Com. v. Bishop, S. ( 2016 )


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  • J-S70037-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
    :             PENNSYLVANIA
    v.                            :
    :
    SHAWN BISHOP,                             :
    :
    Appellant               :           No. 3747 EDA 2015
    Appeal from the Order November 16, 2015
    in the Court of Common Pleas of Philadelphia County,
    Criminal Division, No(s): CP-51-CR-1208991-2002
    BEFORE: OLSON, OTT and MUSMANNO, JJ.
    MEMORANDUM BY MUSMANNO, J.:                    FILED NOVEMBER 15, 2016
    Shawn Bishop (“Bishop”), pro se, appeals from the Order dismissing
    his second Petition for relief filed pursuant to the Post Conviction Relief Act
    (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
    The PCRA court set forth in its Opinion the relevant procedural history
    underlying this appeal, which we incorporate as though fully set forth herein.
    See PCRA Court Opinion, 3/22/16, at 1-3.
    In this timely appeal, Bishop presents the following questions for our
    review:
    1. Did the PCRA court err[] in dismissing [Bishop’s] PCRA
    Petition by conflating the [PCRA’s] timeliness requirements
    with merit[]s review, contravening [the Pennsylvania]
    Supreme Court’s decision in Commonwealth v. Bennett,
    
    930 A.3d 1264
     (Pa. 2007)?
    2. Did the PCRA court err[] by dismissing [Bishop’s] successive
    PCRA Petition as untimely where the Petition was filed within
    sixty days of PCRA Counsel (James Bruno[, Esquire
    J-S70037-16
    (hereinafter “PCRA counsel”),]) informing [Bishop] personally
    by letter that [PCRA counsel] was temporarily disbarred?
    3. [Whether] the PCRA court erred by dismissing [Bishop’s]
    PCRA Petition based[,] to any degree[,] on a finding that
    [Bishop] could not establish prejudice where PCRA counsel’s
    mental condition interfered with counsel’s ability to provide
    [Bishop] with his rule[-]base[d] right (Pa.R.Crim.P. 904) to
    effective assistance of counsel on his first PCRA Petition?
    4. Did the PCRA court err[] by appointing [Bishop] an attorney
    who had a long[-]documented history of disciplinary issues[,]
    dating back to 1998, and accepting [Bishop’s] pro se filings
    ([Bishop’s response to the PCRA court’s Pa.R.Crim.P.] 907
    Notice, [and the] Notice of Appeal) below while [PCRA]
    counsel was still counsel of record?
    5. Did the PCRA court err[] by not restoring [Bishop’s] PCRA
    rights where [PCRA] counsel failed to perform his duties as
    required under Pa.R.Crim.P. 904?
    Brief for Appellant at 4 (some capitalization omitted).
    We review an order dismissing a petition under the PCRA in the light
    most favorable to the prevailing party at the PCRA level. Commonwealth
    v. Spotz, 
    84 A.3d 294
    , 311 (Pa. 2014). The review is limited to the findings
    of the PCRA court and the evidence of record.          
    Id.
       The PCRA court’s
    decision will be upheld if it is supported by the record and free of legal error.
    Commonwealth v. Fears, 
    86 A.3d 795
    , 803 (Pa. 2014).
    Under the PCRA, any PCRA petition “shall be filed within one year of
    the date the judgment [of sentence] becomes final.”               42 Pa.C.S.A.
    § 9545(b)(1). A judgment of sentence becomes final “at the conclusion of
    direct review, including discretionary review in the Supreme Court of
    Pennsylvania, or at the expiration time for seeking the review.”             Id.
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    J-S70037-16
    § 9545(b)(3).    The PCRA’s timeliness requirements are jurisdictional in
    nature, and a court may not address the merits of the issues raised if the
    PCRA petition was not timely filed. Commonwealth v. Albrecht, 
    994 A.2d 1091
    , 1093 (Pa. 2010).
    Here, Bishop’s judgment of sentence became final on July 21, 2009,
    when the time to file a petition for writ of certiorari with the United States
    Supreme Court expired.     See Commonwealth v. Wilson, 
    911 A.2d 942
    ,
    945 (Pa. Super. 2006). Therefore, Bishop’s instant PCRA Petition, which was
    filed over six years later, is facially untimely.          See 42 Pa.C.S.A.
    § 9545(b)(3).
    However, Pennsylvania courts may consider an untimely PCRA petition
    if the appellant can explicitly plead and prove one of the three exceptions set
    forth at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). To establish an exception to the
    timeliness requirement, the Petitioner must plead and prove 1) the failure to
    raise the claim was the result of government interference; 2) the facts upon
    which the claim is predicated were unknown and could not have been
    discovered with due diligence (hereinafter “the newly-discovered facts
    exception”); or 3) the right asserted is a Constitutional right recognized by
    the Supreme Court of the United States or the Supreme Court of
    Pennsylvania after the time period provided in the section, and the court has
    held that it applies retroactively.   Id.   Any petition invoking one of these
    -3-
    J-S70037-16
    exceptions “shall be filed within 60 days of the date the claim could have
    been presented.” Id. § 9545(b)(2).
    We will address all of Bishop’s claims simultaneously, as they are
    related. Bishop argues that the PCRA court improperly dismissed his second
    PCRA Petition because he (1) met the requirements of the newly-discovered
    facts exception; and (2) filed the PCRA Petition within 60 days of the date
    his claim concerning this exception could have been presented.           See Brief
    for Appellant at 12, 15-16. Specifically, Bishop contends that the letter that
    PCRA counsel sent to Bishop on March 22, 2013 (hereinafter “the
    Suspension    Letter”),   informing    Bishop   of   PCRA    counsel’s   temporary
    suspension from the practice of law,1 constitutes a newly-discovered fact
    that meets the timeliness exception. Id. at 12-13, 15. According to Bishop,
    PCRA counsel’s “ADHD [] caused [counsel] to abandon [Bishop] on his first
    PCRA [P]etition[,]” and PCRA counsel’s representation was ineffective.          Id.
    at 14, 19; see also id. at 18 (arguing that the Amended first PCRA Petition
    that PCRA counsel filed on behalf of Bishop “was so boilerplate and
    insufficient[,] in that it was substantially lacking in citation to any legal
    authorities and without any meaningful argument.            In all likelihood[,] the
    deficient document is the result of [PCRA counsel’s] cognitive disorders.
    1
    Bishop attached to his brief a Report and Recommendation issued by the
    Disciplinary Board of the Pennsylvania Supreme Court, which detailed PCRA
    counsel’s diagnosis of Attention Deficit-Hyperactivity Disorder (“ADHD”) and
    depression, and counsel’s violations of the Rules of Professional Conduct.
    See Brief for Appellant, Exhibit B.
    -4-
    J-S70037-16
    [PCRA counsel] never consulted or communicated with [Bishop] throughout
    the PCRA proceedings.”) (internal citation omitted).
    In its Opinion, the PCRA court addressed Bishop’s claims, concisely
    summarized the law pertaining to the newly-discovered facts exception, and
    determined that Bishop failed to meet this exception.      See PCRA Court
    Opinion, 3/22/16, at 5-7. We affirm with regard to Bishop’s issues based on
    the PCRA court’s sound rationale, see id., with the following addendum.
    Generally, claims of ineffective assistance of counsel, such as Bishop’s
    claim, will not save an otherwise untimely petition from the application of
    the time restrictions of the PCRA. Commonwealth v. Edmiston, 
    65 A.3d 339
    , 349 (Pa. 2013); Commonwealth v. Gamboa-Taylor, 
    753 A.2d 780
    ,
    785 (Pa. 2000).      However, the Supreme Court of Pennsylvania has
    determined that a PCRA petitioner’s discovery that his counsel has
    abandoned him (by failing to file a requested appeal from an order denying
    his timely first PCRA petition, a court-ordered Pa.R.A.P. 1925(b) concise
    statement, or an appellate brief) can permit the petitioner to circumvent the
    PCRA time bar under the newly-discovered facts exception. Bennett, 930
    A.2d at 1273;2 see also id. (stating that “subsection 9545(b)(1)(ii) is a
    limited extension of the one-year time requirement under circumstances
    where a petitioner has not had the review to which he was entitled due to a
    circumstance that was beyond his control.”).
    2
    Bishop invoked Bennett in both his appellate brief and second PCRA
    Petition.
    -5-
    J-S70037-16
    In the instant case, unlike in Bennett, Bishop was not deprived of his
    right to a counseled first PCRA appeal. Although PCRA counsel undeniably
    failed to file a court-ordered Rule 1925(b) concise statement on Bishop’s
    behalf (regarding Bishop’s appeal from the denial of his first PCRA Petition),
    after PCRA counsel withdrew his representation, the PCRA court appointed
    Bishop new counsel, and this Court decided Bishop’s appeal on the merits.
    Accordingly, Bennett is of no avail to Bishop, and the PCRA court properly
    determined that Bishop failed to establish the newly-discovered facts
    exception.
    Accordingly, because we conclude that Bishop did not meet any of the
    time timeliness exceptions necessary to save his facially untimely second
    PCRA Petition, and his ineffectiveness claim is unavailing, the PCRA court
    properly dismissed the Petition.
    Order affirmed.
    Judge Ott joins the memorandum.
    Judge Olson concurs in the result.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/15/2016
    -6-
    J-S70037-16
    -7-
    Circulated 10/19/2016 02:17 PM
    IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
    CRIMINAL TRIAL DIVISION
    COMMONWEALTH OF PENNSYLVANIA                                         CP-51-CR-1208991-
    2002 V. 3747
     EDA 2015
    SHAWN BISHOP
    FILED
    MAR 2 2 20\6 .
    OPINION
    Cf\m\na\ App~a\~ Unit .
    Rose Marie DeFino-Nastasi, J.                                               firstJud\cia, o,stnctot PA
    PROCEDURAL HISTORY
    On November 12, 2003, Petitioner was found guilty after a jury trial, presided over by the
    Honorable Jane Cutler Greenspan, of First Degree Murder, 18 Pa.C.S. § 2502(a)_, as a felony of
    the first degree; and Conspiracy, 18 Pa.C.S. § 903, as a felony of the first degree.
    On January 9, 2004, Petitioner was sentenced to life imprisonment for the first degree
    murder conviction; ten (10) years to twenty (20) years for the conspiracy conviction, to run
    concurrently.
    On July 22, 2005, the Superior Court affirmed the judgment of sentence.
    Following the reinstatement of Petitioner's right to file a petition for allowance of appeal
    with the Pennsylvania Supreme Court, his appeal was denied on April 22, 2008.
    ·on January 26, 2009, Petitioner filed a pro se petition under the Post Conviction Relief
    Act (PCRA). James Bruno, Esq. was appointed PCRA counsel and filed an amended petition.
    On August 10, 2011, the Commonwealth filed a Motion to Dismiss.
    On March 14, 2012, Petitioner's first PCRA petition was formally dismissed.
    On April 12, 2012, Petitioner filed a prose notice of appeal to the Superior Court.
    On March 22, 2013, Attorney Bruno sent Petitioner           a letter stating that he has been
    placed on temporary suspension by the Pennsylvania Supreme Court, effective March 28, 2013.
    See Petitioner's January 26, 2015 PCRA Petition at Exhibit P2. That same day, Attorney Bruno
    filed a Motion to Withdraw as Counsel and for Remand to Appoint Counsel, which was granted
    by the Superior Court on April 10, 2013.1
    Lee Mandell, Esq. was appointed PCRA counsel by the Court Appointments Unit and
    entered his appearance on April 19, 2013.
    On May 16, 2014, the Superior Court affirmed the Order formally dismissing Petitioner's
    first PCRA petition. In its Opinion, the Court stated that although Attorney Bruno failed to file a
    Rule 1925(b) Statement of Matters Complained of on Appeal, it was unnecessary to remand for
    the filing of a Rule 1925(b) statement nunc pro tune because the PCRA court addressed all of the
    issues PetitionerraisedinhisPCRApetition.            Com. v. Bishop, 1205 EDA2012atpp.4-5              n. 3.
    On July 11, 2014, Petitioner filed the instant, second PCRA petition, prose, broadly
    asserting claims of ineffective assistance of PCRA counsel.
    On August 13, 2014, Teri Himebaugh, Esq. entered her appearance as privately retained
    PCRA counsel.
    On January 14, 2015, the Supreme Court denied the Petition for Allowance of Appeal
    from Petitioner's first PCRA petition.
    On January 26, 2015, Attorney Himebaugh filed an amended petition.
    On July 23, 2015, the Commonwealth filed a motion to dismiss.
    On September 4, 2015, Petitioner filed a response to the Commonwealth's Motion to
    Dismiss.
    I
    On November 13, 2014, the Supreme Court of Pennsylvania suspended Attorney Bruno from the practice of law
    for a period of two years retroactive to February 26, 2013. See Petitioner's January 26, 2015 PCRA Petition at
    Exhibit PS.
    2
    On October 14, 2015, the Court issued a 907 notice.
    On November 16, 2015, Petitioner's second PCRA petition was formally dismissed.
    On December 15, 2015, Petitioner filed the instant appeal the Superior Court.2
    On February 4, 2016, Petitioner filed a Rule 1925(b) statement, pursuant to an Order of
    the Court, claiming that:
    l. The PCRA court erred in dismissing Petitioner's second PCRA petition "by
    conflating the timeliness requirements with a merit's review, contravening" Com. v.
    Bennett, 
    930 A.3d 1264
     (Pa. 2007).
    2. The PCRA Court erred in dismissing Petitioner's second PCRA petition where the
    petition was filed within 60 days of PCRA counsel James Bruno, Esq. informing
    Petitioner that he was temporarily disbarred.
    3. The PCRA court erred in dismissing Petitioner's second PCRA petition based on a
    finding that Petitioner could not establish prejudice where PCRA counsel's mental
    condition interfered with counsel's ability to provide Petitioner with effective
    assistance of counsel.
    4. The PCRA court erred by appointing Petitioner an attorney "who had a long
    documented history of disciplinary issues dating back to 1997" and "by accepting
    Petitioner's prose filings (907 Notice, Notice of Appeal) below while Attorney
    Bruno was still counsel of record."
    5. · The PCRA court erred by failing to restore Petitioner's PCRA rights "where counsel
    failed to perform his duties as required under Pa.RCrim.P. 904."
    2
    On December 29, 2015, Attorney Himebaugh, whom Petitioner privately retained, filed a Motion to Withdraw in
    the Superior Court. On December 31, 2015, Petitioner flied a motion to proceed prose. On January 20, 2016, the
    Superior Court remanded to the PCRA court to conduct a hearing pursuant to Com. v. Grazier, 
    713 A.2d 81
     (Pa.
    1998). On March 21, 2016, the Court conducted a hearing and determined that since this was Petitioner's second
    PCRA petition, he was not entitled to court-appointed counsel.
    3
    ANALYSIS
    Petitioner's PCRA petition is untimely. The Pennsylvania Supreme Court denied his
    Petition for Allowance of Appeal on April 22, 2008. Petitioner's judgment of sentence became
    final on July 21, 2008, after the ninety-day period to file a writ of certiorari with the United
    States Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3) ("For purposes of this subchapter, a
    judgment becomes final at the conclusion of direct review ... or at the expiration oftime for
    seeking the review."). A petition for relief under the PCRA must be filed within one year of the
    date the PCRA petitioner's judgment of sentence becomes final, unless the petitioner alleges and
    proves that an exception to the one-year time-bar is met. Com. v. Taylor, 
    65 A.3d 462
    , 468 (Pa.
    Super. 2013) (citing 42 Pa.C.S. § 9545). Thus, Petitioner had until July 21, 2009, to file a timely
    petition, making his July 11, 2014 second PCRA petition patently untimely.
    The timeliness of a PCRA petition is a jurisdictional requirement. Com. v. Robinson, 
    12 A.3d 477
     (Pa. Super. 2011). The Act provides three, very limited exceptions to the requirement
    that a PCRA petition be filed within one year of finality of the judgment of sentence:
    (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
    I
    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.
    4
    42 Pa.C.S. § 9545(b)(l)(i)-(iii).
    Additionally, any petition invoking an exception must be filed within sixty (60) days of
    the date the claim could have been presented. 42 Pa.C.S. § 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." Com. v. Monaco, 
    996 A.2d 1076
    , 1080
    (Pa. Super. 2010) (quoting Com. v. Gamboa-Taylor, 
    753 A.2d 780
    , 783 (Pa. 2000)).
    Since Petitioner's PCRA petition is untimely, Petitioner must plead and prove the
    applicability of one of the above-stated exceptions to the PCRA's one-year time-bar for this
    Court to have jurisdiction over his appeal. Petitioner has failed to meet this burden.
    Issue I
    In his Rule 1925 (b) statement, Petitioner asserts that the PCRA court erred in dismissing
    his second PCRA petition "by conflating the timeliness requirements with a merit's review,
    contravening" Com. v. Bennett, 
    930 A.3d 1264
     (Pa. 2007). This is not an exception to the
    jurisdictional time bar. Com. v. Taylor, 
    67 A.3d 1245
    , 1249 (Pa. 2013) (claim that PCRA court
    conflated the issues of timeliness and merits is not an exception to the PCRA time requirement).
    Thus, Petitioner's claim is without merit.
    Issue Il- V
    Issues two through five in Petitioner's Rule 1925(b) statement will be addressed together.
    Since Petitioner's July 11, 2014 PCRA petition is untimely, he attempts to circumvent the PCRA
    jurisdictional requirements by claiming after-discovered evidence in the form of a March 22,
    2013 letter James Bruno, Esq., counsel for Petitioner's first PCRA petition, sent Petitioner
    5
    stating that he was being suspended from the practice oflaw. See Section 9545(b)(l)(ii).
    Petitioner alleges that this evidence demonstrates that Attorney Bruno rendered ineffective
    assistance during Petitioner's first PCRA petition.
    Under the "after-discovered facts" exception to the PCRA timeliness requirement, a
    petitioner must establish that (1) he did not know the facts upon which he based his petition, and
    (2) he could not have learned those facts earlier with the exercise of due diligence. Com. v.
    Burton, 
    121 A.3d 1063
    , 1068 (Pa. Super. 2015) (citing 42 Pa.C.S. § 9545(b)(l)(ii)). The claim
    must be raised within sixty days of the date that the claim could have been presented. Com. v.
    Feliciano, 
    69 A.3d 1270
    , 1275 (Pa. Super. 2013) (citing 42 Pa.CS. § 9545(b)(2)).
    Where a petitioner relies on public information to establish the newly-discovered facts
    exception found in§ 9545(b)(l)(ii), Pennsylvania courts have repeatedly and consistently held
    that he must file his petition within 60 days from the emergence of a "fact" into the public
    domain. Taylor, 67 A.3d at 1248; Com. v. Lopez, 
    51 A.3d 195
    , 196 (Pa. 2012) (information
    related to defense counsel's disciplinary issues was publicly available seven years before
    defendant's trial and 23 years before second PCRA petition; thus, newly-discovered facts
    exception did not apply); Feliciano, 
    69 A.3d at 1278
     (information relating to suspension of trial
    counsel's license to practice law did not constitute a newly-discovered fact since information was
    publicly available 11 years before defendant filed PCRA petition).
    In this case, information related to Attorney Bruno's disciplinary issues was publicly
    available for years, including when Petitioner's first PCRA petition was being prepared.These
    facts were easily discoverable and in the public record for longer than 60 days before the instant,
    second PCRA petition was filed on July 11, 2014.
    6
    Furthermore, even if Attorney Bruno's March 22, 2013, letter to Petitioner regarding his
    suspension could. be considered "after-discovered evidence,"
    .
    Petitioner did not file his petition
    within 60 days of receiving the letter. Since Petitioner's petition is time-barred and no exceptions
    to the timeliness requirement exist, this Court lacks jurisdiction to address the merits of
    Petitioner's claims.
    CONCLUSION
    Based on the foregoing, the Court's denial of the PCRA petition should be affirmed.
    By the Court:
    7
    

Document Info

Docket Number: 3747 EDA 2015

Filed Date: 11/15/2016

Precedential Status: Non-Precedential

Modified Date: 12/13/2024