Commonwealth v. Robinson , 185 A.3d 1055 ( 2018 )

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2018 PA Super 109COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT E. ROBINSON :
:
Appellant : No. 3515 EDA 2015
Appeal from the PCRA Order October 27, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0718101-1982
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J.,
SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J., and DUBOW, J.
OPINION BY BOWES, J.: FILED MAY 02, 2018
Robert E. Robinson appeals from an order dismissing two PCRA
petitions as untimely. Appellant alleges that he is entitled to an evidentiary
hearing with respect to the petition filed June 19, 2015, since the PCRA court
analyzed the underlying merits of his substantive claim. While we agree that
the PCRA court erred, we affirm on the basis that Appellant failed to
establish due diligence.
We previously set forth the facts underlying Appellant’s conviction in
our order denying his third petition for PCRA relief, which we repeat herein.
On June 25, 1982, Appellant and a cohort were in the process of
breaking into a car for the purpose of stealing it when they were
confronted by the car’s owner, the victim. Appellant shot the
victim four times and escaped with his cohort in another stolen
vehicle; the victim died. Approximately one week later, Appellant
was questioned about the crime, and he ultimately was charged
with murder, robbery, criminal conspiracy, and possession of an
instrument of crime. On July 1, 1983, Appellant pled guilty to
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second degree murder and criminal conspiracy. He received a life
sentence for the murder conviction and a concurrent sentence of
ten-to-twenty years confinement for conspiracy. Appellant
asserted on direct appeal that his trial counsel was ineffective
and that his guilty plea was involuntary. We affirmed the
judgment of sentence on March 1, 1985.
Commonwealth v. Robinson, 2347 EDA 2000 (Pa.Super. 2001)
(unpublished memorandum).
This appeal concerns an order dismissing Appellant’s eighth and ninth
attempts to secure PCRA relief.1 The eighth petition submitted that
Appellant was entitled to relief pursuant to Miller v. Alabama, 567 U.S. 460(2012). While that petition was pending, Appellant filed another petition,
docketed June 19, 2015. The petition contained numerous allegations
concerning drug use by his plea counsel, Richard Michaelson, Esquire. The
petition alleged that “At the time of trial/guilty plea . . . my counsel suffered
from the effects of cocaine abuse. He was ingesting, [c]ocaine, and because
of counsel’s [c]ocaine addiction, ‘his mind was befog[ged], disordered by
paranoid thoughts and the belief that he was in control when he was not.’”
Pro se PCRA petition, 6/19/15, at 4. The petition alleged that this drug use
“impaired his ability to represent [me] in a Constitutionally sufficient
manner.” Id.____________________________________________
1 The PCRA court disposed of the two petitions in one overarching order,
treating each as separate petitions. We recently issued Commonwealth v.
Montgomery, --- A.3d ---, 2018 WL 1311961 (Pa.Super. 2018) (en banc),
holding that PCRA courts are not jurisdictionally barred from considering
serial PCRA petitions provided that there is not a pending appeal of a PCRA
petition.
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The petition included sworn affidavits prepared by Appellant and Bruce
Quarles, a fellow prisoner, which related the following. Mr. Quarles
overheard Appellant complaining about trial counsel. Mr. Quarles informed
Appellant that he knew of trial counsel and supplied documentation
regarding Attorney Michaelson’s purchase of cocaine in the Caribbean
Islands during May of 1982, around the time of Appellant’s plea.
Additionally, Mr. Quarles stated that he knew Attorney Michaelson had been
convicted of drug offenses in federal court, and told Appellant “he would
bring the transcripts and newspaper articles to the law library and I could
make photo copies of the newspaper articles and the transcripts. This is
how I obtained the after [d]iscovered [e]vidence on April 28, 2015.” Pro se
PCRA petition, 6/19/15, at 4-A.
Appended to the petition were three additional exhibits: a newspaper
article dated May 29, 1982, stating that Attorney Michaelson was fired from
his job as an Assistant District Attorney in Philadelphia due to an FBI
informant alleging Attorney Michaelson had purchased cocaine; a transcript
of trial counsel’s plea to possession of drugs in the Eastern District of
Pennsylvania on April 29, 1994; and, a newspaper story reporting the 1994
conviction. The plea transcript indicates that in 1991 through June 1992,
Attorney Michaelson regularly purchased cocaine from a dealer. During the
plea hearing, Attorney Michaelson stated that he had been using cocaine
since approximately 1979. According to Appellant, his receipt of this
statement marked the first time he was aware that trial counsel was using
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cocaine at a time period relevant to his case, prompting him to file the
untimely PCRA petition at issue.
The PCRA court dismissed the petition on the basis it was untimely,
and explained its ruling in its Pa.R.A.P. 1925(a) opinion:
[Appellant]’s claim does not constitute after-discovered
evidence, and his argument is not convincing. Trial counsel
represented [Appellant] in 1983. Counsel pled guilty to drug
trafficking offenses that occurred between 1991 and 1992.
[Appellant] cannot reasonably claim that trial counsel’s
subsequent legal problems impacted his decision to plead guilty
a decade earlier. Aside from allegations contained in an article,
[Appellant] has not provided any evidence to suggest that
counsel’s representation as it related to [Appellant]’s specific
case was improper. [Appellant] has failed to demonstrate that
any of the exceptions to the limitations of the PCRA apply to his
case.
PCRA Court Opinion, 11/16/15, at 4.
On appeal, a panel of this Court unanimously determined that
Appellant was not entitled to relief on his petition seeking to raise a Miller
claim. The panel split with respect to the other petition. The majority
determined that the PCRA court improperly considered the merits of
Appellant’s underlying claim in dismissing the PCRA petition, and, as a
result, held that a remand for an evidentiary hearing was required to
determine whether Appellant properly pled the § 9545(b)(1)(ii) exception.
The dissent, written by this author, agreed that the PCRA court applied the
wrong inquiry by assessing the merits of the claim in determining the
timeliness of the petition, but would have affirmed on the alternative basis
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that Appellant failed to establish his due diligence. Additionally, the
dissenting memorandum opined that the petition did not set forth any facts
that could ever entitle him to relief.
The Commonwealth filed for reargument, asserting that a remand
would result in a needless expenditure of time and expense in this and
similar cases. We granted en banc review and appointed counsel to
represent Appellant’s interests. The parties submitted substituted briefs and
the matter is ready for our review. Appellant raises the following issue:
Should the PCRA court have held an evidentiary hearing on
Appellant's claim regarding trial counsel's drug offenses for
purposes of determining whether Appellant met the timeliness
exception for newly discovered facts?
Appellant’s brief at 3.
Our standard of review examines “whether the PCRA court's
determination is supported by the evidence of record and free of legal error.
We grant great deference to the PCRA court's findings, and we will not
disturb those findings unless they are unsupported by the certified record.”
Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa.Super. 2017) (citation
omitted). A PCRA petition must be filed within one year of the date the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). “This time
constraint is jurisdictional in nature, and is not subject to tolling or other
equitable considerations.” Commonwealth v. Spotz, 171 A.3d 675, 678
(Pa. 2017) (citation omitted). The time bar can “only be overcome by
satisfaction of one of the three statutory exceptions codified at 42 Pa.C.S. §
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9545(b)(1)(i)–(iii).” Id. “Questions regarding the scope of the statutory
exceptions to the PCRA's jurisdictional time-bar raise questions of law;
accordingly, our standard of review is de novo.” Commonwealth v.
Chester, 895 A.2d 520, 522 n.1 (Pa. 2006).
Since Appellant’s judgment of sentence became final long ago,
Appellant averred that these facts satisfied the second of the three
exceptions to the PCRA’s one-year time bar. These exceptions are:
(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. § 9545(b)(1)(i)-(iii).2 Additionally, any petition seeking to invoke
one of these three exceptions “shall be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
The instant petition was filed on June 19, 2015, over thirty years after
Appellant’s judgment of sentence became final and therefore patently
____________________________________________
2 Appellant also invoked the interference by government officials exception,
but abandoned that position on appeal.
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untimely under the PCRA. Appellant avers that he satisfied the exception set
forth at § 9545(b)(1)(ii) because he first became aware of trial counsel’s
1994 plea on October 20, 2014, and thereafter immediately sought to obtain
the transcripts from federal court. He alleges that he received those
materials on April 28, 2015, giving him sixty days to file for relief pursuant
to 42 Pa.C.S. § 9545(b)(2). Since the June 19, 2015 petition was within
sixty days of when he received the plea transcript, Appellant avers that the
petition is timely.
There are two additional points germane to our review. Our Supreme
Court has made plain that the analysis of whether a PCRA petitioner has
satisfied the § 9545(b)(1)(ii) time-bar exception is analytically distinct from
the merits of any substantive claim seeking relief. As stated in
Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007):
The text of the relevant subsection provides that “the facts upon
which the claim is predicated were unknown to petitioner and
could not have been ascertained by due diligence.” 42 Pa.C.S. §
9545(b)(1)(ii). . . . [T]he plain language of subsection (b)(1)(ii)
does not require the petitioner to allege and prove a claim of
“after-discovered evidence.” Rather, it simply requires petitioner
to allege and prove that there were “facts” that were “unknown”
to him and that he exercised “due diligence.”
Id. at 1270.
With respect to the exercise of due diligence, Appellant’s own petition
acknowledges that newspaper coverage from 1982 mentioned counsel’s drug
use. Therefore, a question naturally arises as to whether he acted with due
diligence in ascertaining the newly-discovered facts of the 1994 plea as
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relied upon by Appellant. In response, Appellant relies on Commonwealth
v. Burton, 158 A.3d 618 (Pa. 2017), issued after our original panel decision.
Burton held that, for purposes of § 9545(b)(1)(ii)’s requirement that the
facts be unknown, materials in the public record are not presumptively
known to an incarcerated pro se petitioner. Appellant also emphasizes that
any available facts speaking to counsel’s drug usage in general is irrelevant,
as the proper question is “when did Appellant learn that Mr. Michaelson
[was] using cocaine at a time period relevant to Appellant’s case[?]”
Appellant’s brief at 14 (emphasis in original). Appellant argues that his
failure to discover the 1994 plea transcript does not preclude a finding of
due diligence in light of Burton, as he first learned of the plea from Mr.
Quarles.
Taken together, Appellant maintains the following. First, pursuant to
Bennett, the PCRA court erred by considering the merits of the underlying
substantive claim, i.e. by determining counsel’s subsequent drug problems
could not be used to attack his plea a decade earlier. Next, under Burton,
he cannot be deemed presumptively aware of Attorney Michaelson’s plea to
federal charges, which became a matter of public record sometime in 1994.3
Appellant contends that the PCRA court’s error requires an evidentiary
____________________________________________
3 We assume arguendo that Burton’s rule applies retroactively and excuses
the failure to find publicly-available information from 1994 up through the
time he filed his petition.
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hearing for the purpose of establishing the applicability of the newly-
discovered fact exception to the PCRA’s time bar.
As previously quoted, the PCRA court determined that Appellant’s
claim “does not constitute after-discovered evidence, and his argument is
not convincing.” PCRA Court Opinion, 11/18/15, at 4. The Commonwealth
agrees with Appellant’s conclusion that the PCRA court conducted a merits
analysis of the underlying claim, which is improper under prevailing law. We
likewise agree, but find that the PCRA court correctly dismissed the petition
because Appellant failed to establish his due diligence. We affirm on this
alternative ground. See Commonwealth v. Cox, 146 A.3d 221, 229–30
(Pa. 2016) (while PCRA court erred in applying newly-discovered fact
inquiry, order affirmed as Cox failed to act with due diligence).
At this juncture, we briefly address the distinction between a PCRA
petition and the claims contained within a jurisdictionally proper petition.
Our analysis begins there because the connection between the facts
discovered by Appellant regarding counsel’s drug use and the underlying
claim is, as we shall explain, relevant to the due diligence inquiry.
In Bennett, supra, our Supreme Court stated that the subsection
(b)(1)(ii) exception merely requires the PCRA petitioner “to allege and prove
that there were ‘facts’ that were ‘unknown’ to him and that he exercised ‘due
diligence.’” Id. at 1270. The fact at issue in Bennet was PCRA counsel’s
failure to file a brief on appeal from an order denying a timely PCRA petition.
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Bennett then filed an untimely PCRA petition seeking reinstatement of his
PCRA appellate rights, invoking § 9545(b)(1)(ii). Bennett determined that
“[Bennett]’s allegations bring his claim within the ambit of subsection
(b)(1)(ii) . . . he must also prove that the facts were ‘unknown’ to him and
that he could not uncover them with the exercise of ‘due diligence.’” Id. at
1274. The Court noted that prior precedents frequently, but mistakenly,
described 42 Pa.C.S. § 9545(b)(1)(ii) as the after-discovered evidence
exception to the one-year time bar, even though “the plain language of
subsection (b)(1)(ii) does not require the petitioner to allege and prove a
claim of ‘after-discovered evidence.’” Id. at 1270 (footnote omitted).
The tendency to erroneously label § 9545(b)(1)(ii) as the after-
discovered evidence exception is largely explained by the fact that PCRA
petitioners presenting newly-discovered facts as justification for an untimely
PCRA often, but not always, seek to raise a claim that those facts constitute
evidence that would have changed the outcome at trial. 42 Pa.C.S. §
9543(a)(2)(vi) (“The unavailability at the time of trial of exculpatory
evidence that has subsequently become available and would have changed
the outcome of the trial if it had been introduced.”). As our Supreme Court
explained in Cox, supra, that labeling error
is not novel, especially in the context of cases in which the
petitioner invokes both of these provisions in his or her quest for
relief. This is not always the case, as the section 9545(b)(1)(ii)
timeliness exception is not only invoked in connection with
claims of after-discovered evidence as contemplated by section
9543(a)(2)(vi); i.e., claims based on exculpatory evidence that
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would result in a different verdict. For instance, petitioners have
utilized the section 9545(b)(1)(ii) timeliness exception in an
attempt to raise claims of the constructive denial of counsel,
violations of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,
90 L.Ed.2d 69 (1986), and claims of racial prejudice on the part
of the trial judge. See Commonwealth v. Gamboa–
Taylor, 620 Pa. 429, 67 A.3d 1245 (2013); Commonwealth v.
Hackett, 598 Pa. 350, 956 A.2d 978, 982–84
(2008); Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d
714, 721 (2008); Commonwealth v. Lark, 560 Pa. 487, 746
A.2d 585, 588 (2000); Commonwealth v. Abu–Jamal, 574 Pa.
724, 833 A.2d 719, 735 (2003). In each of those cases, the
nature of the claims raised did not implicate section
9543(a)(2)(vi), but rather, fell under other categories of claims
eligible for relief.
Id. at 229–30.
Thus, while there is a natural interplay between 42 Pa.C.S. §
9545(b)(1)(ii)—which serves to create jurisdiction for the PCRA court to
entertain an otherwise untimely PCRA petition—and the merits of any claim
that could be raised under the petition once jurisdiction is actually conferred,
Bennett, as reiterated by Cox, warns against any analysis of the
substantive claim. Cox noted that a merits analysis is permissible only upon
a finding of jurisdiction: “Once jurisdiction has been properly invoked (by
establishing either that the petition was filed within one year of the date
judgment became final or by establishing one of the three exceptions to the
PCRA's time-bar), the relevant inquiry becomes whether the claim is
cognizable under the PCRA.” Cox, supra at 227-28 (emphasis added).
Moreover, Cox does not limit that admonishment to petitions seeking to
raise a claim based on newly-discovered evidence. Id. at 230 (“In such
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cases, after concluding that the petition satisfied the section 9545(b)(1)(ii)
timeliness exception, the PCRA court would not proceed to a section
9543(a)(2)(vi) analysis.”) (emphasis added).
Simultaneously, while Bennett and its progeny instruct courts to avoid
analyzing the merits of the underlying claim, we believe that principle cannot
go so far as to altogether preclude the courts from considering the claim the
petitioner seeks to raise in determining whether an evidentiary hearing is
warranted. As an extreme example, suppose an incarcerated PCRA
petitioner asserted in an untimely petition that he recently discovered that
the Houston Astros won the 2017 World Series. It would defy reason to
suggest that a PCRA court must hold an evidentiary hearing to carefully
apply the newly-discovered fact inquiry before considering how that fact
could possibly matter. Cox stated that “The function of a section
9545(b)(1)(ii) analysis is that of a gatekeeper.” Id. at 229 n.11. A
gatekeeping function contemplates that there may be a reason to open the
gate.
The instant claim is not as fanciful as the foregoing example.
Nevertheless, it is difficult to perceive the connection between trial counsel’s
legal issues which occurred almost a decade after Appellant’s guilty plea and
how that fact ultimately matters. Appellant seeks to link counsel’s drug use
to the voluntariness of his plea. “Appellant alleged that trial counsel had a
substance abuse issue in the early 1980s and that counsel's addiction
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caused Appellant to enter an invalid plea.” Appellant’s brief at 4
(emphasis added). Recognizing the nature of the underlying claim—as
distinguished from assessing its merits—is necessary to determine whether
Appellant acted with due diligence in unearthing the newly-discovered facts.
For instance, in Commonwealth v. Chmiel, 173 A.3d 617 (Pa.
2017), our Supreme Court held that the PCRA court incorrectly dismissed an
untimely PCRA petition relying on newly-discovered facts. On April 20,
2015, the Federal Bureau of Investigation (“FBI”) issued a press release
admitting that microscopic hair analysis, such as the type used in Chmiel’s
prosecution, was erroneous in the vast majority of cases. Id. at 619. That
press release disclosed the findings of an ongoing investigation summarizing
the defects in such testing. Chmiel filed an untimely petition within sixty
days of April 20, 2015. The PCRA court had determined that the FBI press
release “was simply confirmation of information that was already available in
the public domain.” Id. at 625. Our Supreme Court rejected such a narrow
view of the pertinent newly-discovered facts.
[T]he fact that the FBI was internally reviewing the accuracy of
microscopic hair analysis or testimony is not the newly
discovered fact upon which Chmiel's claim is based. Rather, the
newly discovered facts are the FBI's admissions, as the
proponent of microscopic hair analysis, that its examiners gave
flawed and scientifically unsupportable testimony, and spread its
flawed methodology to state and local analysts. Although the
existence of the FBI's internal investigation was known, the
press release marked the first public admission by the FBI
regarding its conclusions about testimony premised upon
microscopic hair analysis and the dissemination of such
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scientifically flawed language to state and local analysts.
Id. at 626.
In analyzing whether Chmiel could rely upon the FBI report as the
basis for his untimely PCRA petition, the Court stated, “There are two newly
discovered facts upon which Chmiel's underlying claim is predicated, both of
which were made public for the first time in the Washington Post article and
the FBI press release.” Id. at 625. Hence, a recognition of “the underlying
claim” was relevant to Chmiel’s invocation of the § 9545(b)(1)(ii) exception,
even if that analysis did not assess the strength of those newly-discovered
facts as it bore on the likelihood of ultimately achieving relief. See id. at
626 n.7 (“We disagree with Justice Mundy's position that Chmiel must, at
this juncture, demonstrate a more ‘direct connection’ between the FBI press
release and his underlying claim. Chmiel's underlying claim is that his
conviction rests upon unreliable hair comparison evidence in violation of the
United States and Pennsylvania Constitutions.”); id. at 629 (“As I
understand Bennett, no further analysis concerning the relationship
between the newly-discovered fact and the underlying merits-based claim is
necessary or appropriate in the jurisdictional assessment.”) (Saylor, C.J,
joined by Baer, J.).
Having set forth these principles, we now review the particular claim
Appellant seeks to raise in order to determine whether a remand for an
evidentiary hearing is warranted. His petition alleged that counsel was
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“befog[ged] and disordered by paranoid thoughts,” and, as a result,
Appellant’s plea was involuntarily entered. Thus, the connection between
counsel’s alleged intoxication on the day of Appellant’s plea, the newly-
discovered fact he relies on to confer jurisdiction, and any substantive claim
Appellant would ultimately seek to raise within that petition is that counsel’s
mental state was so deteriorated that his advice was constitutionally
deficient. That claim is captured by the following test:
A criminal defendant has the right to effective counsel during a
plea process as well as during a trial. Hill v. Lockhart, 474 U.S.
52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Allegations of
ineffectiveness in connection with the entry of a guilty plea will
serve as a basis for relief only if the ineffectiveness caused the
defendant to enter an involuntary or unknowing plea.
Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582 (1999).
Where the defendant enters his plea on the advice of counsel,
“the voluntariness of the plea depends on whether counsel's
advice ‘was within the range of competence demanded of
attorneys in criminal cases.’” Hill, 474 U.S. at 56, 106 S.Ct.
366, 88 L.Ed.2d 203 (quoting McMann v. Richardson, 397 U.S.
759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)).
Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa.Super. 2002).
Recognizing that Appellant’s claim challenges counsel’s mental state
on the day of Appellant’s plea, we find that Appellant failed to act with due
diligence in uncovering the “facts upon which [his] underlying claim is
predicated[.]” Chmiel, supra at 625. As the Commonwealth observes,
“Any deficiency in plea counsel’s representation . . . must necessarily have
existed (if it existed at all) at the time of the plea.” Commonwealth’s brief
at 14. We agree. In essence, Appellant argues that he had no due diligence
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obligations prior to speaking to Mr. Quarles in 2014, as Appellant was
unaware of plea counsel’s subsequent federal prosecution. According to
Appellant, that was the first time he learned that “Mr. Michaelson [was]
using cocaine at a time period relevant to Appellant’s case.” Appellant’s
brief at 14 (emphasis in original). This conclusion fails to account for the
fact that “Due diligence demands that the petitioner take reasonable steps to
protect his own interests.” Commonwealth v. Brown, 111 A.3d 171, 176
(Pa.Super. 2015) (citation omitted). Appellant always “knew” that his
counsel supplied ineffective advice, and he has failed to show why he could
not have learned these newly-discovered facts at an earlier time.
Consequently, we reject Appellant’s attempt to tailor his newly-
discovered fact analysis to Mr. Quarles’s information. There are situations in
which a petitioner may passively rely on learning information as opposed to
actively seeking out those facts. See Commonwealth v. Medina, 92 A.3d
1210 (Pa.Super. 2014) (en banc) (PCRA petition based on newly-discovered
facts was timely where witnesses contacted the defendant and recanted
their testimony, claiming that police detective coerced their statements;
Medina was not required to contact the witnesses because he had no reason
to suspect the coercion and no duty to engage in a fishing expedition as to
why witnesses lied). In contrast to Medina, counsel’s ineffectiveness would
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have been obvious to Appellant back in 1983. Therefore, he bore the duty
to seek out the facts that would support any such claim.4
Having established that Appellant failed to exercise due diligence, we
find that Burton does not compel a different result. Burton holds only that
material in the public record is not presumptively known to an incarcerated
pro se PCRA petitioner just because that information is publicly available.
Pre-Burton, Appellant was presumably constructively charged with the
knowledge of counsel’s plea when the record became available in 1994,
therefore requiring him to file for relief within sixty days of its publication.
See 42 Pa.C.S. 9545(b)(2) (claim must be filed within sixty days of date it
could have been presented). However, it does not follow from Burton that
Appellant is relieved of his duty to seek out facts as a matter of due
diligence. Burton modifies the “unknown” nature of public facts as applied
to incarcerated pro se PCRA petitioners, but the case did not modify the due
diligence inquiry. The pertinent statutory exception requires the petitioner
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4 The inability to consider the merits of the underlying ineffectiveness claim
poses complexities in that it is difficult to divorce the purported newly-
discovered fact of counsel’s guilty plea from what that newly-discovered fact
would actually prove, i.e., counsel’s use of cocaine during the relevant
timeframe. “The focus of the exception is ‘on [the] newly
discovered facts, not on a newly discovered or newly willing source for
previously known facts.’” Commonwealth v. Marshall, 947 A.2d 714, 720
(Pa. 2008) (quoting Commonwealth v. Johnson, 863 A.2d 423, 427 (Pa.
2004)).
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to establish that “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.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis added). Formerly, there
was no need to proceed to a due diligence analysis when a petitioner
untimely relied on a public record, since the public nature of the facts
rendered them known. In Commonwealth v. Chester, 895 A.2d 520 (Pa.
2006), which applied a presumption that the record of trial counsel’s DUI
arrest was known due to its public availability, Justice Baer filed a concurring
opinion which disposed of the claim on the alternative basis of due diligence:
Whereas the majority would find that counsel's DUI arrest was
public record, and therefore, generally discoverable through an
exercise of due diligence on the part of [Chester], I would find
that the particular circumstances of this case lead to the
conclusion that PCRA counsel, through the exercise of diligence,
should have uncovered counsel's DUI arrest. Specifically, the
allegations made by PCRA counsel in [Chester]'s first PCRA
petition indicate that by exercising due diligence, PCRA counsel
would have further uncovered trial counsel's criminal history.
Thus, I would not go so far as the majority does to hold that
criminal defendants are generally responsible for the arduous
task of uncovering the criminal record of their attorney, where
no basis for such discovery exists. For the following reasons, I
concur.
The majority opinion posits that trial counsel's DUI arrest could
not be characterized as “unknown” to [Chester] because the
information was a matter of public record. I believe, however,
that there is danger in placing such an onerous burden on a
criminal defendant to search public records to determine
whether there are pending charges against his attorney during
that defendant's trial. Rather, in affirming, I would rely solely
upon the record sub judice, and conclude that if where, as here,
PCRA counsel, who represented Appellant at his first PCRA
hearing, had exercised due diligence, he would have uncovered
trial counsel's DUI arrest. Because PCRA counsel for Appellant
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alleged during the first PCRA proceeding that trial counsel had a
substance abuse problem and had been suspended from
practicing law, there was some basis upon which to suspect that
further investigation of trial counsel may have uncovered
relevant information.
Id. at 524–25 (Baer, J., concurring).
That analysis applies to the instant case. The nature of Appellant’s
claim supplied a basis for Appellant to seek out information that would
support his allegation. It is readily apparent from his twenty-year delay that
he failed to do so in a duly diligent manner. We therefore affirm the
dismissal of the PCRA petition on that alternative basis.5
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5 While we find that the absence of due diligence serves to affirm the
instant order, we note our belief that Appellant’s newly-discovered facts
could not lead to relief even if Appellant possessed indisputable proof that
counsel had ingested cocaine on the day of Appellant’s plea. We agree with
the United States Court of Appeals for the Ninth Circuit that the relevant
inquiry would be the reasonableness of the advice itself: “Because we
conclude . . . that [counsel]’s performance did not fall below the standard of
objective reasonableness, it is irrelevant whether [counsel] used drugs.”
Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir. 1995).
As explained at length supra, precedents from our Supreme Court direct the
courts to ignore the merits of the PCRA claim when assessing the
jurisdictional timeliness question. Arguably, it is consistent with that
principle to simply accept that the newly-discovered facts are true in order
to winnow out claims that could not possibly lead to relief. The
admonishment against a merits analysis of the underlying claim seems
designed to prevent a preemptive finding that the newly-discovered facts are
either not worthy of belief or would not, on balance, undermine the reliability
of the verdict even if true. On the other hand, accepting these newly-
discovered facts as true gives every benefit of the doubt to the petitioner.
Nevertheless, our Supreme Court has not sanctioned this approach to an
analysis of the newly-discovered facts, and we therefore decide this case on
the basis of due diligence.
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J-E04005-17
Order affirmed.
President Judge Emeritus Bender joins the opinion.
Judge Panella joins the opinion.
Judge Shogan joins the opinion.
Judge Lazarus joins the opinion.
Judge Olson joins the opinion.
Judge Stabile joins the opinion.
Judge Dubow joins the opinion.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/18
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