Com. v. Pendleton, R. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
RAYMOND PENDLETON :
:
Appellant : No. 1020 WDA 2020
Appeal from the PCRA Order Entered August 24, 2020
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003702-2012,
CP-02-CR-0012738-2012
BEFORE: SHOGAN, J., DUBOW, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: APRIL, 2021
Appellant, Raymond Pendleton, appeals pro se from the order entered
in the Allegheny County Court of Common Pleas, which dismissed as untimely
his serial petition filed under the Post Conviction Relief Act (“PCRA”).1 We
affirm.
On November 20, 2013, Appellant entered negotiated guilty pleas at
multiple docket numbers to criminal homicide, robbery, criminal conspiracy,
persons not to possess firearms, firearms not to be carried without a license,
resisting arrest, possession of a small amount of marijuana, involuntary
deviate sexual intercourse with a child, criminal attempt—involuntary deviate
sexual intercourse with a child, indecent assault (complainant less than 13
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1 42 Pa.C.S.A. §§ 9541-9546.
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years of age), endangering the welfare of a child by parent or guardian,
corruption of minors, and indecent exposure. That same day, the court
sentenced Appellant to the negotiated aggregate sentence of 22½ to 50 years
of incarceration. Appellant did not seek direct review of his sentence.
On March 11, 2014, Appellant filed his first PCRA petition, alleging
ineffective assistance of counsel because his attorney had coerced his guilty
plea, had not discussed the case with him, and was not prepared to go to trial.
(See PCRA Petition, 3/11/14, at 1-10). The court appointed counsel to assist
Appellant with litigating his first PCRA petition, but the court ultimately denied
PCRA relief. This Court affirmed the denial of relief on October 30, 2015. See
Commonwealth v. Pendleton, 134 A.3d 110 (Pa.Super. 2015) (unpublished
memorandum).
Appellant filed a second PCRA petition on May 22, 2017, arguing that
the Pennsylvania Supreme Court’s decision in Commonwealth v. Burton,
638 Pa. 687, 158 A.3d 618 (2017), constituted a “newly-discovered fact.”
(See Supplemental PCRA Petition, 5/22/17, at 1-4). Following the PCRA
court’s dismissal of his petition as untimely and Appellant’s appeal, this Court
affirmed the denial of PCRA relief on June 22, 2018. See Commonwealth v.
Pendleton, 193 A.3d 1098 (Pa.Super. 2018) (unpublished memorandum).
On January 29, 2020, Appellant filed the instant PCRA petition, his third.
(See PCRA Petition, 1/29/20, at 3-4). In his petition, Appellant again alleged
plea counsel was ineffective, and claimed the current PCRA petition satisfied
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the “new constitutional right” exception. (Id. at 4). Specifically, Appellant
claimed that pursuant to Commonwealth v. Rosado, 637 Pa. 424, 150 A.3d
425 (2016) and Garza v. Idaho, ___ U.S. ___, 139 S.Ct. 738, 203 L.Ed.2d
77 (2019), he had been constructively denied counsel because his attorney
failed to file a notice of appeal from his judgment of sentence. (See
Amendment to PCRA Petition, 1/29/20, at 1-5) (unpaginated).
On July 27, 2020, the PCRA court issued Pa.R.Crim.P. 907 notice of its
intent to dismiss the petition without a hearing. Appellant filed a pro se
response. On August 24, 2020, the court dismissed the petition as untimely.
On September 17, 2020, Appellant timely filed a notice of appeal. 2 The court
did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement, and
Appellant filed none.
Appellant raises the following issue for our review:
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2 On November 2, 2020, this Court directed Appellant to show cause why the
appeal should not be quashed in light of Commonwealth v. Walker, 646 Pa.
456, 185 A.3d 969 (2018), as he had filed a single notice of appeal from
multiple docket numbers. In his response, Appellant claimed that he believed
he was required to list all underlying dockets on his notice of appeal, but that
he actually was appealing only from docket CP-02-CR-12738-2012. (See
Response to Rule to Show Cause, 11/9/20, at 1-2). Because Appellant is
challenging only one docket number in this appeal, there is no Walker
violation. Moreover, the order denying PCRA relief specifically stated that
Appellant had the right to file “a Notice of Appeal.” (See Order, 8/24/20)
(emphasis added). Under these circumstances, we could overlook Appellant’s
failure to comply with Walker in any event. See Commonwealth v.
Stansbury, 219 A.3d 157 (Pa.Super. 2019) (holding that breakdown in
operations of court occurs where lower court misinforms appellant regarding
his appellate rights). See also Commonwealth v. Larkin, 235 A.3d 350(Pa.Super. 2020) (en banc) (reaffirming holding in Stansbury).
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Whether [Appellant] signed guilty plea explanation of
[Appellant’s] rights containing a clause stating to preserve
his right to direct appeal which plea counsel breached and
violated his Sixth Amendment to the U.S. Constitution and
Art. V sec 9 of the Pennsylvania Constitution and therefore
constituted ineffective assistance of counsel per se.
(Appellant’s Brief at i).
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition shall be filed within one year of the date the underlying
judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment
of sentence is 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.A. § 9545(b)(3). The statutory exceptions to the PCRA time-bar allow
for very limited circumstances under which the late filing of a petition will be
excused; a petitioner asserting a timeliness exception must also file a petition
within the required statutory window. 42 Pa.C.S.A § 9545(b)(1-2). To obtain
merits review of a PCRA petition filed more than one year after the judgment
of sentence became final, the petitioner must allege and prove at least one of
the three enumerated timeliness exceptions. See 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii).
To satisfy the newly-recognized constitutional right exception under
Section 9545(b)(1)(iii), the petitioner must plead and prove: “the right
asserted is a constitutional right that was recognized by the Supreme Court
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of the United States or the Supreme Court of Pennsylvania after the time
provided in this section,” and “the right ‘has been held’ by ‘that court’ to apply
retroactively.” Commonwealth v. Miller, 102 A.3d 988, 994 (Pa.Super.
2014) (citation and brackets omitted). “[A] new rule of constitutional law is
applied retroactively to cases on collateral review only if the United States
Supreme Court or our Supreme Court specifically holds it to be retroactively
applicable to those cases.” Id. at 995 (citations omitted).
Instantly, Appellant’s judgment of sentence became final on or about
December 20, 2013, after the time period for filing a direct appeal expired.
See 42 Pa.C.S.A. § 9545(b)(1). Appellant filed the current petition on January
29, 2020, which is patently untimely. See id. Appellant now attempts to
invoke the newly-recognized constitutional right exception, relying on Garza
and Rosado.
In Garza, the defendant entered a plea agreement containing an appeal
waiver; in other words, by signing the agreement, Appellant waived his right
to appeal except in certain, specific situations. Garza, supra at ___, 139
S.Ct. at 742-43. In challenging counsel’s ineffectiveness for failure to file an
appeal on Appellant’s behalf, the Idaho Supreme Court concluded that, given
the appeal waiver, the defendant “needed to show both deficient performance
and resulting prejudice; it concluded that he could not.” Id. On appeal to the
United States Supreme Court, the High Court noted that “the crux of this case
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[is] whether Flores-Ortega’s[3] presumption of prejudice applies despite an
appeal waiver.” Garza, supra at ___, 139 S.Ct. at 746-47. The Court
explained:
With regard to prejudice, Flores-Ortega held that, to
succeed in an ineffective-assistance claim in this context, a
defendant need make only one showing: “that, but for
counsel’s deficient failure to consult with him about an
appeal, he would have timely appealed.” 528 U.S. at 484,
120 S.Ct. 1029. So long as a defendant can show that
“counsel’s constitutionally deficient performance deprive[d
him] of an appeal that he otherwise would have taken,”
courts are to “presum[e] prejudice with no further showing
from the defendant of the merits of his underlying claims.”
Ibid. Because there is no dispute here that Garza wished
to appeal…a direct application of Flores-Ortega’s language
resolves this case. See 528 U.S. at 484, 120 S.Ct. 1029.
Flores-Ortega’s reasoning shows why an appeal waiver
does not complicate this straightforward application. That
case, like this one, involves a lawyer who forfeited an
appellate proceeding by failing to file a notice of appeal. Id.,at 473–475, 120 S.Ct. 1029. As the Court explained, given
that past precedents call for a presumption of prejudice
whenever “the accused is denied counsel at a critical stage,”
it makes even greater sense to presume prejudice when
counsel’s deficiency forfeits an “appellate proceeding
altogether.” Id., at 483, 120 S.Ct. 1029. After all, there is
no disciplined way to “accord any ‘presumption of
reliability’…to judicial proceedings that never took place.”
Garza, supra at ___, 139 S.Ct. at 747 (some internal citations omitted).
Because Garza had retained a right to appeal at least some issues despite the
appeal waiver in the plea agreement, the Court concluded that he was denied
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3See Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985(2000).
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his right to appeal those issues by counsel’s deficient performance. Id. Thus,
the Court
reaffirm[ed] that, “when counsel’s constitutionally deficient
performance deprives a defendant of an appeal that he
otherwise would have taken, the defendant has made out a
successful ineffective assistance of counsel claim entitling
him to an appeal,” with no need for a “further showing” of
his claims’ merit…regardless of whether the defendant has
signed an appeal waiver.
Id.Contrary to Appellant’s assertion, the Garza Court did not announce a
“new constitutional right,” but applied the holding of Flores-Ortega to
circumstances involving an appeal waiver. Garza, supra at ___, 139 S.Ct.
at 749-50. Appellant has cited no further case law in support of his contention
that Garza constituted a newly-recognized constitutional right held to apply
retroactively to cases on collateral review. See 42 Pa.C.S.A. § 9545(b)(1)(iii).
Under these circumstances, Appellant’s reliance on Garza does not entitle him
to relief. See, e.g., Commonwealth v. Garcia, 23 A.3d 1059 (Pa.Super.
2011), appeal denied, 614 Pa. 710, 38 A.3d 823 (2012) (holding application
of criminal defendant’s long-standing constitutional right to effective
assistance of counsel to new set of facts did not create “new constitutional
right” under PCRA).
Appellant also relies on Rosado. In that case, the Pennsylvania
Supreme Court considered “whether filing an appellate brief which abandons
all preserved issues in favor of unpreserved ones constitutes ineffective
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assistance of counsel per se.” Rosado, supra at 426, 150 A.3d at 426.
Ultimately, the Court concluded that
the filing of a brief that raises only waived issues, while
technically distinct, is nonetheless akin to failing to file
documents perfecting an appeal. There is no meaningful
difference between an attorney who fails to file a notice of
appeal, Rule 1925(b) statement, brief, or petition for
allowance of appeal—thereby forfeiting his client’s right to
appeal—and one who makes all necessary filings, but does
so relative solely to claims he has not preserved for appeal,
producing the same end. In both situations, counsel has
forfeited all meaningful appellate review.
Id. at 434, 150 A.3d at 439-40.
Similar to Garza, the Rosado Court did not announce a “newly-
recognized constitutional right,” but applied law regarding the presumption of
prejudice in ineffectiveness cases to a new set of facts. Again, Appellant has
failed to cite to any case law in support of his contention that Rosado
constituted a newly-recognized constitutional right held to apply retroactively
to cases on collateral review.4 See 42 Pa.C.S.A. § 9545(b)(1)(iii).
Consequently, Appellant’s reliance on Rosado does not entitle him to relief.
See Garcia, supra. Accordingly, Appellant’s current PCRA petition remains
time-barred, and we affirm the order denying relief.
Order affirmed.
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4 Even if Rosado recognized a new constitutional right, it was published on
November 22, 2016, and petitions asserting one of the time-bar exceptions
must be filed “within one year of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2). Appellant filed his current PCRA
petition on January 29, 2020, more than one year after the filing of Rosado.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/30/2021
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