Commonwealth v. Geer , 2007 Pa. Super. 326 ( 2007 )

DISSENTING OPINION BY

BENDER, J.:

¶ 1 Because I believe our Supreme Court’s recent decision in Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007) (Bennett II), provides a substantial change to the law that impacts the within case, I would remand for an evidentiary hearing to determine when Appellant learned that his appeal in this Court had been dismissed due to counsel’s failure to file a brief. Thus, I respectfully dissent.

¶ 2 As the Majority points out, Appellant’s first PCRA petition was denied on June 15, 2005. Appellant filed a pro se appeal from that dismissal and sought the appointment of new counsel. As Appellant was already represented, Appellant’s request for new counsel went without an official response/disposition. Nevertheless, Appellant’s prior counsel neglected to file a brief on Appellant’s behalf and, as a consequence, that appeal was dismissed by this Court on November 3, 2005. Previously, this Court had concluded that denials of appeals from PCRA petitions due to counsel’s malfeasance did not fit into one of the enumerated exceptions to the PCRA’s timeliness requirements. See, generally, Commonwealth v. Bennett, 842 A.2d 953 (Pa.Super.2004) (en banc). Thus, the prevailing view was that although this situation was unfortunate, and resulted in a loss of the Appellant’s appeal rights, unless restorative action was taken within one year of his judgment of sentence becoming final, the PCRA petitioner had no recourse. Id. Of course, since the one-year period ran from the date the judgment of sentence became final, and not from when the petitioner’s appeal was dismissed, it would be a rare situation indeed where a petitioner would still have time remaining after pursuing a first PCRA petition and then having an appeal dismissed.

¶ 3 In Bennett II, the Supreme Court altered the above stance, concluding that the fact that counsel’s failure to file a brief had resulted in the dismissal of an appeal could constitute an exception under 42 Pa. C.S. § 9545(b)(l)(ii). This exception to the one-year limitations period applies 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. Ultimately, the Supreme Court remanded the matter to determine whether the terms of 42 Pa.C.S. § 9545(b)(l)(ii) had been met, that is, whether the dismissal of Bennett’s appeal was “unknown” to him and could not be uncovered with the exercise of due diligence.

¶ 4 Here, Appellant, proceeding pro se, filed a second PCRA petition on September 14, 2006. In this petition, Appellant did not rely upon counsel’s failure to file a brief as a basis for seeking relief. Consequently, to the PCRA court, the petition appeared to be untimely and the court promptly notified Appellant of its intention to dismiss the petition without a hearing. As is his right, Appellant filed a response to the court’s notice of intent to dismiss and in that response noted that counsel’s failure to file a brief had resulted in the dismissal of his prior appeal. The court observed this allegation and determined sua sponte that it might provide the basis for the granting of a nunc pro tunc appeal. Consequently, the court scheduled argument on this matter for January 30, 2007. Prior to the time scheduled for argument, new counsel filed a third PCRA petition seeking restoration of Appellant’s appeal rights with respect to the denial of his first PCRA petition. After hearing argument on the matter, the court granted Appellant the right to file a nunc pro tunc appeal from the June 15, 2005 denial of PCRA relief.

¶ 5 The Majority concludes that Bennett II is inapplicable here because Appellant did not plead and prove that he filed his second PCRA petition within 60 days of learning of the dismissal of his prior appeal. However, in Bennett II, the Supreme Court overlooked a similar failure by Bennett, which was due in part because Bennett followed this Court’s directives at a time when we were treating such ineffectiveness of counsel as creating an “equitable extension” of the first PCRA petition. Indeed, Bennett did not plead, let alone prove, the exception in a PCRA petition either. Instead, Bennett raised the matter in his brief to the Supreme Court. Despite that fact, the Court remanded the matter for an evidentiary hearing.

¶ 6 While Appellant here was not relying upon directions which were later invalidated, we note that Appellant’s second PCRA petition was uncounselled. Because Appellant’s petition was uncounselled, I believe it is within our purview to apply the waiver rules liberally.⁷ Appellant ostensibly raised the issue of counsel’s dereliction in the proceedings attending his second petition, that being, in his reply to the court’s notice of intent to dismiss. Thus, I would perceive the raising of the matter in that response similar to Bennett’s raising of the issues in his brief to the Supreme Court. Further, I would relate the allegation back to the date of his second petition as it was raised within the litigation of that petition before the PCRA court.

¶ 7 Unfortunately, this does not answer the question of when Appellant discovered that his first appeal was dismissed due to counsel’s failure to file a brief. In the present case, it appears that because the court believed that counsel’s failure to file a brief was itself a sufficient basis to grant relief, no hearing was held. Again, under the law as it stood at that time, the court’s position was actually contrary to law. However, under Bennett II, we can now conclude that the dismissal of an appeal due to counsel’s dereliction can be rectified via a second PCRA petition, although it would still be incumbent upon the petitioner to act promptly once learning that the appeal had been dismissed, i.e., within 60 days. It would also be incumbent upon the petitioner to establish that he was not dilatory in discovering the fact that his appeal had been dismissed.

¶ 8 As such, I believe we should remand the present case for a finding as to when Appellant actually learned of the dismissal of his appeal and whether Appellant failed to exercise due diligence in learning of the dismissal. In my opinion, if Appellant filed the second PCRA petition within 60 days of learning of the dismissal, under Bennett II, this would constitute a sufficient basis for reinstating his appeal. As mentioned earlier, similar to Bennett II, I would overlook Appellant’s failure to plead this exception initially as he was without benefit of counsel.⁸

7 . As evidence of the liberality in which we treat pro se petitions under the PCRA, I offer this quote from Commonwealth v. Eller, 569 Pa. 622, 635, 807 A.2d 838, 845 (2002):

given the courts’ liberal construction of pro se pleadings, including pleadings under the PCRA, see Pa.R.Crim.P. 905 (governing amendment of PCRA petitions), a non-PCRA petition filed within one year of the judgment becoming final could and should be treated as one sounding under the PCRA, and appropriate amendment permitted.

8 . While Appellant’s intervening petition was drafted by counsel, that petition was obviously drafted prior to Bennett II being issued. Given that Bennett II departs substantially from prior precedent, the equitable thing to do, in my opinion, is to remand the matter rather than to hold against Appellant counsel’s failure to plead when Appellant learned of this Court’s dismissal of his appeal.