Com. v. Geer

• Decision Date: 07 November 2007
• Docket Number: No. 349 WDA 2007.,349 WDA 2007.
• Citation: Com. v. Geer, 936 A.2d 1075 (Pa. Super. Ct. 2007)
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Benjamin Richard GEER Jr., Appellant.
• Court: Pennsylvania Superior Court

936 A.2d 1075

COMMONWEALTH of Pennsylvania, Appellee v. Benjamin Richard GEER Jr., Appellant.

No. 349 WDA 2007.

Superior Court of Pennsylvania.

Submitted August 6, 2007.

Filed November 7, 2007.

Edward J. Hatheway, Meadville, for appellant.

Francis J. Schultz, Asst. Dist. Atty., Meadville and Paula C. DiGiacomo, Asst. Dist. Atty., Meadville, for Com., appellee.

BEFORE: STEVENS, LALLY-GREEN, and BENDER, JJ.

OPINION BY STEVENS, J.:

¶ 1 Appellant Benjamin Geer, Jr., purports to appeal, nunc pro tunc, from the June 15, 2005 order dismissing his first petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Because the PCRA court did not have jurisdiction to reinstate Appellant's PCRA appellate rights nunc pro tunc, we quash this appeal.

¶ 2 The relevant facts and procedural history are as follows: On January 7, 2002, Appellant pled guilty to involuntary deviate sexual intercourse (IDSI) and aggravated indecent assault.¹ The pleas stem from Appellant's sexual abuse of a minor female between May 2000 and August 2000. On March 28, 2002, the trial court imposed an aggregate term of eight and one-half to seventeen years' imprisonment. Appellant filed a post-sentence motion on April 8, 2002, which the trial court denied on the same date. Appellant did not file a direct appeal.

¶ 3 On March 31, 2003, Appellant, acting pro se, filed his first PCRA petition. Counsel was appointed, and counsel filed an amended petition on Appellant's behalf. Following an evidentiary hearing on July 14, 2003, counsel filed a second amended petition. Thereafter, following three additional hearings, the PCRA court denied Appellant's PCRA petition on June 15, 2005. This Court dismissed Appellant's ensuing appeal on November 3, 2005, due to Appellant's failure to file an appellate brief.

¶ 4 On September 14, 2006, Appellant, acting pro se, filed the instant PCRA petition, his second. After initially issuing notice of its intention to dismiss the petition without a hearing, the PCRA court reconsidered, and on October 12, 2006, the court entered an order appointing present counsel. On November 13, 2006, counsel filed an amended PCRA petition, wherein Appellant requested leave to file a notice of appeal, nunc pro tunc, from the court's June 15, 2005 order denying Appellant's first PCRA petition. Finally, following a hearing, on January 30, 2007, the PCRA court entered its order purporting to grant Appellant leave to file a notice of appeal nunc pro tunc from the June 15, 2005 order. This counseled nunc pro tunc appeal followed on February 7, 2007. On February 8, 2007, the PCRA court entered an order directing Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). On February 12, 2007, Appellant filed a timely Rule 1925(b) statement raising two issues as follows:

(a) Whether the trial court erred in concluding that the defendant's trial counsel had not rendered ineffective assistance of counsel when trial counsel failed to timely-file an Omnibus Pre-Trial Motion seeking to have the defendant's confession suppressed on the grounds that it had been obtained illegally through coercion by Cambridge Springs Police Department Chief Jack Q. Young?

(b) Whether the trial court erred in concluding that the defendant's trial counsel had not rendered ineffective assistance of counsel when trial counsel failed to file an Omnibus Pre-Trial Motion seeking to obtain through discovery the sword/knife that Officer Young held to the defendant's throat/body at the time when the defendant made his confession/incriminating statement?

Rule 1925(b) Statement, 2/12/07, at 2-3.

¶ 5 In reviewing the propriety of the PCRA court's order, we are limited to determining whether the court's findings are supported by the record and whether the order in question is free of legal error. Commonwealth v. Halley, 582 Pa. 164, 170 n. 2, 870 A.2d 795, 799 n. 2 (2005). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

¶ 6 Prior to addressing the merits of the nunc pro tunc appeal, we must first address whether Appellant's second PCRA petition, upon which the order granting nunc pro tunc relief was predicated, was filed timely. As noted, the PCRA petition at issue was filed on September 14, 2006; thus, it is governed by the 1995 amendments to the PCRA, which were enacted on November 17, 1995, and became effective sixty days later. Commonwealth v. Murray, 562 Pa. 1, 4, 753 A.2d 201, 202 (2000). Under those amendments to 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 exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. The time limitations imposed by the PCRA implicate our jurisdiction, and, therefore, they may not be altered or disregarded in order to address the merits of a petition. Commonwealth v. Bennett, ___ Pa. ___, 930 A.2d 1264 (2007).

¶ 7 In the instant case, Appellant's judgment of sentence became final on May 8, 2002, thirty days after the trial court denied his timely post-sentence motion on April 8, 2002, and the date the period to file a direct appeal in this Court expired. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). Therefore, in order to comply with the filing requirements of the PCRA, Appellant's petition had to be filed by May 8, 2003. As the petition was not filed until September 14, 2006, it is patently untimely.

¶ 8 Section 9545 provides the following three exceptions that allow for review of an untimely PCRA petition: (1) petitioner's inability to raise a claim was a result of governmental interference; (2) the discovery of previously unknown facts or evidence that would have supported a claim; and (3) a newly-recognized constitutional right. 42 Pa.C.S. § 9545(b)(1)(i)(iii). To invoke an exception, the petitioner must plead it and satisfy the burden of proof. Commonwealth v. Beasley, 559 Pa. 604, 608, 741 A.2d 1258, 1261 (1999). In addition, "[t]he PCRA limits the reach of the exceptions by providing that the exceptions must be pled within sixty days of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2)." Bennett, 930 A.2d at 1267-68. See Commonwealth v. Fowler, 930 A.2d 586 (Pa.Super.2007) (holding that a petition based upon one of the exceptions must be filed within sixty days of the date the claim could have been presented).

¶ 9 In his counseled PCRA petition, Appellant sought an equitable exception to the time-bar based upon prior appeal counsel's failure to file an appellate brief. Specifically, Appellant contended that he asked his attorney to file an appellate brief from the denial of his first PCRA petition, the attorney assured him he would file the brief,² the attorney did not file the brief, and thereafter, this Court dismissed Appellant's appeal. In Commonwealth v. Bennett, ___ Pa. ___, 930 A.2d 1264 (2007), the Supreme Court recently held that such a claim falls within the ambit of Subsection 9545(b)(1)(ii)'s exception since "the facts upon which the claim is predicated could not have been ascertained by the exercise of due diligence."³ However, in Bennett, the Supreme Court also reiterated that, before a petitioner may benefit from Subsection 9545(b)(1)(ii)'s exception, the petitioner must plead he filed his PCRA petition within sixty days of the date it could have been presented; that is, he must plead he filed his petition within sixty days of when he discovered this Court dismissed his first PCRA appeal.⁴ Id. at 1272 n. 11.

¶ 10 In the case sub judice, unlike in Bennett, an examination of the record and appellate brief reveals that Appellant has made no allegation that he presented his claim within sixty days of when he discovered this Court dismissed his first PCRA appeal.⁵ Since Appellant has made no averment that he filed his second PCRA petition and sought to invoke one of the timeliness exceptions within sixty days of the date the claim could have been presented,⁶ we conclude the petition was untimely. Therefore, the PCRA court did not have jurisdiction to grant Appellant's request to file an appeal nunc pro tunc from the denial of his first PCRA petition.

¶ 11 Appeal Quashed.

¶ 12 Judge BENDER files a Dissenting Opinion.

DISSENTING OPINION BY BENDER, J.:

¶ 1 Because I believe our Supreme Court's recent decision in Commonwealth v. Bennett, ___ Pa. ___, 930 A.2d 1264 (2007) (Bennett II), provides a substantial change to the law that impacts the within case, I would remand for an evidentiary hearing to determine when Appellant learned that his appeal in this Court had been dismissed due to counsel's failure to file a brief. Thus, I respectfully dissent.

¶ 2 As the Majority points out, Appellant's first PCRA petition was denied on June 15, 2005. Appellant filed a pro se appeal from that dismissal and sought the appointment of new counsel. As Appellant was already represented, Appellant's request for new counsel went without an official response/disposition. Nevertheless, Appellant's prior counsel neglected to file a brief on Appellant's behalf and, as a consequence, that appeal was dismissed by this Court on November 3, 2005. Previously, this Court had concluded that denials of appeals from PCRA petitions due to counsel's malfeasance did not fit into one of the enumerated exceptions to the PCRA's timeliness requirements. See, generally, Commonwealth v. Bennett, 842 A.2d 953 (Pa.Super.2004) (en banc). Thus, the prevailing view was that although this situation was unfortunate, and resulted in a loss of the Appellant's appeal rights, unless restorative action was taken within one year of his judgment of sentence becoming final, the PCRA petitioner had no recourse. Id. Of course, since the one-year period ran from the date the judgment of sentence...