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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOHN STONE
Appellant No. 1787 MDA 2015
Appeal from the PCRA Order September 11, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003745-2010
BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED SEPTEMBER 19, 2016
Appellant, John Stone, appeals from the order entered in the Luzerne
County Court of Common Pleas, which dismissed as untimely his first
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. On September 19, 2011, a jury convicted
Appellant of first-degree murder in connection with his fatal attack of his ex-
girlfriend. The court sentenced Appellant on November 1, 2011, to life
imprisonment. This Court affirmed the judgment of sentence on November
15, 2012. See Commonwealth v. Stone, 63 A.3d 829 (Pa.Super. 2012).
Appellant did not seek further direct review. On January 29, 2014, Appellant
filed a pro se PCRA petition. The court appointed counsel, who filed
supplemental PCRA petitions on October 29, 2014 and May 8, 2015. The
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*Retired Senior Judge assigned to the Superior Court.
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court held a PCRA hearing on July 14, 2015. On September 11, 2015, the
court denied relief. Appellant timely filed a notice of appeal on October 9,
2015. PCRA counsel subsequently filed a motion to withdraw, which the
court granted and appointed new counsel for the appeal. Appellant timely
complied with Pa.R.A.P. 1925(b).
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Robinson, 12 A.3d 477 (Pa.Super. 2011). A
PCRA petition must be filed within one year of the date the underlying
judgment becomes final; a judgment is deemed final at the conclusion of
direct review or at the expiration of time for seeking review. 42 Pa.C.S.A. §
9545(b)(1), (3). The statutory exceptions to the timeliness provisions allow
for very limited circumstances to excuse the late filing of a petition; a
petitioner asserting an exception must file a petition within 60 days of the
date the claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(1-
2). The exception at Section 9545(b)(1)(ii) requires the petitioner to show
he did not know the facts underlying his petition and could not have learned
them earlier by the exercise of due diligence. Commonwealth v. Bennett,
593 Pa. 382, 930 A.2d 1264 (2007). Due diligence requires the petitioner to
take reasonable steps to protect his own interests. Commonwealth v.
Carr, 768 A.2d 1164 (Pa.Super. 2001). A petitioner must explain why he
could not have learned the new fact(s) earlier with the exercise of due
diligence; this rule is strictly enforced. Commonwealth v. Monaco, 996
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A.2d 1076 (Pa.Super. 2010), appeal denied, 610 Pa. 607, 20 A.3d 1210
(2011). Instantly, Appellant’s judgment of sentence became final on
December 15, 2012, upon expiration of the time to seek review by our
Supreme Court. See Pa.R.A.P. 1113. Appellant filed the current petition on
January 29, 2014, which is patently untimely. See 42 Pa.C.S.A. §
9545(b)(1). Appellant attempts to invoke the “new facts” exception at
Section 9545(b)(1)(ii), claiming he did not discover until December 2013
that his direct appeal had been decided on November 15, 2012, after his
inquiry in November 2013 to the Prothonotary and the Public Defender;1 and
he filed his PCRA petition within 60 days of this discovery. Appellant insists
his petition is timely under Bennett, supra (allowing abandonment by
counsel on appeal to satisfy “new facts” exception under only very limited
circumstance where counsel completely abandoned petitioner on appeal,
abandonment was unknown to petitioner, and petitioner filed for relief within
60 days and could not have discovered abandonment sooner with exercise of
due diligence). Unlike the petitioner in Bennett, however, Appellant learned
of counsel’s alleged abandonment on December 2, 2013, thirteen days
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1
Appellant attached (1) a copy of his November 18, 2013 inquiry letter to
the Prothonotary; (2) the Prothonotary’s response on December 2, 2013; (3)
an inmate request form indicating Appellant heard nothing from counsel
between May 1, 2012 and November 22, 2013; and (4) a letter from the
Public Defender’s Office dated December 6, 2013. Contrary to Appellant’s
assertions, the Public Defender’s letter did not say that Appellant’s counsel
lost track of Appellant’s file and failed to notify him of this Court’s decision.
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before expiration of the 1-year time-bar. See Commonwealth v. Watts,
611 Pa. 80, 23 A.3d 980 (2011) (explaining petitioner’s claim is premised
upon dismissal of his direct appeal, which was brought to his attention more
than two weeks before 1-year time-bar expired; petitioner had ample time
to file timely PCRA petition, yet he inexplicably failed to do so; Bennett did
not authorize courts to grant PCRA relief in every instance of alleged
abandonment). Further, almost two years passed before Appellant even
inquired about the status of his direct appeal, and he failed to prove the
exercise of due diligence. See Monaco, supra. Thus, Appellant’s petition
remains untimely.2 Accordingly, we affirm and grant counsel’s petition to
withdraw.
Order affirmed. Petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2016
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2
PCRA appellate counsel has filed a motion to withdraw and “no-merit” brief
per Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
Counsel has substantially complied with the Turner/Finley requirements.
See Commonwealth v. Wrecks, 931 A.2d 717 (Pa.Super. 2007)
(discussing counsel’s obligations under Turner/Finley). Appellant has
responded pro se.
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