Com. v. Flint, A. ( 2018 )

J-S05033-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ADAM FLINT, :
:
Appellant :
: No. 1107 WDA 2017
Appeal from the PCRA Order June 30, 2017
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000394-2013, CP-02-CR-0000395-
2013, CP-02-CR-0000396-2013, CP-02-CR-0000397-2013, CP-02-CR-
0000398-2013, CP-02-CR-0000479-2013, CP-02-CR-0000604-2013, CP-02-
CR-0001674-2013, CP-02-CR-0001675-2013, CP-02-CR-0001676-2013, CP-
02-CR-0001677-2013, CP-02-CR-0001678-2013, CP-02-CR-0001681-2013,
CP-02-CR-0001731-2013, CP-02-CR-0001732-2013, CP-02-CR-0001733-
2013, CP-02-CR-0001735-2013, CP-02-CR-0001736-2013, CP-02-CR-
0001737-2013
BEFORE: OLSON, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 29, 2018
Adam Flint (Appellant) appeals from the June 30, 2017 order denying
his petition filed under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546, seeking reinstatement of his post-sentence motion and
appellate rights. We affirm.
On August 1, 2013, Appellant pled guilty via an open plea agreement
to 18 counts of burglary and one count of attempted burglary charged in
nineteen separate criminal informations. On November 1, 2013, Appellant
* Retired Senior Judge assigned to the Superior Court.
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was sentenced to an aggregate term of 17 to 34 years of imprisonment.
Appellant did not file post-sentence motions or a direct appeal.
On December 8, 2015, Appellant pro se filed a PCRA petition. Counsel
was appointed and an amended petition was filed. In his amended petition,
Appellant recognized that the petition was facially untimely. 1 However,
Appellant asserted the applicability of the newly-discovered facts time-bar
exception. See 42 Pa.C.S. § 9545(b)(1)(ii) (“Any petition under this
subchapter, including a second or subsequent petition, shall be filed within
one year of the date the judgment becomes final, unless the petition alleges
and the petitioner 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.”). Specifically, Appellant averred that he filed his
PCRA petition within 60 days of his learning that his plea counsel failed to
file an appeal as Appellant had requested.
Following an evidentiary hearing, the PCRA court dismissed Appellant’s
petition as untimely filed on June 30, 2017. Appellant timely filed a notice of
appeal, and both Appellant and the PCRA court complied with Pa.R.A.P.
1925.
1 “For purposes of [the PCRA], 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). Thus, Appellant’s
judgment of sentence became final on December 2, 2013 (due to December
1, 2013 occurring on a weekend), and he had one year, or until December 2,
2014, to file timely a PCRA petition.
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On appeal, Appellant presents two issues, both of which ask us to
decide whether the PCRA court erred by determining that Appellant’s PCRA
petition failed to satisfy the newly-discovered facts time-bar exception.
Appellant’s Brief at 4. First, Appellant argues that the PCRA court’s finding
that his plea counsel never promised to file a direct appeal is unsupported by
the record. Id. Second, Appellant contends that he exercised due diligence
in ascertaining the status of the appeal, and the PCRA court erred by
determining otherwise. Id.
On review of orders denying PCRA relief, our standard is to determine
whether the PCRA court’s ruling is free of legal error and supported by the
record. Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super.
2017) (citation omitted). “A PCRA court’s credibility findings are to be
accorded great deference,” and, if the findings are supported by the record,
they are binding upon a reviewing court. Id.Any PCRA petition, including second and subsequent petitions, must
either (1) be filed within one year of the judgment of sentence becoming
final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).
Furthermore, the petition “shall be filed within 60 days of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2). Neither this Court
nor the PCRA court has jurisdiction to address the merits of an untimely-filed
petition. Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super.
2011).
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The statutory exception relevant to this appeal is the newly-discovered
facts exception, which requires proof 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).
“Due diligence demands that the petitioner take reasonable steps to protect
his own interests. A petitioner must explain why he could not have learned
the new fact(s) earlier with the exercise of due diligence. This rule is strictly
enforced.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super.
2015) (citations omitted). Due diligence “entails neither 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) (citations and quotation marks omitted).
Here, Appellant relies upon Commonwealth v. Bennett, 930 A.2d
1264 (Pa. 2007), in which our Supreme Court held that Bennett was entitled
to invoke the newly-discovered facts exception because his counsel
abandoned him on appeal, he was not aware that his appeal had been
dismissed for counsel’s failure to file a brief, and he filed a PCRA petition
within 60 days of learning that his counsel failed to file a brief. Appellant
argues that similar to Bennett, his plea counsel abandoned him for
purposes of appeal, he was unaware that an appeal had never been filed,
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and he exercised due diligence in determining the status of the appeal.
Appellant’s Brief at 11-14.
In support of these contentions, Appellant points to his own testimony.
Specifically, Appellant testified that immediately after sentencing, he asked
his plea counsel to calculate how much time he received, and plea counsel
told him he was trying to figure it out, but not to worry because he would
“put appeals in” for Appellant. N.T., 5/11/2017, at 13. Appellant also
contends that he wrote five letters to his plea counsel following his
sentencing asking plea counsel about the status of his appeal, but plea
counsel failed to respond. Id. at 14, 23. In November 2015, almost two
years after he was sentenced, Appellant wrote to the clerk of courts and
asked if his attorney ever filed an appeal on his behalf. Id. at 28. After
receiving a reply indicating that no appeal was pending, Appellant filed a
PCRA petition within a month alleging ineffective assistance of counsel.
The PCRA court determined that plea counsel did not abandon
Appellant for purposes of an appeal, and therefore Bennett is inapplicable to
Appellant’s case. The PCRA court did not find credible Appellant’s testimony
that his plea counsel volunteered to file a direct appeal and then failed to do
so. PCRA Court Opinion, 6/30/2017, at 7. Instead, it relied upon the
testimony of plea counsel, who testified that he did not recall Appellant
asking him in person or in writing to file a motion to reconsider his sentence
or an appeal, and if Appellant had done so, he would have. N.T.,
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5/11/2017, at 6, 8-9. Plea counsel acknowledged that while he did not have
a “definitive memory” about Appellant’s not asking him to file an appeal,
Appellant’s file did not contain any correspondence with such a request. Id.
at 9-10. According to plea counsel, he acknowledges every letter he
receives by writing back and placing a copy in the file, so the absence of a
letter indicated to him that Appellant never requested him to file an appeal.
Id.
Appellant’s argument that the PCRA court erred in solely relying on
plea counsel’s reputation instead of facts in the record when making its
credibility finding is unavailing. “A PCRA court’s credibility findings are to be
accorded great deference, and where supported by the record, such
determinations are binding on a reviewing court.” Orlando, 156 A.3d at
1280. Despite Appellant’s claim that he wrote five letters to plea counsel
inquiring about the status of an appeal, no such letters were located in plea
counsel’s file, and counsel testified about his normal practice of retaining
such letters. The absence of the letters in the file was confirmed by
Appellant’s PCRA counsel, who examined the file after the record was left
open to permit him to do so. Therefore, because Appellant failed to
establish that he requested his counsel to file an appeal or that counsel
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volunteered to file one, the PCRA court did not err in determining that plea
counsel did not abandon him.2
Based on the foregoing, the PCRA court did not err by dismissing
Appellant’s PCRA petition due to Appellant’s failure to prove the applicability
of the newly-discovered-facts time-bar exception. Accordingly, we affirm
the order dismissing Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2018
2
Even if Appellant had proven that plea counsel abandoned him for purposes
of appeal and Appellant was unaware of that fact, we agree with the trial
court that he did not establish the second prong of the newly-discovered
facts exception analysis, in that he did not exercise due diligence in
ascertaining whether plea counsel had filed an appeal. If counsel had
promised to file an appeal, Appellant certainly was entitled to trust his
lawyer to guide him through the process. However, that ceased to be the
case once plea counsel repeatedly failed to respond to his letters. Thus,
Appellant offered no reasonable explanation as to why it took him two years
to write to the clerk of courts to inquire about the status of an appeal.
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