Com. v. Schriver, K. ( 2023 )

J-S28036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KENZELL JAMES SCHRIVER :
:
Appellant : No. 610 MDA 2022
Appeal from the PCRA Order Entered March 17, 2022
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001097-2014
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED FEBRUARY 16, 2023
Appellant, Kenzell James Schriver, appeals from the order entered in
the Franklin County Court of Common Pleas, which denied as untimely his
second petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows. On
February 13, 2015, Appellant pled guilty to one count of rape of a child. On
July 1, 2015, the trial court found that Appellant was a sexually violent
predator (“SVP”) and sentenced him to ten to twenty years of imprisonment.
Appellant did not file a direct appeal.
On March 28, 2018, Appellant filed a pro se motion, which the trial court
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1 42 Pa.C.S.A. §§ 9541-9546.
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treated as a PCRA petition and appointed PCRA counsel. The court conducted
an evidentiary hearing and dismissed the PCRA petition as untimely on
September 24, 2018. Appellant did not appeal.
Appellant filed a second PCRA petition on October 27, 2021. The PCRA
court held a hearing on March 17, 2022. At the conclusion of the hearing, the
court entered an order finding that Appellant’s petition was untimely and did
not satisfy any of the exceptions to the PCRA time-bar. Appellant timely filed
a notice of appeal on Monday, April 18, 2022. The court subsequently ordered
Appellant to file a concise statement per Pa.R.A.P. 1925(b), and Appellant
complied on May 10, 2022.
Appellant raises one issue for our review:
Whether the PCRA Court erred in its Order of March 17,
2022 dismissing [Appellant’s] Petition for Post-Conviction
Collateral Relief for lack of jurisdiction when [Appellant]
provided sufficient evidence to prove the applicability of the
timeliness exception pursuant to 42 Pa. Stat. and Cons.
Stat. Ann. § 9545(b)(ii)?
(Appellant’s Brief at 4).
As the timeliness of a PCRA petition is separate from the merits of the
petitioner’s underlying claim, we must first determine whether the petition is
timely filed. Commonwealth v. Brensinger, 218 A.3d 440, 447-48
(Pa.Super. 2019) (en banc) (citing Commonwealth v. Stokes, 598 Pa. 574,
959 A.2d 306 (2008)). The timeliness of a PCRA petition is a jurisdictional
prerequisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016).
Pennsylvania law makes clear that no court has jurisdiction to hear an
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untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837
A.2d 1157 (2003). A PCRA petition shall be filed within one year of the date
the underlying judgment of sentence becomes final. 42 Pa.C.S.A. §
9545(b)(1). A judgment of sentence is deemed 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.A. § 9545(b)(3).
Instantly, the trial court sentenced Appellant on July 1, 2015. Appellant
did not file a direct appeal. Accordingly, Appellant’s judgment of sentence
became final 30 days later, on July 31, 2015. See Pa.R.A.P. 903(a). Hence,
Appellant had until July 31, 2016, to file a timely PCRA petition. Appellant
filed the instant PCRA petition on October 27, 2021, which is facially untimely.
See 42 Pa.C.S.A. § 9545(b)(1). Therefore, for the court to have jurisdiction
over Appellant’s claim, Appellant must prove he is eligible under one of the
three exceptions to the PCRA’s time-bar.
To obtain merits review of a PCRA petition filed more than one year after
the judgment of sentence became final, the petitioner must allege and prove
at least one of the three timeliness exceptions:
(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
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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 of Pennsylvania after the time period
provided in this section and has been held by that court to
apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Additionally, a PCRA petitioner must file his
petition within one year of the date the claim could have been presented. See
42 Pa.C.S.A. § 9545(b)(2).
Here, Appellant attempts to invoke the “newly-discovered facts”
exception to the PCRA time-bar, claiming that he was previously unaware that
his prior PCRA counsel had failed to file an appeal on his behalf following the
denial of his first PCRA petition. Appellant insists that he asked counsel to file
an appeal after the court denied PCRA relief in September 2018, and was told
that such appeal would take about two years. Then, in August 2021, when he
had not yet heard anything about his appeal, Appellant asserts that he reached
out to this Court for a copy of his docket sheet. Appellant also asserts that he
asked family and friends to contact prior counsel; however, they could not
reach him. When this Court notified Appellant that no appeal had been filed,
Appellant maintains that he promptly filed the instant PCRA petition in October
2021. Appellant concludes that he exercised due diligence in discovering PCRA
counsel’s failure to file the appeal, and that the PCRA court erred by dismissing
his petition as untimely. We disagree.
To meet the “newly-discovered facts” timeliness exception set forth in
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Section 9545(b)(1)(ii), a petitioner must demonstrate “he did not know the
facts upon which he based his petition and could not have learned those facts
earlier by the exercise of due diligence.” Commonwealth v. Brown, 111
A.3d 171, 176 (Pa.Super. 2015), appeal denied, 633 Pa. 761, 125 A.3d 1197(2015). “The focus of the exception is on [the] newly discovered facts, not
on a newly discovered or newly willing source for previously known facts.”
Commonwealth v. Burton, 638 Pa. 687, 704, 158 A.3d 618, 629 (2017)
(internal citation and quotation marks omitted). This Court has recognized
that appellate counsel’s failure to file a requested notice of appeal falls “within
the ambit of subsection (b)(1)(ii);” however, Appellant “must still prove that
it meets the requirements therein.” Commonwealth v. Bennett, 593 Pa.
382, 400, 930 A.2d 1264, 1274 (2007).
Due diligence requires that the petitioner “take reasonable steps to
protect his own interests.” Commonwealth v. Monaco, 996 A.2d 1076,
1080 (Pa.Super. 2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011)
(citations omitted).
However, it does not require “perfect vigilance nor
punctilious care, but rather it requires reasonable efforts by
a petitioner, based on the particular circumstances to
uncover facts that may support a claim for collateral relief.”
Commonwealth v. Shiloh, 170 A.3d 553, 558 (Pa.Super.
2017) (citation omitted). As such, “the due diligence
inquiry is fact-sensitive and dependent upon the
circumstances presented.” Id. (citation omitted). “A
petitioner must explain why he could not have obtained the
new fact(s) earlier with the exercise of due diligence.”
Monaco[, supra] at 1080.
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Brensinger, supra at 449.
In Commonwealth v. Small, 662 Pa. 309, 238 A.3d 1267 (2020), our
Supreme Court made clear there is no longer a “public record presumption”
pursuant to which a court may find that information available to the public is
not a fact that was previously “unknown” to the petitioner. Nevertheless, the
Court clarified, “that [Appellant] is relieved of the public record presumption
does not mean that [Appellant] prevails.… The textual requirements of the
time-bar exception remain.” Id. at ___, 238 A.3d at 1286. Therefore,
“although Small eliminates the public record presumption, it does not
abrogate the requirement that petitioners perform due diligence to discover
the facts upon which their claim is predicated.” Commonwealth v. Keener,
No. 1165 WDA 2021, 2022 WL 2359373, at *4 (Pa.Super. June 30, 2022)
(unpublished memorandum).2
Here, the PCRA court conducted a hearing to ascertain whether
Appellant exercised due diligence in discovering that prior PCRA counsel had
not filed an appeal on Appellant’s behalf. At the hearing, Appellant testified
that he asked counsel to file an appeal from the denial of his first PCRA
petition. He then waited two years before investigating whether an appeal
had been filed because he was told that it would take two years for it to be
processed. (N.T. Hearing, 3/17/22 at 8-9). During the two-year interim
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2 See Pa.R.A.P. 126(b) (stating we may rely on non-precedential decisions
from this Court filed after May 1, 2019, for persuasive value).
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period, Appellant never reached out to his counsel himself, but claimed that
he had some family and friends try to call counsel to no avail. (Id. at 10).
After nearly three years had passed, Appellant wrote to the Prothonotary of
this Court to check on the status of his appeal and was told that one had not
been filed. (Id. at 12).
At the conclusion of the hearing, the PCRA court explained:
The testimony, accepting it at face value, is that counsel is
instructed to file an appeal, [Appellant] assumed the appeal
was filed, he assumed it would take two years, based on
what [PCRA counsel] told him, and that he took no action or
conducted any other investigation or otherwise monitored
the appeal until the two-year period was up. And the action
he took at that point was to try to communicate with [PCRA
counsel] through family and friends. [Appellant] did not try
to place phone calls to [PCRA counsel] and did not send him
any letters.
There’s no evidence that he did any[] of those things directly
to his attorney. There is no evidence before the [PCRA
c]ourt that [Appellant] asked his family and friends to
conduct any internet search regarding the status of the
appeal or if he didn’t have access in the SCI or take other
action to determine whether the appeal in fact had been
filed, let alone contacting [PCRA counsel]. Did nothing to
determine whether the appeal had been filed until he wrote
the Superior Court Prothonotary almost [a] year later, which
would be a total of three years after the PCRA had been
denied. That, the [PCRA c]ourt finds, does not demonstrate
due diligence.
…There was certainly lots of things [Appellant] could have
done that he didn’t, but strictly looking at what he did do,
wait the full two years before attempting to have contact
with [PCRA counsel], waiting an additional year before
contacting the Superior Court and/or this Court to determine
the status of any appeal that had been filed, that’s just
simply not due diligence. Due diligence required some
reasonable modicum of effort, consistent with what an
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objective person would do under the circumstances.
We’ve taken into account…and we think it’s appropriate, the
circumstances of [Appellant], which is he was incarcerated,
had limited access to internet capabilities, a rudimentary
understanding of how to look things up in the law library
and those types of things, but even with that understanding,
what he did do is not [exercise due diligence]. At a
minimum, attempting communication directly with counsel
has to be done. Counsel has no obligation to communicate
with friends and family. It’s between the attorney and the
client.
(Id. at 24-26).
We agree with the PCRA court’s analysis. Appellant has not established
that he exercised the required due diligence in determining whether counsel
had failed to appeal on his behalf. See Brensinger, supra; Monaco, supra.Therefore, Appellant’s claim does not satisfy the newly-discovered fact
exception to the PCRA time bar. See Brown, supra. Consequently,
Appellant’s current PCRA petition remains time barred. See Zeigler, supra.Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/16/2023
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