Com. v. Beatty, W., Jr. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
WILLIAM SCOTT BEATTY, JR. :
:
Appellant : No. 1298 MDA 2017
Appeal from the PCRA Order July 21, 2017
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000842-2010
BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 23, 2018
Appellant, William Scott Beatty, Jr., appeals from the order entered in
the Lebanon County Court of Common Pleas, which granted in part and
denied in part his second petition filed pursuant to the Post Conviction Relief
Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
On April 5, 2011, Appellant entered an open nolo contendere plea to 87
charges, including burglary, robbery, corrupt organizations, and related
offenses. The court sentenced Appellant on May 18, 2011, to 497-994
months’ incarceration, plus fines, costs, and restitution. Appellant sought no
direct review. So, the judgment of sentence became final on June 17, 2011.
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1 42 Pa.C.S.A. §§ 9541-9546
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Instead, on May 26, 2011, Appellant filed his first pro se PCRA petition. The
PCRA court appointed counsel, and subsequently denied Appellant PCRA
relief on April 8, 2013. On February 4, 2014, this Court vacated and
remanded. See Commonwealth v. Beatty, 97 A.3d 792 (Pa.Super. 2014)
(unpublished memorandum). On remand, the PCRA court conducted a
hearing on July 29, 2014, and denied Appellant’s petition on June 24, 2015.
This Court affirmed on February 5, 2016. See Commonwealth v. Beatty,
141 A.3d 587 (Pa.Super. 2016) (unpublished memorandum).
On March 21, 2016, Appellant filed his second, current pro se PCRA
petition. The PCRA court appointed counsel, who filed an amended PCRA
petition and supplemental amended PCRA petition. In his petition, Appellant
raised several new claims of ineffective assistance of counsel. Specifically,
Appellant asserted, inter alia, first PCRA counsel failed to file in our Supreme
Court a petition for allowance of appeal from this Court’s February 5, 2016
decision, despite Appellant’s request.
On August 25, 2016, the PCRA court conducted an evidentiary hearing
and heard testimony from Appellant and first PCRA counsel. Appellant
testified he contacted first PCRA counsel after Appellant received this Court’s
February 5, 2016 memorandum, to tell counsel Appellant wished to seek
allowance of appeal in the Pennsylvania Supreme Court. Appellant stated
first PCRA counsel failed to seek further review, despite Appellant’s request.
First PCRA counsel testified he did not receive this Court’s February 5, 2016
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memorandum until March 21, 2016, after expiration of the 30-day period for
filing a petition for allowance of appeal in our Supreme Court. Counsel said
he explained in a letter to Appellant dated March 24, 2016, that counsel had
received this Court’s decision only days ago and understood Appellant would
have wanted to seek allowance of appeal in our Supreme Court had counsel
learned of this Court’s decision earlier. First PCRA counsel stated he
believed Appellant generally wished to appeal any adverse decisions from
the denial of his first PCRA petition, although Appellant did not expressly ask
counsel to seek allowance of appeal from this Court’s February 5, 2016
decision.
On July 21, 2017, the PCRA court granted in part Appellant’s petition
and reinstated his right to file in our Supreme Court a petition for allowance
of appeal nunc pro tunc from this Court’s February 5, 2016 decision.2 The
PCRA court denied Appellant’s petition in all other respects. Appellant filed a
timely notice of appeal from that decision in this Court on August 18, 2017.
The PCRA court ordered Appellant on August 23, 2017, to file a concise
statement of errors complained of on appeal per Pa.R.A.P. 1925(b);
Appellant timely complied on August 31, 2017.
Appellant raises the following issues for our review:
WHETHER [FIRST] PCRA COUNSEL FAILED TO
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2Appellant obtained a stay on his petition for allowance of appeal while this
Court resolved the present appeal.
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ADEQUATELY ARGUE AT THE PCRA HEARING THAT
APPELLANT HAD REQUESTED THAT HIS TRIAL COUNSEL
FILE AN APPEAL ON HIS BEHALF?
WHETHER [FIRST] PCRA COUNSEL FAILED TO
ADEQUATELY ARGUE THAT APPELLANT HAD REQUESTED
TRIAL COUNSEL TO FILE POST-SENTENCE MOTIONS AND
CHALLENGE THE VALIDITY OF HIS SENTENCE, UPON
APPELLANT’S [REQUEST], AT HIS PCRA HEARING?
WHETHER [FIRST] PCRA COUNSEL FAILED TO ARGUE IN
HIS BRIEF TO THE SUPERIOR COURT THAT APPELLANT
HAD REQUESTED TRIAL COUNSEL TO FILE A DIRECT
APPEAL AND THAT TRIAL COUNSEL FAILED TO DO SO[?]
WHETHER [FIRST] PCRA COUNSEL FAILED TO ARGUE AT
THE PCRA HEARING THAT TRIAL COUNSEL FAILED TO
LOOK INTO CHANGES FROM THE ORIGINAL INFORMATION
AND THE AMENDED INFORMATION THAT WAS FILED, AND
IN RETURN, FILE A MOTION ON APPELLANT’S BEHALF[?]
WHETHER [FIRST] PCRA COUNSEL FAILED TO ARGUE AT
THE PCRA HEARING THAT TRIAL COUNSEL FAILED TO
PROVIDE APPELLANT WITH PERMISSIBLE RANGES IN
SENTENCING AND FINES[?]
WHETHER [FIRST] PCRA COUNSEL FAILED [TO ARGUE AT
THE PCRA HEARING THAT TRIAL COUNSEL FAILED] TO
FILE A MOTION FOR SEVERANCE[?]
WHETHER [FIRST] PCRA COUNSEL FAILED TO ARGUE
THAT APPELLANT’S PLEA WAS NOT KNOWING,
VOLUNTARY AND INTELLIGENTLY MADE[?]
(Appellant’s Brief at 4-5).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,
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612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the
findings of the PCRA court if the record contains any support for those
findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal
denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44
A.3d 1190 (Pa.Super. 2012). Traditionally, credibility issues are resolved by
the trier of fact who had the opportunity to observe the witnesses’
demeanor. Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79
(1998), cert. denied, 528 U.S. 810, 120 S. Ct. 41, 145 L. Ed. 2d 38 (1999).
Where the record supports the PCRA court’s credibility resolutions, they are
binding on this Court. Id.
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition, including a second or subsequent petition, shall be filed within
one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. §
9545(b)(1). A judgment is deemed 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 three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
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petition must allege and the petitioner must prove:
(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.A. § 9545(b)(1)(i)-(iii). Additionally, a PCRA petitioner must
present his claimed exception within sixty days of the date the claim first
could have been presented. 42 Pa.C.S.A. § 9545(b)(2). “As such, when a
PCRA petition is not filed within one year of the expiration of direct review,
or not eligible for one of the three limited exceptions, or entitled to one of
the exceptions, but not filed within 60 days of the date that the claim could
have been first brought, the [PCRA] court has no power to address the
substantive merits of a petitioner’s PCRA claims.” Commonwealth v.
Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).
The timeliness exception set forth in Section 9545(b)(1)(ii) requires a
petitioner to demonstrate he did not know the facts upon which he based his
petition and could not have learned those facts earlier by the exercise of due
diligence. Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,
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1271 (2007). Due diligence demands that the petitioner take reasonable
steps to protect his own interests. Commonwealth v. Carr, 768 A.2d
1164, 1168 (Pa.Super. 2001). In other words, the “new facts” exception at:
[S]ubsection (b)(1)(ii) 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.
Bennett, supra at 395-96, 930 A.2d at 1272 (internal citations omitted)
(emphasis in original).
A common allegation of ineffective assistance of counsel, even if cast
in the language of a statutory exception, does not generally establish
jurisdiction over an otherwise untimely PCRA petition. Gamboa-Taylor,
supra at 80, 753 A.2d at 785. In rare instances, the law will allow a
petitioner to proceed with a second, albeit untimely, PCRA petition, where
petitioner timely asserts the “after-discovered facts exception” under 42
Pa.C.S.A. § 9545(b)(1)(ii), claiming specific abandonment of counsel on a
prior appeal. See Bennett, supra at 399-400, 930 A.2d at 1274.
Instantly, Appellant’s judgment of sentence became final on June 17,
2011, upon expiration of the 30-day period to file a notice of appeal in this
Court. See Pa.R.A.P. 903(a). Appellant filed his second and current pro se
PCRA petition on March 21, 2016, which is patently untimely. In his
petition, Appellant alleged several new claims of ineffective assistance of
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first PCRA counsel, including a claim that first PCRA counsel failed to file in
our Supreme Court a petition for allowance of appeal from this Court’s
February 5, 2016 decision, despite Appellant’s request. The PCRA court
considered the merits of Appellant’s second PCRA petition and granted relief
in part by reinstating Appellant’s appeal rights nunc pro tunc from the denial
of his first PCRA petition.3 The PCRA court denied Appellant’s PCRA petition
in all other respects.
What is properly before us in this appeal is the PCRA court’s decision
to deny relief on the remaining generic claims of ineffective assistance of
first PCRA counsel, for which Appellant failed to assert any of the exceptions
to the PCRA time-bar. See Gamboa-Taylor, supra; 42 Pa.C.S.A. §
9545(b)(1). Therefore, Appellant’s remaining PCRA claims were time-
barred, and the PCRA court lacked jurisdiction to review them. See Zeigler,
supra. Accordingly, we affirm. See Commonwealth v. Reese, 31 A.3d
708, 727 (Pa.Super. 2011) (en banc) (stating appellate court may affirm
order of trial court on any basis if ultimate decision is correct).
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3 We can only presume the court granted Appellant partial relief in light of
first PCRA counsel’s testimony and Bennett. See Bennett, supra. That
decision, however, is not before us in this appeal.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2018
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