Com. v. Roberts, W.

J-S21033-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

WAYNE WARREN ROBERTS :

:

Appellant : No. 1721 MDA 2022

Appeal from the PCRA Order Entered November 22, 2022

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

No(s): CP-38-CR-0000793-2018

BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.: FILED: SEPTEMBER 20, 2023

Wayne Warren Roberts appeals from the order that denied his Post

Conviction Relief Act (“PCRA”) petition as untimely. We affirm.

On June 17, 2019, Appellant pled guilty to 113 offenses stemming from

a crime spree in Myerstown, Pennsylvania, and the surrounding area of

Lebanon County. The same day, the court imposed a sentence of thirteen and

one-half to thirty-six years in prison and fines of $2,150. Appellant did not

file a post-sentence motion or a direct appeal.

In May 2022, Appellant filed the instant pro se PCRA petition. Counsel

was appointed and filed an amended petition. Thereafter, the PCRA court

scheduled an evidentiary hearing to examine Appellant’s substantive issues of

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* Retired Senior Judge assigned to the Superior Court.

J-S21033-23

ineffective assistance of counsel and an illegal sentence, as well as whether

the PCRA petition was timely. Appellant was the sole witness. The PCRA court

ultimately issued an order dismissing Appellant’s PCRA petition as untimely.

Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

Appellant presents three issues for our consideration on appeal:

A) Whether the PCRA court erred and/or abused its discretion

when it denied Appellant’s PCRA petition as untimely.

B) Whether the PCRA court erred and/or abused its discretion

when it failed to resentence the Appellant after Appellant

established the fines imposed on the Appellant created an

illegal sentence because the sentencing court did not determine

the Appellant was able to pay said fines at the time of

sentencing.

C) Whether the PCRA court erred and/or abused its discretion

when it failed to issue a new trial or reinstate the Appellant’s

direct appeal rights after the Appellant established his guilty

plea counsel was ineffective.

Appellant’s brief at 4 (cleaned up).

We begin by reviewing the applicable legal principles. This Court has

stated:

[W]e apply a de novo standard of review to the PCRA court’s legal

conclusions, and this Court may affirm a PCRA court’s order on

any legal basis. As to factual questions, our scope of review is

limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party

in the lower court. Great deference is granted to the findings of

the PCRA court, and these findings will not be disturbed unless

they have no support in the certified record.

Commonwealth v. Howard, 285 A.3d 652, 657 (Pa.Super. 2022) (cleaned

up). “The standard of review of an order dismissing a PCRA petition is whether

that determination is supported by the evidence of record and is free of legal

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error.” Commonwealth v. Cruz, Jr., 223 A.3d 274, 277 (Pa.Super.

2019) (cleaned up). Furthermore, it is “an appellant’s burden to persuade us

that the PCRA court erred and that relief is due.” Commonwealth v.

Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019) (cleaned up).

It is well-settled that a PCRA petition must be filed in a timely fashion.

See Commonwealth v. Jackson, 30 A.3d 516, 518 (Pa.Super. 2011). If a

PCRA petition is untimely, “no court has jurisdiction to hear

[it].” Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa.Super. 2019).

The PCRA provides: “Any petition . . . including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes final.”

42 Pa.C.S. § 9545(b)(1). Three exceptions exist to this one-year time-bar:

“(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)

(cleaned up).

With these principles in mind, we consider whether the PCRA court

correctly determined that Appellant’s PCRA petition was untimely. Appellant’s

judgment of sentence became final on July 17, 2019, thirty days after he

entered his guilty plea and failed to file a direct appeal. To comply with the

PCRA’s timeliness requirements, Appellant had to file the instant petition by

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July 17, 2020. Hence, the PCRA petition filed in May 2022 is facially untimely

unless Appellant pled and proved one of the enumerated exceptions.1

As Appellant pled the newly-discovered facts exception, the following

principles are relevant to our review:2

[T]wo components . . . 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.

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1 Our Supreme Court set forth exceptions to the timely filing requirements

from March 19, 2020 to May 8, 2020 due to the Covid-19 pandemic. See

Commonwealth v. Jones, 281 A.3d 1053, 2022 WL 2048400, at *4

(Pa.Super. 2022) (non-precedential decision) (explaining, when “the PCRA

deadline [falls] after the extended May 11, 2020, deadline for pleadings, the

emergency order [does] not apply.”) (emphasis in original). Since Appellant’s

period to file a timely PCRA petition expired in July 2020, our Supreme Court’s

Covid-19 emergency stay order filed March 16, 2020 has no bearing on our

calculation.

2 Appellant’s pro se petition asserted the newly-discovered facts exception to

the PCRA time bar based on plea counsel’s alleged abandonment. See Pro Se

PCRA Petition, 5/6/22, at 3. While the counseled petition neglected to revive

this exception, the PCRA court implicitly permitted a subsequent amendment

through its examination of timeliness during the hearing and its discussion of

Appellant’s exception in its well-reasoned opinion. See Commonwealth v.

Mason, 130 A.3d 601, 627 (Pa. 2015) (“[T]he court shall freely grant leave

to amend where doing so achieves substantial justice consistent with the

dictates of Pa.R.C.P. 905(A)”). The PCRA court’s review of Appellant’s

exception in this case embodies the purpose of the rule permitting liberal

amendments, which our Supreme Court explained was to provide petitioners

“a legitimate opportunity to present their claims to the PCRA court in a manner

sufficient to avoid dismissal.” Commonwealth v. McGill, 832 A.2d 1014,

1024 (Pa. 2003).

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Commonwealth v. Burton, 158 A.3d 618, 628 (Pa. 2017) (cleaned up). “An

allegation of abandonment by counsel falls within the ambit of [this]

exception.” Commonwealth v. Chester, 163 A.3d 470, 473 (Pa.Super.

2017). A petition invoking one of the timeliness exceptions must “be filed

within one year of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2).

The PCRA court did not err in determining that Appellant was not entitled

to relief. The following facts presented at the evidentiary hearing are germane

to our determination. In June 2019, Appellant mailed a letter to plea counsel

requesting that he withdraw his guilty plea or file post-sentence motions to

have his sentence reduced. Two months later, Appellant sent another letter

to plea counsel, again asking about post-sentence motions. In September,

unbeknownst to Appellant, plea counsel was suspended from the practice of

law for misconduct unrelated to Appellant’s case.3 Appellant mailed another

letter to counsel in October requesting an update on the status of the post-

sentence motions. The next month, Appellant sent his final letter to counsel,

again inquiring about the status of his post-sentence motions and requesting

a copy of his sentencing order. Counsel failed to respond to any of these

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3 Appellant states that his last contact with his plea counsel came in

September 2019, when he assisted him on an unrelated matter. See

Appellant’s brief at 6.

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inquiries. See N.T. PCRA Hearing, 10/7/22, at 8-16; Amended PCRA Petition,

6/30/22, at Exhibits A-D.

Appellant contends that “[s]ometime in the end of 2020 [he] contacted

the Office of Disciplinary Counsel and learned that [his] guilty plea counsel

had been suspended from the practice of law for failing to file legal pleadings

for his clients.”4 Appellant’s brief at 6. Further, Appellant asserts that he

could not have learned about his counsel’s abandonment and suspension

earlier because he had no access to the prison’s law library or other facilities

at the prison because of the Covid-19 pandemic. See N.T. PCRA Hearing,

10/7/22, at 15.

In dismissing the petition as time-barred, the PCRA court concluded that

Appellant did not establish that he exercised due diligence to discover plea

counsel’s abandonment. The court reasoned that Appellant should have

ascertained that plea counsel was not acting on his behalf by December 2019,

at the latest, after counsel failed to respond to Appellant’s letters. See PCRA

Court Opinion, 11/22/22, at 10. Moreover, the court opined, “[s]tated simply,

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4 There is some confusion as to whether Appellant discovered counsel’s

suspension in late 2020 or late 2021. The pro se and amended PCRA petitions

indicate that he learned of the suspension in November 2021. See Amended

PCRA Petition, 6/30/22, at 2; Pro Se PCRA Petition, 5/6/22, at 4. However,

Appellant referred to both periods when he testified at the PCRA hearing. See

N.T. PCRA Hearing, 10/7/22, at 14, 20. On appeal, the PCRA court, Appellant,

and the Commonwealth all refer to late 2020 as the date when Appellant

became aware of his guilty plea counsel’s abandonment. See PCRA Court

Opinion, 11/22/22, at 3, 10; Appellant’s brief at 6; Commonwealth’s brief at

2-3.

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[Appellant] sat on his legal options for too long. The consequence for the

[Appellant’s] tardiness is that we cannot now consider his PCRA arguments.”

Id. at 11 (cleaned up).

The PCRA court’s determination is supported by the certified record.

From the time that Appellant mailed his final letter to guilty plea counsel in

November 2019, there is no evidence in the certified record of any action

undertaken by Appellant on his behalf until he filed the instant pro se PCRA

petition in May 2022. While Appellant contacted the Disciplinary Board to

inquire about plea counsel, he did not present any evidence to establish the

date he initiated this communication. Consequently, there is scant indication

that Appellant diligently acted to protect his interests.

This Court has held that “[d]ue diligence demands that the petitioner

take reasonable steps to protect his own interests. A petitioner must explain

why he could not have learned the new fact(s) earlier with the exercise of due

diligence.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015).

Regardless of whether Appellant learned of the suspension of his plea counsel

in 2020 or 2021, our due diligence analysis remains unchanged. While the

2021 discovery would mean that Appellant satisfied § 9545(b)(2) by filing the

PCRA petition within a one-year period of learning of counsel’s abandonment,

it would also mean that Appellant’s failure to exercise due diligence spanned

a two-year period between his last attempted communication with counsel in

November 2019 and the November 2021 discovery of counsel’s suspension.

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In that vein, we are also unconvinced by Appellant’s arguments that the

Covid-19 prison restrictions completely prevented him from learning

information about his counsel’s abandonment and filing his petition.5 This

Court has noted that those claiming exceptions because of the Covid-19

pandemic must aver allegations supported by evidence. See e.g.,

Commonwealth v. Lee, 292 A.3d 1066, 2023 WL 19249, at *3 (Pa.Super.

2023) (non-precedential decision) (“[O]ther than [unsubstantiated]

allegations, Appellant fails to provide any evidence that he was prevented

from accessing the library materials.”). Similarly, in the instant case, while

Appellant argues that he had no access to the prison law library for a year-

and-one-half, he neglected to provide evidence such as notices or directives

from the prison that validate these claims. See N.T. PCRA Hearing, 10/7/22,

at 15.

Furthermore, Appellant does not assert whether he attempted “to

access services to file his petition and if those attempts were denied.”

Commonwealth v. Areralo, 281 A.3d 1051, 2022 WL 2047116, at *5

(Pa.Super. 2022) (non-precedential decision) (cleaned up). In a similar

situation concerning the effect of pandemic-related restrictions, we explained:

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5 After examining relevant case law, we did not find any binding authority with

a similar fact pattern that implicates Covid-19 restrictions. Thus, we review

this issue in light of several non-precedential memoranda that we may cite for

their persuasive value under Pa.R.A.P. 126(b).

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[Appellant] does not [describe] how any alleged limited access to

the prison law library during [Covid]-19 inhibited his ability to file

a timely PCRA. This is so, particularly where form PCRAs are

readily available to petitioners; where no research is required to

complete the form PCRA, sign it, and deliver it to authorities for

mailing; and where the [c]ourts are given latitude in deeming

even non-conventional filings after judgments of sentence become

final as PCRAs.

Commonwealth v. Cruz, 290 A.3d 681, 2022 WL 17687850, at *2

(Pa.Super. 2022) (non-precedential decision) (cleaned up). In another case

where an appellant alleged that Covid-19 restrictions prevented him from

timely filing a PCRA, we held that “allegations of restrictions on access to law

libraries or legal resources do not completely prevent an inmate from

preparing legal filings.” Commonwealth v. Miller, 296 A.3d 605, 2023 WL

2489952, at *6 (Pa.Super. 2023) (non-precedential decision). As in the

foregoing cases, herein Appellant provided inadequate evidence to the PCRA

court to support the contention that the restrictions precluded him from filing

the PCRA petition or impeded his attempt to make an earlier inquiry with the

Disciplinary Board that would have produced the information about his

counsel’s abandonment. See N.T. PCRA Hearing, 10/7/22, at 18-19.

Since Appellant’s petition was untimely, we do not reach the merits of

his claims of ineffective assistance of counsel for failing to pursue post-

sentence relief and illegal sentence.6 See e.g., Commonwealth v.

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6 To the extent that Appellant argues in his brief that prison officials interfered

with his ability to file his PCRA petition, the claim is waived because he never

(Footnote Continued Next Page)

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Hernandez, 79 A.3d 649, 654-55 (Pa.Super. 2013) (no jurisdiction to hear

an ineffective assistance of counsel claim because of an untimely PCRA);

Commonwealth v. Fahy, 737 A.3d 214, 223 (Pa. 1999) (no jurisdiction to

consider an illegal sentencing claim because of an untimely PCRA). Likewise,

having found that Appellant’s petition was barred by the PCRA time

requirements, neither the PCRA court nor this Court has authority to address

the merits of his request to reinstate his direct appeal rights nunc pro tunc.

See Commonwealth v. Hall, 771 A.2d 1232, 1236 (Pa. 2001);

Commonwealth v. Turner, 73 A.3d 1283, 1285 (Pa.Super. 2013) (“Where

a petitioner fails to satisfy the timeliness requirements of the PCRA, the PCRA

court and this Court have no jurisdiction to review the petition by fashioning

an equitable exception to timeliness.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/20/2023

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pled the governmental interference exception in either his pro se or counseled

petition. See 42 Pa.C.S. § 9545(b)(1)(i).

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