Commonwealth v. Kennedy

• Citation: 266 A.3d 1128
• Decision Date: 16 December 2021
• Docket Number: No. 441 EDA 2021,441 EDA 2021
• Parties: COMMONWEALTH of Pennsylvania v. Shamon KENNEDY, Appellant
• Court: Superior Court of Pennsylvania

266 A.3d 1128

COMMONWEALTH of Pennsylvania

v.Shamon KENNEDY, Appellant

No. 441 EDA 2021

Superior Court of Pennsylvania.

Submitted October 26, 2021

Filed December 16, 2021

Shamon Kennedy, appellant, pro se.

Nicholas J. Casenta Jr., Assistant District Attorney, West Chester, for Commonwealth, appellee.

Deborah S. Ryan, Assistant District Attorney, West Chester, for Commonwealth, appellee.

BEFORE: LAZARUS, J., DUBOW, J., and PELLEGRINI, J.^*

OPINION BY LAZARUS, J.:

Shamon Kennedy appeals pro se from the order, entered in the Court of Common Pleas of Chester County, denying as untimely his fourth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 - 9546. Upon careful review, we affirm.

On April 1, 2009, Kennedy was sentenced to 25 years' imprisonment in federal court on unrelated charges. In July 2009, Kennedy was convicted, in the instant case, of numerous charges, including aggravated assault, recklessly endangering another person, conspiracy, and firearms offenses.¹ On December 11, 2009, the trial court sentenced Kennedy to a term of 12 to 24 years' imprisonment; his sentence was ordered to be served consecutively to the federal sentence that he was then-currently serving. Kennedy filed a motion to modify sentence, which was denied by the trial court on April 15, 2010. On May 17, 2010, Kennedy filed a direct appeal; counsel sought to withdraw on appeal under Anders .² This Court affirmed Kennedy's judgment of sentence and granted counsel's petition to withdraw. See Commonwealth v. Kennedy , 22 A.3d 1080 (Pa. Super. 2010) (unpublished memorandum decision). Kennedy did not seek allowance of appeal with the Pennsylvania Supreme Court.

Kennedy filed four PCRA petitions. His first petition, which was timely filed on November 22, 2011, raised claims of ineffective assistance of counsel and a claim that the court improperly permitted the Commonwealth to cross-examine Kennedy about his prior federal drug conviction and related drug case. Appointed PCRA counsel³ filed an amended petition raising claims of ineffective assistance of counsel (failure to present defense witness; failure to file motion in limine to exclude mention of federal conviction). After the court issued Pa.R.Crim.P. 907 notice of its intention to dismiss Kennedy's first petition without a hearing, Kennedy filed a pro se response and supplemental pro se response to the PCRA court stating that appointed counsel did not amend his pro se petition as he had requested. On October 15, 2012, the PCRA court dismissed Kennedy's petition.

Kennedy filed a timely pro se notice of appeal; our Court ordered PCRA counsel to file either a Rule 1925(b) concise statement of errors complained of on appeal or a proper Anders⁴ brief. Counsel filed a "statement of intent to file an Anders /McClendon brief in lieu of filing a Rule 1925(b) statement." Despite being advised that the court could not accept Kennedy's pro se filings and would forward any such filings to counsel of record, Kennedy filed his pro se Rule 1925(b) statement. In response, counsel filed a statement of her intent to file an Anders brief, concluding that after "review[ing] the record ... [she] has concluded that there are no meritorious issues for review" and that the notice was "filed in lieu of a [c]oncise [s]tatement of [e]rrors [c]omplained of on [a]ppeal." Statement of Intent, 12/28/12, at 2.

Subsequently, counsel filed an improper Anders brief, and our Court remanded the case and denied counsel's request to withdraw for failure to comply with the withdrawal requirements. Although counsel ultimately filed an advocate's brief on Kennedy's behalf, our Court found all of Kennedy's issues waived due to counsel's failure to file a Rule 1925(b) statement. Commonwealth v. Kennedy , 3166 EDA 2012 (Pa. Super. filed Sept. 18, 2013) (unpublished memorandum decision). PCRA counsel filed an unsuccessful motion for reconsideration that our Court denied on October 1, 2013. On April 16, 2014, the Pennsylvania Supreme Court denied Kennedy's petition for allowance of appeal.

On April 9, 2015, Kennedy filed a second PCRA petition alleging that PCRA counsel: was ineffective for failing to re-plead all of the claims he presented in his original, pro se petition; failed to file a Rule 1925(b) statement on collateral appeal; and filed an improper Anders brief, even after being instructed by our Court on remand how to properly proceed. The second petition was denied as untimely on May 7, 2015, after the PCRA court issued Rule 907 notice of its intent to dismiss the petition without a hearing and Kennedy filed a pro se response thereto.⁵ Kennedy filed a pro se appeal and Rule 1925(b) statement from the denial of that second petition.

While his collateral appeal was pending, Kennedy filed a third pro se PCRA petition on July 5, 2015,⁶ raising the newly-discovered facts and governmental interference exceptions under the PCRA. Kennedy asserted the PCRA court, the District Attorney, and "federal incarceration" were the entities that created governmental interference. See Pro Se 3^rd PCRA Petition, 7/5/15, at 1-3. However, on July 28, 2015, the court quashed Kennedy's third petition, without prejudice, "as premature because [his] appeal from the denial of his second PCRA petition [was] still pending in the Superior Court of Pennsylvania." Order, 7/28/15. On October 15, 2015, at Kennedy's request, our Court withdrew Kennedy's appeal, with prejudice. See Order, 10/15/15.

On January 29, 2016,⁷ Kennedy filed, pro se , an "Amended 3^rd PCRA Petition," seeking to resurrect the claims advanced in his prior, quashed petition. This amended third petition was also dismissed as untimely. Kennedy filed a pro se collateral appeal from that decision; the appeal was dismissed due to his failure to file an appellate brief. See Order, No. 1183 EDA 2016, 10/13/16.

Kennedy filed the instant petition, his fourth, on August 20, 2020. The PCRA court issued its Pa.R.Crim.P. 907 notice of intent to dismiss Kennedy's petition on September 10, 2020. After receiving multiple extensions, Kennedy filed a response to the court's Rule 907 notice on December 14, 2020. On January 6, 2021, the court formally dismissed the petition. Kennedy timely filed a notice of appeal,⁸ followed by a court-ordered Rule 1925(b) statement. Kennedy raises the following issues for our review:

1. The PCRA court erred by holding Kennedy to an erroneous heightened standard of "diligence" in discovering unavailable evidence and law in aid[ ] to file a timely [and] proper appeal in state court in violation of Commonwealth v. Burton [, 121 A.3d 1063 (Pa. Super. 2015)] as it applies to prisoner[s] lacking access to public information[, thus] depriving him of due process.

2. The PCRA court's err[or] of misapprehending Kennedy's governmental interference claim that is brought against the PCRA court and the Superior Court—not against the federal prison[—] caused an erroneous analysis under [section] 9545(b)(1)(i) [of the PCRA,] resulting in a due process violation.

3. The PCRA court's failure to order an evidentiary hearing for a full and fair opportunity to be heard will cause[ ] a fundamental miscarriage of justice in violation of the state and federal constitution[s] under procedural and substantive due process.

Brief of Appellant, at 9.

In reviewing the denial of PCRA relief, "we examine whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Fears , 624 Pa. 446, 86 A.3d 795, 803 (2014) (quotations and citations omitted).

Pursuant to the PCRA, any petition—including a second or subsequent one—must be filed within one year of the date the judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1) ; Commonwealth v. Burton , 638 Pa. 687, 158 A.3d 618, 623 n.7 (2017). Section 9545(b)(3) provides a judgment of sentence becomes final at the conclusion of direct review or at the expiration of the time period for seeking the review. Id.

Instantly, Kennedy's judgment of sentence became final on December 24, 2010, thirty days after our Court affirmed his judgment of sentence, when Kennedy's time expired to seek discretionary appellate review in the Supreme Court of Pennsylvania. See id. ; see also Commonwealth v. Kennedy , 22 A.3d 1080 (Pa. Super. 2010) (unpublished memorandum decision); Pa.R.A.P. 1113. Thus, Kennedy had until December 24, 2011, to file a timely PCRA petition. Kennedy's instant petition, however, was not filed until August 28, 2020; thus, it is facially untimely. In order to overcome the timeliness requirements of the PCRA, Kennedy was required to plead and prove a section 9545(b)(1) exception under the PCRA. See 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). Moreover, Kennedy's petition had to have been "filed within one year of the date the claim could have been presented." Id. at § 9545(b)(2).⁹ Because Kennedy has failed to prove a timeliness exception, we conclude that the PCRA court properly dismissed his petition.

Kennedy asserts that he lacked access to public information that he was only able to procure—after he finished serving a federal sentence—when he was remanded to SCI Rockview in 2019. In state confinement, Kennedy claims he had "access to state law [materials] and procedures" and that is where he "signed up for sessions in the Law Library where [he] gained access to the Rules of Criminal Procedure under the PCRA." Appellant's Pro Se Brief, at 14-17; Appellant's Pro Se Reply Brief, at 2-3. Additionally, Kennedy asserts that because federal correctional institutions do not provide access to such state law cases or rules of procedure, "all state appellate recourse w[as] unknown to [him] from the time he was in federal custody from his start date of January 18, 2006[, until he was transferred to Chester County Prison on August 27, 2019]." Appellant's Pro Se Brief, at 17.¹⁰

The specific issue Kennedy asserts in his petition is that "[o]n his 1^st PCRA [petition], Kennedy's attorney caused his appellate...