Com. v. Britt, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KEVIN BRITT, :
:
Appellant : No. 975 WDA 2017
Appeal from the PCRA Order April 19, 2016
in the Court of Common Pleas of Westmoreland County,
Criminal Division at No(s): CP-65-CR-0004137-2006
BEFORE: STABILE, J., MUSMANNO, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 27, 2018
Kevin Britt (“Britt”) appeals from the Order dismissing his second
Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On July 30, 2007, following a jury trial, Britt was convicted of two counts
each of robbery – threat of immediate bodily injury, and robbery – inflict bodily
injury, and one count each of robbery – inflict serious bodily injury, conspiracy,
and persons not to possess firearms. The trial court sentenced Britt to a term
of 38½ to 77 years in prison.1 This Court affirmed Britt’s judgment of
sentence, and the Pennsylvania Supreme Court denied allowance of appeal on
____________________________________________
1 Britt’s trial counsel, Edward T. Rowe, Jr., Esquire (“Attorney Rowe”), was
suspended from the practice of law on October 30, 2007, and was granted
leave to withdraw as counsel by Order dated November 7, 2007. The trial
court appointed Britt counsel, who was later permitted to withdraw due to a
potential conflict. On November 29, 2007, the trial court appointed Britt new
counsel, and reinstated his direct appeal rights nunc pro tunc.
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August 20, 2009. See Commonwealth v. Britt, 965 A.2d 289 (Pa. Super.
2008) (unpublished memorandum), appeal denied, 983 A.2d 725 (Pa.
2009).
Britt, pro se, filed his first PCRA Petition on June 7, 2010. The PCRA
court appointed Britt counsel, who subsequently filed a Petition to Withdraw
as counsel and a Turner/Finley2 “no-merit” letter. The PCRA court permitted
counsel to withdraw, and denied Britt’s first Petition on March 11, 2011. This
Court affirmed the denial on November 8, 2012. See Commonwealth v.
Britt, 50 A.3d 238 (Pa. Super. 2012) (unpublished memorandum).
This Court previously set forth what next transpired as follows:
[Britt] filed the [P]etition that is the subject of the instant appeal
on June 20, 2014, and requested the appointment of counsel.
Within his [P]etition, [Britt] claimed that he is entitled to relief
because of newly-discovered information concerning his trial
attorney and an alleged Brady[FN1] violation. On July 2, 2015, the
PCRA [court] denied [Britt’s] request for counsel and issued
[N]otice pursuant to Pa.R.Crim.P. 907 that it intended to dismiss
[Britt’s] PCRA [P]etition without holding an evidentiary hearing.
[Britt] filed a [R]esponse to the Rule 907 [N]otice on July 23,
2014, and on September 10, 2014, the PCRA court issued an
[O]rder scheduling a hearing.
At the hearing on November 24, 2014, the PCRA court was
informed that [Britt] was in the process of retaining private
counsel and granted a continuance for counsel to enter his
appearance. Patrick K. Nightingale, Esquire, entered his
appearance on behalf of [Britt] on February 24, 2015, and
requested [that] the PCRA court schedule a hearing. Attorney
Nightingale eventually filed an [A]mended [P]etition. Following
several continuances, a hearing was held on November 20, 2015.
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2 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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The PCRA court ordered briefs and took the matter under
advisement.
On March 24, 2016, the [PCRA] court filed a Rule 907
[N]otice,[FN2] and [Britt] responded pro se, opposing the court’s
intention to dismiss his [P]etition. On April 19, 2016, the PCRA
court dismissed [Britt’s P]etition. On May 18, 2016, [Britt,] pro
se[,] filed a [N]otice of [A]ppeal, [M]otion to proceed in forma
pauperis, and request for appointment of counsel. The PCRA court
granted [Britt’s] request to proceed in forma pauperis but denied
his request for counsel.[FN3]
[FN1] Brady v. Maryland, 373 U.S. 83 (1963).
A notice pursuant to Pa.R.Crim.P. 907 is only required if the
[FN2]
PCRA court intends to dismiss a petition without a hearing.
[FN3][Britt] and the PCRA court complied with the directives of
Pa.R.A.P. 1925.
Commonwealth v. Britt, 168 A.3d 293 (Pa. Super. 2017) (unpublished
memorandum at 2-3) (footnotes and emphasis in original). On appeal, this
Court noted that although Britt filed his appeal pro se, there was no indication
in the docket that his attorney had ever withdrawn his appearance. See id.
(unpublished memorandum at 4). Accordingly, this Court remanded the case
to the PCRA court to “inquire as to the status of [Britt’s] representation and
determine if counsel seeks permission to withdraw[,]” or, in the alternative,
to conduct a Grazier3 hearing. Id. (unpublished memorandum at 4-5).
Attorney Nightingale subsequently filed a Petition to Withdraw as counsel,
which the PCRA court granted. The PCRA court appointed Britt appellate
counsel. Britt, through counsel, filed a timely Notice of Appeal and a court-
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3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on
appeal.
On appeal, Britt raises the following issues for our review:
I. Whether [Britt’s] second PCRA Petition represents a miscarriage
of justice which would grant the court jurisdiction over his claim?
II. Whether [Britt’s] discovery that his attorney had been
suspended from the practice of law represents newly discovered
evidence and excuses any possible untimeliness?
Brief for Appellant at 4.
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
is supported by evidence of record and is free of legal error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Initially, under the PCRA, any PCRA petition, “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). 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.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional in nature and a court may not address the merits of the issues
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raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,
994 A.2d 1091, 1093 (Pa. 2010).
Here, Britt’s judgment of sentence became final in November 2009,
when the time for filing a petition for writ of certiorari with the United States
Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); SUP. CT. R. 13. Thus,
Britt’s second Petition is facially untimely.
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of three exceptions set forth under
42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any petition invoking one of these exceptions
“shall be filed within 60 days of the date the claim could have been presented.”
Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094. Further, “[a] petitioner must
explain when he first learned of the facts underlying his PCRA claims and show
that he brought his claim within sixty (60) days thereafter.” Commonwealth
v. Medina, 92 A.3d 1210, 1216 (Pa. Super. 2014) (citation omitted).
We will address Britt’s claims together. In his first claim, Britt argues
that a miscarriage of justice occurred because Attorney Rowe was suspended
from the practice of law after Britt’s sentencing, and therefore, Britt was
entirely without counsel to preserve issues for appeal through a post-sentence
motion. Brief for Appellant at 7. In his second claim, Britt cites the exception
at 42 Pa.C.S.A. § 9545(b)(1)(ii), and asserts that his discovery that his trial
counsel had been suspended from the practice of law constitutes a new fact
that entitles him to PCRA relief. Id. at 8. Britt again claims that he was
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effectively abandoned by Attorney Rowe, who was suspended before filing a
post-sentence motion to preserve issues for appeal. Id. at 9.
To prove the newly-discovered facts exception at section 9545(b)(1)(ii),
“the petitioner must establish that the facts upon which the claim was
predicated were unknown and could not have been ascertained by the exercise
of due diligence.” Commonwealth v. Brown, 141 A.3d 491, 500 (Pa. Super.
2016) (citation omitted). “Due diligence demands that the petitioner take
reasonable steps to protect his own interests. A petitioner must explain why
he could not have obtained the new fact(s) earlier with the exercise of due
diligence. This rule is strictly enforced.” Commonwealth v. Monaco, 996
A.2d 1076, 1080 (Pa. Super. 2010) (citations omitted).
Here, Attorney Rowe was suspended from the practice of law in October
2007, and Britt did not file the instant Petition until June 2014. Britt failed to
explain how he believes he satisfied the due diligence requirement, or to
explain why he could not have ascertained the new fact sooner with the
exercise of due diligence. See id.; see also Brown, 141 A.3d at 500.
Additionally, Britt failed to explain why he could not have raised this claim in
his first, timely PCRA Petition. See Commonwealth v. Lopez, 51 A.3d 195,
196 (Pa. 2012) (concluding that appellant’s PCRA claim regarding trial
counsel’s disciplinary issues did not satisfy an exception to the PCRA’s time-
bar, where “[i]nformation related to trial counsel’s disciplinary issues was
publicly available for years, including when appellant’s first PCRA petition was
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being prepared[,]” and “these facts were easily discoverable and in the public
record for longer than 60 days before th[e] petition was filed….”). Therefore,
Britt failed to plead and prove the newly-discovered facts exception to the
PCRA’s timeliness requirement.
Because Britt did not successfully invoke any of the exceptions
necessary to circumvent the PCRA’s timeliness requirement, we cannot
address the merits of his claims.
Order affirmed.
Judge Stabile joins the memorandum.
President Judge Emeritus Ford Elliott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2018
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