Com. v. Payne, R. ( 2021 )

J-A06022-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT PAYNE :
:
Appellant : No. 468 WDA 2020
Appeal from the PCRA Order Entered February 20, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007237-2004
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY LAZARUS, J.: FILED: May 28, 2021
Robert Payne appeals from the order, entered in the Court of Common
Pleas of Allegheny County, denying as untimely his serial petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
Upon review, we affirm.
The underlying facts and procedural history of this case are undisputed.
On October 26, 2006, following a jury trial, Judge Donna Jo McDaniel
sentenced Payne to an aggregate term of 16-40 years’ imprisonment in
connection with several sexual offenses involving an 11-year-old child. Payne
timely appealed to this Court, but the appeal was discontinued upon his
request on May 24, 2007. Thereafter, Payne timely filed a PCRA petition
alleging trial counsel’s ineffectiveness. The PCRA court dismissed the petition
on July 31, 2009. We affirmed the PCRA court’s order on September 13, 2010.
See Commonwealth v. Payne, 1499 WDA 2009 (Pa. Super. filed Sept. 13,
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2010) (unpublished memorandum decision). Six years later, on August 15,
2015, Payne filed his second PCRA petition, alleging trial counsel’s
ineffectiveness and the illegality of his sentence. The PCRA court dismissed
the petition as untimely on July 13, 2016. We affirmed that decision on June
14, 2017, after rejecting Payne’s argument that his second petition was timely
under Alleyne v. United States1 in light of Montgomery v. Louisiana.2
See Commonwealth v. Payne, 1132 WDA 2016 (Pa. Super. filed June 14,
2017) (unpublished memorandum decision) at 4 (Alleyne does not apply
retroactively to matters pending on collateral review; nothing in Montgomery
supports otherwise); see also 42 Pa.C.S.A. §§ 9545(b)(1)(iii) (exception to
PCRA time-bar where constitutional right asserted was held by Pennsylvania
or United States Supreme Court to apply retroactively).
On December 4, 2017, Payne filed a pro se PCRA petition—his third
request for post-conviction relief. On March 29, 2018, the PCRA court
dismissed the petition as untimely. Although Payne filed a pro se notice of
appeal, he subsequently filed a request to discontinue the appeal, which this
Court granted on March 14, 2019. On March 27, 2019, Payne filed the instant
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1 See Alleyne v. United States, 570 U.S. 99 (2013) (holding jury must find
any fact increasing a mandatory minimum sentence beyond a reasonable
doubt).
2 See Montgomery v. Louisiana, 577 U.S. 190 (2016) (Supreme Court’s
decision in Miller v. Alabama, 567 U.S. 460 (2012), prohibiting mandatory
life sentences without parole for juvenile offenders under Eighth Amendment,
announced new substantive constitutional rule retroactive on state collateral
review).
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pro se PCRA petition—his fourth—in which he sought to invoke the newly-
discovered fact exception to overcome the PCRA’s time-bar. The PCRA court
appointed Rob Perkins, Esquire, to represent Payne. On August 23, 2019,
Attorney Perkins filed a motion to withdraw and accompanying
Turner/Finley3 “no-merit” letter. The PCRA court granted counsel permission
to withdraw on September 26, 2019. On November 20, 2019, the PCRA court
dismissed Payne’s petition as untimely. Payne appealed pro se, raising the
following issues for our review:
1. Did the [trial or PCRA] court [and/or] the district attorney[’s],
denial of access to the records violate their obligation under
the [] Fourteenth Amendment [to the United States]
Constitution[] and [] Article [I] Section 9 of [the] Pennsylvania
Constitution?
2. Did [Payne]’s abandonment [by] all counsels violate[ his]
substantial [sic] right to direct[]appeal by all counsels[’] failure
to protect, present, and preserve[] his substantial [sic]
constitutional right under both [the] federal United States and
Pennsylvania [D]ue [P]rocess [Clauses], and Pennsylvania
Article V[,] Section 9[,] when counsels withdr[e]w their
notice[s] of appeal without preserving [Payne’]s direct[]appeal
rights nunc pro tunc in violation of their obligation under the
United States Sixth and Fourteenth Amendment[s to the]
Constitution, and Pennsylvania Article [I, Section 9 and
[Article] V, [S]ection 9 of the Pennsylvania Constitution?
3. Did layered abandonment [by] all counsels of record create[]
and cause[] absolute prejudice to [Payne]’s absolute right to
effective assistance of counsel[] protected to him [sic] by the
United States Sixth and Fourteenth Amendment [to the]
Constitution[] and Pennsylvania Article [I, Section 9 and
[Article] V[, S]ection 9 of [the] Pennsylvania [Constitution],
when [Payne] suffered abandonment of his due process rights
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3 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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to fair court proceedings, to fair appellate review proceedings,
and all counsels[’] failure to file ineffectiveness [claims] against
each other[,] [sic] as counsel of record abandoned his request
to file [claims that] prior counsels had failed to protect,
present, and preserve his protected right to due process and
equal protection of his procedural criminal rules of the court?
4. Did [Payne]’s newly-discovered facts[] while his PCRA was
pending under the recent[] decision of the McCoy v.
Louisia[na]4, ineffective assistance of counsel change in the
law appl[y to Payne] and entitle[] him [to] one of the
exception[s] to the timeliness requirement of the [PCRA]
pursuant to . . . [section] 9545(b)[(1)-(2)], and did the trial
court judge lack[] subject matter jurisdiction [to] sentence
[Payne] when [the] trial court judge sentenced [Payne] to a
lifetime registration under [the Sex Offender Registration and
Notification Act,5] SORNA[,] pursuant to [sections] 9542[ and]
9543(a)(2)(viii), [] which entitle[ Payne] to the exception to
the PCRA timeliness requirement under [section]
9543(a)(2)(vii)[]?
5. Did [the PCRA] court err by granting [Attorney] Perkins[’
motion to withdraw] when he stated that [Payne]’s newly[-
]discovered evidence/newly[-]discovered facts could have
been ascertain[ed] through [] due diligence as early as
January[] 2017[] by way of [a] Pittsburgh Post Gazette
newspaper[ article?]
6. [Did the PCRA court err in finding that the Pittsburgh Post
Gazette newspaper article was a source that Payne could have
used to exercise due diligence to discover that his trial judge
was biased against the sexual assault charges he was convicted
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4 See McCoy v. Louisiana, 138 S. Ct. 1500 (2018) (holding defendant had
right under Sixth Amendment to insist prior counsel refrain from admitting,
during capital trial, that defendant committed three murders, even though
counsel reasonably believed that admitting guilt afforded defendant best
chance to avoid death sentence). Although Payne refers to McCoy v.
Louisiana in his statement of issues presented, his argument section
discusses only Montgomery v. Louisiana, supra. See Brief of Appellant,
Appendix, C at 11-12.
5 See 42 Pa.C.S.A. §§ 9799.10 et seq.
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of?6]
7. Did [the PCRA] court err in dismissing [Payne]’s PCRA [petition
s]tating [his] newly[-] discovered fact didn’t have [] merit
when it is a fact that his trial judge[, Judge] Donna Jo
McDaniel[,] was found to be bias[ed] against sexual offenders
and was removed from the bench on a sexual offender’s
case[?]
Brief of Appellant, Appendix C, at 1-4.7
Before discussing the merits of those issues, however, we must first
determine whether Payne’s serial petition for post-conviction relief was timely
filed. See Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.
2013) (“[The PCRA] time requirement is mandatory and jurisdictional in
nature, and the court may not ignore it in order to reach the merits of the
petition.”). Generally, a petition for relief under the PCRA, including a second
or subsequent petition, must be filed within one year of the date the judgment
of sentence becomes final unless the petitioner alleges, and proves, that an
exception to the time for filing the petition, set forth at 42 Pa.C.S.A. §§
9545(b)(1)(i), (ii), and (iii), is met.8 A PCRA petition invoking one of these
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6 Due to a printing error, this issue is nearly illegible in Payne’s appellate brief,
but the language has been reproduced as accurately as possible.
7 The statement of questions involved, summary of argument, and argument
section of Payne’s appellate brief are located in “Appendix C.” See generally
Brief of Appellant.
8 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of government officials with the presentation of the
(Footnote Continued Next Page)
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statutory exceptions “must be filed within sixty days of the date the claim
could first have been presented.” See Commonwealth v. Hernandez, 79
A.3d 649, 651-52 (Pa. Super. 2013) (citations omitted); see also 42
Pa.C.S.A. § 9545(b)(2).9 Under the PCRA, a judgment of sentence becomes
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).
Direct review of Payne’s judgment of sentence concluded on May 24, 2007,
when Payne discontinued his appeal to this Court. His instant petition, filed
over 11 years later, is patently untimely, unless he has satisfied his burden of
____________________________________________
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.A. §§ 9545(b)(1)(i), (ii), and (iii).
9 On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
to enlarge the time in which a petitioner may invoke a PCRA time-bar
exception from 60 days to one year from the date the claim arises. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018].
However, the amendment applies only to claims arising on December 24,
2017, or thereafter. Id. at § 3. In this case, Payne’s claim arises from the
alleged bias of the trial court judge against him as of October 26, 2006.
Therefore, the sixty-day deadline applies.
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pleading and proving that an enumerated exception applies. See
Hernandez, supra.Here, Payne asserts that his petition is timely under the newly-
discovered facts exception, codified at 42 Pa.C.S.A. § 9545(b)(1)(ii). This
exception “has two components, which must be alleged and proved. Namely,
the petitioner must establish that: (1) the facts upon which the claim was
predicated were unknown; and (2) [those facts] could not have been
ascertained by the exercise of due diligence.” Commonwealth v. Bennett,
930 A.2d 1264, 1272 (Pa. 2007); 42 Pa.C.S.A. § 9545(b)(1)(ii). Due diligence
requires a petitioner to take reasonable efforts to uncover facts that may
support a claim for collateral relief. Commonwealth v. Burton, 121 A.3d
1063, 1071 (Pa. Super. 2015) (en banc). A petitioner must explain why he
could not have learned the new fact(s) earlier by exercising due diligence.
Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001). Additionally,
the focus of this 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).
In his attempt to invoke the newly-discovered fact exception, Payne
avers that, in December of 2018, he learned of Judge McDaniel’s alleged bias
against sex offenders in a “Law Weekly,” i.e., Legal Intelligencer, article titled
“Court Removes Pittsburgh Judge From Case, Citing ‘Bias,’” dated November
29, 2018. Id. at 8; see also No-Merit Letter, 8/23/19, at 4. Payne also faults
Attorney Perkins for undermining his claim by expressing in his Turner/Finley
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“no-merit” letter that, “[h]ad Payne exercised due diligence . . . he would have
discovered news articles documenting Judge McDaniel’s bias towards other
convicted sex offenders dating back to January 2017.” See No-Merit Letter,
8/23/19, at 4; Brief of Appellant, Appendix C, at 8.
Regardless of whether Payne exercised due diligence in discovering the
article, however, our Supreme Court explained in Commonwealth v. Brown,
141 A.3d 491, 502 (Pa. Super. 2016), that newspaper articles themselves are
insufficient to establish the newly-discovered fact exception to the PCRA’s
timeliness requirement.
Our Supreme Court addressed a situation like the one in the
case sub judice in Commonwealth v. Castro, 93 A.3d 818 (Pa.
2014). In Castro, the petitioner relied upon a newspaper article
to establish the newly-discovered fact exception to the PCRA’s
timeliness requirement. Our Supreme Court held that a
newspaper “article contain[ed] allegations that suggest such
evidence may exist, but allegations in the media, whether
true or false, are no more evidence than allegations in any
other out-of-court situation.” Id. at 825.
In . . . Castro . . . [our Supreme Court held that] the newspaper
article [merely] referenced [what] could be evidence. See id. at
827. Thus, there [wa]s no fact within the [article], only
information which could lead Appellant to discover facts.[10]
Brown, supra at 502 (emphasis added) (holding affidavit from individual
stating that he heard police officer confess to murder did not constitute newly-
discovered fact) (emphasis added); citing Castro, supra (reversing Superior
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10 Since Payne “offered nothing to support his [petition] except the article, the
court was required to speculate on what evidence he would be able to present
at a hearing.” See Commonwealth v. Castro, supra at 823.
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Court order granting hearing based on after-discovered evidence because
newspaper article, submitted as sole support for motion for new trial on that
basis, “do[es] not constitute evidence”).
Because Payne has failed to plead and prove an exception to the PCRA’s
time bar, he is entitled to no relief. See Commonwealth v. Fahy, 737 A.2d
214, 223 (Pa. Super. 1999) (court has no jurisdiction to consider untimely
petition for relief). We, therefore, affirm the PCRA court’s order dismissing
Payne’s serial PCRA petition.
To the extent that Payne attempts to argue that his sentence is illegal
pursuant to Alleyne, supra in light of Montgomery, supra, we note that
this claim would entitle Payne to no relief, as it was previously litigated by this
Court. See Brief of Appellant, Appendix C, at 5-6, 11; see also Payne, 1132
WDA 2016 (Pa. Super. filed June 14, 2017) (unpublished memorandum
decision); 42 Pa.C.S.A. §§ 9543(a)(3) (no eligibility for PCRA relief if allegation
of error has been previously litigated).11
Order affirmed.
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11 Payne also attempts to invoke the after-recognized constitutional right
exception under section 9545(b)(1)(iii) by arguing that his lifetime sexual
offender registration requirement is unconstitutional pursuant to
Commonwealth v. Muniz, 164 A.2d 1189 (Pa. 2017). We note briefly that
Payne’s “reliance on Muniz cannot satisfy the [timeliness] exception of [the
PCRA].” See Commonwealth v. Hromek, 232 A.3d 881, 885 (Pa. Super.
2020). “Because Appellant’s PCRA petition is untimely, . . . he must
demonstrate that the Pennsylvania Supreme Court has held that Muniz
applies retroactively[, but] no such holding has been issued).” Id. at 886.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/2021
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