Commonwealth v. Peterson

• Decision Date: 21 September 2018
• Docket Number: No. 24 WAP 2017,No. 25 WAP 2017,24 WAP 2017,25 WAP 2017
• Citation: 192 A.3d 1123
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jeffrey Donald PETERSON, Appellant Commonwealth of Pennsylvania, Appellee v. Jeffrey Donald Peterson, Appellant
• Court: Pennsylvania Supreme Court

192 A.3d 1123

COMMONWEALTH of Pennsylvania, Appellee

v.Jeffrey Donald PETERSON, Appellant

Commonwealth of Pennsylvania, Appellee

v.Jeffrey Donald Peterson, Appellant

No. 24 WAP 2017

No. 25 WAP 2017

Supreme Court of Pennsylvania.

Submitted: March 14, 2018

Decided: September 21, 2018

Joshua Thomas Newborn, Esq., Reed Smith LLP, for Appellant.

Douglas W. Ferguson, Esq., for Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE DONOHUE

Subsection 9545(b)(1)(ii) of the Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541 -46 ("PCRA") provides an exception to the PCRA's one-year time bar for the filing of petitions for relief if the petition pleads and proves that "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." 42 Pa.C.S. § 9545(b)(1)(ii). In Commonwealth v. Bennett , 593 Pa. 382, 930 A.2d 1264 (2007), this Court applied this exception where petitioner established that his counsel failed to file an appellate brief in support of his PCRA petition, resulting in the dismissal of his appeal and the complete forfeiture of appellate review. In the present case, we address a similar, yet distinct, circumstance in which counsel filed the PCRA petition one day late, thus precluding any merits or appellate review of petitioner's collateral claims. For the reasons set forth herein, we conclude 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). We thus reverse the decision of the Superior Court.

In 1993, Appellant Jeffrey Peterson ("Peterson"), plead guilty to two counts of first degree murder and was sentenced to two consecutive life sentences. In 1995, the General Assembly enacted major amendments to the PCRA, including the requirement that all petitions be filed within one year of the date the judgment of sentence becomes final, subject to three exceptions. 42 Pa.C.S. § 9545(b)(1).¹ The 1995 legislation also provided that petitioners whose judgments of sentence became final prior to its effective date could file a timely petition within one year of the effective date. Act of Nov. 17, 1995, § 3(1) (Spec. Sess. No. 1) P.L. 1118, No. 32. The effective date of the amendatory legislation was January 16, 1996, id., § 3(2), and thus petitioners whose judgments of sentence became final prior to this date (including Peterson) could file a timely PCRA petition on or before January 16, 1997. Commonwealth v. Fenati , 561 Pa. 106, 748 A.2d 205, 207 (2000).

On January 17, 1997, one day beyond the final day for Peterson to file a timely PCRA petition, private counsel retained by Peterson's family ("Counsel") filed his first PCRA petition. In the petition, Peterson raised several issues, including, inter alia, that he was mentally incompetent when he plead guilty and thus his plea was not a knowing, intelligent and voluntary waiver of his constitutional rights. In connection with the shootings that resulted in the two murder charges against him, Peterson (in an apparent suicide attempt) suffered a gunshot wound

to his head that damaged the frontal lobes of his brain. N.T., 6/5/2013, at 12-13. The PCRA court ordered the court administrator to schedule an evidentiary hearing and gave Counsel leave to obtain an expert to opine on Mr. Peterson's mental competency at the time he entered his plea. In an order dated July 18, 1997, the court administrator set the matter for a hearing on November 5, 1997. Although the docket does not reflect why, no hearing took place on that date.

No further activity took place on the matter for nearly fifteen years. In September 2012, Peterson wrote a letter to the clerk of the Crawford County Court of Common Pleas inquiring about the status of his case. In response, the PCRA court rescheduled the evidentiary hearing, which took place on June 5, 2013 and August 28, 2013. Dr. Lawson Bernstein, M.D., the forensic neuropsychiatrist that Counsel had hired in 1997, testified and his expert report was admitted into evidence. Id. at 12. Dr. Bernstein testified that the frontal lobes of the brain control "the capacity to weigh, reason and consider different courses of action and the risks and benefits of such actions." Id. at 13. Dr. Bernstein further testified that the frontal lobes are involved in initiation and motivation, and that where there is damage, the person's "capacity to interact successfully with their environment is reduced and their ability – capacity to advance their own interests is reduced." Id. at 14. He concluded that Peterson had no ability to comprehend his position as one accused of murder and lacked the capacity to cooperate with his counsel or participate in his own defense. Id. at 28-29.

The Commonwealth did not present any conflicting medical testimony, but did present the testimony of Peterson's trial counsel and an adult probation officer who interviewed Peterson prior to the entry of his plea. Both testified that Peterson's interactions with them did not reflect any difficulties on his part, as he appeared to be competent, participated in conversations, and appropriately asked and answered questions. N.T., 8/28/2013, at 11-32, 35-55. Finding that this testimony outweighed that of Dr. Bernstein, the PCRA court denied Peterson relief, concluding in a memorandum and order dated March 4, 2014, that Peterson did not sustain his burden of proving that he did not provide a knowing, intelligent and voluntary waiver of his constitutional rights at the plea colloquy. PCRA Court Memorandum and Order, 3/4/2014, at 26-27.

On April 2, 2014, Mr. Peterson timely appealed the March 4, 2014 memorandum and order to the Superior Court. The Superior Court, recognizing that the first PCRA petition had been filed one day beyond the January 16, 1997 deadline, quashed the appeal as untimely. Commonwealth v. Peterson , 538 WDA 2014, 2015 WL 6394216 (Pa. Super. Jan. 30, 2015) (unpublished memorandum).

On March 31, 2015, Peterson filed a second PCRA petition, seeking, based upon counsel's ineffectiveness in filing his first PCRA petition late, reinstatement of his PCRA appellate rights nunc pro tunc to challenge the PCRA court's March 4, 2014 order dismissing his first PCRA petition. The PCRA court held an evidentiary hearing on the second PCRA petition, at which Peterson testified that he did not know about the late filing until he received notice of the Superior Court's decision quashing his appeal. N.T., 12/3/2015, at 20. Counsel testified that he too did not realize that he had filed the first PCRA petition on January 17, 1997, rather than on January 16, 1997, until the Superior Court issued its decision.² Id. at 5. Counsel testified that, as a result, he did not provide Peterson with any information that would have given rise to a suspicion or a belief that the first PCRA petition was untimely.

Id. at 8. The PCRA found, as a matter of fact, that "we are satisfied that [Peterson] did not know the filing deadline date but more importantly did not know that his attorney at the time missed that deadline until he received a copy of the order of the Superior Court," and that Peterson "could not have known that the deadline was missed by the exercise of due diligence" until the Superior Court issued its decision. PCRA Court Memorandum and Order, 1/6/2016, at 2.

Based on these factual findings, the PCRA court concluded that Peterson's second PCRA petition was timely filed:

When[,] clearly[, Peterson's] prior counsel missed the filing deadline by one day and therefore[,] counsel was ineffective and [Peterson] could not have known that the deadline was missed by the exercise of due diligence until the January 30, 2015 Superior Court Memorandum [O]pinion, we believe it would be grossly unfair to conclude that [Peterson] should not be permitted to have the issues that were raised before th[e PCRA court] as a result of the first PCRA petition heard on the merits on appeal by the Superior Court.

Id. The PCRA court denied Peterson relief on the merits for the same reasons as set forth in its March 4, 2014 memorandum and order denying the first PCRA petition. Id.

Peterson appealed the denial of relief to the Superior Court and the Commonwealth cross-appealed the PCRA court's determination that the second PCRA petition had been timely filed. The Superior Court granted the Commonwealth's cross-appeal, ruling that the second PCRA petition was untimely. In so doing, the court distinguished this Court's prior decision in Bennett , indicating that "[h]ere, unlike in Bennett , [Counsel] did not abandon Peterson on appeal. Indeed, [Counsel] filed a detailed, albeit untimely, PCRA petition and an appellate brief on behalf of Peterson following the denial of PCRA relief on his first PCRA petition." Commonwealth v.Peterson , 2016 WL 5661970, at *3 (Pa. Super. September 29, 2016) (unpublished memorandum). Because Counsel, by filing the first PCRA petition, took action on Peterson's behalf, he did not "abandon" his client as counsel in Bennett did by failing to file a brief. Id. The Superior Court noted that "[w]hile the PCRA timeliness requirements sometimes require harsh outcomes, the PCRA confers no authority ‘to fashion ad hoc equitable exceptions to the PCRA time-bar.’ " Id. (quoting Commonwealth v. Watts , 611 Pa. 80, 23 A.3d 980, 983 (2011) ).

This Court granted discretionary review to consider whether the Superior Court erred in reversing the PCRA court's order finding Peterson's second PCRA petition to be timely filed. In particular, we granted review of the following issue, as stated by Peterson:

For purposes of 42 Pa.C.S. § 9545(b)(1)(ii)'s exception to the [PCRA's] requirement to file a petition for review within one year of the date that the judgment becomes final, "unless the petition alleges and proves that: ... the facts upon which the claim is

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