Com. v. Brown, L.

J-S46026-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

LEROY BROWN :

:

Appellant : No. 3950 EDA 2017

Appeal from the PCRA Order November 2, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0827351-1992

BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 05, 2018

Appellant, Leroy Brown, appeals from the order denying his serial

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

The PCRA court summarized the partial procedural history of this case

as follows:

[Appellant] was found guilty but mentally ill of first degree

murder and possessing an instrument of crime at the conclusion

of a nonjury trial on May 13, 1993, and sentenced to concurrent

terms of life and 2½ to 5 years’ incarceration. His direct appeal

was dismissed for failure to file a brief and he was subsequently

granted the right to file a nunc pro tunc appeal in his timely first

PCRA proceeding, the court having found that his counsel

rendered ineffective assistance for that failure. In that appeal,

[the Superior] Court affirmed the judgment of sentence on

December 31, 1997, holding that the verdict was supported by

the weight and sufficiency of the evidence and that [Appellant]

knowingly and intelligently waived his right to a jury trial.

[Appellant] did not seek further review. On February 17, 1999,

he filed his second PCRA petition pro se, reiterating the weight

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and sufficiency and involuntary jury waiver claims, and claiming

ineffective assistance of counsel in failing to request an appeal

with the Supreme Court of Pennsylvania. Counsel was appointed

who filed a no-merit brief stating that all the underlying issues

[Appellant] wished to raise were previously adjudicated and, in

view of all of the evidence and the trial and this Courts’ opinions

in his nunc pro tunc appeal, any attempt to further appeal would

have been frivolous. “Once counsel for the petitioner determines

that the issues raise under the Post Conviction Hearing Act

(PCHA), now the PCRA are ‘meritless’, and the PCHA court

concurs, counsel will be permitted to withdraw and the petitioner

may proceed on his own or with the aid of private counsel to

pursue a review of the ruling entered, if he/she so wishes.”

Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213, 215

(1988). On October 16, 2000, this court agreed and dismissed

the petition as lacking merit. [Appellant] did not file an appeal,

but instead, on December 14, 2000, filed a third PCRA petition3

alleging that his PCRA counsel rendered ineffective assistance in

filing the Finley brief, governmental obstruction in that he was

under the influence of medication during his trial, and previous

counsel’s failure to file a brief in his direct appeal. He did not

explain how the fact that he was on medication was a result of

governmental interference. The court dismissed the petition as

untimely on January 3, 2001, and again no appeal was filed.

3 This and all subsequent filings were pro se.

PCRA Court Opinion, 1/16/18, at 1-2 (footnote omitted).

Appellant subsequently filed additional PCRA petitions, and filed the

instant petition entitled, “Petition for Habeas Corpus Relief,” on August 31,

2017. The lower court treated this petition as a PCRA petition and issued

notice of the court’s intent to dismiss it pursuant to Pa.R.Crim.P. 907 on

October 5, 2017. Appellant filed a response on October 18, 2017, and the

petition was dismissed on November 2, 2017. Appellant filed his appeal on

November 17, 2017.

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On appeal, Appellant presents the following issue for our review:

“Whether the trial court abused its discretion in dismissing Appellant’s Petition

for Habeas Corpus Relief since his confinement is based on a PCRA proceeding

that denied due process?” Appellant’s Brief at 3. Appellant argues that the

PCRA court erred in treating his petition as a PCRA petition, when he in fact

filed it as a “state habeas petition.” Id. at 7. Appellant asserts that his claim

does not fit within the eligibility requirements of the PCRA. Id. Appellant

maintains that as a result, he “is not subject to any time bar, or preclusion by

res adjudicata, prior litigation or waiver.” Id. at 10.

We note the following tenets of law when addressing the merits of a

petition for writ of habeas corpus:

The availability of habeas corpus in Pennsylvania is both

prescribed and limited by statute. Subject to these provisions,

the writ may issue only when no other remedy is available for the

condition the petitioner alleges or available remedies are

exhausted or ineffectual. Thus, habeas corpus should not be

entertained ... merely to correct prison conditions which can be

remedied through an appeal to prison authorities or to an

administrative agency. Moreover, it is not the function of the

courts to superintend the treatment and discipline of prisoners in

penal institutions. Accordingly, the writ may be used only to

extricate a petitioner from illegal confinement or to secure relief

from conditions of confinement that constitute cruel and unusual

punishment. The failure or refusal of prison authorities to exercise

discretion in a particular way may not be reviewed in a habeas

corpus proceeding.

Commonwealth ex rel. Fortune v. Dragovich, 792 A.2d 1257, 1259 (Pa.

Super. 2002) (internal citations and quotation marks omitted). Because the

writ may be used only to extricate a petitioner from illegal confinement or to

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secure relief from conditions of confinement that constitute cruel and unusual

punishment, we must determine whether either circumstance is being pled

here.

As noted, Appellant argues that the PCRA proceedings violated his due

process rights. Appellant’s Brief at 7. In his “petition for habeas corpus relief,”

Appellant makes the following assertion:

[Appellant] believes and therefore avers that this

confinement is unlawful in that the PCRA proceedings were in

violation of the due process clause of the Federal Constitution and

in violation of the Pennsylvania Constitution in that:

(a) the February 17, 1999, PCRA proceeding

referred to herein was effectively uncounseled.

Habeas Corpus Petition, 8/31/17, at 4. Thus, despite his bald assertion that

he is unlawfully confined, his claim centers on allegations of inadequate

representation by counsel. Furthermore, review of his brief reflects that

Appellant’s multiple and poorly developed claims supporting his statement

that his due process rights were violated consist of allegations of PCRA

counsel’s ineffectiveness. Appellant’s Brief at 9-21.

Claims that are cognizable under the PCRA must be considered within

the context of the PCRA. As we have explained in considering whether

purported habeas corpus petitions should be treated as PCRA petitions:

It is well-settled that the PCRA is intended to be the sole means

of achieving post-conviction relief. 42 Pa.C.S. § 9542;

Commonwealth v. Haun, 613 Pa. 97, 32 A.3d 697 (2011).

Unless the PCRA could not provide for a potential remedy, the

PCRA statute subsumes the writ of habeas corpus.

[Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 223-224

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(1999)]; Commonwealth v. Chester, 557 Pa. 358, 733 A.2d

1242 (1999). Issues that are cognizable under the PCRA must be

raised in a timely PCRA petition and cannot be raised in a habeas

corpus petition. See Commonwealth v. Peterkin, 554 Pa. 547,

722 A.2d 638 (1998); see also Commonwealth v. Deaner, 779

A.2d 578 (Pa. Super. 2001) (a collateral petition that raises an

issue that the PCRA statute could remedy is to be considered a

PCRA petition). Phrased differently, a defendant cannot escape

the PCRA time-bar by titling his petition or motion as a writ of

habeas corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465–466 (Pa. Super. 2013).

Claims of ineffective assistance of counsel are cognizable under the

PCRA. See Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 2013)

(“Because Petitioner alleged claims of ineffective assistance of counsel, her

claims were cognizable under the PCRA and the writ of habeas corpus was not

available.”). Accordingly, the PCRA court properly considered Appellant’s

petition within the PCRA framework; thus, we are constrained to review

Appellant’s petition within the context of the PCRA as well.

Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA court’s

determination is free of legal error. Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record. Id.

Before addressing the merits of Appellant’s petition, we must consider

whether the petition was timely filed. A PCRA petition must be filed within

one year of the date that the judgment of sentence becomes final. 42 Pa.C.S.

§ 9545(b)(1). This time requirement is mandatory and jurisdictional in

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nature, and the court may not ignore it in order to reach the merits of the

petition. Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.

2013). A judgment of sentence “becomes final at the conclusion of direct

review, including discretionary review in the Supreme Court of the United

States and the Supreme Court of Pennsylvania, or at the expiration of time

for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

However, 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 the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and

(iii), is met.1 A petition invoking one of these exceptions must be filed within

sixty days of the date the claim could first have been presented. 42 Pa.C.S.

____________________________________________

1 The 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. § 9545(b)(1)(i), (ii), and (iii).

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§ 9545(b)(2). In order to be entitled to the exceptions to the PCRA’s one-

year filing deadline, “the petitioner must plead and prove specific facts that

demonstrate his claim was raised within the sixty-day time frame” under

section 9545(b)(2). Hernandez, 79 A.3d at 652.

Here, Appellant was sentenced on May 13, 1993, and this Court affirmed

the judgment of sentence on December 31, 1997. Commonwealth v.

Brown, 706 A.2d 1248, 969 PHL 1997 (Pa. Super. filed December 31, 1997)

(unpublished memorandum). No petition for allowance of appeal was filed in

the Pennsylvania Supreme Court. Therefore, Appellant’s judgment of

sentence became final on January 30, 1998, when the time to file a petition

for allowance of appeal expired. See Pa.R.A.P. 1113(a) (thirty-day period for

filing petition for allowance of appeal from entry of Superior Court order); 42

Pa.C.S. § 9545(b)(3) (providing that “a judgment becomes final at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.”). Accordingly, in order to be timely,

any PCRA petition had to be filed before January 30, 1999. Appellant filed the

instant petition, more than eighteen years later, on August 31, 2017. Thus,

Appellant’s instant petition is patently untimely.

As previously stated, if a petitioner does not file a timely PCRA petition,

his petition nevertheless may be received under any of the three limited

exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

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§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted. 42

Pa.C.S. § 9545(b)(2). This is true despite the fact that Appellant’s petition

presents a challenge to the legality of his sentence. See Commonwealth v.

Fowler, 930 A.2d 586, 592 (Pa. Super. 2007) (“Although legality of sentence

is always subject to review within the PCRA, claims must still first satisfy the

PCRA’s time limits or one of the exceptions thereto.”).

Although not clearly articulated, by liberally construing the language of

Appellant’s brief it appears that he attempted to assert the “newly-discovered

fact” exception to the PCRA time bar. Appellant makes the following

argument:

In dismissing Appellant’s PCRA petition as untimely and not

qualified under the “newly-discovered fact” exception pursuant to

§ 9545(b)(1)(ii) for a failure of due diligence, the PCRA court did

not make a fact-specific determination of what constitutes

“reasonable steps,” not requiring “unreasonable assumptions”

given Appellant’s particular circumstances. The PCRA court did

not apply the analysis and the legal conclusions of Commonwealth

v. Bennett, 930 A.2d 1264 (Pa. 2007), Commonwealth v. Davis,

86 A.3d 883 (Pa. Super. 2014) prior to dismissing Appellant’s

petition. Given the record that Appellant was found guilty but

mentally ill and relied on counsel’s representation to protect his

rights and other relevant factors, Appellant took reasonable steps

to protect himself, not requiring the unreasonable assumption that

direct appeal counsel abandoned him following the Superior

Court’s decision. He was sufficiently diligent such that he qualifies

for the “newly-discovered facts” exception to the timeliness

requirement. In addition the PCRA court did not give due

consideration to the circumstances of Appellant’s incarceration

with mental illness, including those additional facts set forth in his

Rule 907 Response.

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To the extent the PCRA court had questions about

Appellant’s medical illness or the actions of Appellant germane to

the issue of timeliness, an evidentiary hearing should have been

held prior to the determination of timeliness and the instant

dismissal of the petition. It was an abuse of judicial discretion and

violation of due process not to conduct an evidentiary hearing.

Appellant’s Brief at 20-21.

The “new facts” exception at Section 9545(b)(1)(ii) has two

components, which must be alleged and proved. Commonwealth v. Brown,

111 A.3d 171, 176 (Pa. Super. 2015).

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.

Id. at 176-177.

Here, Appellant’s undeveloped and confusing argument does not clearly

identify what information or facts are at issue. Specifically, he does not state

what facts were unknown, or why those facts could not have been ascertained

by the exercise of due diligence. Brown, 111 A.3d at 176-177. Indeed,

Appellant does not assert when these unknown facts were allegedly

discovered. Thus, Appellant has failed to establish the newly-discovered facts

exception to the PCRA time-bar.

To the extent that Appellant attempts to establish this exception to the

time-bar based on Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007),

Appellant is unsuccessful. In Bennett, our Supreme Court held that while

claims of ineffective assistance of counsel do not invoke the exception under

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Section 9545(b)(1)(ii), an allegation of abandonment by counsel falls within

the ambit of that exception. Id. at 1274. This Court summarized the holding

in Bennett as follows:

In Bennett, . . . our Supreme Court found that attorney

abandonment may constitute a factual basis for the section

9545(b)(1)(ii) timeliness exception. In that case, the appeal from

the dismissal of Bennett’s first, timely, PCRA petition was

dismissed by this Court because counsel failed to file a brief.

Bennett filed a second PCRA petition alleging that he had

attempted to find out the status of his PCRA appeal, did not learn

that it was dismissed due to counsel’s failure to file a brief until he

received a letter from this Court explaining what had transpired,

and filed a new PCRA petition within 60 days of so learning. The

PCRA court granted Bennett leave to appeal the dismissal of his

first PCRA petition nunc pro tunc, but this Court quashed the

appeal as untimely. Our Supreme Court reversed this Court,

holding that Bennett sufficiently alleged that he had been

abandoned by counsel on his first PCRA petition and acted with

due diligence in ascertaining the fact of the abandonment to

satisfy the timeliness exception of the PCRA found at section

9545(b)(1)(ii).

Commonwealth v. Huddleston, 55 A.3d 1217, 1220-1221 (Pa. Super.

2013). However, the Supreme Court reiterated that before a petitioner may

benefit from the exception at Subsection 9545(b)(1)(ii), the petitioner must

plead that he filed his PCRA petition within sixty days of the date it could have

been presented. In Bennett, therefore, Appellant was required to plead that

he filed his petition within sixty days of when he discovered that this Court

dismissed his first PCRA appeal. Bennett, 930 A.2d at 1272 n.11.

In the case sub judice, unlike in Bennett, an examination of the record

and appellate brief reveals that Appellant has made no allegation that he

presented his current claim within sixty days of the date he discovered that

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PCRA and direct appeal counsel allegedly abandoned him, nor could he do so

credibly. As noted, Appellant had his direct appeal rights reinstated nunc pro

tunc as a result of his first timely PCRA petition. On December 31, 1997, this

Court affirmed Appellant’s judgment of sentence. On February 17, 1999,

Appellant filed a subsequent PCRA petition.2 Counsel was appointed, filed a

no-merit brief, and was permitted to withdraw. On October 16, 2000, the

PCRA court dismissed Appellant’s PCRA petition. Appellant did not file an

appeal, but instead, on December 14, 2000, filed another PCRA petition. In

that petition, Appellant alleged that PCRA counsel had rendered ineffective

assistance of counsel in filing a Finley brief, governmental obstruction in that

he was under the influence of medication during his trial, and previous

counsel’s failure to file a brief in his first direct appeal. The PCRA court

dismissed the petition as untimely on January 3, 2001, and no direct appeal

was filed.

Appellant did not file an appeal from the dismissal of his February 17,

1999 PCRA petition. Moreover, Appellant’s second PCRA petition raised the

issues of PCRA counsel’s alleged abandonment and ineffectiveness, and that

____________________________________________

2 For timeliness purposes, this was Appellant’s first PCRA petition in light of

the fact that his first PCRA petition resulted in reinstatement of his direct

appeal rights, nunc pro tunc. See Commonwealth v. Turner, 73 A.3d 1283

(Pa. Super. 2013) (“This Court has explained that when a PCRA petitioner’s

direct appeal rights are reinstated nunc pro tunc in his first PCRA petition, a

subsequent PCRA petition will be considered a first PCRA petition for timeliness

purposes.”).

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direct appeal counsel failed to file a brief in his direct appeal. That petition

was dismissed by the PCRA court. Thus, Appellant plainly was aware of PCRA

and trial counsels’ alleged failures in 2000, well before the filing of his instant

petition on August 31, 2017. Consequently, he does not qualify for the newly

discovered-evidence exception to the PCRA’s timeliness requirements

pursuant to Bennett.

Because the instant PCRA petition was untimely and no exceptions

apply, the PCRA court lacked jurisdiction to address the claims presented and

grant relief. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super.

2002) (holding that PCRA court lacks jurisdiction to hear untimely petition).

Likewise, we lack the authority to address the merits of any substantive claims

raised in the PCRA petition. See Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to a court’s right or

competency to adjudicate a controversy.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/5/18

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