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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JEFFREY DONALD PETERSON :
:
Appellant : No. 141 WDA 2016
Appeal from the PCRA Order March 4, 2014
in the Court of Common Pleas of Crawford County,
Criminal Division, No(s): CP-20-MD-0000925-1992
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JEFFREY DONALD PETERSON : No. 181 WDA 2016
Appeal from the PCRA Order January 6, 2016
in the Court of Common Pleas of Crawford County,
Criminal Division, No(s): CP-20-MD-0000925-1992
BEFORE: BENDER, P.J.E., OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 29, 2016
Jeffrey Donald Peterson (“Peterson”) appeals, nunc pro tunc, from the
March 4, 2014 Order denying his first Petition for relief pursuant to the Post
Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. The
Commonwealth of Pennsylvania has filed a cross-appeal from the January 6,
2016 Order, granting Peterson leave to appeal, nunc pro tunc, the denial of
his first PCRA Petition based on ineffectiveness of counsel. We reverse the
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January 6, 2016 Order and dismiss Peterson’s appeal of the March 4, 2014
Order as moot.
This Court previously set forth the relevant underlying facts as follows:
[Peterson] was charged on October 16, 1992, with two counts of
criminal homicide-first-degree murder and one count of burglary
in connection with the September 28, 1992 shooting of two
victims. [Peterson] was found at the scene with a self-inflicted
gunshot wound to the head. The Commonwealth subsequently
provided [N]otice it would seek the death penalty. On
September 16, 1993, [Peterson] entered a plea of guilty to two
counts of first-degree murder in exchange for the
Commonwealth entering a nolle prosse on the burglary charge
and withdrawing its intention to seek the death penalty. On
November 3, 1993, the trial court sentenced [Peterson] to two
consecutive terms of life imprisonment. [Peterson] did not file
any post-sentence motion or a direct appeal.
On January 17, 1997, [Peterson] filed a counseled PCRA
[P]etition. … On July 16, 1997[, the PCRA court] entered a
Memorandum and Order which was docketed of record on July
17, 1997. The Order stated that the Court Administrator was
directed to schedule an evidentiary hearing[,] and the record
indicates that a copy was provided to the Court Administrator.
For some unknown reason[,] that evidentiary hearing was never
scheduled and that failure was not brought to the attention of
the [PCRA court] by [Peterson’s] counsel or anyone else until
[Peterson] sent a letter to the Clerk of Courts[,] dated
September 24, 2012[,] and docketed on October 2, 2012. …
In his PCRA [P]etition and at the PCRA hearing, [Peterson],
citing his head injury, challenged his competency in 1993 to
enter a voluntary, intelligent, and knowing guilty plea and
challenged the effectiveness of his plea counsel for permitting
the plea to be entered when he was incompetent. On March 4,
2014, the PCRA court issued a [M]emorandum and [O]rder
denying relief on [Peterson’s] PCRA [P]etition, based on its
merits.
Commonwealth v. Peterson, 118 A.3d 459 (Pa. Super. 2015)
(unpublished memorandum at 1-3) (citations and paragraph break omitted).
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This Court affirmed the PCRA court’s March 4, 2014 Order, albeit on
different grounds. This Court concluded that Peterson’s first PCRA Petition
was untimely filed by one day, and that Peterson failed to invoke any of
three timeliness exceptions at 42 Pa.C.S.A. § 9545(b)(1). See Peterson,
118 A.3d 459 (unpublished memorandum at 7-8).
On March 31, 2015, Peterson filed a second PCRA Petition, invoking
the newly-discovered fact timeliness exception at section 9545(b)(1)(ii)
based on his first PCRA counsel’s ineffectiveness for failing to file a timely
PCRA Petition. After holding a hearing on Peterson’s Petition, the PCRA court
entered an Order granting Peterson leave to appeal the March 4, 2014
Order, nunc pro tunc. Thereafter, Peterson filed an appeal, nunc pro tunc,
from the March 4, 2014 Order. The Commonwealth filed a timely cross-
appeal from the January 6, 2016 Order.1
On appeal, Peterson raises the following questions for our review:
1. Did the lower court err by finding that … Peterson’s [] plea
was knowingly, intelligently and voluntarily entered into
where the lower court misle[d] Peterson during the plea
colloquy by advising him that, although he was pleading to a
life sentence, he had a right to go before the Board of
Pardons and have the life sentence modified to include a
lesser, minimum sentence and an eligibility for parole?
2. Where Peterson suffered the violent destruction and removal
of a substantial portion of the frontal lobes of his brain and
other bullet[-] impact brain damage, did the lower court err
by failing to credit the uncontroverted evidence and testimony
from the only medical expert presented in the case[,]
neuropsychiatrist Lawson Bernstein, M.D., that [Peterson]
1
On March 21, 2016, this Court consolidated the appeals, sua sponte.
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suffered a brain injury and damage that rendered him
incompetent to make reasoned decisions, participate in his
defense, and enter a knowing, voluntary and intelligent plea
of guilty to two counts of first[-]degree murder?
Brief for Appellant at 5.
On cross-appeal, the Commonwealth raises the following question for
our review: “On the Commonwealth’s cross[-]appeal, should the lower court
have dismissed [Peterson’s] second PCRA [P]etition as being filed untimely
instead of granting [Peterson] the right to appeal the denial of his first PCRA
[P]etition nunc pro tunc?” Brief for the Commonwealth at 7.
“[O]ur standard of review calls for us to determine whether the ruling
of the PCRA court is supported by the record and free of legal error. The
PCRA court’s findings will not be disturbed unless there is no support for the
findings in the certified record.” Commonwealth v. Lewis, 63 A.3d 1274,
1278 (Pa. Super. 2013) (citation omitted). Further, “this Court applies a de
novo standard of review to the PCRA court’s legal conclusions.”
Commonwealth v. Medina, 92 A.3d 1210, 1215 (Pa. Super. 2014)
(citation omitted).
We will first address the Commonwealth’s claim on cross-appeal. The
Commonwealth contends that the PCRA court should have dismissed
Peterson’s second PCRA Petition as being untimely filed. Brief for the
Commonwealth at 8. The Commonwealth argues that the PCRA court erred
in finding that Peterson’s first PCRA counsel was ineffective for filing an
untimely Petition, and that counsel’s ineffectiveness was a newly-discovered
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fact under the timeliness exception at 42 Pa.C.S.A. § 9545(b)(1)(ii). Id. at
8-9. The Commonwealth asserts that while an ineffectiveness claim where
counsel abandons the petitioner may constitute a newly-discovered fact,
Peterson’s first PCRA counsel never abandoned him and represented
Peterson throughout the proceedings. Id. at 8. The Commonwealth thus
claims that first PCRA counsel’s ineffectiveness did not invoke a timeliness
exception and that the PCRA court should have dismissed Peterson’s second
PCRA Petition. Id. at 9-10.
Initially, under the PCRA, any PCRA petition, “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). The PCRA’s
timeliness requirements are jurisdictional in nature and a court may not
address the merits of the issues raised if the PCRA petition was not timely
filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of three exceptions set forth
under 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2); Albrecht, 994 A.2d at
1094.
Generally, claims of ineffective assistance of counsel do not satisfy the
exception to the PCRA time-bar. See Commonwealth v. Gamboa-Taylor,
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753 A.2d 780, 785 (Pa. 2000) (stating that “a claim for ineffective assistance
of counsel does not save an otherwise untimely petition for review on the
merits.”); see also Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999). However, the Supreme Court of Pennsylvania has determined that a
PCRA petitioner’s discovery that PCRA counsel has abandoned him during his
appeal from the order denying his timely first PCRA petition permitted him
to circumvent the PCRA time bar under § 9545(b)(1)(ii). Commonwealth
v. Bennett, 930 A.2d 1264, 1273 (Pa. 2007); see also id. (stating that
section 9545(b)(1)(ii) is a limited extension of the one-year time
requirement under circumstances where a petitioner has not had the review
to which he was entitled due to a circumstance that was beyond his control).
The Supreme Court distinguished appellant’s claim of counsel’s
abandonment from those claims of ineffectiveness that “narrowed the ambit
of appellate review,” and could not fall within the purview of section
9545(b)(1)(ii). Id. (citation omitted)
In granting Peterson’s second PCRA Petition, the PCRA court stated the
following:
As the Superior Court noted in [Commonwealth] v.
Blackwell, 936 A.2d 497, 500 (Pa. Super. 2007):
The Supreme Court of Pennsylvania has recently noted that
it has “allowed PCRA petitioners some leeway in the
preservation of claims in their petitions when [the Court]
determined that the circumstances demanded it.”
[Bennett, 930 A.2d at 1268] (citing and quoting
[Commonwealth] v. McGill, 574 Pa. 574, 832 A.2d 1014
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(2003), and [Commonwealth] v. Hernandez, 572 Pa.
477, 817 A.2d 479 (2003)[)].
When[,] clearly[, Peterson’s] prior counsel missed the filing
deadline by one day and therefore[,] counsel was ineffective and
[Peterson] could not have known that the deadline was missed
by the exercise of due diligence until the January 30, 2015
Superior Court Memorandum [O]pinion, we believe it would be
grossly unfair to conclude that [Peterson] should not be
permitted to have the issues that were raised before th[e PCRA
court] as a result of the first PCRA petition heard on the merits
on appeal by the Superior Court.
PCRA Court Opinion, 1/6/16, at 2.
Here, unlike in Bennett, Peterson’s first PCRA counsel did not
abandon Peterson on appeal. Indeed, Peterson’s first PCRA counsel filed a
detailed, albeit untimely, PCRA Petition and an appellate brief on behalf of
Peterson following the denial of PCRA relief on his first PCRA petition.
Therefore, contrary to the PCRA court’s finding, Peterson’s claim regarding
first PCRA counsel’s defective representation did not constitute
“abandonment” and fails to satisfy the “unknown facts” exception to the
PCRA’s timeliness requirements.2 See Gamboa-Taylor, 753 A.2d at 785
(stating that “review of previous counsel’s representation and a conclusion
that previous counsel was ineffective is not a newly discovered ‘fact’ entitling
[a]ppellant to the benefit of the exception for [newly]-discovered
evidence.”); Commonwealth v. Pursell, 749 A.2d 911, 916 (Pa. 2000)
(noting that “the allegation of ineffectiveness of counsel for failure to put
2
We note the Supreme Court of Pennsylvania has not addressed this specific
issue. Nevertheless, Peterson’s first PCRA counsel’s action did not constitute
abandonment under Bennett.
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forward available claims does not excuse compliance with the timeliness
requirements of the PCRA.”).3 While the PCRA timeliness requirements
sometimes require harsh outcomes, the PCRA confers no authority “to
fashion ad hoc equitable exceptions to the PCRA time-bar.”
Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011). Thus, the PCRA
court erred in finding that Peterson properly invoked the newly-discovered
evidence exception and granting Peterson the right to file a nunc pro tunc
appeal of his first PCRA Petition. See Bennett, 930 A.2d at 1267 (stating
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded to address the merits of the petition).4
3
It is well-settled that courts may permit a party to file a nunc pro tunc
appeal where there was fraud or a breakdown in the court’s operations has
occurred, or where non-negligent actions by the appellant, his counsel, or a
third party caused a delay in the filing of an appeal. See Commonwealth
v. Stock, 679 A.2d 760, 763-64 (Pa. 1996); see also Commonwealth v.
Capaldi, 112 A.3d 1242, 1245 (Pa. Super. 2015). Here, Peterson does not
argue, nor did his first PCRA counsel testify to any extraordinary
circumstances that might excuse the late filing.
4
While the PCRA court cites to Hernandez and Blackwell in granting
Peterson’s Petition, we note neither of those cases invoke the exception set
forth at section 9545(b)(1)(ii). See Hernandez, 817 A.2d at 483-84
(allowing petitioner to file a petition for leave to file direct appeal nunc pro
tunc instead of a petition under the PCRA where petitioner adhered to the
law at the time and pointing out that regardless of the title of the petition,
appellant filed his request within one year of his judgment of sentence
becoming final); Blackwell, 936 A.2d at 502 (stating that “the PCRA court’s
erroneous notification to [a]ppellant that PCRA counsel had withdrawn
amounted to governmental interference” that excused his untimely filing of
third PCRA petition alleging ineffective assistance by PCRA counsel).
Regardless, the holdings in these cases do not entitle Peterson to relief.
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Based upon the foregoing, we reverse the PCRA court’s January 6,
2016 Order granting Peterson’s second PCRA Petition, and remand for
further proceedings in accordance with this Memorandum. Further, based
upon this conclusion, we cannot address the merits of Peterson’s first PCRA
Petition.
January 6, 2016 Order reversed. Nunc pro tunc appeal from March 4,
2014 Order dismissed as moot. Case remanded for further proceedings.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2016
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