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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LOUIS HILL :
:
Appellant : No. 1225 EDA 2021
Appeal from the PCRA Order Entered June 4, 2021,
in the Court of Common Pleas of Delaware County,
Criminal Division at No(s): CP-23-CR-0000493-2008.
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 6, 2022
Louis Hill appeals pro se from the order denying his third petition
pursuant to the Post Conviction Relief Act (“PCRA”) as untimely filed. 42
Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent facts and procedural history are as follows: On September
24, 2009, a jury found Hill guilty of attempted murder and related charges.
On November 18, 2009, the trial court sentenced Hill to an aggregate term of
23½ - 47 years of imprisonment. On February 28, 2011, this Court affirmed
his judgment of sentence, and on July 7, 2011, our Supreme Court denied
Hill’s petition for allowance of appeal. Commonwealth v. Hill, 24 A.3d 468
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* Former Justice specially assigned to the Superior Court.
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(Pa. Super. 2011) (non-precedential decision), appeal denied, 24 A.3d 362
(Pa. 2011). Hill did not seek further review.
On August 8, 2011, Hill filed a timely PCRA petition. The PCRA court
appointed counsel who later filed a motion to withdraw and a “no-merit” letter
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Thereafter, the PCRA court issued a Pa.R.A.P. 907 notice of its intent to
dismiss Hill’s petition without a hearing and granted PCRA counsel’s motion to
withdraw. Hill filed a response. By order entered November 20, 2012, the
PCRA court denied Hill’s PCRA petition.
Hill filed an appeal to this Court. On September 8, 2014, this Court
affirmed the denial of post-conviction relief, and on December 17, 2014, our
Supreme Court denied Hill’s petition for allowance of appeal.
Commonwealth v. Hill, 107 A.3d 220 (Pa. Super. 2014) (non-precedential
decision), appeal denied, 105 A.3d 735 (Pa. 2014).
Hill filed a second pro se PCRA petition on July 13, 2016. The PCRA
court appointed counsel who later filed a motion to withdraw and a “no-merit”
letter pursuant to Turner/Finley, supra. Thereafter, the PCRA court issued
a Pa.R.A.P. 907 notice of its intent to dismiss Hill’s petition without a hearing
and granted PCRA counsel’s motion to withdraw. Hill filed a response. By
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order entered in February 2017, the PCRA court denied Hill’s PCRA petition.1
He did not file an appeal.
On May 9, 2019, Hill filed the pro se PCRA petition at issue, his third.
Once again, the PCRA court appointed counsel, and on December 30, 2020,
PCRA counsel filed a motion to withdraw and a “no-merit” letter pursuant to
Turner/Finley, supra. Thereafter, the PCRA court issued a Pa.R.A.P. 907
notice of its intent to dismiss Hill’s petition without a hearing and granted
PCRA counsel’s motion to withdraw. Hill filed a response. By order entered
on June 4, 2021, the PCRA court denied Hill’s PCRA petition. This appeal
followed. Both Hill and the PCRA court have complied with Pa.R.A.P. 1925.
Hill raises the following issues:
1. Did [the] PCRA court err when it accepted [PCRA
counsel’s] “no merit” letter (Finley/Turner) and granted
the attached “motion to withdraw as counsel” [and PCRA
counsel’s] failure to amend the [PCRA] petition under
[sic] [Hill’s] request?
2. Did [the] PCRA court err when it deemed [Hill’s] petition
for post-conviction relief without merit and dismissed
[the] petition without a hearing?
Hill’s Brief at 4 (excess capitalization omitted).
Before addressing these issues, we must first determine whether the
record supports the PCRA court’s conclusions that his third PCRA petition was
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1 Although the order denying this petition does not appear in the certified
record, no one disputes its disposition.
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untimely filed, and that he failed to establish a time-bar exception. See PCRA
Court Opinion, 7/22/21, at unnumbered 3.
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, that an
exception to the time for filing the petition is met.
The three narrow statutory exceptions to the one-year time bar are as
follows: “(1) interference by government officials in the presentation of the
claim; (2) newly discovered facts; and (3) an after-recognized constitutional
right.” Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)
(citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). Moreover, exceptions to the PCRA’s
time bar must be pled in the petition and may not be raised for the first time
on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.
2007); see also Pa.R.A.P. 302(a) (providing issues not raised before the
lower court are waived and cannot be raised for the first time on appeal).
Finally, if a PCRA petition is untimely and the petitioner has not pled and
proven an exception “neither this Court nor the [PCRA] court has jurisdiction
over the petition. Without jurisdiction, we simply do not have the legal
authority to address the substantive claims.” Commonwealth v.
Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).
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Here, Hill’s judgment of sentence became final on October 5, 2011,
ninety days after our Supreme Court denied his petition for allowance of
appeal, and the time for filing a writ of certiorari to the United States Supreme
Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct. Rule 13.
Therefore, Hill had until October 5, 2012 to file a timely petition. Because Hill
filed his third PCRA petition in 2019, it is patently untimely unless he has
satisfied his burden of pleading and proving that one of the enumerated
exceptions applies. See Hernandez, supra.
The PCRA court determined that Hill had failed to plead and prove an
exception to the PCRA’s time bar. In his Turner/Finley letter, PCRA counsel
informed the court of the following:
[I]n his [third PCRA petition], [Hill] states that “Victim
[Blandford] made known that he was going to place blame
of his shooting on me [Hill]. If the victim later admits he
lied at trial, this perhaps would constitute after-discovered
evidence of the quality that would justify a new trial. An
untimely Petition under the [PCRA] will be considered if the
claimant avers and proves that the “. . . facts upon which
the claim is predicated were unknown to petitioner and
could not have been ascertained by the exercise of due
diligence[.]” In that regard, [Hill] provided me with the
name of two persons with knowledge of his claims, referred
to above as Witness #1 and Witness #2. I spoke with
Witness #1 on December 23 and on December 28, 2020,
and I spoke with Witness #2 on December 28, 2020. As a
result of these conversations, I was unable to obtain
evidence that would support [Hill’s] claim.
Turner/Finley Letter, 12/30/21, at 7 (citations omitted). Thus, as PCRA
counsel admitted that he was unable to prove and plead time-bar exception,
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the PCRA court correctly found that it lacked jurisdiction to consider the claims
Hill raised in his petition.
On appeal, Hill essentially claims PCRA counsel was ineffective for not
properly investigating and presenting the newly discovered fact exception to
the time bar. In Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), our
Supreme Court set new precedent regarding the preservation of such a claim
and held that “a PCRA petitioner may, after a PCRA court denies relief, and
after obtaining new counsel or acting pro se, raise claims of PCRA counsel’s
ineffectiveness at the first opportunity to do so, even if on appeal.” Bradley,
261 A.3d at 401 (footnote omitted). Here, because Hill raised his claims in
his appellate brief, they are properly before us.
In Bradley, the Court also acknowledged that in certain cases when a
layered claim of PCRA counsel’s ineffectiveness is first raised on appeal a
remand may be warranted:
In some instances, the record before the appellate court
will be sufficient to allow for disposition of any newly-raised
ineffectiveness claims. However, in other cases, the
appellate court may need to remand to the PCRA court for
further development of the record and for the PCRA court to
consider such claims as an initial matter. Consistent with
our prior case law, to advance a request for a remand, a
petition would be required to provide more than mere
boilerplate assertions of PCRA counsel’s ineffectiveness;
however, where there are material facts at issue concerning
claims challenging counsel’s stewardship and relief if not
plainly unavailable as a matter of law, the remand should
be afforded.
Bradley, 261 A.3d at 402 (citations and footnote omitted). As more fully
explained below, we need not remand the instant appeal.
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Hill asserts that he could establish the newly discovered fact exception
to the PCRA’s time bar. 42 Pa.C.S.A. § 9545(b)(1)(ii). As this Court has
previously summarized:
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. Brown, 141 A.3d 491, 500 (Pa. Super. 2016) (citation
omitted).
Here, PCRA counsel correctly cited the components of a newly
discovered fact exception, and, after interviewing witnesses who were
identified by Hill, he opined that he would be unable to plead and prove that
exception to the time bar. In his brief, Hill asserts that “(Witness #3), on
their own accord, provided to [PCRA counsel] a[n] official written statement
and affidavit providing new eye-witness testimony” about the incident. Hill’s
Brief at 12. According to Hill, PCRA counsel was ineffective for failing to
“amend [his] petition and/or include this witness and the accompanying
statement and affidavit in his [Turner/Finley] letter to the PCRA [court].”
Id.
Hill does not identify this third witness or proffer any information from
the witness’ statement or affidavit. Moreover, our review of Hill’s response to
the PCRA court’s Rule 907 notice refutes his assertion that he informed the
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court regarding Witness #3. Id. at 14. Therefore, because Hill has provided
no basis to disturb the PCRA court’s conclusions that his third PCRA petition
was untimely, and that he was unable to establish a time-bar exception, Hill’s
claim of PCRA counsel’s ineffectiveness fails. Thus, we affirm the PCRA court’s
order denying Hill post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2022
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