Com. v. Jones, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHAWN JONES :
:
Appellant : No. 786 MDA 2021
Appeal from the PCRA Order Entered May 19, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005871-2016
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: JUNE 7, 2022
Shawn Jones (Appellant) appeals from the order entered in the Dauphin
County Court of Common Pleas, dismissing his first, counseled Post Conviction
Relief Act (PCRA) petition, as untimely filed 25 days beyond the general one-
year filing deadline.1 On appeal, Appellant avers: (1) the date of the
Pennsylvania Supreme Court’s denial of his petition for allowance of appeal,
on direct appeal, should be construed as the date it was entered as received
on the trial docket; (2) in the alternative, PCRA counsel provided ineffective
assistance for filing an untimely PCRA petition; and (3) his untimely filing
should be excused due to the 2020 COVID-19 pandemic statewide judicial
emergency. We affirm.
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1 42 Pa.C.S. §§ 9541-9546 (PCRA). See 42 Pa.C.S. § 9545(b)(1).
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Appellant was found guilty by a jury of first-degree murder and firearms
not to be carried without a license.2 On August 2, 2017, the trial court
imposed an aggregate sentence of life imprisonment without parole. Appellant
took a direct appeal, and this Court affirmed the judgment of sentence on
November 1, 2018. On April 16, 2019, the Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal. Commonwealth v.
Jones, 1679 MDA 2017 (Pa. Super. Nov. 1, 2018) (unpub. memo.), appeal
denied, 786 MAL 2018 (Pa. Apr. 16, 2019).
For ease of review of this particular appeal, we first consider the PCRA
court’s calculation of Appellant’s general one-year PCRA filing deadline.
Following our Supreme Court’s denial of allowance of appeal, Appellant had
90 days, or until July 15, 2019, to seek certiorari with the United States
Supreme Court. See Sup.Ct.R. 13. When he did not, his judgment of
sentence became final for PCRA purposes on that day. See 42 Pa.C.S. §
9545(b)(3) (judgment becomes final at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States, or
at the expiration of time for seeking the review). The PCRA court properly
found Appellant then generally had one year, until July 15, 2020, to file a
PCRA petition. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii) (PCRA petition shall be
filed within one year of the date the judgment becomes final, unless petition
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2 18 Pa.C.S. §§ 2501(a), 6106(a)(1).
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alleges one of three timeliness exceptions); Trial Ct. Mem. Op., 12/1/20, at 8
(PCRA Ct. Op.).3 We further note any petition for habeas corpus relief is
governed by the PCRA time requirements. 42 Pa.C.S.A. § 9542.
On August 7, 2020, Appellant’s current counsel, Ilon Fish, Esquire (PCRA
Counsel), entered his appearance. Two days thereafter, on August 9th, PCRA
Counsel filed a petition for habeas corpus, raising claims of trial counsel’s
ineffectiveness, as well as a Brady4 violation. The petition claimed it was
timely filed, where (1) the “Supreme Court affirmed the Lower Court[’]s
decision” on “May 8, 2019;” and (2) “the Superior Court affirmed the Lower
Court[’]s rulings on May 13, 2019.”5 Appellant’s Petition for Habeas Corpus
Relief, 8/9/20 at 2. These dates are not, in fact, the correct filing dates of the
Superior Court’s and Supreme Court’s decisions, but rather the dates they
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3This December 1, 2020, opinion was issued in support of the PCRA court’s
Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s petition without a
hearing.
4 Brady v. Maryland, 373 U.S. 83 (1963). “To succeed on a Brady claim,
the defendant must show: (1) evidence was suppressed by the prosecution;
(2) the evidence, whether exculpatory or impeaching, was favorable to the
defendant; and (3) prejudice resulted.” Commonwealth v. Hannibal, 156
A.3d 197, 209 (Pa. 2016). But see 42 Pa.C.S. § 9543(a)(3) (PCRA petition
must plead and prove allegation of error has not been waived); Hannibal,
156 A.3d at 209 (Brady claims were waived for PCRA review for failure to
raise them at trial or on direct appeal).
5 PCRA Counsel further stated Appellant “had until August 11, 2020 to file a
Petition to the Third Circuit Court of Appeals.” Appellant’s Petition for Habeas
Corpus Relief at 2. He provided no explanation for this deadline nor the
relevance of any federal court filing to this matter. See id.
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were entered as received by the PCRA court on the trial docket. See Criminal
Docket at 12-13. In any event, the correct filing dates were clearly set forth
within the docket entries, as a part of the title of the filings. Id. (“Supreme
Court Order 4/16/19 (786MAL2018);” “Superior Court Decision – 11/1/18
(1679MDA2017)”). This habeas corpus petition did not plead any of the
PCRA’s timeliness exceptions. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
Next, on September 3, 2020, PCRA Counsel filed a PCRA petition, which
did not explicitly acknowledge the lateness of the habeas corpus filing, but
nevertheless requested reinstatement of his “Appellate/Filing rights.” See
Appellant’s PCRA Petition, 9/3/20, at 3. PCRA Counsel argued that
“[u]nbeknownst to all parties,” the trial docket entry dates were incorrect. Id.
at 2. This petition likewise did not mention any of the Section 9545(b)(1)
timeliness exceptions, but instead vaguely averred, “Counsel files the within
PCRA requesting that time limitations for filing. [sic].”6 Id. Finally, the
petition stated the Commonwealth did not object to the requested relief.7 Id.
at 3.
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6 However, this same petition also continued to argue the request for PCRA
relief was “timely filed,” based on the same incorrect dates of the Superior
Court’s and Supreme Court’s decisions and the unexplained “August 11, 2020
[deadline] to file a Petition to the Third Circuit Court of Appeals.” See
Appellant’s PCRA Petition at 2.
7 On appeal, however, the Commonwealth argues the PCRA court properly
dismissed the habeas corpus petition as untimely filed. Commonwealth’s Brief
at 4.
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On December 1, 2020, the PCRA court issued Pa.R.Crim.P. 907 notice
of intent to dismiss the petitions without a hearing. The court did not reach
the merits of Appellant’s claims, but instead found the petitions were facially
untimely and failed to plead any of the timeliness exceptions. PCRA Ct. Op.
at 8-9.
Appellant did not file any response to the Rule 907 notice, and on May
19, 2021, the PCRA court entered the underlying order dismissing the petition.
Appellant filed a timely notice of appeal and the trial docket indicates he filed
a timely court-ordered Pa.R.A.P. 1925(b) statement of errors complained of
on appeal.8
Appellant presents six issues for our review:
1. Did the court err and abuse its discretion in failing to consider
the PCRA petition as timely?
2. Did the court err and abuse its discretion in failing to approve
the subsequent PCRA petition reinstating [Appellant’s] filing
rights?
3. Did the court err and abuse its discretion in dismissing the
PCRA petition where it was argued trial counsel was ineffective in
failing to object to the trial court’s erroneous jury instructions?
4. Did the court err and abuse its discretion in dismissing the
PCRA petition where it was argued that prosecutorial misconduct
occurred due to a failure to turn over certain evidence?
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8 The court issued a Rule 1925(b) order on July 6, 2021, directing Appellant
to file a concise statement within 21 days. The certified electronic record does
not include the statement, but the trial docket indicates Appellant filed one,
timely, on July 27th.
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5. Did the court err and abuse its discretion in dismissing the
PCRA petition where it was argued that trial counsel was
ineffective in failing to cross examine certain witnesses regarding
previous convictions and pending charges?
6. Did the court err and abuse its discretion in dismissing the
PCRA petition where it was argued that trial counsel was
ineffective for failing to request a cautionary instruction regarding
404(b) evidence?
Appellant’s Brief at 6-7.
“Our standard of review in PCRA appeals is limited to determining
whether the findings of the PCRA court are supported by the record and free
from legal error.” Commonwealth v. Spotz, 84 A.3d 294, 319 (Pa. 2014)
(citation omitted). “If a PCRA petition is untimely, courts lack jurisdiction over
the petition.” Commonwealth v. Woolstrum, 271 A.3d 512, 513 (Pa.
2022).
Appellant first avers the PCRA court abused its discretion in finding his
PCRA petition was untimely filed. He reiterates that the trial docket dates,
rather than the actual filing dates of the appellate courts’ decisions, should
govern, and thus his petition was timely filed. See Appellant’s Brief at 16
(“The final judg[ ]ment appearing on the Lower Court’s docket was a Superior
Court decision that was not timestamped, accepted, and docketed by the Clerk
of Courts until May 13th, 2019. . . . Therefore, judg[ ]ment in this matter
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was not final until May 13th, 2019 and Appellant filed his first PCRA petition
on August 9th, 2020 . . . within the one year and 90 days timeframe.”).9
Appellant then raises, for the first time, a claim of PCRA Counsel’s
ineffectiveness:
As an alternative, if the Court were to determine that undersigned
counsel was ineffective in failing to file on time, the Superior Court
recently held that defendants may bring new claims of ineffective
PCRA counsel. Commonwealth v. Bradley, 261 A.3d 381 (Pa.
2021).
* * *
Any mistake made by [A]ppellant or undersigned counsel was
inadvertent and the Commonwealth suffered no prejudice as a
result of the 18 month delay. In fact, the Commonwealth was
granted several extensions to file response to the PCRA petitions.
In addition, due to the emergency, no evidentiary hearing would
have been able to occur regardless if the Court had granted an
evidentiary hearing or the petition.[10]
Id. at 16-17. Finally, Appellant argues, similarly for the first time, that the
COVID-19 pandemic statewide judicial emergency, declared in a Pennsylvania
Supreme Court’s March 16, 2020, order, “lasted throughout the entirety of
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9This analysis is mistaken; even if the Superior Court decision were issued on
May 13, 2019, the judgment of sentence would not, as PCRA Counsel believes,
have become final that same day. Instead, the judgment of sentence would
have become final when the 30-day appeal period to the Pennsylvania
Supreme Court expired, or if applicable, the 90-day appeal period to the
United States Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3).
10It is not clear, and Appellant does not explain, to what this “18 month delay”
refers. See Appellant’s Brief at 16. Additionally, although Appellant provides
no clarification of the term, “the emergency,” we surmise he is referring to
the COVID-19 pandemic.
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the procedural history of this matter.” See id. at 13. We conclude no relief
is due.
First, we reject Appellant’s continued insistence that we should construe
the filing dates of the two direct appeal Courts’ decisions to be the dates they
were entered as received on the trial docket. Appellant provides no authority
to support this reasoning, and we have not discovered any. Furthermore,
PCRA counsel has provided no explanation, in the PCRA pleadings or on
appeal, why he was not able to review the Superior Court and Supreme Court
dockets for the correct filing dates. Accordingly, we agree with the PCRA
court’s finding that Appellant’s general one-year filing period ended on July
15, 2020, and his habeas corpus petition, filed 25 days later on August 9th,
was facially untimely. See PCRA Ct. Op. at 8. Furthermore, the habeas corpus
petition did not plead any timeliness exception.
We next review in detail Appellant’s September 3, 2020, PCRA petition.
This pleading likewise did not invoke any timeliness exception, but
nevertheless requested reinstatement of his “Appellate/Filing rights.” See
Appellant’s PCRA Petition, 9/3/20, at 3. Our Supreme Court has held that an
attorney’s untimely filing of a first PCRA petition, which results in the complete
foreclosure of collateral review is ineffective assistance per se, and can
support the pleading of the newly-discovered evidence exception.
Commonwealth v. Peterson, 192 A.3d 1123, 1130-31 (Pa. 2018), citing 42
Pa.C.S. § 9545(b)(1)(ii) (“the facts upon which the claim is predicated were
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unknown to the petitioner and could not have been ascertained by the exercise
of due diligence”). The PCRA court may accept the otherwise untimely petition
if it makes a finding of fact that the petitioner was unaware their attorney filed
an untimely petition, and could not have learned this information through the
exercise of due diligence. Id.; see also id., citing 42 Pa.C.S. § 9545(b)(2)
(petition invoking an exception shall be filed within one year of the date the
claim could have been presented).
Appellant’s September 3, 2020, PCRA petition, however, neither alleged
PCRA Counsel’s ineffective assistance nor invoked any of the timeliness
exceptions. Although we have not discovered published decisional authority
addressing this factual pattern, this Court has issued non-precedential
decisions11 consistently declining to extend Peterson to PCRA petitions that
did not plead the newly-discovered evidence exception. See
Commonwealth v. Baker, 1424 WDA 2019 (Pa. Super. Aug. 13, 2021)
(unpub. memo. at 6) (“[N]owhere did the Peterson Court excuse PCRA
petitioners from pleading and proving that counsel’s ineffectiveness was
unknown [and] could not have been discovered with the exercise of due
diligence.”); Commonwealth v. Lilly, 887 MDA 2020 (Pa. Super. Mar. 2,
2021) (unpub. memo. at 5) (judicial review of petitioner’s claim, that prior
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11 See Pa.R.A.P. 126(b)(1)-(2) (non-precedential Superior Court decisions,
filed after May 1, 2019, may be cited for their persuasive value).
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PCRA counsel was ineffective for failing to file appeal, was precluded because
petitioner did not invoke any PCRA timeliness exception). We thus conclude
the September 3rd PCRA petition was likewise untimely filed.12
We next address Appellant’s claim, raised for the first time on appeal,
that PCRA Counsel was ineffective for failing to file a timely PCRA petition.
Bradley held “that a PCRA petitioner may, after a PCRA court denies relief,
and after obtaining new counsel or acting pro se, raise claims of PCRA
counsel’s ineffectiveness at the first opportunity to do so, even if on appeal.”
Bradley, 261 A.3d at 401. However, we note, the PCRA petition in Bradley
was timely filed. Id. at 384. Justice Dougherty’s concurring opinion pointed
out the Court was not “creat[ing] an exception to the PCRA’s jurisdictional
time-bar.” Id. at 406, Dougherty, J., concurring (“The majority’s holding, like
any holding, must be read against the facts of the case.”). As discussed
above, Appellant’s habeas corpus and PCRA petitions were untimely filed and
failed to plead any timeliness exception. Thus, Bradley is not applicable, and
no relief is due. In any event, Appellant has not, consistent with the holding
in Bradley, “obtain[ed] new counsel or act[ed] pro se.” See id. at 401. See
also id. at 398 (“counsel cannot argue [their] own ineffectiveness” as they
would have to “evaluate [their] own ineffectiveness, threatening [their]
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12We note Appellant is not precluded from filing a second PCRA petition, after
conclusion of this appeal, seeking relief from Peterson.
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livelihood and professional reputation”); Commonwealth v. Koehler, 36
A.3d 121, 132 (Pa. 2012) (counsel cannot raise their own ineffectiveness).
Finally, we reject Appellant’s reliance on the statewide judicial
emergency as a basis for relief. First, this claim is waived, as it was not raised
before the PCRA court, and instead raised for the first time on appeal. See
Commonwealth v. Bedell, 954 A.2d 1209, 1216 (Pa. Super. 2008) (claims
not raised in PCRA court are waived and cannot be raised for first time on
appeal).
Moreover, this Court recently rejected a similar claim in Woolstrum,
271 A.3d 512. In that case, the defendant had until May 14, 2020, to file a
timely PCRA petition, but he did not file one until June 16, 2020. Id. at 514.
He claimed the judicial emergency applied as an exception to the PCRA’s time
constraints. Id. at 515. On appeal, this Court explained:
Our Supreme Court filed an emergency order on March 16, 2020,
which specified that “legal papers or pleadings . . . which are
required to be filed between March 19, 2020, and May 8, 2020,
generally shall be deemed to have been filed timely if they are
filed by the close of business on May 11, 2020.
Id. at 514 (emphasis added). While the Supreme Court extended the
statewide judicial emergency on April 28, 2020, the Court specified its prior
time-for-filing provision remained in effect, with no corresponding extension
for later pleadings. See id. at 515. This Court reasoned that because the
defendant’s PCRA deadline fell after the extended May 11, 2020, deadline for
pleadings, the emergency order did not apply. Id. Accordingly, this Court
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concluded the defendant’s PCRA petition, which did not plead any timeliness
exceptions, was untimely. Id.
Analogously, here, Appellant generally had until July 15, 2020 — a date
even later than the one-year deadline in Woolstrum — to file a PCRA petition.
See Woolstrum, 271 A.3d 514. Accordingly, the Supreme Court’s COVID-
19 orders, which provided a filing extension to pleadings due by May 8th, did
not lend relief to Appellant. See id.at 515
For the foregoing reasons, we are constrained to agree with the PCRA
court that Appellant’s PCRA petition was untimely filed. The court thus lacked
jurisdiction to review the merits of his claims. See Woolstrum, 271 A.3d at
513. We reiterate that Appellant is not foreclosed from filing a second PCRA
petition, pro se or with new counsel, seeking relief under Peterson.13
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/07/2022
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13 We offer no opinion on the merits of any such petition.
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