Com. v. Bess, S. ( 2021 )

J-S05036-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHANNON BESS :
:
Appellant : No. 1611 EDA 2020
Appeal from the PCRA Order Entered July 13, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0206641-2006
BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: JUNE 7, 2021
Shannon Bess appeals from the order that dismissed his second Post
Conviction Relief Act (“PCRA”) petition for untimeliness. See 42 Pa.C.S.A. §§
9541-9546. We affirm.
In 2006, Bess was convicted of third-degree murder, violations of the
Uniform Firearms Act, and possessing instruments of crime.1 The court
sentenced Bess to 22½ to 45 years’ incarceration. We affirmed the judgment
of sentence,2 and the Pennsylvania Supreme Court denied Bess’s petition for
allowance of appeal on September 6, 2012.
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1 See 18 Pa.C.S.A. §§ 2502(c), 6106, 6108, and 907, respectively.
2 See Commonwealth v. Bess, 50 A.3d 244 (Pa.Super. 2012) (Table),
appeal denied, 53 A.3d 49 (Pa. 2012).
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Bess filed a timely first PCRA petition, pro se, in 2013. The PCRA court
appointed counsel, who filed a no-merit letter3 and motion to withdraw. After
sending Bess Rule 907 notice of its intention to dismiss his petition without a
hearing, the court permitted counsel to withdraw and dismissed Bess’s
petition. See Pa.R.Crim.P. 907. Bess appealed pro se, claiming ineffective
assistance of both his trial and PCRA counsel.
We affirmed the PCRA court’s denial of relief, rejecting his claims that
trial and PCRA counsel were ineffective. See Commonwealth v. Bess, No.
2197 EDA 2014, 2015 WL 7188368, unpublished memorandum at *1
(Pa.Super. 2015), appeal denied, 122 A.3d 455 (Pa.). The Supreme Court
denied Bess’s petition for allowance of appeal in 2015.
Bess filed the instant, pro se PCRA petition on January 27, 2020. He
again claimed his trial counsel and PCRA counsel had provided him with
ineffective assistance. The PCRA court found his petition to be untimely and
issued Rule 907 notice of its intention to dismiss the petition. Bess responded,
asserting for the first time that Commonwealth v. Kelsey, 206 A.3d 1135(Pa.Super. 2019), rendered his petition timely. According to Bess, this Court
in Kelsey held that PCRA counsel is ineffective if counsel’s no-merit letter
does not address each of the issues the petitioner has raised. Bess argued
that new case law is a “valid exception” to the PCRA’s one-year deadline, and
Kelsey fit the bill. The PCRA court thereafter denied the petition.
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3 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).
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In its Pa.R.A.P. 1925(a) opinion, the PCRA court explained that Bess had
not filed his petition within one year of the finality of his judgment of sentence
and had not pleaded any of the exceptions to the one-year deadline in his
petition, as required. See PCRA Ct. Op., 9/2/20, at 5. The court acknowledged
that Bess had raised Kelsey in his response to the Rule 907 notice but
explained that court decisions, such as Kelsey, do not satisfy the newly
discovered facts exception. Id. at 5-6.
Bess appealed and raises the following issues:
A. Whether [Bess] properly invoked a timeliness exception under
42 Pa.C.S.A. § 9545(b)(1)(ii)?
B. Whether [Bess]’s first PCRA counsel rendered ineffective
assistance for filing a deficient “no-merit” letter for its failure
to address all of [the] issue[s] raised in the PCRA petition?
Bess’s Br. at 3 (unnecessary capitalization omitted).
We review the denial of PCRA relief to determine “whether the PCRA
court’s order is supported by the record and free of legal error.”
Commonwealth v. Anderson, 234 A.3d 735, 737 (Pa.Super. 2020)
(quoting Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa.Super.
2018)). “The question of whether a petition is timely raises a question of law,”
and to that end, “our standard of review is de novo and our scope of review
is plenary.” Commonwealth v. Pew, 189 A.3d 486, 488 (Pa.Super. 2018).
Bess argues counsel on his first PCRA petition provided ineffective
assistance because counsel’s no-merit letter did not address each of the
claims of trial counsel ineffectiveness that Bess had raised in his first PCRA
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petition. Bess asserts his instant petition is timely because he filed it within
one year of the Kelsey decision.
The timeliness of a PCRA petition is a jurisdictional prerequisite to
review. Anderson, 234 A.3d at 737. A petition must be filed within one year
of the date the petitioner’s judgment of sentence became final, unless the
petitioner pleads and proves one of the exceptions enumerated in 42
Pa.C.S.A. § 9545(b)(1) applies. Id.
Here, as the PCRA court found, Bess did not file his petition within one
year of the date his judgment of sentence became final, 4 and did not plead
any of the exceptions to the time-bar in his petition. Even if Bess had pleaded
in his PCRA petition his claim that Kelsey rendered his petition timely –he
improperly first raised it in his response to the court’s Rule 907 notice – that
claim is meritless. As the PCRA court explained, Kelsey does not meet the
“newly discovered facts” exception because judicial decisions do not qualify
as newly discovered facts for purposes of the PCRA’s timeliness exceptions.
See 42 Pa.C.S.A. § 9545(b)(1)(ii); Commonwealth v. Watts, 23 A.3d 980,
986 (Pa. 2011).
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4 See 42 Pa.C.S.A. § 9545(b)(3) (“For purposes of this subchapter, a
judgment 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”). Bess’s judgment of sentence became final in December 2012, after
the 90-day period in which he could have sought review in the United States
Supreme Court expired.
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While a new judicial decision may render a petition timely under the new
constitutional rights exception, that exception has no application here. It only
applies where “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)(iii). Kelsey
did not announce a new constitutional right, much less a retroactive one
recognized by either the Pennsylvania Supreme Court or United States
Supreme Court. See Kelsey, 206 A.3d at 1139-40. It therefore has no effect
on the timeliness of Bess’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/21
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