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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CKARON MERCEL HANDY :
:
Appellant : No. 1001 EDA 2022
Appeal from the PCRA Order Entered March 24, 2022
In the Court of Common Pleas of Bucks County
Criminal Division at No: CP-09-CR-0000504-2013
BEFORE: STABILE, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY STABILE, J.: FILED JANUARY 3, 2023
Appellant, Ckaron Mercel Handy, appeals from the March 24, 2002
order entered in the Court of Common Pleas of Bucks County denying his
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
The factual background and procedural history of the instant matter
are undisputed. Briefly, following a jury trial, Appellant was found guilty of
second-degree murder, robbery, and possessing instruments of crime.
Appellant timely filed an appeal with this Court, alleging that the trial court
erred in denying his pre-trial motion for discharge. We affirmed. See
Commonwealth v. Handy, 400 EDA 2015, unpublished memorandum (Pa.
Super. filed November 18, 2016).
As the PCRA court explained:
On December 19, 2016, Appellant filed a counseled Petition for
Allowance of Appeal to the Pennsylvania Supreme Court.
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[Commonwealth v. Handy, 908 MAL 2016]. On January 19,
2017, the Bucks County Clerk of Courts sent a letter to
Appellant, which enclosed copies of the documents available in
their file and directed Appellant to contact the Superior Court if
he wished further information. The Bucks County Clerk of Courts
then received two additional pro se letters from Appellant
requesting information on the status of his case. The Clerk
replied with a copy of Appellant’s status sheet as requested. On
May 10, 2017, the Pennsylvania Supreme Court denied the
Petition for Allowance of Appeal. [See Commonwealth v.
Handy, 908 MAL 2016, 5/10/17].
On November 30, 2021, Appellant filed his PCRA Petition. After
the Commonwealth filed an answer, on March 3, 2022, [the
PCRA court] issued a notice of Intent to Dismiss Appellant’s
PCRA Petition pursuant to Pa.R.Crim.P. 907 as the Petition was
time-barred and Appellant had not pleaded any claims that
would entitle him to relief. On March [24], 2022, [the PCRA
court] issued an Order dismissing Appellant’s PCRA Petition.
PCRA Court Opinion, 5/26/22, at 6.
This appeal followed. On appeal, Appellant raises the following
issues for our review:
I. The petition should be deemed timely filed.
II. Both trial and appellate counsel were ineffective for failing
to argue that the verdict was against the weight of the
evidence.
III. Trial counsel was ineffective for stipulating to the
admission of prejudicial expert testimony baselessly
suggesting that the gun used to kill Battista was also used
to kill Doggett.
IV. Trial counsel was ineffective for not objecting to the
prosecutor’s improper closing argument.
V. Appellate counsel was ineffective for not raising an
argument concerning the prosecution’s concerted effort to
improperly characterize the scene of the crime as a war
zone.
VI. Trial counsel was ineffective for failing to adequately show
how [Appellant] was prejudiced by the pre-arrest delay in
bringing this matter to trial.
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Appellant’s Brief at 4 (unnecessary capitalization omitted).
When reviewing the propriety of an order pertaining to PCRA relief,
we consider the record in the light most favorable to the
prevailing party at the PCRA level. This Court is limited to
determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of
legal error. We grant great deference to the PCRA court’s
findings that are supported in the record and will not disturb
them unless they have no support in the certified record.
However, we afford no such deference to the post-conviction
court’s legal conclusions. We thus apply a de novo standard of
review to the PCRA [c]ourt’s legal conclusions.
Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018).
All PCRA petitions, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final” unless an
exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). 1 “The PCRA’s
time restrictions are jurisdictional in nature. Thus, if a PCRA petition is
untimely, 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. (Frank) Chester,
895 A.2d 520, 522 (Pa. 2006) (internal citations and quotation marks
omitted) (overruled on other grounds by Commonwealth v. Small, 238
A.3d 1267 (Pa. 2020)). As timeliness is separate and distinct from the
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1 The one-year time limitation can be overcome if a petitioner (1) alleges
and proves one of the three exceptions set forth in Section 9545(b)(1)(i)-
(iii) of the PCRA, and (2) files a petition raising this exception within one
year of the date the claim could have been presented. 42 Pa.C.S.A. §
9545(b)(2).
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merits of Appellant’s underlying claims, we first determine whether this
PCRA petition is timely filed. Commonwealth v. Stokes, 959 A.2d 306,
310 (Pa. 2008). If it is not timely, we cannot entertain the review of the
substantive claims raised in the petition. Id.
It is undisputed that the instant petition is facially untimely.2
However, Appellant argues that it meets the newly discovered facts
exception.3 The newly discovered fact is, according to Appellant, the
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2 Our Supreme Court denied Appellant’s petition for allowance of appeal on
May 10, 2017. Appellant, therefore, had ninety days from that date to file a
petition for a writ of certiorari with the United States Supreme Court. See
U.S.Sup.Ct.R. 13.1. Because Appellant did not file a such a petition, his
judgment of sentence became final on August 8, 2017. See 42 Pa.C.S.A. §
9545(b)(3). Appellant had one year from August 8, 2017, to file a timely
PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). The instant PCRA petition
was filed on November 30, 2021, more than four years from August 8, 2017.
The instant petition is, therefore, facially untimely.
3 The exception requires a petitioner to plead and prove two components: 1)
the facts upon which the claim was predicated were unknown, and (2) these
unknown facts could not have been ascertained by the exercise of due
diligence. See Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017);
Section 9545(b)(1)(ii). Due diligence requires that the petitioner “take
reasonable steps to protect his own interests.” Commonwealth v.
Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010) (citations omitted).
However, it does not require “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. Shiloh, 170 A.3d 553, 558 (Pa. Super. 2017) (citation
omitted). As such, “the due diligence inquiry is fact-sensitive and dependent
upon the circumstances presented.” Id. (citation omitted). “[A] petitioner
must explain why he could not have learned the new facts earlier with the
exercise of due diligence.” Commonwealth v. Breakiron, 781 A.2d 94, 98
(Pa. 2001)
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discovery that his counsel abandoned him, depriving him of collateral review
by failing to file a timely PCRA petition. In support, Appellant relies on
Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) and
Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018).4
In Bennett, our Supreme Court held that while “claims of ineffective
assistance of counsel do not invoke the exception under section
9545(b)(1)(ii), and an allegation of abandonment by counsel falls within the
ambit of that exception.” Commonwealth v. (Carl) Chester, 163 A.3d
470, 473 (Pa. Super. 2017). For purposes of Section 9545(b)(1)(ii),
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4 Notably, Appellant’s discussion of the merits of the claims raised here
(Issues II through VI) spans over 17 pages of his appellate brief, whereas
the discussion of the timeliness of the instant petition is essentially one
paragraph, to wit:
Here, as in Bennett and Peterson, [Appellant] was erroneously
led to believe that his collateral appeal rights had been
preserved by counsel that had actually abandoned him. Based
on his course of communication with his appellate counsel, and
the lack of any closing documents, [Appellant] thought his
appeal was still pending with the Supreme Court. He labored
under the mistaken belief for years until he filed the instant
petition. But because of his appellate counsel’s complete failure
to follow through and seek review from the Supreme Court, and
if necessary, timely inform [Appellant] of any subsequently final
decision, [Appellant] was completely deprived “of PCRA review”
by “attorney error,” and the timeliness exception thus applies.
See Peterson, 192 A.3d at 1130.
Appellant’s Brief at 20 (emphasis added).
In passing, we are unsure why Appellant argues that prior counsel failed to
seek review in the Supreme Court. As noted above, he did. See
Commonwealth v. Handy, 908 MAL 2016, 5/10/17.
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abandonment means complete deprivation of the petitioner’s right to review
by a court. See Peterson, 192 A.3d at 1131.
In Peterson, our Supreme Court held that counsel’s negligence per se
in filing an untimely PCRA petition constitutes adequate grounds to permit
the filing of a new PCRA petition beyond the one-year time bar pursuant to
the exception in subsection 9545(b)(1)(ii). Peterson, 192 A.3d at 1125.
Bennett and Peterson both assume there is counsel, whether
appointed or privately retained, and that counsel fails to take appropriate
action. These conditions are not satisfied here.
Regarding counsel’s failure to file a PCRA petition, Appellant assumes,
without providing any evidence of it, that counsel was appointed or retained
for the purpose of pursuing PCRA relief. Appellant, in fact, suggests that it
was more of an understanding between counsel and Appellant that counsel
would file a PCRA petition on his behalf. In other words, Appellant has no
evidence that counsel was retained or appointed to assist him in the PCRA
proceedings, or that counsel agreed to file a PCRA petition on his behalf.
Even if we were to find that Appellant had counsel, that counsel took it
upon himself to file a PCRA petition, and that Appellant was not aware of
counsel’s misdeeds, Appellant still fails to prove the second prong of the
“newly discovered facts” exception, i.e., these unknown facts could not have
been ascertained by the exercise of due diligence.
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Here, there is not even an allegation as to when Appellant
“discovered” counsel’s alleged omissions,5 and what step he took to uncover
said omissions.6 Based on Appellant’s own recitation of facts, Appellant did
nothing to find out about the status of his PCRA petition. Appellant’s Brief at
16, 20.7
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5 Failure to identify when the facts became known to petitioner generally
results in petitioner’s inability to prove the timeliness of an otherwise
untimely PCRA petition. See Commonwealth v. Holmes, 905 A.2d 507,
511 (Pa. Super. 2006) (concluding that the appellant did not sustain his
burden of pleading and proving the newly discovered evidence exception
because the affidavit in which the witness attested that someone else
murdered the victim did not disclose when the witness first informed the
appellant of this information).
6 In Peterson, but not here, “the PCRA court made factual findings that
Peterson did not know about the untimely filing and could not have
ascertained this fact through the exercise of due diligence.” Peterson, 192
A.3d at 1130-31. In Bennett, the Supreme Court held that the petitioner
alleged sufficient due diligence, for purposes of the Section 9545(b)(1)(ii)
time-bar exception, where petitioner provided a description of steps he took
to ascertain the status of his case, including writing to the PCRA court and
the Superior Court.
The instant matter is similar to Commonwealth v. Carr, 768 A.2d 1164,
1168 (Pa. Super. 2001). In Carr, we found that appellant, through the
exercise of due diligence, could have ascertained counsel’s failure to file a
direct appeal prior to the one-year time limitation of the PCRA (“A phone call
to his attorney or the clerk of courts would have readily revealed that no
appeal had been filed,” id. at 1168). Accordingly, we concluded that “absent
assertions of due diligence, the mere discovery of trial counsel’s failure to
file a direct appeal, after the one-year window to file a PCRA petition, d[id]
not place [a]ppellant under subsection 9545(b)(1)(ii).” Id.
7 Compare Appellant’s interest in finding out about the status of his petition
for allowance of appeal with Appellant’s conduct regarding the status of the
PCRA petition. In connection with the petition for allowance of appeal,
(Footnote Continued Next Page)
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Neither Bennett nor Peterson excuses PCRA petitioners from
pleading and proving that counsel’s ineffectiveness was unknown to
petitioner and that it could not have been discovered with the exercise of
due diligence. See, e.g., Commonwealth v. Harris, 2021 WL 1148521, at
*4 (Pa. Super. March 25, 2021); Commonwealth v. Lilly, 2021 WL
796682, at *2 (Pa. Super. March 2, 2021) (while claims of ineffectiveness
“per se may, in limited circumstances, qualify a petition as timely under the
newly-discovered facts exception, the petitioner must plead and prove to the
PCRA court that these new ‘facts’ were previously unknown to the petitioner
and could not have been ascertained by the exercise of due diligence.”).8
In light of the foregoing, we conclude that Appellant failed to plead and
prove that the newly discovered fact exception is applicable here.
Accordingly, we affirm the order of the PCRA court dismissing Appellant’s
PCRA petition as untimely.
Order affirmed.
(Footnote Continued) _______________________
Appellant contacted the Bucks County Clerk of Courts on three separate
occasions; regarding the PCRA petition, Appellant, based on his own
recitation of the facts, did not contact his attorney, the lower court, this
Court, or the Supreme Court.
8 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019, may be cited for their persuasive
value).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2023
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Com. v. Handy, C.
Combined Opinion