Com. v. Lucas, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES JOSEPH LUCAS :
:
Appellant : No. 542 WDA 2020
Appeal from the PCRA Order Entered April 3, 2020
In the Court of Common Pleas of Crawford County
Criminal Division at No(s): CP-20-CR-0000369-2017
BEFORE: SHOGAN, J., STABILE, J., and KING, J.
MEMORANDUM BY KING, J.: FILED FEBRUARY 02, 2021
Appellant, James Joseph Lucas, appeals pro se from the order entered
in the Crawford County Court of Common Pleas, which dismissed as untimely
his first petition filed under the Post Conviction Relief Act (“PCRA”).1 We
affirm.
The relevant facts and procedural history of this case are as follows. On
December 29, 2017, Appellant entered a negotiated guilty plea to third-degree
murder. That same day, the court sentenced Appellant in accordance with the
plea agreement to twenty (20) to forty (40) years of incarceration. Appellant
did not file a post-sentence motion or a direct appeal. On February 1, 2018,
plea counsel filed a motion to withdraw representation. The certificate of
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1 42 Pa.C.S.A. §§ 9541-9546.
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service attached to the motion indicates that Appellant was served with the
motion at “CCJ,” which is the Crawford County Correctional Facility. (See
Certificate of Service, dated 2/1/18). On February 5, 2018, the court granted
plea counsel’s withdrawal motion.
On September 20, 2019, Appellant filed a pro se PCRA petition. The
court appointed counsel, and counsel filed a Turner/Finley2 no-merit letter
on November 25, 2019. On December 13, 2019, Appellant filed a pro se
objection to the no-merit letter. On December 18, 2019, the court permitted
PCRA counsel to withdraw, and issued notice of its intent to dismiss Appellant’s
petition without a hearing, pursuant to Pa.R.Crim.P. 907. Although Appellant
subsequently responded to the Rule 907 notice, the court dismissed the PCRA
petition as untimely filed on April 3, 2020.
Appellant timely filed a pro se notice of appeal on Monday, May 4, 2020.
The court did not order a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.
Appellant raises the following issue:
Did the PCRA court err in its legal conclusion that Appellant
failed to establish a timeliness exception to the jurisdictional
[time-bar] of the PCRA thus precluding review on the merits
of his claims?
(Appellant’s Brief at 4).
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2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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Appellant argues plea counsel failed to consult with Appellant following
sentencing about his post-sentence/appellate rights, and counsel abandoned
him by filing a motion to withdraw. Appellant asserts he wanted to withdraw
his guilty plea and proceed to trial on a “heat of passion” defense. Appellant
further claims the trial court sentenced him without the benefit of a pre-
sentence investigation report, imposed fines without considering Appellant’s
ability to pay, and failed to issue an individualized sentence that took into
consideration Appellant’s low I.Q., special education history, or whether
Appellant understood the nature of the proceedings against him.
Although Appellant acknowledges the facial untimeliness of his PCRA
petition, Appellant insists he has satisfied two exceptions to the timeliness
requirement. Appellant stresses that he was never served with counsel’s
motion to withdraw or the order granting counsel’s motion. Appellant
maintains that plea counsel’s failure to inform him of counsel’s withdrawal
satisfies the “newly-discovered facts” exception to excuse his untimely filing.
Appellant also avers that the court’s failure to inform him of plea counsel’s
withdrawal satisfies the “governmental interference” exception to the time-
bar. Appellant emphasizes that he did not learn of plea counsel’s withdrawal
until May 10th or 13th of 2019, after Appellant requested a docketing statement
from the Clerk of Courts based on the advice of fellow prisoners. Appellant
claims he exercised due diligence in making this discovery in light of
Appellant’s inexperience with the criminal justice system and intellectual
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disabilities. Appellant proclaims he timely filed his PCRA petition within one
year of learning about counsel’s withdrawal from the case. Appellant submits
that had he learned of counsel’s withdrawal at the time the court granted
counsel’s motion, Appellant “could have done more to protect his rights.”
(Appellant’s Brief at 14). Appellant concludes this Court should vacate the
order denying PCRA relief and remand for further proceedings. We disagree.
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition shall be filed within one year of the date the underlying
judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment
of sentence is deemed final “at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S.A. § 9545(b)(3).
Generally, to obtain merits review of a PCRA petition filed more than
one year after the sentence became final, the petitioner must allege and prove
at least one of the three timeliness exceptions:
(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
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(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.A. § 9545(b)(1)(i)-(iii). A petitioner asserting a timeliness
exception must also file the petition within the required statutory window. 42
Pa.C.S.A § 9545(b)(2).
“The proper question with respect to [s]ubsection 9545(b)(1)(i)’s
timeliness exception is whether the government interfered with Appellant’s
ability to present his claim and whether Appellant was duly diligent in seeking
the facts on which his claims are based.” Commonwealth v. Chimenti, 218
A.3d 963, 975 (Pa.Super. 2019), appeal denied, ___Pa.___, 229 A.3d 565(2020). In other words, an appellant is required to show that he would have
filed his claim sooner, if not for the interference of a government actor.
Commonwealth v. Staton, 646 Pa. 284, 184 A.3d 949 (2018).
To meet the “newly-discovered facts” timeliness exception set forth in
Section 9545(b)(1)(ii), a petitioner must demonstrate “he did not know the
facts upon which he based his petition and could not have learned those facts
earlier by the exercise of due diligence.” Commonwealth v. Brown, 111
A.3d 171, 176 (Pa.Super. 2015). Due diligence demands that a PCRA
petitioner take reasonable steps to protect his own interests. Id.Instantly, the court sentenced Appellant on December 29, 2017.
Appellant did not file a notice of appeal, and his judgment of sentence became
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final thirty days later, on January 28, 2018. See 42 Pa.C.S.A. § 9545(b)(3);
Pa.R.A.P. 903(c)(3). Thus, Appellant had until January 28, 2019, to file a
timely PCRA petition. Appellant did not file his current PCRA petition until
September 30, 2019, which is patently untimely. See 42 Pa.C.S.A. §
9545(b)(1).
Even if we were to accept Appellant’s assertions that he did not receive
notice of counsel’s withdrawal from the case until May 2019, Appellant fails to
demonstrate the exercise of due diligence in making this discovery. See, e.g.,
Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa.Super. 2001) (holding
that trial counsel’s failure to file direct appeal was discoverable during
appellant’s one-year window to file timely PCRA petition; “A phone call to his
attorney or the clerk of courts would have readily revealed that no appeal had
been filed”). Similarly, Appellant could have written to plea counsel or the
court within the one-year statutory window to uncover whether counsel was
still representing Appellant or if there were any filings pending in his case.
See id. Consequently, we agree with the PCRA court that Appellant failed to
satisfy the due diligence required to prevail on his asserted time-bar
exceptions. (See Rule 907 Notice Opinion, filed December 18, 2019, at 6).
See also Chimenti, supra; Staton, supra; Brown, supra. Therefore,
Appellant’s petition remains time-barred. Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/02/2021
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