J-S29038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
TOMMIE JONATHAN ELDER :
:
Appellant :
: No. 1673 WDA 2015
Appeal from the PCRA Order October 6, 2015
in the Court of Common Pleas of Jefferson County Criminal Division
at No(s): CP-33-CR-0000236-2013
BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 20, 2016
Appellant, Tommie Jonathan Elder, appeals from the order of the
Jefferson County Court of Common Pleas dismissing his first Post Conviction
Relief Act (“PCRA”) petition as untimely. Appellant claims that the PCRA
court erred in rejecting his claim his petition was timely after he discovered
prior counsel abandoned him. We remand this matter for a determination of
responsibility for the failure to transmit a complete record in this appeal.
On November 6, 2013, Appellant entered a negotiated guilty plea to
involuntary deviate sexual intercourse with a child.1 That same day, the trial
court sentenced him to ten to thirty years’ imprisonment, as agreed to by
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3123(b).
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the parties.2 Appellant was represented by Richard H. Milgrub, Esq. at the
plea and sentencing proceedings.
The PCRA summarized the events that followed Appellant’s sentencing.
[On November 22, 2013, Appellant] sent a letter to
[Attorney] Milgrub that read, “I am writing to inform you
that I want you to withdraw my guilty plea. I am not
guilty of the charges that are brought against me and I
feel that I was pressured to accept my sentence.”
In response to [Appellant’s] claim, [Attorney] Milgrub
immediately sent letters to the Court and Public Defender’s
Office [on November 26, 2013,] explaining the situation
and his intended course of action. [On November 27,
2013, Attorney Milgrub] also filed a nunc pro tunc motion
seeking leave for [Appellant] to withdraw his guilty plea
and a motion to withdraw as counsel and have [John M.
Ingros of] the Public Defender’s Office appointed to the
case. [That same day, Attorney Milgrub] sent a letter to
[Appellant] explaining what he was doing and advising him
to seek alternate representation. He further informed
[Appellant] that he had only 30 days from the date of
sentencing to file an appeal and concluded, “If I don’t hear
from you, I will file an appeal to protect your appellant
[sic] rights and withdraw as your counsel shortly
thereafter.” [Appellant] did not respond.
As the record reflects, [Attorney] Milgrub did not even
allow time for [Appellant] to receive the letter before filing
his motion to withdraw as counsel, and nor did he file a
notice of appeal with the Clerk of Courts’ Office. Appointed
to represent [Appellant] just two days before his appeal
2
See 18 Pa.C.S. § 3123(d)(1) (authorizing maximum sentence of forty
years for a violation of Section 3123(b)). We note that the United States
Supreme Court decided Alleyne v. United States, 133 S. Ct. 2151 (2013),
on June 17, 2013, almost five months before Appellant entered his plea and
was sentenced. The PCRA court suggested that Attorney Milgrub
“presumably knew that 42 Pa.C.S.A. § 9718 dictated [the ten-year minimum
sentence] but was unaware of the future implications [of Alleyne] . . . .”
PCRA Ct. Op., 10/6/15, at 2.
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period was set to expire, Attorney Ingros did not file one,
either, as Milgrub had led him to believe it had already
been done. Accordingly, [Attorney] Ingros only instructed
his secretary to expect further direction from Superior
Court.
After receiving a letter from [Appellant] in July of 2014,
[Attorney] Ingros discovered that [Attorney] Milgrub had
not filed a notice of appeal. Based on what [Appellant]
told him in that initial missive, however, [Attorney] Ingros
advised him that the Post Conviction Relief Act was the
more appropriate mechanism for seeking review. He also
asked the defendant to more clearly articulate the issues
he would raise if he went that route, and in letters dated
October 13 and October 14, 2014, [Appellant] did precisely
that. [Attorney] Ingros did not receive either one, though.
He then forgot about the case until receiving [Appellant’s]
letter asking about the status of his PCRA petition.
[Attorney] Ingros answered him on January 23, 2015,
explaining that he had not received his earlier
correspondence and asking him to reiterate his claims. He
also noted that he would be requesting an extension of
time to file a PCRA petition. [Appellant, on February 20,
2015,] replied with a hand-written letter outlining his
complaints anew. He knew as he drafted it that Ingros
was awaiting his reply before filing.
PCRA Ct. Op. at 2-3 (record citations omitted).
On June 29, 2015, the PCRA court received Appellant’s first pro se
PCRA petition. Appellant alleged, inter alia, Attorney Ingros was ineffective
and abandoned him when he sought to file a facially timely PCRA petition.
Additionally, Appellant asserted Attorney Milgrub was ineffective for failing to
seek withdrawal of his plea or filing a direct appeal. The PCRA court
appointed George N. Daghir, Esq., on July 7, 2015. On September 24,
2015, the court convened a hearing at which Appellant and Attorneys
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Milgrub and Ingros testified. Additionally, the correspondence between
Appellant and Attorneys Milgrub and Ingros were presented exhibits.
On October 6, 2015, the PCRA court dismissed Appellant’s petition as
untimely. The PCRA court concluded that “[Attorney] Ingros’s abandonment
does not allow [Appellant] to take advantage of the § 9545(b)(1)(ii)
exception, because it was not that abandonment that caused him to lose the
opportunity to file a PCRA petition; it was his own lack of due diligence.”
See PCRA Ct. Op. at 5. The court found that by October 2014, Appellant
was informed that the one-year time-bar for filing a PCRA petition would
expire in early December 2014. Id. The court determined that Appellant
had “approximately 8 weeks to file. Although he had not heard back from
[Attorney] Ingros, however, he failed to inquire about the status of his case
until it was already 7 days too late to file a timely petition. This was an
unreasonable course of action.” Id. The court thus suggested that Attorney
Ingros’s “actions evolved into abandonment” on December 6, 2014, when he
failed to file a facially timely PCRA petition, and Appellant “forfeited his PCRA
rights.” See id.
The PCRA court also proceeded to consider whether Appellant acted
within sixty days of the abandonment. Id. (discussing 42 Pa.C.S. §
9545(b)(2)). The court suggested that even if Appellant only discovered the
abandonment after December 6, 2014, the fact that he filed his pro se PCRA
petition in June 2015, violated the requirement that he file within sixty days
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of the date he discovered or should have discovered the abandonment. Id.
The court found Appellant’s assertion that he could not have filed earlier due
to a two-month prison lockdown was not credible or was too vague to
establish due diligence. Id. Thus, the court found Appellant failed to
establish jurisdiction under the PCRA.
Appellant timely filed a notice of appeal and complied with the court’s
order to submit a Pa.R.A.P. 1925(b) statement. The court permitted
Appellant to proceed in forma pauperis.
Appellant presents the following question for review:
Did the [PCRA] court err in its [October 6, 2015] opinion
and order, which dismissed [Appellant’s] PCRA claim that
abandonment of him by prior counsel entitled him to file a
[PCRA] petition beyond one year from the date his
judgment became final pursuant to 42 Pa.C.S.A. Sec.
9545(b)(1)(ii)?
Appellant’s Brief at 4.
The principles governing our review are well settled.
[O]ur scope of review is limited by the parameters of the
[PCRA]. Our standard of review permits us to consider
only whether the PCRA court’s determination is supported
by the evidence of record and whether it is free from legal
error.
Commonwealth v. Blackwell, 936 A.2d 497, 499 (Pa. Super. 2007)
(citations omitted).
The timeliness of a PCRA petition is a threshold question that
implicates the jurisdiction of a court to consider the merits of the relief
requested. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014).
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To be timely, a PCRA petition must be filed within one year
of the date that the petitioner’s judgment of sentence
became final, unless the petition alleges and the petitioner
proves one or more of the following statutory exceptions:
(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. § 9545(b)(1).
We emphasize that it is the petitioner who bears the
burden to allege and prove that one of the timeliness
exceptions applies. In addition, a petition invoking any of
the timeliness exceptions must be filed within 60 days of
the date the claim first could have been presented. 42
Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy the 60–
day requirement of Section 9545(b) if he or she fails to
explain why, with the exercise of due diligence, the claim
could not have been filed earlier.
Commonwealth v. Marshall, 947 A.2d 714, 719-20 (Pa. 2008) (some
citations omitted). “[A]n 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. § 9545]
are met.” Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014)
(footnote omitted).
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The general rule is that ineffective assistance of counsel will not give
rise to a PCRA time-bar exception. See Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 785 (Pa. 2000); see also 42 Pa.C.S. § 9545(b)(4)
(indicating that the interference by government officials exception to the
PCRA time bar does not include “defense counsel, whether appointed or
retained”). However, the Pennsylvania Supreme Court has recognized 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”—that is, when the claim of
ineffectiveness “emanates from the complete denial of counsel.”
Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa. 2007). Thus, the
general rule set forth in Gamboa-Taylor “does not apply to situations when
counsel abandons his client for purposes of appeal.” Id.
Instantly, Appellant’s judgment of sentence became final on December
6, 2013, when the time for taking a direct appeal expired. See 42 Pa.C.S. §
9545(b)(1), (3); Pa.R.A.P. 903(a). The one-year period for filing a facially
timely PCRA petition ended Monday, December 8, 2014. See 42 Pa.C.S. §
9545(b)(1); see also 1 Pa.C.S. § 1908. Thus, Appellant’s petition filed in
late June 2015, nearly seven months later, was untimely on its face.
The principal argument on appeal is whether Appellant should have
known that he was abandoned as of December 8, 2014. The PCRA court
concludes Appellant failed to exercise due diligence because he was aware of
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the one-year deadline for filing a timely PCRA petition and failed to contact
Attorney Ingros before the December 8, 2014 deadline. Appellant responds
that there was no support for the court’s determination that he was aware
that the deadline was jurisdictional in nature. Appellant further seeks to
support his claim that he timely filed his petition because he continued to
rely on Attorney Ingros’s representation that counsel could obtain an
extension of time for him and would file a PCRA petition on his behalf.
Preliminarily, we note that Appellant has demonstrated not only PCRA
counsel’s passive neglect, i.e. the failure to file a timely PCRA petition, but
also possible misrepresentations, i.e. counsel’s representations that he could
obtain an extension of time.3 Under these circumstances, we agree with
Appellant that careful consideration of Attorney Ingros’s representations
after the PCRA’s one-year filing requirement is critical to determining
whether he acted diligently in discovering PCRA counsel’s abandonment.
See Bennett, 930 A.2d at 1275.
However, Appellant’s brief mentions that “PCRA counsel, despite
request for transcripts made at time of filing the Notice of Appeal was not in
possession of the 9-24-2015 evidentiary hearing transcripts at the time of
filing the within brief.” Appellant’s Brief at 14. This Court made an informal
3
Neither the PCRA court nor Appellant addressed whether Attorney Ingros
should have held himself out as possible PCRA counsel for Appellant in the
first instance. We note that because Attorney Ingros was apparently acting
as direct appeal counsel, he would have had to claim his own inattentiveness
in an initial PCRA petition seeking reinstatement of Appellant’s direct appeal.
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inquiry regarding the status of the transcript. We received indication that
the transcript of the PCRA hearing was not prepared because the
stenographer had not received payment.
It is well settled that an appellant bears the burden of ensuring that
this Court has a complete record for review, even if he is indigent. See
Commonwealth v. Lesko, 15 A.3d 345, 410 (Pa. 2011); Commonwealth
v. Bongiorno, 905 A.2d 998, 1000 (Pa. Super. 2006) (en banc). The
Lesko Court recognized, however, that “if a party is indigent, and is entitled
to taxpayer-provided transcripts or portions of the record, he will not be
assessed costs.” Lesko, 15 A.3d at 410.
Although PCRA counsel complied with the threshold requirement that
he request the record, he inexplicably took no further action after receiving
notice that no transcript of the PCRA hearing was included in the record. He
apparently prepared his brief based on his recollection of the PCRA hearing.
See Appellant’s Brief at 10. Nevertheless, we note that Appellant was
granted in forma pauperis status, but that the preparation of the transcript
may have been delayed due to a payment issue. In light of this controversy,
we remand this matter for a supplemental determination by the PCRA court
regarding responsibility for the failure to include the transcripts in the
record. If the court determines that PCRA counsel was not at fault for the
inclusion of the transcripts and the exhibits admitted at the PCRA hearing,
the court shall transmit those materials as a supplemental record. If the
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court finds PCRA counsel was at fault, it shall enter its findings and
conclusions and transmit them to this Court. The court shall comply with
these instructions within thirty days of this memorandum.
Case remanded. Jurisdiction retained.
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