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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JERRY EUGENE SHRUBB
Appellant No. 637 WDA 2015
Appeal from the PCRA Order March 18, 2015
in the Court of Common Pleas of Elk County Criminal Division
at No(s): CP-24-CR-0000330-2005
BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED JUNE 17, 2016
Appellant, Jerry Eugene Shrubb, appeals from the order entered in the
Elk County Court of Common Pleas dismissing his second Post Conviction
Relief Act1 (“PCRA”) petition, filed pro se. Appellant contends the PCRA
court erred when it determined (1) it was without authority to reinstate
Appellant’s right to file a petition for allowance of appeal and (2) Appellant
did not meet the exception for untimely petitions pursuant to 42 Pa.C.S.
§ 9545(b)(1)(ii) and (2). We affirm.
On May 31, 2007, a jury convicted Appellant of five counts of receiving
stolen property2 and three counts each of arson3 and burglary.4 The trial
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. § 3925(a).
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court sentenced Appellant on August 17, 2007, and this Court affirmed on
June 13, 2010. Commonwealth v. Shrubb, 327 WDA 2008 (Pa. Super.
June 10, 2010) (unpublished memorandum). The Pennsylvania Supreme
Court denied Appellant’s petition for allowance of appeal on March 16, 2011.
Commonwealth v. Shrubb, 20 A.3d 487 (Pa. 2011). Appellant did not
seek further review in the United States Supreme Court.
On June 22, 2011, Appellant filed a timely, counseled PCRA petition.5
The PCRA court, following a hearing, denied the petition on June 22, 2012.
Order, 6/22/12. Appellant timely appealed, and this Court affirmed on April
10, 2013. Commonwealth v. Shrubb, 1147 WDA 2012 (Pa. Super. Apr.
10, 2013) (unpublished memorandum). Appellant did not file a petition for
allowance of appeal in the Pennsylvania Supreme Court. On April 24, 2014,6
Appellant filed with this Court a pro se “motion for
reconsideration/reargument/reinstatement.”7 Appellant requested to amend
3
18 Pa.C.S. § 3301(a)(ii).
4
18 Pa.C.S. § 3502(a).
5
We note the counseled petition is titled “Amended Motion for Post
Conviction Collateral Relief.” Am. PCRA Pet., 6/22/11, at 1. The record
does not contain an initial petition.
6
Appellant’s motion was docketed on April 30, 2014. See Commonwealth
v. Jones, 700 A.2d 423, 426 (Pa. 1997) (discussing prisoner mailbox rule).
7
On October 30, 2015, Appellant filed an “Application for Judicial Notice”
with this Court. Appellant seeks to have this Court take judicial notice of
“the contents” of his appellate brief and motion to reconsider that was
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the issues raised in his PCRA petition to include a claim of PCRA counsel
abandonment and contended, “his matter should be held under the Equitable
Tolling standard.” Mot. for Recons., 4/24/14, at 3-4. This Court denied
Appellant’s motion on May 12, 2014. Per Curiam Order, 5/12/14.
On September 10, 2014,8 Appellant filed, pro se, his second PCRA
petition, which gives rise to this counseled appeal. Therein, he cited
numerous claims of prosecutorial misconduct, challenged the sufficiency of
the evidence supporting his convictions,9 and asserted ineffective assistance
of his trial counsel and first PCRA counsel. See Pro Se PCRA Pet., 9/10/14,
at 1-10.10 Appellant averred government interference prevented him from
timely filing his PCRA petition because
[t]he Department of Corrections did censor and
failed to forward ‘privileged correspondence’ between
[Appellant’s] attorney of record and [Appellant] of
submitted in his appeal from the denial of his first PCRA petition. Application
for Judicial Notice, 10/30/15, at 2 (unnumbered). We construe Appellant’s
request as a motion to supplement the record, and grant the motion.
8
Appellant’s PCRA petition was received and docketed on October 1, 2014.
Appellant included in the record a cash slip time-stamped by the Department
of Corrections indicating he deposited his petition for mailing with prison
authorities on September 10, 2014. Thus, we deem his petition filed on that
date. See Jones, 700 A.2d at 426.
9
We note Appellant raised a sufficiency of evidence argument in his direct
appeal, and this Court concluded he was not entitled to relief on that claim.
See Shrubb, 327 WDA 2008, at 13-21.
10
Appellant inserted in his petition, between pages four and five, a separate,
nine-page document explaining the facts supporting his petition. We will cite
to this material as “Pro Se PCRA Pet. at Ex. 1.”
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the Final Order / Superior Court Decision [affirming
the dismissal of Appellant’s first PCRA petition] . . .
which is absent service in the legal mail logbook,
before [Appellant’s] counsel, Blair H. Hindman, Esq.,
abandoned his case.
Id. at 3.
Appellant indicated, “the following facts were previously unknown to”
him: “[t]he fact that Corpus Delecti has not been established in this instant
matter.” Id.
Regarding PCRA counsel’s stewardship, Appellant alleged:
On P.C.R.A., [Appellant] was ill-advised to drop
two of his long-standing issues, and subsequently
the P.C.R.A. was denied. A P.C.R.A. appeal was then
submitted and was later abandoned by his attorney
of record, Blair H. Hindman. On or about, May 12,
2014, a copy of the Superior Court Decision . . . Final
Order was first afforded to [Appellant].
Id. at Ex. 1, 6-7.
On January 15, 2015, the PCRA court filed its notice of intent to
dismiss Appellant’s petition pursuant to Pa.Crim.P. 907. With respect to
Appellant’s claim that the Department of Corrections interfered with his
receipt of notice of the Superior Court’s April 10, 2013 decision, the PCRA
court concluded “[petitioner] has not demonstrated that he complied with
the requirement of filing his second PCRA petition within 60 days of his
purported receipt of the April 10, 2013 Superior Court denial of the appeal of
his first PCRA petition on or about May 12, 2014 . . . .” Rule 907 Notice,
1/15/15, at 4. The PCRA court found Appellant failed to plead and prove
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that his untimely petition was the result of previously unknown facts, i.e.,
“that Corpus Delecti has not been established in the instant case.” Id. The
court reasoned, “[t]he [petitioner] has asserted no timeline whatsoever in
terms of when evidence purportedly became available or what that evidence
may be.” Id.
On February 2, 2015, Appellant filed a response to the Rule 907
notice. He contended that he first received notice of the Superior Court’s
decision on April 16, 2014. Appellant’s Resp. to Rule 907 Notice, 2/2/15, at
1. Contra Pro Se PCRA Pet. at Ex. 1, 6-7 (stating Appellant first received
notice of the decision on May 12, 2014). He further argued he “was
prejudiced by being denied service of a timely order which prevented any
furtherance of review to the Supreme Court of Pennsylvania . . . .”
Appellant’s Resp. to Rule 907 Notice at 1; see also id. at 2.
On March 18, 2015, the PCRA court issued an opinion and
accompanying order dismissing Appellant’s petition. On April 16, 2015,
Appellant filed a counseled notice of appeal. Appellant filed a court-ordered
Pa.R.A.P. 1925(b) statement, and the PCRA court filed a Rule 1925(a)
response.
On appeal, Appellant raises the following issues:
1. Whether the [PCRA c]ourt erred in concluding
that, even if it found that [Appellant’s] pro se PCRA
Petition was timely, it did not have the power to
reinstate [Appellant’s] right to file a Petition for
Allowance of Appeal in the Supreme Court?
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2. Whether the [PCRA c]ourt erred in dismissing
[Appellant’s] PCRA Petition, without a hearing, on
the basis that it was untimely under 42 Pa.C.S.
§ 9545(b)(1), when the facts underlying
[Appellant’s] ineffectiveness claim against his First
PCRA Counsel were previously unknown and could
not have been ascertained by the exercise of due
diligence?
3. Whether the [PCRA c]ourt erred in dismissing
[Appellant’s] PCRA Petition, without a hearing, on
the basis that it was untimely under 42 Pa.C.S.
§ 9545(b)(2), when the Petition was indeed timely
under that subsection because, within sixty days of
belatedly receiving the Superior Court’s Order
affirming the denial of his First PCRA Petition,
[Appellant] filed a pro se pleading in the Superior
Court asserting an ineffectiveness claim against
PCRA Counsel?
Appellant’s Brief at 5.
First, Appellant argues he received ineffective assistance of counsel
from his first PCRA counsel,11 and the PCRA court erroneously concluded
that it was without authority to reinstate Appellant’s right to file a petition of
allowance of appeal from this Court’s April 10, 2013 decision. See id. at 28-
32. Next, Appellant claims the PCRA court erred in dismissing his petition
because he met the timeliness exception under 42 Pa.C.S. § 9545(b)(1)(ii).
Id. at 33. Specifically, Appellant avers he did not receive a copy of this
Court’s April 10, 2013 decision “until April 2014. Thus, [Appellant] did[ not]
learn until around that time that PCRA Counsel’s abandonment would
prevent him from continuing his appeal.” Id. at 35-36 (footnote omitted
11
See 42 Pa.C.S. § 9543(a)(2)(ii).
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and emphasis added). Finally, Appellant argues his petition was timely
under 42 Pa.C.S. § 9545(b)(2) because he filed “a pro se document in the
Superior Court” “on or about April 30, 2014,” within sixty days of his
discovery of this Court’s April 10, 2013 decision. For the reasons that follow,
we disagree.
Our review is limited to whether the findings of the PCRA court are
supported by the record and free of legal error. Commonwealth v. Miller,
102 A.3d 988, 992 (Pa. Super. 2014). Our standard of review of the PCRA
court’s legal conclusions is de novo. Id.
However,
[b]efore we may address the merits of Appellant’s
arguments, we must first consider the timeliness of
Appellant’s PCRA petition because it implicates the
jurisdiction of this Court and the PCRA court.
Pennsylvania law makes clear that when a PCRA
petition is untimely, neither this Court nor the trial
court has jurisdiction over the petition. . . .
However, 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 the petition set forth at 42 Pa.C.S.A
§ 9545(b)(1)(i), (ii), and (iii) are met. The PCRA
provides, in relevant part, as follows.
§ 9545. Jurisdiction and proceedings
* * *
(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
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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 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 chapter
and has been held by that court to apply
retroactively.
(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.A § 9545(b).
Id. at 992-93 (quotation marks and some citations omitted).
The jurisdictional filing mandates of the PCRA “are strictly
construed.” Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super.
2013) (citation omitted and emphasis added). Moreover, “the period for
filing a PCRA petition is not subject to the doctrine of equitable tolling, save
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to the extent the doctrine is embraced by § 9545(b)(1)(i)-(iii).”
Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999).
In the case sub judice, Appellant’s judgment of sentence became final
on June 14, 2011, ninety days after the Pennsylvania Supreme Court denied
his petition for allowance of appeal. See Sup.Ct.R. 13; 42 Pa.C.S.
§ 9545(b)(3). Appellant filed the instant pro se petition on September 10,
2014. Thus, it is facially untimely. Appellant claimed in his petition that he
met the government interference exception at 42 Pa.C.S. § 9545(b)(1)(i)
because the Department of Corrections prevented him from receiving
correspondence from his appellate counsel which informed him of the
Superior Court’s April 10, 2013 decision. Pro Se PCRA Pet. at 3. Liberally
construing his petition,12 he alternatively posits he did not learn of the April
10, 2013 decision because he was abandoned by appellate counsel.13 See
id. at Ex. 1, 6-7. He therefore argues in the instant appeal that he fulfilled
the newly-discovered facts exception at 42 Pa.C.S. § 9545(b)(1)(ii) because
he did not discover counsel’s “abandonment” until April 2014. See
Appellant’s Brief at 33-37.
12
See In re Ullman, 995 A.2d 1207, 1211 (Pa. Super. 2010).
13
We note Appellant included in his opposition to the PCRA court’s Rule 907
notice a letter from his appellate counsel’s law office which read, in part, “a
copy of the Superior Court Order dated April 10, 2013 was mailed to you on
May 14, 2013[.]” Appellant’s Resp. to Rule 907 Notice at Ex. F.
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Appellant acknowledges he learned of this Court’s April 10, 2013
decision on April 16, 2014. Appellant’s Resp. to Rule 907 Notice at 1;
Appellant’s Brief at 35-36. Accordingly, in order to satisfy any exception to
the jurisdictional time-bar, Appellant needed to file his petition on or before
June 16, 2014. See 42 Pa.C.S. § 9545(b)(2); see Fahy, 737 A.2d at 222.
Consequently, Appellant did not meet the strict jurisdictional filing mandates
of the PCRA because he filed the instant petition on September 10, 2014, in
excess of sixty days from when the claim could have been presented.14 See
Taylor, 65 A.3d at 468. Based on the foregoing, we conclude the PCRA
court properly dismissed Appellant’s petition as untimely. See Miller, 102
A.3d at 992.
Order affirmed. Motion to supplement the record granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/2016
14
Moreover, Appellant’s motion for reconsideration, which was filed after the
Superior Court’s decision affirmed the denial of his first PCRA petition,
sought to amend his first PCRA petition. Mot. for Recons. at 3-4. It was
not, as Appellant now suggest on appeal, a second PCRA petition. Further,
Appellant did not argue in the instant petition that his motion for
reconsideration met the time-bar exception at 42 Pa.C.S. § 9545(b)(1)(ii)
and (2). See Commonwealth v. Roney, 79 A.3d 595, 611 (Pa. 2013)
(noting PCRA petitioner waived his claim for failure to raise it before the
PCRA court).
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