Com. v. Bone, R. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD BONE :
:
Appellant : No. 986 WDA 2021
Appeal from the PCRA Order Entered July 20, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002091-2013
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: AUGUST 12, 2022
Richard Bone appeals the denial of his Post Conviction Relief Act
(“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. He alleges that the PCRA
court erred by concluding that his PCRA petition was untimely and granting
counsel’s motion to withdraw. We affirm.
In August 2013, a jury found Bone guilty of multiple sex offenses and
other related crimes against his girlfriend’s minor child. The trial court
sentenced him to an aggregate term of 10 to 20 years’ incarceration on
November 26, 2013. Bone filed a post-sentence motion, which the trial court
denied on December 6, 2013. Bone did not file a direct appeal.
Bone filed the instant pro se PCRA petition on December 17, 2020. Bone
alleged that his case involved a constitutional violation and ineffective
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* Retired Senior Judge assigned to the Superior Court.
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assistance of counsel. Bone listed his issues as Issue I to Issue IV. Under Issue
I, Bone identified 10 witnesses that he believed counsel should have called to
testify at trial. These witnesses included, among other people, his mother, his
brother, his ex-wife, and his former employer. See Pro Se PCRA Petition, at
3-5. He alleged that counsel knew of these witnesses before trial but failed to
call them. Id. at 5. For Issue II, Bone claimed that the trial court failed to
appoint the public defender to represent him after his trial counsel asked to
withdraw upon filing his post-sentence motion. Id. at 5.
For Issues III and IV, Bone alleged that trial counsel gave him erroneous
advice regarding his right to testify and that the court should have considered
subsequent filings after he was sentenced as PCRA petitions. Id. at 6. Bone
did not address the timeliness of the petition.
The court appointed counsel who filed an amended petition on April 1,
2021. Counsel requested that the court reinstate Bone’s direct appeal rights
nunc pro tunc. See Amended Petition for Post Conviction Collateral Relief, filed
4/1/21, at ¶ 18. The amended petition did not address timeliness and did not
address any of the claims Bone raised in his pro se petition. The
Commonwealth filed a response to the amended petition arguing the petition
was untimely and that Bone failed to plead any time-bar exception.
The PCRA court issued notice of its intent to dismiss the petition without
a hearing under Pennsylvania Rule of Criminal Procedure 907, on June 23,
2021. See Pa.R.Crim.P. 907(1). Defense counsel did not file a response to the
notice. The court denied Bone’s PCRA petition as untimely, on July 20, 2021.
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Approximately two and a half weeks later, on August 6, 2021, PCRA
counsel filed a Turner/Finley letter and motion to withdraw as counsel.1
Counsel stated that he had recently received the sentencing transcripts and
upon review believed that Bone had no issues of arguable merit. Counsel also
stated that the petition was patently untimely and that no time-bar exception
applied. Under a section labeled “Issues Defendant Wishes to Have Reviewed,”
counsel listed the following issues:
- Newly discovered evidence
- Miscarriage of justice for failure to appoint public
defender
- Ineffective assistance of counsel
- Motions filed after the sentence was imposed should have
been considered a PCRA petition[.]
- Upon receiving the sentencing transcripts on August 5,
2021, the arguments contained [in] amended petition
are no longer viable[.]
Turner/Finley Letter, at 5-8 (unpaginated).
Under each issue, counsel set forth a statement of the relevant law and
a short paragraph explaining his conclusion that the issue was meritless.
Counsel also asked the court to permit him to withdraw and that the court
give notice of intent to dismiss pursuant to Rule 907.
The trial court granted counsel’s motion to withdraw. See Order of
Court, 8/10/21. Bone filed on August 19, 2021, a pro se “Motion for
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1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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Reconsideration of 7/19/21 Order Denying PCRA Relief.” Bone argued that
because counsel had filed his Turner/Finley letter after the court had denied
the PCRA petition, he had been placed in a position where claims of PCRA’s
counsel’s ineffectiveness could be waived. He contended that since the court
had not issued a Rule 907 notice after counsel submitted the Turner/Finley
letter, he had not had an opportunity to respond to counsel’s letter. He also
argued that counsel’s letter was inadequate “since it does not comport to the
dictates of Finley.” See Motion for Reconsideration at ¶ 7. He further claimed
that counsel’s legal analysis was incorrect under Commonwealth v. Small,
238 A.3d 1267 (Pa. 2020). The court denied the motion and Bone filed the
instant notice of appeal on August 21, 2021. See Order of Court, filed
8/21/21; Notice of Appeal, filed 8/21/21.2
Bone raises the following issues:
I. Was the notice of appeal timely filed?
II. Whether the PCRA court erred in granting counsel’s
motion to withdraw where PCRA counsel’s no-merit
letter was deficient under the standards of Turner and
Finley?
III. Did the PCRA court err when it ruled that the PCRA
was not timely filed?
Bone’s Br. at 4 (answers omitted).
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2 The notice of appeal has a docketing date stamp of August 30, 2021, and a
filing stamp of August 21, 2021.
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Bone’s first issue deals with the timeliness of the instant appeal. Bone
had until August 19, 2021 to file a timely appeal. See Pa.R.A.P. 903(a). His
notice of appeal bears stamp memorializing a filing date of August 21, 2021.
However, attached to his brief, Bone included a prison postage slip for his
mailing of his notice of appeal that shows a date of August 17, 2021, which is
within the appeal period. Therefore, the appeal is timely pursuant to the
prisoner mailbox rule. See Pa.R.A.P. 121(f) (“A pro se filing submitted by a
person incarcerated in a correctional facility is deemed filed as of the date of
the prison postmark or the date the filing was delivered to the prison
authorities for purposes of mailing as documented by a properly executed
prisoner cash slip or other reasonably verifiable evidence”); Commonwealth
v. Patterson, 931 A.2d 710, 714 (Pa.Super. 2007) (finding “[p]ursuant to
the prisoner mailbox rule, we deem a document filed on the day it is placed in
the hands of prison authorities for mailing”).
In his first substantive issue, Bone claims that the trial court erred in
granting PCRA counsel’s motion to withdraw because counsel’s
Turner/Finley letter was deficient. He maintains that counsel did not explain
why he believed every issue listed in Bone’s pro se PCRA petition is meritless.
He references the multiple witnesses that counsel did not address individually.
He notes that counsel did include the following sentences addressing these
witnesses:
- [Bone] lists ten individuals who could have testified and
who have subsequently executed affidavits on behalf of
[Bone’s] character. Even if [Bone’s] Petition were timely
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none of the ten individuals provided any new facts
relevant to his conviction. [Bone] acknowledged in
paragraph 11 of his petition that counsel was informed
before trial of all of the above witnesses but he did not
call them to testify on [Bone’s] behalf.
- [Counsel’s] failure to call [Bone’s] relatives to testify
regarding [Bone’s] character constituted reasonable trial
strategy and did not establish ineffective assistance.
Bone’s Br. at 29-30 (quoting Turner/Finley Letter 4-5, 5-6).
PCRA counsel seeking to withdraw must file with the court a “no merit”
letter. See Commonwealth v. Doty, 48 A.3d 451, 454 (Pa.Super. 2012).
Counsel must set forth in the letter the nature and extent of counsel’s review
of the case, list the issues that the petitioner wishes to raise, and explain
counsel’s conclusion that the issues are meritless. See id. Counsel must send
a copy of the no-merit letter to the petitioner, as well as a copy of the motion
to withdraw. See id. Counsel should also provide a statement to petitioner
explaining their right to proceed pro se or through new counsel. See id.Here, counsel’s letter did not list the issues as Bone’s presented them
in his pro se petition. Counsel instead summarized the issues with the
following headings:
- Newly discovered evidence
- Miscarriage of justice for failure to appoint public
defender
- Ineffective assistance of counsel
- Motions filed after the sentence was imposed should have
been considered a PCRA petition[.]
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- Upon receiving the sentencing transcripts on August 5,
2021, the arguments contained [in] amended petition
are no longer viable[.]
Turner/Finley Letter, at 5-8 (unpaginated).
Though counsel did not list each issue as Bone presented it in his
petition, counsel did address the issues raised in Bone’s petition. For instance,
the subheading “newly discovered evidence” addresses the claims raised
under Issue I of the pro se petition and the subheading “ineffective assistance
of counsel” addresses the claim raised in Issue III. For each of these claims
counsel explained why he believed they were meritless. Counsel also
explained why each of Bone’s remaining claims were meritless. The PCRA
court did not err in granting counsel’s motion to withdraw.
Bone’s final claim is that the PCRA court erred in determining that his
PCRA petition was untimely.3 He argues that though his petition is untimely
on its face, he satisfied the newly discovered fact time-bar exception. See 42
Pa.C.S.A. § 9545(b)(1)(ii). He maintains these newly discovered facts are the
affidavits from his mother and his brother. He also alleges that these could
not have been ascertained earlier with the exercise of due diligence.
Bone’s judgment of sentence became final on December 26, 2013, when
his time to appeal expired. Bone filed the instant PCRA petition in December
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3 Following his argument for this issue, Bone’s brief continues with arguments
about the ineffective assistance of trial counsel, the trial court not appointing
counsel after he was sentenced, character evidence, and alleged vouching by
the Commonwealth during trial. Each of these claims were raised in Bone’s
untimely PCRA petition. Since we have concluded that the petition is untimely,
we will not address the merits of these claims.
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2020, making it patently untimely. However, Bone suggests that he satisfies
the “unknown fact” time-bar exception.
To plead this exception, Bone had to allege that: the facts were unknown
to him and that he could not have ascertained these facts by exercising due
diligence. See Commonwealth v. Bennett, 930 A.2d 1264, 1270 (Pa.
2007). “Due diligence demands that the petitioner take reasonable steps to
protect his own interests.” Commonwealth v. Williams, 35 A.3d 44, 53
(Pa.Super. 2011).
In the first sentence under Issue I of his pro se PCRA petition Bone
wrote, “[P]etitioner presents newly discovered evidence in the form of
affidavits” from his mother. Pro Se PCRA Petition, at 3. Taking this as a
reference to the unknown fact time bar-exception, Bone’s discussion of the
exception ends there. The remainder of his petition does not address his due
diligence and or in any way address the untimely nature of the petition. On
appeal, Bone admits that his petition is untimely and claims he satisfied the
newly discovered fact time-bar exception. However, he was required to plead
and prove this exception before the PCRA court, not for the first time on
appeal. See Commonwealth v. Wharton, 886 A.2d 1120, 1126 (Pa. 2005)
(stating petitioner may not raise time bar exceptions for the first time on
appeal). Having failed to do so, we conclude that the PCRA court did not err
in denying Bone’s PCRA petition as untimely. Even if he had pled this exception
before the PCRA court, before this Court he has not pled and proven that these
facts were unknown to him, were new, or that they could not have been
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discovered with the exercise of due diligence. We therefore affirm the order
denying his PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2022
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