Com. v. Shaffer, C. ( 2018 )

J-S16007-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES MATTHEW SHAFFER :
:
Appellant : No. 1511 MDA 2017
:
Appeal from the PCRA Order September 6, 2017
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001686-2012
BEFORE: BOWES, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY BOWES, J.: FILED MAY 14, 2018
Charles Matthew Shaffer appeals from the denial of his second pro se
PCRA petition as untimely. We affirm.
On a prior appeal, we summarized the facts and procedural history as
follows:
A jury convicted Shaffer of attempted rape, attempted
involuntary deviate sexual intercourse, and indecent assault,
based upon allegations that he had attempted to forcibly rape an
ex-girlfriend in his home. On November 14, 2013, the trial court
sentenced Shaffer to an aggregate term of imprisonment of 10 to
20 years. Shaffer did not file post-sentence motions or a direct
appeal.
On November 6, 2014, Shaffer filed a pro se PCRA petition.
Counsel was appointed to represent him, and counsel filed an
amended petition. The PCRA court subsequently entered a notice
of its intent to dismiss the amended petition without a hearing.
Shaffer filed a counseled response, however the PCRA court
entered an order dismissing his petition without a hearing on June
5, 2015. [On March 21, 2016, we affirmed the PCRA court order
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* Retired Senior Judge assigned to the Superior Court.
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denying relief, and Appellant did not file a petition with our
Supreme Court seeking allowance of appeal.]
Commonwealth v. Shaffer, 144 A.3d 205 (Pa.Super. 2016) (unpublished
memorandum at 1-2) (footnote omitted).
On March 21, 2017, Appellant filed a second PCRA petition. He asserted
that his prior PCRA counsel provided ineffective assistance in failing to develop
the record while litigating the first petition. After proper notice under
Pa.R.A.P. 907, the PCRA court dismissed the petition as untimely. This appeal
followed.
Initially, we note, “[a]n appellate court reviews the PCRA court’s findings
of fact to determine whether they are supported by the record, and reviews
its conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “The 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 at the trial level.”
Id.The time limitations imposed by the PCRA implicate our jurisdiction and
they may not be altered or disregarded in order to address the merits of a
petition. See Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.
2010) (“Pennsylvania law makes clear no court has jurisdiction to hear an
untimely PCRA petition.”). Appellant’s judgment of sentence became final on
December 14, 2013, thirty days after the entry of the judgment of sentence
and upon the expiration of the period to file a direct appeal with this Court.
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Accordingly, in order to comply with the time requirements, Appellant’s
petition had to be filed by December 14, 2014. Appellant filed the instant
petition on March 21, 2017; thus, unless one of the exceptions set forth in 42
Pa.C.S. § 9545 applies, the petition is barred as untimely.
Section 9545 provides the following three exceptions that allow for
review of an untimely PCRA petition: (1) petitioner’s inability to raise a claim
as a result of governmental interference; (2) the discovery of previously
unknown facts that could not have been ascertained by the exercise of due
diligence; and (3) a newly-recognized constitutional right. 42 Pa.C.S. § 9545
(b)(1)(i)-(iii). To invoke an exception, the petitioner must plead it and satisfy
the burden of proof. Commonwealth v. Beasley, 741 A.2d 1258, 1261-62
(Pa. 1999). In addition, any exception must be raised within sixty days of the
date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).
Appellant neglects to assert an exception to the PCRA time bar. Indeed,
his central argument appears to be that PCRA counsel provided ineffective
assistance in failing to submit exhibits and documentary evidence in order to
bolster the assertions leveled in his counseled PCRA petition. That argument
is fruitless.
It is a well-ensconced principle of law that claims of counsel’s
ineffectiveness cannot be used to salvage an otherwise untimely PCRA. See
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). Moreover, as
explained supra, since Appellant does not couch his ineffective-assistance-of-
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counsel claim in terms of a newly discovered fact or abandonment, our
Supreme Court’s holding in Commonwealth v. Bennett, 930 A.2d 1264 (Pa.
2007), is inapplicable.1
In Bennett, the High Court addressed whether a PCRA petitioner’s
allegation that he recently discovered that PCRA counsel had abandoned him
during his appeal from the order denying his timely first PCRA petition
permitted him to circumvent the PCRA time bar under § 9545(b)(1)(ii). The
Supreme Court first explained that § 9545(b)(1)(ii) is triggered “when 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.” Id. at
1270 (quoting 42 Pa.C.S. § 9545(b)(1)(ii)). It then concluded that, where a
petitioner pleads and proves both components of this exception, the PCRA
court has jurisdiction over the claim.
In reaching its determination that the petitioner was entitled to assert
an exception to the PCRA time limitation under § 9545(b)(1)(ii), the High
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1 Likewise, Appellant’s unadorned citation to Commonwealth v. Rosado,
150 A.3d 425 (Pa. 2016) is unavailing. In Rosado, our Supreme Court
addressed an ineffective assistance claim that was raised in a timely filed PCRA
petition and held that counsel’s “filing of an appellate brief which abandons all
preserved issues in favor of unpreserved ones constitutes ineffective
assistance of counsel per se.” Id. at 440. Significantly, since the defendant
in Rosado leveled his claim in a timely PCRA petition, the Court clearly had
jurisdiction to address the merits of the assertion without having to circumvent
the PCRA time bar. Instantly, however, Appellant raised his assertion in a
patently untimely PCRA petition and neglected to invoke any of the statutory
exceptions to the PCRA time requirements. Hence, the PCRA court lacked
jurisdiction to review it. See Monaco, supra.-4-
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Court stressed the significance of the difference between a specific allegation
that PCRA counsel abandoned a petitioner and a general allegation that PCRA
counsel provided ineffective assistance. See Bennett, supra at 1272-74.
The Court then reiterated that the alleged discovery of the latter form of
ineffectiveness was not grounds for circumventing the § 9545 time
restrictions. Id. at 1272; Commonwealth v. Gamboa-Taylor, 753 A.2d
780, 785 (Pa. 2000) (“In sum, a conclusion that previous counsel was
ineffective is not the type of [newly]-discovered-[fact] encompassed by the
exception”). However, analogizing a PCRA petitioner’s rule-based right to a
counseled first petition to a criminal defendant’s Sixth Amendment right to
counsel during criminal proceedings, the Supreme Court reasoned that § 9545
could not be applied to preclude review of a previously unknown claim alleging
the complete denial of the assistance of counsel during the appeal from the
order denying the first PCRA petition. Accordingly, the Bennett Court held
that the petitioner’s allegations fell within the newly-discovered-fact exception
to the time bar, and it remanded the matter for this Court to determine
whether counsel’s abandonment was unknown to the petitioner and could not
have been ascertained through due diligence.
Unlike the defendant in Bennett, however, Appellant did not invoke the
newly-discovered-fact exception to the PCRA’s time requirements pursuant to
§ 9545(b)(1)(ii) or even attempt to assert that he was abandoned by prior
PCRA counsel. Instead of framing an exception under § 9545(b)(1)(ii),
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Appellant’s claim challenges PCRA counsel’s stewardship in litigating the
merits of his first petition. Thus, the “abandonment” concerns underlying our
Supreme Court’s rationale in Bennett are absent herein.
Having found that Appellant’s second PCRA petition was untimely filed
and that no exceptions to the statutory time bar apply, we affirm the order
dismissing his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/18
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