asserts he was abandoned when his then-privately
retained direct appeal counsel refused to file a requested PAA with the
Pennsylvania Supreme Court. He does not dispute that the underlying
judgment of sentence became final on September 23, 2004. He avers,
however, he only knew a PAA in his direct appeal was not filed as of
December 11, 2005, when he received a court docket. He further outlines
the following chronology. First, he filed his first PCRA petition in January
2006, within sixty days of his alleged discovery of direct appeal counsel’s
abandonment. Second, the Pennsylvania Supreme Court decided
Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), on August 23,
2007, after the PCRA court dismissed his first petition as untimely and while
his appeal from that order was pending. Third, he filed the instant second
petition in October 2008, within sixty days of the conclusion of his appeal
from the dismissal of his first PCRA petition. See generally
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding second
PCRA petition may be considered timely filed if it is filed within sixty days of
order which finally resolves previous PCRA petition). Appellant asserts his
second PCRA petition must be deemed timely under the principles set forth
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in Bennett and this Court’s decision in Commonwealth v. Smith, 35 A.3d
766 (Pa. Super. 2011). We disagree.
When reviewing an order dismissing a PCRA petition, we consider
“whether the determination of the PCRA court is supported by evidence of
record and is free of legal error.” Commonwealth v. Brandon, 51 A.3d
231, 233 (Pa. Super. 2012). We reiterate,
Our Supreme Court has stressed that “[t]he PCRA’s
timeliness requirements are jurisdictional in nature
and must be strictly construed; courts may not
address the merits of the issues raised in a petition if
it is not timely filed.” It is well settled that “[a]ny
and all PCRA petitions must be filed within one year
of the date on which the petitioner’s judgment
became final, unless one of three statutory
exceptions applies.” “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.[ ] § 9545(b)(3).
The exceptions to the PCRA’s timing requirements are set
forth in 42 Pa.C.S.[ ] § 9545, as follows:
(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:
* * *
(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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* * *
(2) Any petition invoking an exception provided
in paragraph (1) shall be filed within 60 days of
the date the claim could have been presented.
42 Pa.C.S.[ ] § 9545(b)(1) and (2).
* * *
. . . The plain language of section 9545(b)(1)(ii) and
section 9545(b)(2) creates a three-part test: 1) the
discovery of an unknown fact; 2) the fact could not have
been learned by the exercise of due diligence; and 3) the
petition for relief was filed within 60 days of the date that
the claim could have been presented. . . . In our view, the
third inquiry must involve a bifurcated analysis. If the
claim does not involve a new theory or method of
obtaining relief on collateral review, a petition must be
filed within sixty days of discovering the fact exercising
due diligence. If the claim does involve a new theory or
method of obtaining relief on collateral review, a petition
must have been filed within sixty days of discovering the
factual predicate for the claim exercising due diligence. In
addition, the denial of such claim on the basis of
untimeliness must then have been appealed to our
Supreme Court, and the petition seeking relief under
section 9545(b)(1)(ii) must have been filed within sixty
days of the new theory or method of obtaining relief being
recognized.
Smith, 35 A.3d at 768-69, 711 (some citations omitted).
In Commonwealth v. Huddleston, 55 A.3d 1217 (Pa. Super. 2013),
this Court summarized the decisional law discussed in Smith:
In Bennett, supra, our Supreme Court found that
attorney abandonment may constitute a factual basis for
the section 9545(b)(1)(ii) timeliness exception. In that
case, the appeal from the dismissal of Bennett’s first,
timely, PCRA petition was dismissed by this Court because
counsel failed to file a brief. Bennett filed a second PCRA
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petition alleging that he had attempted to find out the
status of his PCRA appeal, did not learn that it was
dismissed due to counsel’s failure to file a brief until he
received a letter from this Court explaining what had
transpired, and filed a new PCRA petition within 60 days of
so learning. The PCRA court granted Bennett leave to
appeal the dismissal of his first PCRA petition nunc pro
tunc, but this Court quashed the appeal as untimely. Our
Supreme Court reversed this Court, holding that Bennett
sufficiently alleged that he had been abandoned by counsel
on his first PCRA petition and acted with due diligence in
ascertaining the fact of the abandonment to satisfy the
timeliness exception of the PCRA found at section
9545(b)(1)(ii).
In Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980
(2011), Watts’s direct appeal was dismissed in 2002
because counsel failed to file a docketing statement.
Within 60 days of learning of the dismissal in August 2003,
Watts filed a PCRA petition seeking reinstatement of his
direct appeal rights nunc pro tunc. The PCRA court
dismissed the petition as untimely, and this Court affirmed
in August 2005, noting that Watts did not exercise due
diligence in determining the status of his appeal. Watts
did not seek review of our decision by our Supreme Court.
In 2007, Watts filed a second PCRA petition, again alleging
attorney abandonment, but claiming that his petition met
the timeliness exception of section 9545(b)(1)(ii) because
it was filed within 60 days of the Bennett decision. The
PCRA court dismissed the petition as untimely, this Court
reversed, and our Supreme Court reversed us, holding that
the PCRA court properly dismissed Watts’ second PCRA
petition. The Court held that the Bennett decision was
not a fact upon which Watts could rely in meeting the
timeliness exception of section 9545(b)(1)(ii). Id. at 986.
The factual predicate of Watts’ claim was his counsel's
abandonment, which Watts discovered in 2003, within the
one-year PCRA deadline. As such, the abandonment could
not serve to satisfy section 9545(b)(1)(ii) for a petition
filed in 2007. Id.
This Court sought to explain the interplay of the
Bennett and Watts decisions and the language of section
9545(b) in Commonwealth v. Smith, 35 A.3d 766 (Pa.
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Super. 2011). In that case, Smith’s first, timely, PCRA
petition was dismissed in 2001 after counsel did not file a
brief on appeal. Less than two weeks after the appeal was
dismissed, Smith filed a second PCRA petition seeking
reinstatement of his direct appeal rights nunc pro tunc,
which the PCRA court granted. This Court quashed the
nunc pro tunc appeal in 2005, determining that Smith’s
second PCRA petition was untimely, and the Pennsylvania
Supreme Court denied allowance of appeal. In 2007,
within 60 days of the filing of the Bennett decision, Smith
filed a third PCRA petition, claiming that the petition was
timely because Bennett afforded him a new method for
obtaining collateral review. The PCRA court dismissed the
petition as untimely. This Court reversed, holding that
because Smith, unlike Watts, had attempted to “become
Bennett” by seeking allowance of appeal from our
Supreme Court, yet had his diligent efforts to avail himself
of the opportunities of the PCRA thwarted by counsel’s
initial abandonment, he was now entitled to have the
merits of his PCRA petition addressed by a court. Although
the factual predicate of Smith’s claims for purposes of
section 9545(b)(1)(ii) was the dismissal of his first PCRA
petition in 2001 due to counsel’s abandonment, the
subsequent change in law that occurred in 2007 with the
Bennett decision afforded Smith his first opportunity to
present his claim pursuant to section 9545(b)(2).
Therefore, this Court held that Smith’s third PCRA petition
satisfied the section 9545(b)(1)(ii) timeliness exception
because it was filed within 60 days of the Bennett
decision, i.e., within 60 days of the date that the claim
could have been presented.
Huddleston, 55 A.3d at 1220-21 (citations omitted).
Presently, as to Appellant’s contention that he discovered direct appeal
counsel’s abandonment on December 11, 2005, this Court previously
suggested such a claim would be disingenuous in the appeal from the
dismissal of Appellant’s first PCRA petition:
The key substantive claim raised in [Appellant]’s [first]
pro se petition is that prior appellate counsel was
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ineffective for effectively “abandoning” him and failing to
file a PAA with the Supreme Court after our Court affirmed
his judgment of sentence. However, [Appellant]
acknowledges that he was notified by letter dated
September 2, 2004 of [privately retained] counsel’s
intent not to file a PAA due to lack of funds. (See
Appellant’s Brief at 10.) Thus, [Appellant] was clearly
aware of this ineffectiveness claim as early as September
2004, but he did not file his [first] petition until January
2006. Regardless of whether he had access to his still
unidentified “legal materials,” [Appellant] could have filed
a PCRA petition asserting counsel’s ineffectiveness well
before September 2005 when the one-year filing period
was set to expire.
White, 1881 WDA 2007, at 4 (emphasis added).
Thus, we could consider this issue previously litigated. In any event,
we discern no basis to reconsider our prior conclusion that Appellant’s
present claim was not timely presented in his first PCRA petition, let alone
conclude that the underlying second PCRA petition was timely filed based
on Appellant’s claim of abandonment.5
As to Appellant’s legal argument based on Bennett and Smith, we
initially note that those cases considered the abandonment of counsel with
respect to PCRA appeals. Nevertheless, Bennett was decided seven days
after the PCRA court dismissed Appellant’s first PCRA petition. Bennett
5
Furthermore, even if we were to reconsider Appellant’s factual allegations
regarding when he discovered direct appeal counsel’s abandonment, we
would conclude that he was on notice that direct appeal counsel refused
further representation on May 13, 2005. On that date, privately retained
counsel sent a letter informing Appellant informing that the attempts to
secure funding for the filing of a PAA failed. Thus, Appellant’s reliance on
December 11, 2005 as the date of discovery is meritless as he was on notice
of counsel’s inaction no later than May 13, 2005.
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thus constituted the law under which this Court decided Appellant’s appeal
from the dismissal of his first petition and the Pennsylvania Supreme Court
denied Appellant’s PAA from our order. Cf. Commonwealth v.
Montgomery, 938 a2d 981 (Pa. 2007) (remanding, per curiam, decision of
this Court for further consideration in light of Bennett); Commonwealth v.
Lasky, 934 A.2d 120, 123 (Pa. Super. 2007) (applying Bennett in appeal
taken before Bennett was decided by Pennsylvania Supreme Court, but
appeal remained pending when Bennett was decided). Therefore,
Appellant, unlike Smith, had the benefit of Bennett being the law during his
appeal from the dismissal of his first PCRA petition. In light of the
foregoing, we discern no merit to Appellant’s argument that Bennett and
Smith control the alleged timeliness of his second petition. Rather, this
case is closer to Watts, as Appellant seeks to rely on Bennett as a
predicate “fact” giving rise to his claim for a time-bar exception under
Section 9545(b)(1)(ii).
Having reviewed Appellant’s pro se arguments, the record, and the
legal principles relevant to this appeal, we conclude Appellant did not
establish his right to relief under Section 9545(b)(1)(ii). Accordingly, as we
discern no abuse of discretion or error of law in the PCRA court’s dismissal of
Appellant’s second PCRA petition on timeliness grounds, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2015
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