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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CHRISTOPHER DUCKETT,
Appellant No. 85 EDA 2019
Appeal from the PCRA Order Entered December 13, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0505591-2005
BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 30, 2019
Appellant, Christopher Duckett, appeals pro se from the post-conviction
court’s December 13, 2018 order denying, as untimely, his petition under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the pertinent facts and procedural history
of Appellant’s case, as follows:
[Appellant] … was arrested and subsequently charged in
connection with the 2004 fatal shooting of Arthur Bines in
Philadelphia. On March 28, 2006, following a jury trial presided
over by the Honorable Jane Cutler Greenspan, [Appellant] was
convicted of first-degree murder, possessing an instrument of
crime, and [a] violation of the Uniform Firearms Act. The trial
court thereafter sentenced [Appellant] to an aggregate term of life
imprisonment. Following a direct appeal, the Superior Court
affirmed the judgment of sentence on December 31, 2008, and
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* Retired Senior Judge assigned to the Superior Court.
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the Pennsylvania Supreme Court denied [Appellant’s] petition for
allowance of appeal on June 10, 2009.2
2 Commonwealth v. Duckett, 965 A.2d 292 (Pa. Super.
2008) (unpublished memorandum), appeal denied, 973
A.2d 1005 (Pa. 2009).
On May 11, 2010, [Appellant] timely filed his first PCRA petition
alleging ineffective assistance of trial counsel. Counsel was
appointed and subsequently filed an amended petition. After
reviewing the record and the pleadings, the Honorable Benjamin
Lerner dismissed the petition for lack of merit on July 29, 2011.
The Superior Court affirmed the order denying relief on January
23, 2013.3 [Appellant] did not seek allocator.
3Commonwealth v. Duckett, 64 A.3d 284 (Pa. Super.
2013) (unpublished memorandum).
[Appellant] was subsequently unsuccessful in obtaining
collateral relief through three serial petitions filed between 2013
and 2015.
On October 18, 2017, [Appellant] filed the instant pro se PCRA
petition, his fifth. Pursuant to Pennsylvania Rule of Criminal
Procedure 907, [Appellant] was served notice of the PCRA court’s
intention to dismiss his petition on September 6, 2018.
[Appellant] submitted a response to the Rule 907 notice on
September 25, 2018. On December 13, 2018, the PCRA court
dismissed his petition as untimely without exception. On
December 26, 2018, the instant[, pro se] notice of appeal was
timely filed to the Superior Court.
PCRA Court Opinion, 2/26/19, at 1-2.
The PCRA court did not direct Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. On February 26, 2019,
the court filed its Rule 1925(a) opinion. Herein, Appellant states two issues
for our review:
[I.] Whether the PCRA [c]ourt erred by ignoring the plain language
of 42 Pa.C.S. § 9545(b)(1)(ii) when it denied Appellant’s [p]etition
as untimely?
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[II.] Whether the PCRA [c]ourt erred in dismissing Appellant’s
PCRA [p]etition without ruling on the merits of [the] ineffective
assistance of trial counsel claim?
Appellant’s Brief at 4.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. See 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. See Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007). 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
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
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(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). Additionally, at the time Appellant’s petition
was filed, section 9545(b)(2) required that any petition attempting to invoke
one of these exceptions “be filed within sixty days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).1
Here, Appellant’s judgment of sentence became final in 2009. Thus, his
present petition filed in 2017 is patently untimely and, for this Court to have
jurisdiction to review the merits thereof, Appellant must prove that he meets
one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S. §
9545(b).
Appellant first argues that he meets the after-discovered evidence
exception of section 9545(b)(1)(ii) based on his discovery, on August 30,
2017, of the “Official Visiting Logs from the Philadelphia Prison System.”
Appellant’s Brief at 9. Appellant claims that these logs prove that his trial
counsel did not visit him in jail prior to trial, which Appellant claims is contrary
to testimony given by his trial counsel (presumably during the litigation of one
of Appellant’s prior PCRA petitions) that counsel did visit Appellant before the
trial commenced.
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1 A recent amendment to section 9545(b)(2), which became effective on
December 24, 2018, changed the language to require that a petition “be filed
within one year of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).
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In regard to his due diligence in discovering the prison logs, Appellant
only claims, without any elaboration, that “[t]here was no possible way for
[him] to obtain the … [l]ogs … prior to August 30, 2017.” Id. Appellant does
not detail any efforts he made to get the logs, nor explain how he ultimately
obtained them in August of 2017. While Appellant attaches documents to his
appellate brief suggesting that his mother received the logs by filing a Right-
to-Know request with the Philadelphia Department of Prisons, Appellant fails
to discuss why he or his mother could not have filed that request and received
the logs earlier. Clearly, Appellant was aware that his attorney did not visit
him while he was incarcerated prior to trial; therefore, he could have sought
the prison logs to prove this fact beginning at least in 2006 when his trial
concluded, and raised his claim that counsel acted ineffectively in this regard
in his first PCRA petition filed in 2010. Therefore, Appellant has failed to
establish that he acted with due diligence in discovering the ‘new fact’ of the
prison logs. See Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super.
2015) (stating that, in order to prove the timeliness exception of section
9545(b)(1)(ii), “[a] petitioner must explain why he could not have learned
the new fact(s) earlier with the exercise of due diligence”) (emphasis added).
Appellant also avers that he has met the exception of section
9545(b)(1)(ii) due to his learning that that his trial counsel had “unstable
mental health” at the time he represented Appellant. Appellant’s Brief at 9.
In support of this claim, Appellant attaches to his brief a “Report and
Recommendations of the Disciplinary Board of the Supreme Court of
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Pennsylvania” (hereinafter “the report”), which sets forth a finding of fact that
Appellant’s trial counsel was diagnosed with Attention Deficit-Hyperactivity
Disorder (A.D.H.D.) and Dysthymic Disorder. See id. at Appendix A p. 4.
Appellant also attaches to his brief an order by our Supreme Court that
suspended his trial counsel from practicing law for two years.
However, Appellant does not state when he first received the report
revealing his counsel’s mental health diagnosis, or the order suspending trial
counsel from practice. Notably, the report is dated July 18, 2014, and the
order was filed on November 13, 2014, yet Appellant did not file his present
petition asserting this ‘new evidence’ until October of 2017. Appellant fails to
offer any explanation for this three-year delay in raising this claim. Instead,
he only baldly contends that “[t]here was absolutely no possible way [he]
could have been aware that [trial counsel] was suffering from … []A.D.H.D.[]
and Dysthymic Disorder.” Id. at 9. Given this record, Appellant has not
proven that he has met the due diligence requirement of section
9545(b)(1)(ii). See Brown, supra. Consequently, we discern no error in
the PCRA court’s dismissing Appellant’s untimely petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/19
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