Com. v. Speights, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ALLIE SPEIGHTS
Appellant No. 151 EDA 2016
Appeal from the PCRA Order December 17, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0000767-1998
BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J. *
MEMORANDUM BY RANSOM, J.: FILED APRIL 16, 2018
Appellant, Allie Speights,1 appeals from the order entered December 17,
2015, denying as untimely his serial petition for collateral relief filed under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In November 1998, Appellant was convicted by a jury of first degree
murder, recklessly endangering another person (“REAP”), carrying a firearm
without a license, and two counts of aggravated assault.2 On February 17,
1999, he was sentenced to life imprisonment and one to two years of
incarceration to run concurrent to his life sentence on the firearms charge. He
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1 In various filings before this Court, Appellant is referred to as both “Allie
Speight” and “Allie Speights.” As Appellant predominantly refers to himself
as “Allie Speights,” we will utilize this spelling infra.
2 See 18 Pa.C.S. §§ 2502(a), 2705, 6106, and 2702, respectively.
* Retired Senior Judge Assigned to the Superior Court.
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filed post-sentence motions alleging ineffective assistance of counsel; these
motions were denied. He timely appealed, and his judgment of sentence was
affirmed. See Commonwealth v. Speight, 760 A.2d 434 (Pa. Super. 2000),
appeal denied, 764 A.2d 50 (Pa. 2000) (unpublished memorandum).
Appellant then began serially filing PCRA petitions and appeals, creating
a convoluted procedural history. See Commonwealth v. Speight, 830 A.2d
1053 (Pa. Super. 2003) (unpublished memorandum), appeal denied, 845 A.2d
818 (Pa. 2004) (finding Appellant’s claims of trial and appellate counsel
ineffectiveness meritless); see Commonwealth v. Speights, 34 A.3d 220
(Pa. Super. 2011) (unpublished memorandum) (stating that Appellant’s
petition was untimely and adding that Graham3 would afford Appellant no
relief because he was not a juvenile at the time of the murder); see
Commonwealth v. Speights, 68 A.3d 367 (Pa. Super. 2013) (stating that
Appellant’s petition was untimely and he had not established governmental
interference and after-discovered evidence time-bar exceptions).
Following the last affirmance, Appellant sought leave to file a petition
seeking allocatur nunc pro tunc. While that petition was pending, Appellant
re-filed his fourth PCRA, which had been dismissed while the appeal was
pending in this Court. In January 2014, the PCRA court dismissed his fourth
petition. Appellant untimely appealed.
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3 Graham v. Florida, 130 S. Ct. 2011 (2010).
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While the appeal of his fourth petition was pending, Appellant filed a
fifth PCRA petition in April 2014. This petition was a legal nullity. See
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (noting that PCRA
courts do not have jurisdiction to adjudicate subsequent PCRA petitions until
the appeals of the former petitions are adjudicated by appellate courts).
However, Appellant withdrew his untimely appeal in October 2014.
In December 2014, Appellant filed an “amendment/supplement” to his
fifth petition, which was docketed as a separate PCRA petition. Appellant
argued that although his petition was untimely, after-discovered facts
warranted review. See PCRA Petition, 12/11/14, at 1-11. Namely, Appellant
claimed that he had been denied his constitutional right to counsel because
his attorney, Gerald Alston, Esquire, was suspended from the practice of law
at the time he represented Appellant at sentencing. Id. Appellant claimed
he did not discover this suspension until January 28, 2014, following a
conversation with a fellow inmate who suggested that Appellant research his
attorney’s background and following Appellant’s request to the Disciplinary
Board for this information. Id. Appellant argued that because Mr. Alston was
his father’s long-time friend, Appellant trusted in his competent
representation. Id.
In August 2015, the court sent Appellant notice of its intent to dismiss
his PCRA petition as untimely. Appellant pro se filed a response. In December
2015, the court dismissed his petition.
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Appellant timely appealed and filed a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal. A year and one-half later, the PCRA court
issued a responsive opinion.4
On appeal, Appellant presents the following issue for our review:
Did the lower court commit an abuse of discretion when it
dismissed Appellant’s PCRA petition as untimely “because” it
found the underlying claim meritless?
Appellant’s Brief at 2.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. See Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007).
We begin by addressing the timeliness of Appellant’s petition, as the
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded in order to address the merits of his claims. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for relief, including second and subsequent petitions, must
be filed within one year of the date on which the judgment of sentence
becomes final. Id. There are three exceptions:
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4 During the pendency of the instant appeal, it appears that the Delaware
County Public Defender’s Office entered its appearance and filed a sixth PCRA
on Appellant’s behalf. However, this petition is a legal nullity as it was filed
while the instant appeal was pending. See Lark, 746 A.2d at 588. It appears
that the PCRA court improperly addressed the claims raised therein in its
1925(a) opinion.
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(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). Any petition attempting to invoke these
exceptions “shall be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000).
Appellant’s petition is untimely.5 Nevertheless, he contends that he is
entitled to PCRA relief due to the existence of facts unknown to him at trial
and which could not have been ascertained by due diligence. See
Commonwealth v. Bennett, 930 A.2d 1264, 1271 (Pa. 2007); see also 42
Pa.C.S. § 9545(b)(1)(ii). Due diligence requires that the petitioner take
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5 Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on May 31, 2004, at the expiration of the ninety-day time period
for seeking review with the United States Supreme Court. See 42 Pa.C.S. §
9545(b)(3) (a judgment of sentence becomes final at the conclusion of direct
review or the expiration of the time for seeking the review); Commonwealth
v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (noting that Sup.Ct.R. 13
grants an Appellant ninety days to seek review with the United States
Supreme Court). Accordingly, Appellant had until May 31, 2005, to timely file
a petition. Appellant’s petition is approximately nine years untimely.
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reasonable steps to protect his own interest. See Commonwealth v. Carr,
768 A.2d 1164, 1168 (Pa. Super. 2001). Further, he must explain why he
could not have learned the new facts earlier with the exercise of due diligence.
See Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001).
In the instant matter, the PCRA court determined that Appellant could
not overcome the timeliness requirement because even if Appellant did
establish jurisdiction, the resulting sentence – life imprisonment – would have
been the same regardless of counsel’s suspension. See PCO at 5.
Appellant’s brief does not discuss 1) the steps he took to protect his own
interest or 2) explain why he could not have learned the new facts earlier with
the exercise of due diligence. Instead, Appellant contends that the PCRA court
erred in reaching the merits of Appellant’s claim without first determining
whether he exercised due diligence and accordingly abused its discretion in
dismissing Appellant’s petition without a hearing. See Appellant’s Brief at 7-9.
In response, the Commonwealth argues that public records, such as an
attorney’s suspended license, cannot be considered “unknown facts,” and
thus, it is immaterial if and when the petitioner knew about the suspension
because the evidence was not unknown. See Commonwealth’s Brief at 7.
Initially, we note that regardless of the arguments advanced above, “an
appellate court may affirm a valid judgment based on any reason appearing
as of record.” See Commonwealth v. Moore, 937 A.2d 1062, 1073 (Pa.
2007).
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The Pennsylvania Supreme Court has held that the “presumption that
information which is of public record cannot be deemed ‘unknown’ for
purposes of subsection 9545(b)(1)(ii) . . . does not apply to pro se prisoner
petitioners,” as that application is contrary to the plain language of the statute
and was imposed without any apparent consideration of a pro se prisoner’s
actual access to information of public record. See Commonwealth v.
Burton, 158 A.3d 618, 638 (Pa. 2017). Regardless of this holding, a pro se
incarcerated prisoner is “still required to prove that the facts upon which his
claim of a timeliness exception under subsection 9545(b)(1)(ii) is based
were unknown to him and not ascertainable by the exercise of due diligence.
[This] decision merely eliminates what we conclude is an unjustifiable
presumption.” Id. at 638 n.23.
Thus,
consistent with the statutory language, in determining whether a
petitioner qualifies for the exception to the PCRA's time
requirements pursuant to subsection 9545(b)(1)(ii), the PCRA
court must first determine whether the facts upon which the claim
is predicated were unknown to the petitioner. In some cases, this
may require a hearing. After the PCRA court makes a
determination as to the petitioner’s knowledge, it should then
proceed to consider whether, if the facts were unknown to the
petitioner, the facts could have been ascertained by the exercise
of due diligence, including an assessment of the petitioner's
access to public records.
Id. at 638 (internal quotation marks and footnote omitted) (emphasis
added).
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Burton did not do away with the statutory requirement that Appellant
plead and prove that the information he relies upon could not have been
obtained earlier, despite the exercise of due diligence. See Commonwealth
v. Stokes, 959 A.2d 306, 310 (Pa. Super. 2008). Here, the PCRA court did
not make a determination as to whether the facts were unknown to Appellant.
Regardless of this lack of determination, we may still find that Appellant did
not exercise due diligence in attempting to access the information.
Further, despite any due diligence Appellant may or may not have
exercised, his petition must be filed within sixty days of the date the claim
could have been presented. See Commonwealth v. Smallwood, 155 A.3d
1054, 1060 (Pa. Super. 2017). Appellant claims that he discovered the
operative fact on January 28, 2014, but did not file his petition until December
11, 2014, almost eleven months later and far beyond the sixty-day period
allowable by statute. Id.
Additionally, Appellant has not explained why he could not have
obtained the new facts earlier with the exercise of due diligence, particularly
where 1) Mr. Alston was a close friend of Appellant’s father; and 2) where
Appellant was represented by counsel during his first timely PCRA and we may
presume that he still had access to this information through counsel. See
Carr, 768 A.2d at 1168; see also Burton, 121 A.3d at 1072.
Accordingly, Appellant failed to properly plead any exception to the one-
year time bar. Accordingly, we are without jurisdiction to offer Appellant any
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relief. See Bennett, 930 A.2d at 1267; see Burton, 158 A.3d at 638 n.23;
see Smallwood, 155 A.3d at 1060.
Order affirmed. Jurisdiction relinquished.
Judge Bowes concurs in the result.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/18
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