Com. v. Bell, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARTHA FENCHAK BELL :
:
Appellant : No. 1244 WDA 2022
Appeal from the PCRA Order Entered September 12, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0005044-2004
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: JUNE 6, 2023
Martha Fenchak Bell (Bell) appeals pro se from the order entered in the
Court of Common Pleas of Allegheny County (PCRA court) denying her first
petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9501-9506, as untimely. She maintains that she is innocent, that her
sentence was illegal, that she can avail herself of the newly discovered facts
exception based on ineffective assistance of counsel and the discovery of an
order entered in her case, and that PCRA counsel was ineffective. We affirm.
I.
On October 23, 2003, Bell was charged in this matter with two counts
each of theft by unlawful taking-movable property (18 Pa.C.S. § 3921(a)),
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* Retired Senior Judge assigned to the Superior Court.
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theft by deception (18 Pa.C.S. § 3922) and theft by failing to make required
disposition of funds (18 Pa.C.S. § 3927(a)). On September 29, 2008, at the
conclusion of a waiver trial, she was convicted of all counts. On October 3,
2008, the court sentenced her to a term of not less than six nor more than
twelve months’ incarceration on count four, theft by unlawful taking-movable
property; plus fourteen aggregate years’ probation (seven years each on
counts five and six, theft by deception and theft by failure to make required
disposition of funds, respectively). The sentence was to run consecutive to
any sentence she was then serving.1 On October 30, 2008, Bell timely
appealed her judgment of sentence in this matter. The Superior Court
dismissed her appeal on June 9, 2009 (docketed July 14, 2009) for her failure
to file a brief. Petitioner did not seek allowance of appeal and on August 14,
2009, her judgment of sentence became final.
Approximately eight years later, Bell committed a substantive violation
of her probation.2 On February 12, 2018, Bell appeared for a probation
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1 Before her trial on the charges in this case had commenced, a jury found
Bell guilty of involuntary manslaughter, neglect of care of a dependent person,
recklessly endangering another person, and criminal conspiracy at docket
number 2004-5045. The court imposed a term of imprisonment of twenty-
two to forty-four months, consecutive to any other sentence Bell was then
serving. At the time at which the sentence was imposed, Bell was incarcerated
in relation to a 2005 federal conviction on fraud and false statements charges.
2 Specifically, in case number 15179-2016, Bell pleaded guilty to theft by
deception on December 14, 2017. She was sentenced to not less than six nor
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violation hearing and she was resentenced at count six to not less than five
nor more than ten years’ incarceration. On June 8, 2018, the court granted
her motion to modify the sentence and resentenced her to the statutory
maximum of three and one-half to seven years’ incarceration, with credit for
448 days’ time served.
On July 3, 2018, Bell filed a post-sentence motion, but appealed three
days later before the court could address it. On appeal, Bell claimed that the
court lacked jurisdiction to revoke her probation because her original sentence
imposed on October 3, 2008, was illegal where the convictions should have
been merged for sentencing purposes. (See Commonwealth v. Bell, 239
A.3d 120, at *3 (Pa. Super. filed July 31, 2020) (unpublished memorandum)).
This Court found that since “[Bell]’s challenge to the legality of the original
sentences was not properly raised, the original sentences remained effective
at the time of the probation violation and hearing. Thus, the alleged
sentencing issues were not an impediment to the revocation court’s
jurisdiction to revoke probation and resentence [Bell]” in this matter. (Id. at
*4). The Pennsylvania Supreme Court denied her petition for allowance of
appeal on January 20, 2021. (See Commonwealth v. Bell, 244 A.3d 449(Pa. 2021)).
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more than twelve months incarceration, plus nine years of probation and
restitution. She was immediately paroled.
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On January 27, 2022, Bell filed a first pro se PCRA petition and appointed
counsel filed a petition to withdraw and a Turner/Finley3 no-merit letter on
June 14, 2022, in which he concluded, after conscientious review, that Bell’s
claims were time-barred with no applicable exception. (See Turner/Finley
Letter, 6/14/22, at 1-3). On June 30, 2022, the PCRA court granted counsel’s
petition to withdraw and notified Bell of its intent to dismiss the PCRA petition
without a hearing. See Pa.R.Crim.P. 907(1). Bell filed a timely response and
on September 12, 2022, the court dismissed the PCRA petition as untimely
based on the Turner/Finley letter, Bell’s response to the Rule 907 notice and
its independent review. Bell timely appealed and filed a court-ordered
statement of errors claimed on appeal. See Pa.R.A.P. 1925(b).
On appeal, Bell claims: (1) she is innocent, as proven by the newly-
discovered facts that the trial court granted her petition for habeas corpus;
(2) her original sentence was illegal because the convictions should have been
merged for sentencing purposes; (2) the newly-discovered facts that trial
counsel was subject to criminal and disciplinary proceedings due to his
substance abuse, rendering him ineffective; (3) trial counsel was ineffective
per se for failing to file a court-ordered Rule 1925(b) statement and appellate
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3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988).
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brief; and (4) PCRA counsel was ineffective for failing to review the timeliness
exceptions with her.4 (See Bell’s Brief, at 1-6).5
II.
Before considering the merits of Bell’s PCRA petition, we must first
determine whether the PCRA court properly found that it is untimely under
the PCRA’s jurisdictional time-bar. A PCRA petition, “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final.”6 42 Pa.C.S. § 9545(b)(1). A judgment becomes final at the
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4 “Our standard of review from the denial of a PCRA petition is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
King, 259 A.3d 511, 520 (Pa. Super. 2021) (citation omitted). “The PCRA
court’s credibility determinations, when supported by the record, are binding
on this Court; however, we apply a de novo standard of review to the PCRA
court’s legal conclusions.” Id. (citation omitted).
5Bell’s brief fails to comport with our appellate rules where it does not contain
many of the required sections and her argument section is inadequate. See
Pa.R.A.P. 2111(a), (b), (d); Pa.R.A.P. 2119. We recognize that Bell is acting
pro se, but this does not relieve her of her duty to comply with our appellate
rules. See Commonwealth v. Vurimindi, 200 A.3d 1031, 1037 (Pa. Super.
2018), appeal denied, 217 A.3d 793 (Pa. 2019), cert. denied, 140 S. Ct. 1147
(2020) (“Although this Court is willing to liberally construe materials filed by
a pro se litigant, pro se status confers no special benefit upon the appellant.
To the contrary, any person choosing to represent [her]self in a legal
proceeding must, to a reasonable extent, assume that [her] lack of expertise
and legal training will be [her] undoing.”) (citation omitted). Although we
could quash her appeal on this basis, see Pa.R.A.P. 2101, we decline to do so
where we can discern her arguments.
6 “Where a new sentence is imposed at a probation revocation hearing, the
revocation hearing date must be employed when assessing finality under
§ 9545(b)(3) to any issues directly appealable from that hearing.” However,
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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.” 42 Pa.C.S. § 9545(b)(3). Because
the timeliness requirements of the PCRA are jurisdictional in nature, courts
cannot address the merits of an untimely petition. See Commonwealth v.
Moore, 247 A.3d 990, 998 (Pa. 2021).
Bell was convicted on September 29, 2008. This Court dismissed the
direct appeal on July 14, 2009, and she did not seek review in our Supreme
Court. Therefore, her judgment of sentence became final on August 14, 2009,
and her PCRA petition filed on January 27, 2022, is untimely on its face by
over a decade, and we lack jurisdiction to consider any claims raised therein
unless Bell pleads and proves one of the three limited exceptions to the time-
bar:
(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
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none of Bell’s claims involve issues related to the revocation hearing.
Commonwealth v. Anderson, 788 A.2d 1019, 1021 (Pa. Super. 2001),
appeal denied, 798 A.2d 1286 (Pa. 2002).
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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).
A.
Bell invokes the newly-discovered facts exception. A petitioner satisfies
the newly-discovered facts exception through pleading and proving that there
were facts that were unknown to her and that she exercised due diligence.
See Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa. 2007). “Due
diligence demands that the petitioner take reasonable steps to protect [her]
own interests; a petitioner must explain why [she] could not have learned the
new facts earlier with the exercise of due diligence.” Commonwealth v.
Sanchez, 204 A.3d 524, 526 (Pa. Super. 2019) (citation omitted).
Bell argues that she is entitled to application of the newly-discovered
facts exception because she was not aware that her trial counsel “was on
probation for his continued alcohol abuse and violated that probation. … The
record reflects that at the time of [her] trial … [trial counsel] on October 8,
2008 was sentenced to serve a mandatory of (a) 15 months intermediate
punishment on electronic monitoring, and (b) serve his 24 months probation.”
(Bell’s Brief, at 3-4). She concludes that this “continued alcohol/substance
abuse from the time prior to [Bell’s] case thru the trial and appellate process
has harmed her irreparably in her pursuit of justice.” (Id. at 4). This attempt
to apply the newly-discovered facts exception fails.
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First, Bell fails to explain when she became aware of this fact or why,
with the exercise of due diligence, she could not have discovered it sooner
than over a decade later. Further, other than mere speculation, she has not
averred how this affected her case. Thus, she has failed to plead and prove
that she can avail herself of the newly-discovered facts exception. Moreover,
even had she established this, she would not be due any relief because “[o]ur
Supreme Court has made clear that the section 9545(b)(1)(ii) exception will
not apply to alleged ineffective assistance of counsel claims, even if the claims
were not knowable until later” learned by petitioner. Commonwealth v.
Perrin, 947 A.2d 1284, 1287 (Pa. Super. 2008) (citations omitted); see
Commonwealth v. Fahy, 737 A.2d 214, 233 (Pa. 1999) (claim of ineffective
assistance of counsel does not save an otherwise untimely petition for review
on merits).7
B.
Bell also claims that the petition is timely pursuant to the newly-
discovered facts exception because she was not aware that the trial court had
granted her petition for habeas corpus relief in 2004, which proves her
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7 Because a claim of ineffectiveness of counsel does not save an otherwise
untimely PCRA petition, Bell’s claim that counsel was per se ineffective for
failing to file a court-ordered Rule 1925(b) statement or appellate brief in her
direct appeal likewise fails as an attempted timeliness exception. Bell had a
year after her judgment of sentence became final on August 14, 2009, to raise
a timely ineffectiveness challenge on this basis, at which point she could have
raised an ineffectiveness claim and related legality of sentence challenge.
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innocence. (See Bell’s Brief, at 1, 3). First, this issue is waived for Bell’s
failure to raise it in her Rule 1925(b) statement. See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”);
Commonwealth v. Davis, 273 A.3d 1228, 1239 n.5 (Pa. Super. 2022)
(waiving issue where appellant did not specifically raise it in Rule 1925(b)
statement).
Moreover, on September 22, 2006, the trial court entered an order in
which it expressly stated that the May 10, 2004 order was signed in error.
(See Order, 9/22/06). Bell is not entitled to relief on this issue.
C.
Bell claims that her sentence8 was illegal because the counts should
have been merged for sentencing purposes. (See Bell’s Brief, at 1-2). This
claim also fails because she was aware of her sentence for nearly fourteen
years at the time that she filed her PCRA petition so it is patently untimely.
Bell argues, however, that this issue cannot be waived and, therefore,
no timeliness exception need apply; it is well-settled that, “[a]s long as this
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8 Bell does not identify if she is challenging the original sentence or the
sentence imposed after her revocation proceeding. Based on her argument,
it appears clear that she is challenging the original sentence. However, for
sake of completeness, we note that the sentence of three-and-one-half to
seven years for theft by failure to make required distribution of funds, a felony
of the third degree, was lawful. See 18 Pa.C.S. § 1103(3).
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Court has jurisdiction over a matter, a legality of sentencing issue is
reviewable and cannot be waived. However, a legality of sentencing issue
must be raised in a timely filed PCRA petition.” Commonwealth v.
Whitehawk, 146 A.3d 266, 270 (Pa. Super. 2016) (citations omitted;
emphases added); see also Fahy, 737 A.2d at 223 (“[a]lthough legality of
sentence is always subject to review within the PCRA, claims must still first
satisfy the PCRA’s time limits or one of the exceptions thereto.”).
This issue fails.
D.
Finally, Bell claims that PCRA counsel’s representation was ineffective
because they had “irreconcilable differences” and he “did not review … the
exceptions that would preclude any time bar statements[.]” (Bell’s Brief, at
4-5).
In considering an ineffective assistance of counsel claim, we observe
first that counsel is presumed effective and that a petitioner bears the burden
to prove otherwise. See Commonwealth v. Fears, 86 A.3d 795, 804 (Pa.
Super. 2014). To establish an ineffectiveness claim, a defendant must prove:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s actions or failure to act; and (3)
[appellant] suffered prejudice as a result of counsel’s error such
that there is a reasonable probability that the result of the
proceeding would have been different absent such error.
Id. (citation omitted). “Failure to prove any prong of this test will defeat an
ineffectiveness claim. When an appellant fails to meaningfully discuss each of
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the three ineffectiveness prongs, he is not entitled to relief, and we are
constrained to find such claims waived for lack of development.” Id. (citations
and internal quotation marks).
Bell does not meaningfully discuss any prong of the ineffectiveness test.
She fails to identify what the “irreconcilable difference” was or explain what is
meant by her allegation that PCRA counsel “failed to review the exceptions
that would preclude any time bar statements.” (Bell’s Brief, at 4-5). Because
Bell fails to develop her claim of PCRA counsel’s ineffectiveness in any
meaningful way to allow for our review, she is not entitled to relief on this
claim.9
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2023
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9 It appears that PCRA counsel’s representation was effective where he
undertook a conscientious review of the record before filing a Turner/Finley
letter concluding that Bell’s issues were time-barred and she was not entitled
to relief.
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