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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MICHAEL SMITH,
Appellant No. 1812 EDA 2017
Appeal from the PCRA Order Entered May 19, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-0701861-2006
CP-51-CR-0701881-2006
BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 26, 2018
Appellant, Michael Smith, appeals pro se from the order dismissing, as
untimely, his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. Appellant claims his petition meets a timeliness
exception for newly-discovered evidence, based on his ostensibly recent
discovery that his prior attorney had failed to file an appeal on his behalf from
the denial of his first PCRA petition. After careful review, we affirm.
On October 24, 2005, Appellant fatally shot Andre Burley following a
disagreement about how to divide the proceeds of their drug sales. Appellant
subsequently confessed to his crime to a Philadelphia detective.
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* Former Justice specially assigned to the Superior Court.
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Subsequently, a jury convicted Appellant of first-degree murder and carrying
a firearm without a license and, on August 14, 2007, the trial court sentenced
Appellant to life imprisonment without the possibility of parole for murder, and
an additional term of 3½-7 years’ incarceration for the firearm offense.
Appellant filed a timely notice of appeal on September 13, 2007. His
appellate counsel failed to file a court-ordered Pa.R.A.P. 1925(b) statement
on Appellant’s behalf and, instead, filed with this Court a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981). Subsequently, this Court remanded
for counsel to either file a Rule 1925(b) or Rule 1925(c)(4) statement. See
Commonwealth v. Smith, No. 2352 EDA 2007, unpublished memorandum
at 6-7 (Pa. Super. filed October 31, 2008). Counsel complied and filed a Rule
1925(b) statement on Appellant’s behalf. Nevertheless, on November 30,
2009, this Court affirmed Appellant’s judgment of sentence. See
Commonwealth v. Smith, No. 2352 EDA 2007, unpublished memorandum
at 3 (Pa. Super. filed November 30, 2009). Appellant did not seek further
review from that decision.
On December 28, 2009, Appellant filed a timely, pro se PCRA petition at
CP-51-CR-0701861-2006, and another timely, pro se PCRA petition at CP-51-
CR-0701881-2006 on April 9, 2010. The PCRA court appointed counsel to
represent Appellant on November 23, 2010. PCRA counsel then filed amended
PCRA petitions at each docket. In both petitions, Appellant claimed that direct
appeal counsel was ineffective for failing to file with our Supreme Court a
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petition for allowance of appeal from this Court’s November 30, 2009
memorandum decision affirming his judgment of sentence. The PCRA court
issued an order dismissing the petitions on April 20, 2012. Appellant did not
appeal that decision.
On January 17, 2017, Appellant filed a pro se PCRA petition, which is
the subject of the instant appeal. On April 10, 2017, the PCRA court issued a
notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss the petition without
a hearing. Appellant filed a timely response thereto on April 21, 2017. The
PCRA court then issued an order dismissing the petition on May 19, 2017.
Appellant filed a timely notice of appeal on May 30, 2017. The PCRA court
subsequently issued its Pa.R.A.P. 1925(a) opinion on July 31, 2017.1
Appellant now presents the following questions for our review:
1. In Commonwealth v. Bennett, 930 A.2d 1264 [(Pa. 2007)],
the Pennsylvania Supreme Court clarified the provisions a
petitoner must prove to succeed under [Section] 9545 (b)(1)(ii).
i. The [PCRA] court reviewed Appellant's PCRA petition
under the customary newly-discovered evidence standard
which ordinar[i]ly applied the misnomer standard. Should
the Court reverse the [PCRA] court's application of this
highly d[e]ferential standard in light of Bennett? And more
recently, Commonwealth v. Burton, 158 A.3d 618 (Pa.
2017)?
2. Whether the [PCRA] court abused its discretion in dismissing
Appellant's PCRA petition as being untimely filed without granting
an evidentiary hearing pursuant to Commonwealth v. Pagan,
950 A.2d 270 [(Pa. 2008)]?
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1 The PCRA court did not order Appellant to file a Rule 1925(b) statement.
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i. In Pagan, the Pennsylvania Supreme Court stated the
basis for individuals who satisfy the requirements of
[Section] 9545 (b)(1)(ii).
3. Whether the PCRA court erred and/or abused its discretion in
dismissing Appellant's PCRA petition as untimely, because (1)
Counsel's abandonment satisfied the "newly-discovered evidence"
exception to the PCRA's statute of limitations, and (2) Appellant
filed his PCRA petition within sixty (60) days of discovering that
his petition was dismissed and counsel failed to file a timely appeal
without notifying Appellant?
Appellant’s Brief at v.
This Court’s standard of review, regarding an order denying a petition
filed under the PCRA, is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin
by addressing the timeliness of Appellant's petition, because the PCRA time
limitations implicate our jurisdiction and may not be altered or disregarded in
order to address the merits of a petition. Bennett, 930 A.2d at 1267. Under
the PCRA, any petition for post-conviction relief, including a second or
subsequent one, must be filed within one year of the date the judgment of
sentence becomes final, unless one of the following exceptions set forth in 42
Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(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:
(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
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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)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant claims that the patent untimeliness of his PCRA petition is
excused by the newly-discovered evidence exception, Section 9545(b)(1)(ii).
Specifically, he claims that it was previously unknown to him, until December
of 2016, that his PCRA counsel (for his 2009 and 2010 PCRA petitions) had
failed to file an appeal on his behalf from the April 20, 2012 order dismissing
the consolidated, amended petition. In December of 2016, Appellant received
a copy of his case’s docket sheet through his prison counselor, which indicated
that no appeal had been filed following the PCRA court’s April 20, 2012 order.
Appellant avers that until that time, he believed that his PCRA counsel had
filed an appeal on his behalf, and that the matter was still pending.
The PCRA court rejected application of Section 9545(b)(1)(ii), finding
that Appellant failed to demonstrate that he acted with due diligence in
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uncovering the newly-discovered fact of PCRA counsel’s alleged abandonment.
Specifically, the court found that Appellant failed to aver in his petition
what action(s) he took to determine the status of the appeal …
prior to the request for his docket sheets from his counselor
almost five years after the [c]ourt dismissed his petitions.
Appellant’s bald assertion that he could not have discovered this
information through the exercise of due diligence is unavailing.
Due diligence demands that Appellant take reasonable steps to
protect his own interests and he must explain why he could not
have learned the new fact(s) earlier with the exercise of due
diligence.
PCRA Court Opinion (PCO), 7/31/17, at 4.
In his brief, Appellant claims that he did take numerous steps from 2012
through 2016 to try to determine the status of the 2009/2010 petitions. See
Appellant’s Brief at 5. He provides some documentation to corroborate those
actions, including two affidavits from family members indicating that PCRA
counsel had essentially ignored their repeated attempts at communication
over that time period,2 and several letters sent by Appellant to PCRA counsel
during those years.3
The Commonwealth argues that Appellant’s invocation of Section
9545(b)(1)(ii) fails on several fronts. First, the Commonwealth believes that
Appellant is essentially asserting a claim of PCRA counsel’s infectiveness which
it claims, categorically, can never satisfy the requirements of Section
9545(b)(1)(ii). Second, the Commonwealth contends that the affidavits and
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2 See Appellant’s Brief, Exhibit B.
3 See Appellant’s Brief, Exhibit C.
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letters offered to demonstrate Appellant’s due diligence in his brief are not
part of the record in this case, as such evidence was not presented in
Appellant’s petition. Third, the Commonwealth asserts that even if those
documents were part of the record, they nevertheless undermine Appellant’s
claim that he was unaware until December of 2016 that PCRA counsel had
failed to file the desired appeal on his behalf. We reject the Commonwealth’s
first argument, but agree with respect to the second and third.
First, while “[i]t is well settled that allegations of ineffective assistance
of counsel [(‘IAC’)] will not overcome the jurisdictional timeliness
requirements of the PCRA[,]” the Commonwealth overstates the breadth of
this legal standard. Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa.
2005). However, the Wharton rule4 does not extend to claims alleging the
complete abandonment of counsel. As our Supreme Court subsequently
explained in Bennett:
In Gamboa–Taylor and subsequent cases, we addressed
situations when PCRA counsel had allegedly ineffectively narrowed
the class of claims raised by not including all of the viable claims
in the first petition. In such instances, we concluded that by
allowing the claim to go forward “the timeliness requirements
crafted by the legislature would thus effectively be eviscerated by
any petitioner who was willing to file serial PCRA petitions alleging
ineffective assistance of counsel.” [Commonwealth v.]
Howard, 788 A.2d [351,] 355 [(Pa. 2002)] (citing Gamboa–
Taylor supra). Thus, we firmly rejected any such attempts “to
circumvent the one-year time limitation” via claims of PCRA
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4We identify this rule as such given the Commonwealth’s citation of Wharton.
However, the rule itself was earlier articulated by our Supreme Court in
Commonwealth v. Gamboa-Taylor, 753 A.2d 780 (Pa. 2000), and
Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000).
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counsel ineffectiveness. Id. This interpretation is consistent with
the federal constitutional standard guiding claims of appellate
counsel's ineffectiveness, which allow counsel to choose among
nonfrivolous claims and select the best issues for purposes of
appeal.
Those cases, however, have no relevance when the claim
emanates from the complete denial of counsel. Rather, in such
instances, the United States Supreme Court mandates the
presumption of prejudice because the process itself has been
rendered “presumptively unreliable” under the Sixth Amendment.
See Roe v. Flores–Ortega, 528 U.S. 470, 481–82, 120 S.Ct.
1029, 145 L.Ed.2d 985 (2000) (quoting United States v. Cronic,
466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). The Court
has extended the presumptively prejudicial reasoning to the
failure to appoint counsel for purposes of direct appeal. Penson
v. Ohio, 488 U.S. 75, 88, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
Likewise, the Court has declared that counsel's failure to file a
requested notice of appeal was presumptively prejudicial.
Flores–Ortega, 528 U.S. at 483, 120 S.Ct. 1029.
Consistent with this jurisprudence, this Court has
recognized a distinction between situations in which counsel has
narrowed the ambit of appellate review by the claims he has raised
or foregone versus those instances, as here, in which counsel has
failed to file an appeal at all.
Bennett, 930 A.2d at 1272-73. Thus, Bennett instructs that IAC claims
involving per se or presumed prejudice can potentially satisfy Section
9545(b)(1)(ii). As such, Appellant’s claim that counsel failed to appeal from
the denial of his 2009/2010 PCRA petitions is not categorically barred under
the Wharton rule.
Nevertheless, the mere allegation that counsel failed to file an appeal
does not fully satisfy Section 9545(b)(1)(ii). As noted in Bennett, prejudice
is only presumed for IAC purposes when counsel “fail[s] to file a requested
notice of appeal….” Bennett, 930 A.2d at 1273 (emphasis added). Here, the
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PCRA court dismissed Appellant’s petition, in part, because he did not “claim
that he requested that PCRA counsel file an appeal….” PCO at 4. However,
Appellant claims that he was unware that his 2009/2010 PCRA petitions were
denied until December of 2016 and, thus, he asserts or, at least, implies, that
he would have requested an appeal had he been aware of the status of his
case. Whether Appellant would have requested an appeal had he become
aware of the denial of his 2009/2010 PCRA petitions in a timely manner is a
factual question that could only be determined at an evidentiary hearing.
Accordingly, Appellant’s failure to specifically allege that he requested that
appeal was not fatal to his invocation of Section 9545(b)(1)(ii).
In the circumstances of this case, however, Section 9545(b)(1)(ii) also
requires Appellant to demonstrate that he could not have discovered the
status of his 2009/2010 PCRA petitions prior to December 2016 through the
exercise of due diligence. “[D]ue diligence requires neither perfect vigilance
nor punctilious care, but rather it requires reasonable efforts by a petitioner,
based on the particular circumstances, to uncover facts that may support a
claim for collateral relief.” Commonwealth v. Burton, 121 A.3d 1063, 1071
(Pa. Super. 2015), aff'd, 158 A.3d 618 (Pa. 2017). Proof of due diligence in
particular circumstances may ultimately require an evidentiary hearing.
Initially, however, Appellant must first allege facts in his PCRA petition which,
if deemed credible at a later hearing, could satisfy the due diligence
standard. See 42 Pa.C.S. § 9545(b)(1) (requiring an untimely PCRA petitioner
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to “allege[]” in the petition, and subsequently “prove[,]” that one of the
enumerated exceptions to the PCRA’s time-bar applies).
The PCRA court indicates that, in his petition, Appellant only made a
“bald assertion that he could not have discovered this information through the
exercise of due diligence” in the nearly five years between the denial of his
2009/2010 petitions, and his discovery of that denial in December of 2016.
PCO at 4. We agree.
In his petition, Appellant only alleged that he first learned of the
dismissal of his 2009/2010 petitions in December of 2016, when he received
a copy of his case’s docket from a counselor. Appellant made no allegations
in the petition regarding why he was unable to present a similar request to his
counselor in 2013, 2014, or 2015, or why he failed to make any other efforts,
whatsoever, to learn the status of his case, from April of 2012 (when the
petitions were denied) until December of 2016 (when he discovered the
denial). While the judicial system often moves at a snail’s pace, Appellant’s
inaction for nearly five years is not justifiable on that basis alone.
Contrary to Appellant’s arguments, our Supreme Court’s decision in
Burton does not explain this delay. In Burton, our Supreme Court held that
the presumption that information which is of public record cannot be deemed
“unknown,” for purposes of Section 9545(b)(1)(ii), does not apply to
incarcerated, pro se petitioners. Burton, 158 A.3d at 638. Absent that
presumption, it still remains the PCRA petitioner’s burden to demonstrate due
diligence in unveiling the newly-discovered fact at issue. Thus, while we will
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not assume that Appellant had easy access to the public record containing the
evidence that his 2009/2010 petitions were denied in 2012, Appellant must
still both allege and prove that he made reasonable efforts to discover that
fact prior to December of 2016. To warrant an evidentiary hearing on the
question of due diligence, Appellant must at least allege facts that, if believed
by the factfinder, might demonstrate that he acted with due diligence in
discovering the status of his case from 2012 until 2016. He alleged no such
facts in his petition.
In his brief, Appellant attaches affidavits from family members which
purport to show their efforts to communicate with Appellant’s PCRA counsel
regarding the status of his case during the time period in question. See
Appellant’s Brief, Exhibit B. Appellant also provides letters he purportedly
wrote to counsel from 2012 to 2016, wherein he inquires as to the status of
his case. See Appellant’s Brief, Exhibit C. The Commonwealth correctly notes
that these documents were not presented to the PCRA court in Appellant’s
petition, nor in his response to the court’s Rule 907 notice. As such, they are
not part of the certified record before this Court. Most importantly, they were
not before the PCRA court when it issued its order dismissing Appellant’s
petition and, therefore, cannot retroactively undermine the judgment of that
court. Indeed, the letters set forth in Exhibit B are both dated after the order
denying Appellant’s PCRA petition and, thus, could not possibly have been
before the lower court when it issued its decision.
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Moreover, even if Appellant’s letters were authentic, and even if he had
presented them in a timely fashion in his PCRA petition, the Commonwealth
perceptively notes that they fundamentally undermine Appellant’s attempt to
demonstrate that he acted with due diligence in this matter. In the letter
dated May 5, 2012, Appellant writes, verbatim, “I’ve been notified by the
District Attorney my P.C.R.A. Petition has been Denied.” Appellant’s Brief,
Exhibit C.5 If Appellant knew his petition was denied on May 5, 2012, he
cannot plausibly claim that fact was newly-discovered in December of 2016.
Based on the forgoing, we conclude that the PCRA court correctly
dismissed Appellant’s PCRA petition as untimely, and without a hearing, as
that decision was supported by the record and free of legal error.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/18
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5 Appellant also appears to request an appeal in the subsequent letter, dated
June 18, 2012, further demonstrating his knowledge that his 2009/2010
petitions had been denied. Id.
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