J-S11022-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM LEONHAUSER :
:
Appellant : No. 3968 EDA 2017
Appeal from the PCRA Order November 20, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1002581-2000
BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED APRIL 03, 2019
William Leonhauser (Appellant) appeals pro se from the order dismissing
as untimely his serial petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the relevant factual and procedural history
as follows:
On December 13, 2002, following a bench trial before the
Honorable Anthony J. DeFino, Appellant was found guilty of
[k]idnapping, [u]nlawful [r]estraint[,] and [f]alse [i]mprisonment.
On March 3, 2003, Judge DeFino sentenced Appellant to 25 to 50
years’ incarceration for [k]idnapping pursuant to 42 Pa.C.S. §
9714(a)(2) (“three strikes” law), with no further penalties
imposed on his remaining convictions.
Appellant timely filed a direct appeal to the Pennsylvania
Superior Court, which affirmed the judgment of sentence on
August 3, 2004. Appellant filed a petition for allowance of appeal,
which the Pennsylvania Supreme Court denied on December 9,
2004. Appellant did not seek further discretionary review in the
United States Supreme Court.
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On March 8, 2005, Appellant timely filed a PCRA petition.
PCRA Counsel, David Rudenstein, Esquire, was appointed, and on
January 11, 2006, he filed an amended petition. Judge DeFino
dismissed the petition on November 9, 2006. Appellant timely
appealed to the Superior Court, which affirmed the dismissal on
January 24, 2008.
On March 10, 2008, Appellant filed a federal petition for writ
of habeas corpus, which was dismissed on November 18, 2010.
While that petition was pending, on August 7, 2008, he filed a
second PCRA petition, which [the PCRA court] dismissed on May
20, 2010.
On June 1, 2012, Appellant filed a third PCRA petition -- the
petition at bar -- alleging that trial counsel, Jack McMahon,
Esquire, never informed him that the Commonwealth had made a
plea offer. On April 2, 2013, the [PCRA court] issued a Notice of
Intent to Dismiss pursuant to Pa.R.Crim.P. 907.
Appellant did not file objections or otherwise respond to the
Rule 907 Notice. The record reflects, however, that Appellant’s
third PCRA petition was never formally dismissed. As such,
Appellant’s third PCRA petition remains operative.
Nonetheless, on June 25, 2015, Appellant filed an ostensible
fourth PCRA petition, once again asserting trial counsel’s
ineffectiveness for failing to convey the Commonwealth’s plea
offer. Rather generously, the [PCRA court] appointed PCRA
counsel, Sandjai Weaver, Esquire, to represent Appellant.
Discontented with Mr. Weaver, however, Appellant filed a motion
for new counsel; the [PCRA court] granted the motion and
appointed Richard Blok, Esquire, to represent him.
On May 6, 2017, Mr. Blok filed a motion to withdraw as
counsel; the [PCRA court] granted the motion and appointed
Lauren Baraldi, Esquire, as counsel. On June 27, 2017, Ms.
Baraldi filed her own motion to withdraw, which the Court
granted; Demetra Mehta, Esquire, thereafter was appointed to
represent Appellant.
On September 18, 2017, counsel filed a Turner/Finley
letter and a motion to withdraw. On September 20, 2017, upon
independent review of the record, the [PCRA court] issued a
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Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907.
Appellant filed a motion for extension of time to respond to said
Notice on September 29, 2017, followed by a pro se “Rebuttal to
PCRA Counsel[’s] No Merit Letter” on October 20, 2017.
On November 20, 2017, counsel for the parties appeared
before the Court to address Appellant’s rebuttal:
[PCRA court]: . . . So [Appellant], he did file a
rebuttal.
[Attorney Mehta]: Correct.
[PCRA court]: And have you had a chance to
look at that?
[Attorney Mehta]: I have but [] he does not
address, to my satisfaction, how one would get around
the time bar issue. I don’t see how he can ever be
successful with this argument.
[PCRA court]: Right. So it is, as far as your
[Finley letter, it] addressed this issue and [there] is
not [a new] issue to be addressed?
[Attorney Mehta]: I feel that I have. If Your
Honor wants me to amend it, I can.
[PCRA court]: No. I believe that was really the
main issue with the [Finley letter] and it’s still the
same issue. So I will -- having taken note of
[Appellant’s] pro se rebuttal to the 907 [Notice], that
rebuttal does not state a claim upon which relief could
be granted, so this PCRA is dismissed.
(N.T. 11/20/17, pp. 2-3).
PCRA Opinion, 9/11/18, at 1-4 (footnotes omitted).
At the conclusion of the November 20, 2017 hearing, the PCRA court
issued an order dismissing Appellant’s petition, and granted Attorney Mehta’s
request to withdraw as counsel of record. On December 6, 2017, Appellant
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filed the instant appeal. Both Appellant and the PCRA court have complied
with Pennsylvania Rule of Appellate Procedure 1925.
Appellant raises the following issues:
1. DOES PETITIONER’S CLAIM THAT TRIAL COUNSEL FAILED TO
ADVISE HIM OF A PLEA OFFER SATISFY THE EXCEPTION
ALLOWED BY 42 Pa. C.S. § 9545(b)(1)(ii)?
2. THE COMMONWEALTH’S PLEA OFFER CONSTITUTES NEWLY
DISCOVERED FACTS PREVIOUSLY UNKNOWN TO [APPELLANT].
SEE 42 Pa. C.S. § 9545(b[)](1)(ii). THE PLEA OFFER IS AFTER
DISCOVERED EVIDENCE UNDER 42 Pa. C.S. § 9545(a)(2)(vi).
3. TRIAL COUNSEL DID NOT CONVEY TO APPELLANT THE
COMMONWEALTH’S PLEA OFFER, WHICH VIOLATED APPELLANT’S
UNITED STATES CONSTITUTIONAL RIGHTS UNDER THE SIXTH
AMENDMENT.
4. PCRA COUNSEL WAS INEFFECTIVE FOR FAILING [sic] A NO
MERIT LETTER, FAILING TO APPRISE HERSELF AND RESEARCH
APPLICABLE LAW, BY REFUSING TO REVIEW RECENT CLEARLY
APPLICABLE APPELLATE COURT RULINGS THAT EXEMPT PRO SE
[INCARCERATED] LITIGANTS FROM THE DUE DILIGENCE
REQUIREMENTS OF 42 Pa. C.S. §§ 9545(a)(2) and 9545(b)(i)(i-
iii).
5. THE PCRA COURT ABUSED ITS DISCRETION BY FAILING TO
CONSIDER AND REPLY TO [APPELLANT’S] REBUTTAL TO PCRA
COUNSEL’S NO MERIT LETTER. THE COURT WAS DERELICT BY
FAILING TO REVIEW AND APPLY RECENT APPELLATE COURT
RULINGS AND ABUSED ITS DISCRETION BY FAILING TO HOLD
THE REQUIRED EVIDENTIARY HEARING.
Appellant’s Brief at 1-2.
As the PCRA court acknowledges, Appellant’s third PCRA petition filed
June 1, 2012 is still outstanding. However, consistent with our holding in
Commonwealth v. Montgomery, 181 A.2d 359 (Pa. Super. 2018), we may
consider Appellant’s appeal from the dismissal of his subsequently-filed fourth
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petition, as “PCRA courts are not jurisdictionally barred from considering
multiple PCRA petitions relating to the same judgment of sentence at the same
time unless the PCRA court’s order regarding a previously filed petition is on
appeal, and therefore, not yet final.” Id. at 365 (footnote omitted). Thus,
the PCRA court had jurisdiction to dismiss Appellant’s petition, and Appellant’s
appeal is properly before us.
In reviewing the denial of a PCRA petition, our review is limited to
examining whether the PCRA court’s findings are supported by the record and
free of legal error. See Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa.
2011). We view the findings of the PCRA court and the evidence of record in
the light most favorable to the prevailing party. Id.
Section 9545 of the PCRA requires that “[a]ny petition under this
subchapter, 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).
The timeliness requirement of the PCRA is “mandatory and jurisdictional in
nature.” Commonwealth v. McKeever, 947 A.2d 782, 784-85 (Pa. Super.
2008) (citation omitted). Therefore, “no court may disregard, alter, or create
equitable exceptions to the timeliness requirement in order to reach the
substance of a petitioner’s arguments.” Id. at 785.
Although the timeliness requirement is mandatory and jurisdictional, “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 set forth
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at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met.” Commonwealth v.
Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). The three exceptions to
the timeliness requirement are:
(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.A. § 9545(b)(1)(i)-(iii).
Appellant concedes that his PCRA petition is untimely, but invokes the
newly-discovered facts exception of Section 9545(b)(1)(ii). Appellant’s Brief
at 7. Appellant argues that he had no knowledge of a written plea offer made
by the Commonwealth prior to his trial in October of 2002. Id. Appellant
alleges – consistent with his assertion in his June 1, 2012 PCRA petition
generally alleging that trial counsel never informed him of a plea offer – that
he obtained “newly discovered evidence” regarding the alleged plea offer on
May 15, 2015, when he obtained pages of his trial court docket which included
“concealed . . . on one page a hand written ‘notation’ dated November 17,
2000 of a plea offer being ‘rejected.’” Id. at 10.
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The newly-discovered fact exception:
has two components, which must be alleged and proved. Namely,
the petitioner must establish that: 1) the facts upon which the
claim was predicated were unknown and 2) could not have been
ascertained by the exercise of due diligence. If the petitioner
alleges and proves these two components, then the PCRA court
has jurisdiction over the claim under this subsection.
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (citations
omitted) (emphasis removed).
In addition to claiming that he meets the Section 9545(b)(1)(ii)
exception to the PCRA time-bar, Appellant also alleges that because he was
never informed of the alleged plea offer prior to going to trial, his “trial counsel
rendered ineffective assistance of counsel and [Appellant’s] Sixth Amendment
[r]ights were violated.” Appellant’s Brief at 16. With regard to a claim of
ineffectiveness of counsel, no exception to the time-bar exists and such a
claim must therefore be brought within the one-year time limit prescribed by
Section 9545(1). 42 Pa.C.S.A. § 9545(b)(4) (“For purposes of this
subchapter, ‘government officials’ shall not include defense counsel, whether
appointed or retained.”); see also Commonwealth v. Edmiston, 65 A.3d
339, 349 (Pa. 2013) (“[W]e note that we have previously rejected attempts
to circumvent the timeliness requirements of the PCRA by asserting prior
counsel’s ineffectiveness[.]”); Commonwealth v. Fowler, 930 A.2d 586,
591 (Pa. Super. 2007) (“Allegations of ineffective assistance of counsel will
not overcome the jurisdictional timeliness requirements of the PCRA.”).
In response to Appellant’s claims, the Commonwealth argues:
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[Appellant’s] petition is facially untimely. It makes no
difference whether the filing date is calculated using [Appellant’s]
latest petition, or the way the PCRA court did by using [the] one
he filed in 2012. Both were filed years after [Appellant’s]
conviction became final.
Nor does [Appellant] establish any statutory exception
excusing the untimeliness of his petitions. He has neither plead
nor proven facts that would show either was filed within 60 days
of an event which could excuse an untimely petition, or explaining
the delay.
The record demonstrates that [Appellant] could have
discovered the facts which purportedly support his claim over a
decade ago, either when proceeding pro se or after he had been
appointed counsel. [Appellant’s] argument relies on evidence
outside the record, and is contradicted by the existing record
multiple times. Accordingly, no relief is due.
Commonwealth’s Brief at 5.
Upon review, we agree that Appellant has failed to plead and prove a
Section 9545(b)(1) exception.1 It is undisputed that Appellant’s PCRA petition
is untimely. Although Appellant claims he met the after-discovered fact
exception to the time-bar, the record does not support that finding. Appellant
never explains why he was precluded – for more than a decade – from learning
____________________________________________
1 We note that until recently, a petition invoking an exception had to be filed
within 60 days of the date the claim could have been presented. However,
effective December 24, 2017, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), and now provides that a PCRA petition invoking a timeliness
exception must be filed within one year of the date the claim could have been
presented. See Act 2018, Oct. 24, P.L. 894, No. 146, §2 and §3 (“[T]he
amendment . . . shall apply to claims arising on Dec. 24, 2017 or thereafter.”).
The change in the law does not impact Appellant or our analysis in this case.
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about the “missing pages” and the November 17, 2000 “handwritten notation”
on the docket. The PCRA court explained:
Here, Appellant’s primary complaint – ineffective assistance
of counsel for failure to convey an alleged plea offer – fails. It is
well settled that counsel ineffectiveness claims generally do not
comprise an exception to the PCRA’s time bar provision.
... [Moreover,] Appellant repeatedly has failed to articulate,
let alone demonstrate, any temporal specifics surrounding the
“discovery” of the alleged plea offer whatsoever. Indeed, in his
June 1, 2012 PCRA petition, Appellant merely alleged that he “was
not aware of these facts until recently when it was found on
Documents by the Court.”
Similarly, in his June 25, 2015 PCRA petition, Appellant
provided no temporal specifics whatsoever; instead, he solely
asserted that he “was informed of said plea agreement by
reviewing court status records.”
Further, even in his October 20, 2017 “Rebuttal” to the Rule
907 Notice, Appellant failed to grace us with any temporal
information. In fact, the most he supplied was “thereafter”:
“Thereafter, while recreating his personal case file . . . he
discovered a typed notation [indicating a plea offer had been
rejected].”
Appellant’s failure to allege, much less demonstrate, the
temporal specifics surrounding his “discovery” – in a proceeding
where time is of the jurisdictional essence – is fatal.
PCRA Court Opinion, 9/11/18, at 6-8 (italics and underline in original, case
law and record citations omitted).
Consistent with the foregoing, Appellant has failed to qualify for an
exception to the PCRA’s time-bar. We therefore affirm the PCRA court’s order.
Appellant’s motion regarding his reply brief is denied as moot as his reply brief
was received and filed with this Court on March 13, 2019
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/19
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