Com. v. Hipps, D.

J-A08005-22
2022 PA Super 76COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
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DAVAUGHN HIPPS : No. 603 WDA 2021
Appeal from the PCRA Order Entered May 18, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001149-2016
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
OPINION BY BENDER, P.J.E.: FILED: APRIL 29, 2022
Appellant, the Commonwealth, appeals from the post-conviction court’s
May 18, 2021 order granting Davaughn Hipps’ (“Hipps”) second, untimely
petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546, and permitting Hipps to file a new, first PCRA petition on the basis that
his initial post-conviction counsel acted ineffectively. After careful review, we
reverse.
The facts underlying Hipps’ criminal convictions are not germane to the
issues raised by the Commonwealth herein. We need only discuss the
procedural history of Hipps’ case, which the PCRA court summarized, as
follows:
[Hipps] was charged with two (2) counts of possession with intent
to deliver a controlled substance, namely heroin, pursuant to 35
P.S. § 780-113(a)(30); one count of possession of a controlled
substance, namely heroin, pursuant to 35 P.S. § 780-
113(a)(16)[;] and one count of criminal conspiracy pursuant to
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18 Pa.C.S.[] § 903. The matter proceeded to a non-jury trial
before the Honorable Judge Edward Borkowski on October 13,
2016. [Hipps] was found guilty of all counts. On January 26,
2017, [Hipps] was sentenced as follows: at count 1, [Hipps] was
sentenced to serve two (2) to four (4) years[’] incarceration in a
state correctional institution; at count 4, [Hipps] was sentenced
to serve two (2) to four (4) years[’] incarceration in a state
correctional institution consecutive to count 1; and no further
penalty at the remaining counts. Thus, [Hipps’] total sentence
was to serve four (4) to eight (8) years in a state correctional
institution.
[Hipps] did not file post-sentence motions or a direct appeal. On
May 23, 2017, [Hipps] filed a pro se petition for PCRA relief. Judge
Borkowski appointed counsel to represent [Hipps] in this PCRA.
An amended petition was filed on August 3, 2017[,] requesting
that [Hipps’] post-sentence and appellate rights be reinstated.
This PCRA [petition] was granted on August 4, 2017. Counsel for
[Hipps] filed post-sentence motions, which were denied. Counsel
for [Hipps] then filed an appeal to the Superior Court on October
17, 2017.
Ultimately, on April 12, 2019, [Hipps], through counsel, filed a
praecipe to discontinue his appeal. On May 20, 2019, [Hipps] filed
his first[, counseled] PCRA petition. On June 24, 2019, Judge
Borkowski recused himself and this matter was reassigned to the
undersigned. After review of [Hipps’] PCRA petition and the
Commonwealth’s answer thereto, this court issued a notice of [its]
intention to dismiss [Hipps’ petition] pursuant to Pa.R.Crim.P.
907(1) on the basis that [Hipps had] failed to sufficiently plead
either of the issues raised in his PCRA petition as required by
Pa.R.Crim.P. 902(A)(11) and (12). Pursuant to Pa.R.Crim.P.
905(B), this court ordered counsel for [Hipps, Thomas N. Farrell,
Esq.,] to file an amended petition. [Attorney Farrell] filed an
amended petition on October 10, 2019[,] wherein he raised the
following issue: “[Hipps] received newly-discovered evidence that
would have dramatically reduced his sentence.” (Amended
Petition[,] … 10/10/19, [at] 4). The “newly-discovered evidence”
as pled by [Attorney Farrell] was as follows:
Following [Hipps’] conviction, [Hipps] provided police with
information that was helpful in solving a homicide. [Hipps]
told a third party, family member and that individual
provided the information to Detective Steven Hitchings.
(See certification). Detective Hitchings then used that
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information in order to solve a homicide. (See certification).
Once [Hipps] provided police with a suspect, the police were
able to confirm the suspect through DNA. (See
certification).
Therefore, based upon the information provided, [Hipps]
asks for a reduction in sentence.
([Id.] … [at] 5). On October 15, 2019, the Commonwealth filed
an answer. On October 22, 2019, this court issued another notice
of [its] intention to dismiss pursuant to Pa.R.Crim.P. 907(1) and
stated as follows:
It is evident from [Hipps’] amended petition that his claim
of newly[-]discovered evidence is not based upon evidence
that was unknown to him at the time of his non-jury trial or
otherwise related to the facts underlying his conviction in
any manner. As such, [Hipps] failed to plead and prove his
claim of newly[-]discovered evidence.
(…Order of Court[, 10/22/19, at 1 (single page)]). On December
19, 2019, this court entered an order dismissing [Hipps’] petition.
[Hipps] did not file an appeal to this order.
On May 19, 2020, [Hipps] filed a [pro se] motion to reinstate [his]
appellate rights nunc pro tunc with the Department of Court
Records. For reasons unknown to the undersigned, [Hipps’]
motion was not received by this court [and], thus[,] no action was
taken. On January 14, 2021, [Hipps] filed a pro se motion for
[PCRA] relief. In said PCRA, [Hipps] asked for his appellate rights
to be reinstated. On February 24, 2021, this court appointed
current counsel for [Hipps]. On April 1, 2021, counsel for [Hipps]
filed an amended petition. On April 5, 2021, the Commonwealth
filed an answer.
In [Hipps’] April 1, 2021 amended petition, he asserted that …
[Attorney Farrell’s] failure to raise non-frivolous claims[,] and/or
raising only frivolous claims[, in Hipps’ first PCRA petition]
constitute[d] ineffective assistance of counsel per se. The
Commonwealth, in its answer, argued that [Hipps’ present] PCRA
[petition] is time-barred and[, because] no exception exists, …
this court is without jurisdiction to take action on the petition.
After careful consideration, on May 1[8], 2021, this court granted
[Hipps’] petition[,] and stated as follows:
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This court finds that the issues raised in [Hipps’] first[,]
counseled PCRA petition were frivolous and, consequently,
[Hipps] was deprived of any meaningful PCRA review. While
this court recognizes that [Hipps] and his second PCRA
counsel failed to set forth what issues should have or could
have been raised in the first PCRA [petition], this court finds
[Hipps] should have the opportunity for meaningful review
of potentially meritorious issues with his counsel. This court
declines to find that asserting a plainly frivolous claim
constitutes ineffective assistance of counsel per se, but
rather finds that [Hipps’] first PCRA counsel was ineffective
in this instance.
(…Order of Court[, 5/18/21, at 1 (single page)]). The
Commonwealth filed an appeal [from] this order. On June 8,
2021, the Commonwealth filed a [Pa.R.A.P. 1925(b) concise]
statement of errors complained of on appeal….
PCRA Court Opinion (“PCO”), 7/26/21, at 1-5 (footnote and unnecessary
capitalization omitted). The PCRA court filed its Rule 1925(a) opinion on July
26, 2021.
Herein, the Commonwealth states one issue for our review:
I. Whether the PCRA court erred by failing to conclude that
[Hipps’] second PCRA petition was time[-]barred and without
exception where the second PCRA petition was filed beyond the
PCRA’s one[-]year time limit but where, nevertheless, the PCRA
court “reinstated nunc pro tunc” [Hipps’] right to file an “initial
petition for relief” after the PCRA court summarily concluded that
[Hipps’] first PCRA counsel was ineffective in representing [Hipps]
without requiring [Hipps’] second PCRA petition to plead and
prove all three prongs of an ineffectiveness claim in regards to
first PCRA counsel’s representation of [Hipps], particularly, where
the PCRA court specifically declined to find that first PCRA counsel
was ineffective per se in representing [Hipps]?
Commonwealth’s Brief at 5 (unnecessary capitalization omitted; emphasis in
original).
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Preliminarily, we note that this Court’s standard of review of a PCRA
court order is whether the determination of the PCRA court is supported by
the evidence of record and is free of legal error. Commonwealth v. Ragan,
923 A.2d 1169, 1170 (Pa. 2007).
The Commonwealth first contends that Hipps’ “second PCRA petition was
untimely filed and [he] failed to prove an exception to the PCRA’s time-bar.”
Commonwealth’s Brief at 16. The PCRA time limitations implicate our
jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007). Under the PCRA, any petition for post-conviction relief, including
a second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the following exceptions
set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(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
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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). Additionally, section 9545(b)(2) requires that
any petition attempting to invoke one of these exceptions “be filed within one
year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
Here, Hipps’ judgment of sentence became final on April 12, 2019, when
his direct appeal was discontinued. Thus, he had until April 12, 2020, to file
a timely petition, making his pro se petition filed on January 19, 2021, patently
untimely.1 Thus, we agree with the Commonwealth that for the PCRA court
to have jurisdiction to grant Hipps the relief it did, he was required to prove
that he meets one of the exceptions to the timeliness requirements set forth
in 42 Pa.C.S. § 9545(b).
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1 As set forth supra, Hipps’ also filed a pro se petition on May 19, 2020,
entitled, “Petition to Reinstate Appellant Rights ‘Nunc Pro Tunc’ Due to
Ineffectiveness of Counsel.” The PCRA court acknowledged that it never ruled
on this petition. See PCO at 4. However, we do not consider Hipps’ January
19, 2021 petition as an amendment to his May 19, 2020 petition, as Hipps
never sought, or was granted, leave to file an amended petition. See
Pa.R.Crim.P. 905(A) (explicitly stating that amendment is permitted only by
direction or leave of the PCRA court); Commonwealth v. Porter, 35 A.3d 4,
12 (Pa. 2012) (concluding that a subsequent petition, even though labeled
“supplement and amendment,” did not constitute an amended petition where
“there [was] no indication that [the] appellant ever requested, or the PCRA
court ever granted, leave to amend the [original] petition”). Furthermore, the
PCRA court’s May 18, 2021 order from which the Commonwealth has appealed
refers only to “Hipps’ PCRA [p]etition dated January 14, 2021, [Hipps’
a]mended [p]etition filed April 1, 2021, and the Commonwealth’s Answer
dated April 5, 2021….” Order of Court, 5/18/21, at 1 (single page). Thus, it
is clear that the court did not consider Hipps’ May 19, 2020 petition as part of
the instant PCRA proceedings, and neither shall we.
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In Hipps’ petition, he argued that he has satisfied the newly-discovered-
fact exception of section 9545(b)(1)(ii) based on his discovery that Attorney
Farrell “fail[ed] to assert any non-frivolous claims, or, in the alternative, [he]
assert[ed] … only frivolous claims” in Hipps’ first, timely PCRA petition.
Amended Petition, 4/1/21, at 5. According to Hipps, Attorney Farrell’s conduct
in this regard “deprived him of any meaningful PCRA merits review[,]” thus
constituting “ineffective assistance of counsel per se….” Id. He stressed that
“[c]ounsel[’s] errors and omissions which preclude a petitioner from obtaining
meaningful PCRA merits review constitute ineffective assistance of counsel per
se.” Id. at 5 (citing Commonwealth v. Rosado, 150 A.3d 425, 429-30 (Pa.
2016); Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018);
Commonwealth v. Parrish, 224 A.3d 682 (Pa. 2020)). Consequently, Hipps
argued in his petition that his discovery of Attorney Farrell’s per se
ineffectiveness satisfies the newly-discovered facts exception of section
9545(b)(1)(ii). Although the PCRA court found that Attorney Farrell’s conduct
did not constitute per se ineffectiveness, it nevertheless granted Hipps’
petition on the basis that counsel had acted ineffectively, presumably under
the general Strickland/Pierce standard.2 On appeal, the Commonwealth
contends that the court lacked jurisdiction to grant Hipps relief because his
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2 See Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v.
Pierce, 527 A.2d 973 (Pa. 1987) (requiring that, to prove counsel’s
ineffectiveness, the petitioner must show that: (1) his underlying claim is of
arguable merit; (2) counsel had no reasonable basis for his action or inaction;
and (3) the petitioner suffered actual prejudice as a result).
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claim did not meet any timeliness exception. For the reasons that follow, we
agree.
Initially, Hipps cited in his petition three Supreme Court cases to support
his claim that Attorney Farrell’s conduct constitutes per se ineffectiveness that
satisfies the newly-discovered-fact exception. We will discuss each case in
turn. First, in Peterson, our Supreme Court held that per se ineffectiveness
of counsel can, in certain circumstances, satisfy the timeliness exception of
section 9545(b)(1)(ii). See Peterson, 192 A.3d at 1130. There, Peterson’s
attorney filed his “first PCRA petition one day late, thus precluding any merits
or appellate review of [Peterson’s] collateral claims.” Id. at 1125. Our
Supreme Court “conclude[d] that counsel’s negligence per se in filing an
untimely PCRA petition constitutes adequate grounds to permit the filing of a
new PCRA petition beyond the one-year time bar pursuant to the exception in
subsection 9545(b)(1)(ii).” Id.
In explaining the basis for its decision, the Peterson Court initially
acknowledged that Commonwealth v. Gamboa–Taylor, 753 A.2d 780 (Pa.
2000), and its progeny generally preclude counsel’s ineffectiveness from
constituting a newly-discovered ‘fact’ for purposes of invoking the subsection
9545(b)(1)(ii) exception. Peterson, 192 A.3d at 1129 (citations omitted).
The Peterson Court explained, however, that, “[i]n [Commonwealth v.]
Bennett, 930 A.2d [1264 (Pa. 2007), it] … distinguished between the
Gamboa-Taylor line of cases, pursuant to which petitioners assert claims of
ineffectiveness for partial deprivations of appellate review, i.e., attorney
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errors in narrowing the issues for review, from instances in which petitioners
assert claims of ineffectiveness resulting in complete deprivations of
appellate review, i.e., attorney errors that resulted in petitioners being
dispossessed of any opportunity for appellate review.” Peterson, 192 A.3d
(citing Bennett, 930 A.2d at 1273; emphasis in original). The Court in
Peterson explained that,
the principle emanating from [the Gamboa-Taylor] line of cases,
namely that PCRA counsel’s ineffectiveness cannot be advanced
as a newly-discovered “fact” for purposes of application of the
subsection 9545(b)(1)(ii) exception to the PCRA’s one-year time
bar, has no application in cases where PCRA counsel’s
ineffectiveness per se completely forecloses review of collateral
claims. In cases involving ineffectiveness per se, “subsection
(b)(1)(ii) is a limited extension of the one-year time requirement
under circumstances when a petitioner has not had the review to
which he was entitled due to a circumstance that was beyond his
control.” [Bennett, 930 A.2d] at 1273.
Id. at 1130.
Ultimately, the Peterson Court held that,
[c]ounsel’s untimely filing of Peterson’s first PCRA petition
constituted ineffectiveness per se, as it completely deprived
Peterson of any consideration of his collateral claims under the
PCRA. As a result, pursuant to Bennett, the Superior Court erred
in reversing the PCRA court’s ruling that Peterson, when filing his
second PCRA petition, had successfully invoked the subsection
9545(b)(1)(ii) exception to the time bar. Counsel’s
ineffectiveness per se in connection with Peterson’s first PCRA
petition was a newly discovered “fact” and the PCRA court made
factual findings that Peterson did not know about the untimely
filing and could not have ascertained this fact through the exercise
of due diligence. PCRA Court Memorandum and Order, 1/6/2016,
at 2. Peterson filed his second PCRA petition within sixty days
after he learned of the untimely-filed petition. 42 Pa.C.S. §
9545(b)(2).
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Id. at 1130-31. Accordingly, the Court concluded that Peterson had pled and
proven “an entitlement to invoke the subsection 9545(b)(1)(ii) exception to
permit the filing of his second PCRA petition beyond the one-year time bar.”
Id. at 1132.
Second, Hipps cited to Rosado, where defense counsel preserved three
claims in Rosado’s Rule 1925(b) statement, but then, on appeal, abandoned
those three claims in favor of raising a single, unpreserved challenge to the
sufficiency of the evidence. See Rosado, 150 A.3d at 427. In holding that
counsel’s action constituted ineffectiveness per se, our Supreme Court found
that counsel’s “filing of a brief containing no preserved issue is functionally
equivalent to not filing a brief—as was the case in Bennett—and, in any event,
… [c]ounsel’s actions caused the complete forfeiture of merits review….” Id.
at 428, 433.
Third, in Parrish, our Supreme Court assessed whether counsel’s filing
of a vague Rule 1925(b) statement constituted ineffectiveness per se. The
Court initially concluded that “the vacuous statement filed by PCRA counsel”
was “so wholly lacking in comportment with Rule 1925(b)’s basic requirements
that a finding of waiver [was] clearly warranted.” Parrish, 224 A.3d at 700.
Next, the Parrish Court found that “PCRA counsel’s filing of this type of
deficient Rule 1925(b) statement constitutes ineffective assistance of counsel
per se[,]” reasoning:
As our Court observed in Rosado, in the direct appeal context,
“[t]here is no meaningful difference between an attorney who fails
to file a notice of appeal, Rule 1925(b) statement, brief, or petition
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for allowance of appeal — thereby forfeiting his client’s right to
appeal — and one who makes all necessary filings, but does so
relative solely to claims he has not preserved for appeal,
producing the same end. In both situations, counsel has forfeited
all meaningful appellate review”; in both situations, counsel is
therefore ineffective per se. Rosado, 150 A.3d at 434. Moreover,
in Peterson, we held that these principles are equally applicable
in PCRA proceedings, and thus we found counsel in that matter to
be ineffective per se for depriving a PCRA petitioner of his right to
collateral review by filing an untimely PCRA petition. Rosado and
Peterson therefore stand for the proposition that, whenever
PCRA counsel takes any action that wholly deprives his or her
client of the right to appellate review of collateral claims, counsel
will be deemed to be ineffective per se. Consequently, in the
present case, PCRA counsel’s filing of a vague Rule 1925(b)
statement, which has completely forfeited [Parrish’s] right to
appellate review of all of his collateral claims, constitutes
ineffective assistance of counsel per se.
Id. at 701-02 (some emphasis in original, some added).
Applying this law to the case before us, we conclude that Hipps has
failed to demonstrate that Attorney Farrell’s representation constituted
ineffectiveness per se, as he did not wholly deprive Hipps of collateral
review. Initially, we recognize that Attorney Farrell did not adequately
develop the claims he raised on Hipps’ behalf in his first amended petition filed
on May 20, 2019. Therein, Attorney Farrell stated Hipps’ issue as follows:
“Petitioner received newly-discovered evidence that acts to exculpate him and
was not available at the time of his conviction.” Amended Petition, 5/20/19,
at 4 (unnumbered). Attorney Farrell also set forth an ineffectiveness claim,
stating, “Trial counsel gave ineffectiveness for failing to request boot camp as
a potential sentence.” Id. Given that counsel offered no discussion,
argument, or citation to any legal authority to support these bald allegations,
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he waived those claims, thus rendering them frivolous. See Commonwealth
v. Briggs, 12 A.3d 291, 326 n.34 (Pa. 2011) (concluding that an undeveloped
claim is waived).
However, in the PCRA court’s initial Rule 907 notice, it stated that it
planned to dismiss Hipps’ petition because he had “failed to sufficiently plead
either of [his] issues,” but it expressly granted Hipps “leave to file an amended
petition so as to correct the above-stated errors.” Order of Court, 9/19/19,
at 2. Attorney Farrell thereafter filed a second, amended petition, making no
mention of Hipps’ ineffectiveness claim, but expounding on his newly-
discovered-fact claim, as follows:
[Hipps] provided information to police, and therefore [Hipps]
should receive a benefit. During [Hipps’] sentencing before Judge
Borkowski, [his] counsel[,] Charles Van Keuren from the Office of
the Public Defender[,] stated the following:
As the [c]ourt is well aware[,] there was some hope that
maybe we could resolve this case in some other fashion …
[if c]ertain information was provided. [] Hipps has not
provided that information.
Throughout the course of negotiations[,] it was indicated
that if he did provide information that was helpful, some, if
not all[,] of these charges could be dismissed; or he could
be given a Probationary Sentence.
He has chosen not to make statements for a variety of
reasons; among them, I believe he maintains that he was
not there that day, and he had no information to give them.
There could be other reasons; but I would request the
[c]ourt not hold it against him that he did not provide any
information as was being requested by the various
authorities involved in this case.
([Sentencing Transcript, 1/26/17, at] 5-6.)
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Following [Hipps’] conviction, [he] provided police with
information that was helpful in solving a homicide. [Hipps] told a
third party, family member and that individual provided the
information to Detective Steven Hitchings. (See certification.)
Detective Hitchings then used that information in order to solve a
homicide. (See certification.) Once [Hipps] provided police with
a suspect, the police were able to confirm the suspect through
DNA. (See certification.)
Therefore[,] based upon the information provided, [Hipps] asks
for a reduction in sentence.
WHEREFORE, [Hipps] respectfully requests an evidentiary hearing
in order to address this issue.
Amended Petition, 10/10/19, at 3-4 (unnumbered; footnote omitted).
Attorney Farrell also attached to this petition a certification stating that if a
hearing were held, he intended to call Detective Hitchings to the stand. See
id. at 5 (unnumbered).
The Commonwealth filed an answer to Attorney Farrell’s amended
petition, arguing that Hipps’ claim was “wholly without merit” because
“whatever he knew [and told Detective Hitchings] was known at the time he
entered the guilty plea and was sentenced.” Answer to Amended Petition,
10/15/19, at 7. The PCRA court then issued another Rule 907 notice, stating
that, after considering “Hipps’ PCRA petition filed May 20, 2019, the
Commonwealth’s Answer, [Hipps’] Amended Petition filed October 10, 2019,
and the Commonwealth’s Answer dated October 15, 2019,” it “conducted
another independent review of the record.” Rule 907 Notice, 10/22/19, at 1
(single page). The court then explained that it intended to dismiss Hipps’
petition because “[i]t is evident … that his claim of newly[-]discovered
evidence is not based upon evidence that was unknown to him at the time of
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his non-jury trial or otherwise related to the facts underlying his conviction in
any manner. As such, [Hipps] failed to plead and prove his claim of newly[-
]discovered evidence.” Id.
This record convinces us that Hipps was not wholly denied his right to
post-conviction collateral review. In Attorney Farrell’s amended petition, he
set forth a newly-discovered-facts claim, detailed a factual basis for it, and
provided a certification for the witness he intended to call at an evidentiary
hearing. The PCRA court accepted this amended petition and conducted
another review of the record. After doing so, the court dismissed Hipps’
petition on the basis that his claim lacked merit, reasoning that the ‘new fact’
that Hipps allegedly discovered was previously known to him and did not
impact the validity of his conviction. In other words, the court did not dismiss
Hipps’ petition on the basis that his claim was undeveloped and/or waived, or
frivolous in some other regard. Instead, it found that the merits of his claim
did not constitute an after-discovered fact.3 Therefore, unlike the
circumstances in Rosado, Peterson, and Parrish, Hipps was not completely
deprived of his right to post-conviction review, and Attorney Farrell’s conduct
did not amount to per se ineffectiveness. Because Peterson did not disturb
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3 Frivolousness and meritlessness are distinct concepts. As our
Commonwealth Court has explained, “frivolousness is a slightly higher
standard than lack of merit; an argument may be meritless, but not frivolous.”
Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009) (citing Smith v.
Commonwealth, 574 A.2d 558, 562 (Pa. 1990)).
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Gamboa-Taylor’s rule that general ineffectiveness claims cannot satisfy a
timeliness exception, the PCRA court lacked jurisdiction to grant Hipps relief.4
Order reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2022
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4 We observe, however, that Hipps’ May 19, 2020 petition – in which he
claimed that Attorney Farrell ineffectively failed to file a notice of appeal from
the denial of Hipps’ first petition – is still apparently pending. If the PCRA
court reviews that petition and concludes that Attorney Farrell wholly deprived
Hipps of his right to appellate review from the denial of his first petition, that
conduct could potentially satisfy a timeliness exception under the case law
discussed herein. If the court ultimately reinstates Hipps’ right to appeal from
the denial of his first PCRA petition, he could attempt to challenge Attorney
Farrell’s representation under the Strickland/Pierce standard in that appeal.
See Commonwealth v. Bradley, 261 A.3d 381, 405 (Pa. 2021) (adopting a
new rule that allows PCRA petitioners to “raise claims of ineffective PCRA
counsel at the first opportunity, even if on appeal”).
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