Commonwealth v. Bell
| Docket Number | 1244 WDA 2022,J-S14043-23 |
| Decision Date | 06 June 2023 |
| Parties | COMMONWEALTH OF PENNSYLVANIA v. MARTHA FENCHAK BELL Appellant |
| Court | Pennsylvania Superior Court |
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.
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)), 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 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 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)).
On January 27, 2022, Bell filed a first pro se PCRA petition and appointed counsel filed a petition to withdraw and a Turner/Finley[3] 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 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]
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 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:
42 Pa.C.S. § 9545(b)(1)(i)-(iii).
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 (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.
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]
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 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...
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