Com. v. Saunders, T. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY C. SAUNDERS :
:
Appellant : No. 1478 WDA 2022
Appeal from the PCRA Order Entered December 7, 2022
In the Court of Common Pleas of Erie County
Criminal Division at CP-25-CR-0002794-2016
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED: JULY 28, 2023
Timothy C. Saunders (Appellant) appeals pro se from the order
dismissing as untimely his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. We affirm.
As this Court previously explained:
[Appellant’s] convictions arose from [his] actions on
June 22, 2016[,] in setting fire to the vehicle of a
former girlfriend, Deborah Lynn Marshall, in a parking
lot at Eaton Reservoir, a/k/a Bulls Dam, in North East
Township, Erie County, Pennsylvania. That day, while
Marshall was walking with her dog around the
reservoir, Appellant met up with her and made
unwanted advances toward her. When Marshall
rejected the advances, Appellant became angry and
acted aggressively toward Marshall. Marshall ran
from Appellant toward her vehicle, a 2004 green
Jaguar. Appellant followed Marshall, entered his own
vehicle, and drove into the lot where Marshall’s vehicle
was parked. Appellant parked right beside Marshall’s
Jaguar, in the space in between the Jaguar and the
space where the vehicle of Scott Bigley was parked.
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Bigley, a friend of Marshall’s, was sitting in his vehicle
waiting for Marshall to return from the walk. Marshall
spotted Bigley, quickly got inside his vehicle[,] and
asked him to drive away to escape from Appellant.
Confused, Bigley began to drive away. Appellant
continued toward Bigley’s vehicle and struck Bigley’s
windshield on the passenger side with his fist,
cracking the windshield. Bigley and Marshall drove
off. They stopped at a nearby establishment where
they called friends to assist them in retrieving
Marshall’s vehicle. Approximately [twenty] minutes
or so after Bigley and Marshall had fled the reservoir
parking lot, Bigley and one of the friends returned to
the parking lot where they found the back portion of
Marshall’s vehicle engulfed in flames. Firefighters and
emergency personnel were called to the scene and the
fire was extinguished. The evidence established the
fire to Marshall’s vehicle originated on the rear
passenger side; the fire was incendiary in nature and
Appellant caused the fire.
On December 20, 2016, at the conclusion of a
nonjury trial, the trial court convicted Appellant of
[one count each of reckless burning or exploding, 18
Pa.C.S.A. § 3301(d)(2), and arson involving danger of
death or bodily injury, 18 Pa.C.S.A. § 3301(a)(1)(i)].
On February 1, 2017, the trial court sentenced
Appellant to serve a term of incarceration of twelve to
twenty-four months for the conviction of reckless
burning or exploding, and a concurrent term of
incarceration of forty-eight to ninety-six months for
the conviction of arson involving danger of death or
bodily injury. In addition, the trial court ordered
Appellant to pay restitution in the amounts of
$250.00, which was for the insurance deductible for
Ms. Marshall’s vehicle that was destroyed by the fire,
and $300.00, which was for the broken windshield of
Mr. Bigley’s vehicle.
Commonwealth v. Saunders, [185 A.3d 1101 (Pa. Super.
2018) (unpublished memorandum at *1)] (some brackets added;
footnote and citation omitted).
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On direct appeal, this Court affirmed the part of Appellant’s
judgment of sentence regarding his convictions (i.e., it rejected
his sufficiency and weight-of-the-evidence claims), but vacated
the portion of his judgment of sentence relating to the award of
restitution of $300.00 for the broken windshield of Mr. Bigley’s
vehicle. Thereafter, Appellant filed a petition for allowance of
appeal to our Supreme Court, which was denied on August 13,
2018. See Commonwealth v. Saunders, 190 A.3d 1134 (Pa.
2018).
On October 10, 2018, Appellant filed a pro se PCRA petition,
his first. The PCRA court subsequently appointed counsel, who
filed a supplement to Appellant’s petition on November 29, 2018.
On January 2, 2019, the PCRA court issued Pa.R.Crim.P. 907
notice of its intent to dismiss the petition, and Appellant did not
file a response. On February 11, 2019, the PCRA court entered
an order dismissing the petition.
Commonwealth v. Saunders, 226 A.3d 647 (Pa. Super. 2020) (unpublished
memorandum at *1-2) (some citations modified).
On January 21, 2020, this Court affirmed the denial of PCRA relief. On
July 15, 2020, the Pennsylvania Supreme Court denied leave to appeal.
Commonwealth v. Saunders, 237 A.3d 386 (Pa. 2020).
On June 29, 2022, Appellant filed a motion for extraordinary relief
challenging the discretionary aspects of his sentence. Motion for
Extraordinary Relief, 6/29/22, at 1-4. The trial court deemed the motion a
second PCRA petition and issued a Pa.R.Crim.P. 907 notice on August 30,
2022.
On September 2, 2022, while the motion for extraordinary relief was
pending, Appellant filed the instant PCRA petition, in which he claimed prior
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PCRA counsel was ineffective for “fil[ing] an insufficient brief to the Superior
Court of Pennsylvania.” PCRA Petition, 9/2/22, at 4.
On September 30, 2022, Appellant filed objections to the PCRA court’s
notice of intent to dismiss his motion for extraordinary relief. On October 5,
2022, the PCRA court dismissed Appellant’s motion for extraordinary relief.
That same day, the PCRA court issued Rule 907 notice with respect to the
instant petition.
Appellant timely appealed the dismissal of his motion for extraordinary
relief. On May 26, 2023, this Court quashed the appeal. Commonwealth v.
Saunders, --- A.3d ----, 2023 WL 3675953 (Pa. Super. May 26, 2023)
(unpublished memorandum, at *1). We agreed with Appellant that the court
erred in treating his motion for extraordinary relief as a second PCRA petition.
Id. at *2. Nonetheless, we explained that the motion was a “plainly untimely”
post-sentence motion, and thus its filing “did not toll the requirement that
[Appellant] raise his claims in a timely direct appeal.” Id. at *2. We
concluded we lacked jurisdiction over the appeal. Id.
On December 7, 2022, the PCRA court dismissed the instant petition as
untimely. Appellant filed a notice of appeal on December 19, 2022. Appellant
and the PCRA court have complied with Pa.R.A.P. 1925.1
____________________________________________
1 On January 3, 2023, this Court issued an order directing Appellant to show
cause as to why his appeal should not be quashed pursuant to
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (overruled on other
(Footnote Continued Next Page)
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Appellant raises the following issues:
A. Whether the [PCRA c]ourt erred and abused its discretion when
it deemed Appellant’s PCRA petition untimely when Appellant
has pled and proven exceptions to the timeliness rule of the
PCRA?
B. Whether the [PCRA c]ourt erred and abused its discretion when
it declared that Appellant’s PCRA petition was amended by
PCRA counsel?
C. Whether the [PCRA c]ourt erred and abused its discretion when
it declared that there was no need for an evidentiary hearing?
D. Whether the [PCRA c]ourt erred and abused its discretion when
it declared that any issues in the PCRA petition have been
litigated, or are waived?
E. Whether the [PCRA c]ourt erred and abused its discretion when
the [PCRA c]ourt violated Appellant’s Pennsylvania and United
States Constitutional Right to Due Process by denying
Appellant his rule based right to assistance of competent PCRA
counsel?
F. Whether the [PCRA c]ourt erred and abused its discretion when
it refused to appoint competent counsel to properly
develop/address the merits of this PCRA petition?
G. Whether the [PCRA c]ourt erred and abused its discretion when
it failed to properly address all of Appellant’s objections to the
[PCRA c]ourt’s Notice of Intent to Dismiss?
Appellant’s Brief at 7-8 (punctuation modified).
____________________________________________
grounds) (a second or subsequent PCRA petition cannot be filed until “the
resolution of review of the pending PCRA petition by the highest state court in
which review is sought, or upon the expiration of the time for seeking such
review.”). Appellant filed a response, and on January 30, 2023, this Court
discharged the rule but advised Appellant that the merits panel might revisit
the issue. As discussed above, this Court subsequently found the trial court
erred in treating Appellant’s motion for extraordinary relief as a PCRA petition
rather than an untimely post-sentence motion. Thus, Lark is not implicated.
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We review the dismissal of Appellant’s PCRA petition to determine
“whether the PCRA court’s findings of fact are supported by the record, and
whether its conclusions of law are free from legal error.” Commonwealth v.
Busanet, 54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the
findings of the PCRA court and the evidence of record, viewed in the light most
favorable to the party who prevailed in the PCRA court proceeding.” Id.A PCRA petition must be filed within one year of the petitioner’s
judgment of sentence becoming final. 42 Pa.C.S.A. § 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 the time for seeking
the review.” 42 Pa.C.S.A. § 9545(b)(3). The timeliness of a PCRA petition is
jurisdictional. If a PCRA petition is untimely, a court lacks jurisdiction.
Commonwealth v. Wharton, 886 A.2d 1120, 1124 (Pa. 2005); see also
Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014) (courts
do not have jurisdiction over an untimely PCRA petition).
“Without jurisdiction, we simply do not have the legal authority to address the
substantive claims.” Commonwealth v. Lewis, 63 A.3d 1274, 1281 (Pa.
Super. 2013).
Appellant concedes his PCRA petition is untimely. Appellant’s Brief at
11. Appellant’s judgment of sentence became final on November 12, 2018,
and he did not file his petition until September 2, 2022. A petitioner may
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overcome the PCRA’s time-bar if he pleads and proves one of the statutory
exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v. Spotz,
171 A.3d 675, 678 (Pa. 2017). The exceptions are: “(1) interference by
government officials in the presentation of the claim; (2) newly discovered
facts; and (3) an after-recognized constitutional right.” Commonwealth v.
Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012); see also 42 Pa.C.S.A. §
9545(b)(1)(i-iii). A petition invoking an exception to the jurisdictional time-
bar must be filed within one year of the date that the claim could have been
presented. 42 Pa.C.S.A. § 9545(b)(2) (effective December 24, 2018). If a
petitioner fails to invoke a valid exception, the court lacks jurisdiction to
review the petition or provide relief. Spotz, 171 A.3d at 676.
Appellant first takes issue with the PCRA court’s conclusion that the
Pennsylvania Supreme Court’s decision in Commonwealth v. Bradley, 261
A.3d 381 (Pa. 2021), did not create an exception to the PCRA’s time bar.
Appellant’s Brief, at 10-11; see also Rule 907 Notice, 10/18/22, at 4-5. This
claim does not merit relief.
We recently explained:
Reliance on Bradley for purposes of overcoming the untimeliness
of the underlying PCRA petition is misplaced. In Bradley, our
Supreme Court extended the opportunity for a PCRA petitioner to
raise claims of PCRA counsel’s ineffectiveness. Previously, “the
sole method by which a petitioner c[ould] challenge the
ineffectiveness of his PCRA counsel [wa]s through the filing of a
response to the PCRA court’s Rule 907 dismissal notice.”
Bradley, 261 A.3d at 386. The Bradley Court abandoned that
approach, holding “that a PCRA petitioner may, after a PCRA court
denies relief, and after obtaining new counsel or acting pro se,
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raise claims of PCRA counsel’s ineffectiveness at the first
opportunity to do so, even if on appeal.” Id. at 401.
Bradley, however, did not announce a new constitutional
right, much less one applicable retroactively. See, e.g.,
Commonwealth v. Johnson, 2023 WL 2379233 (Pa. Super.
2023) (unpublished memorandum) (noting “[a]lthough [Bradley]
did not specifically address the timeliness exception upon which
[a]ppellant relies, it is clear Bradley did not recognize a new
constitutional right,” id. at *4); Commonwealth v. Dixon, [290
A.3d 702] (Pa. Super. 2022) (unpublished memorandum) (holding
Bradley does not trigger the timeliness exception of Section
9545(b)(1)(iii)); Commonwealth v. Parkinson, 2022 WL
5237927 (Pa. Super. 2022) (holding “Bradley did not create a
new, non-statutory exception to the PCRA time bar,” id. at *3).
Furthermore, this Court has continually declined to extend
the holding of Bradley to cases involving untimely petitions, like
the instant one. See, e.g., Commonwealth v. Stahl, [292 A.3d
1130] (Pa. Super. 2023) (concluding that “[n]othing in Bradley
creates a right to file a second PCRA petition outside the PCRA’s
one-year time limit as a method of raising ineffectiveness of PCRA
counsel,” id. at [1136]); Commonwealth v. Mead, [277 A.3d
1111] (Pa. Super. 2022) (unpublished memorandum), appeal
denied, 284 A.3d 118 (Pa. 2022) (emphasizing that Bradley
involved a timely first PCRA petition and did not apply to
appellant’s appeal from order denying his untimely petition);
Commonwealth v. Morton, [292 A.3d 1075] (Pa. Super. 2023)
(unpublished memorandum) (holding that appellant’s reliance on
Bradley does not afford relief in his appeal from the denial of his
untimely second PCRA petition); Commonwealth v. Gurdine,
[273 A.3d 1076] (Pa. Super. 2022) (same)[, appeal denied, 286
A.3d 707 (Pa. 2022)].
Commonwealth v. Ruiz-Figueroa, --- A.3d ----, 2023 WL 4115626, at *2
(Pa. Super. Jun. 22, 2023) (footnote omitted).2
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2 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019, may be cited for their persuasive
value).
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The above reasoning applies to Appellant. Accordingly, his claim that
Bradley allows him to circumvent the PCRA’s time bar lacks merit.
Appellant also claims that he has met the governmental interference
exception. Appellant asserts that counsel appointed to represent him in his
first PCRA action did not file an amended PCRA petition, but rather filed a
supplemental petition incorporating Appellant’s pro se PCRA petition.
Appellant’s Brief at 11-16. Appellant thus claims that he was deprived of
effective assistance of PCRA counsel. Id.To establish the governmental interference exception, a petitioner must
plead and prove (1) the failure to previously raise the claim was the result of
interference by government officials; and (2) the petitioner could not have
obtained the information earlier with the exercise of due diligence.
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008). In other
words, a petitioner is required to show that but for the interference of a
government actor, “he could not have filed his claim earlier.”
Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).
Appellant has not met this burden. In Stahl, this Court rejected a
similar claim that ineffective assistance of prior PCRA counsel constituted
governmental interference. Stahl, 242 A.3d at 1134. We stated that the
claim cannot meet the governmental interference exception unless counsel’s
ineffectiveness “wholly deprived the defendant of collateral or appellate
review.” Id.
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Here, the PCRA court denied Appellant’s first PCRA on the merits after
issuing a detailed Rule 907 notice explaining why each of Appellant’s claims
lacked merit. See Rule 907 Notice, 1/2/19, at 2-16. On appeal, this Court
affirmed the denial of relief. Commonwealth v. Saunders, 226 A.3d 647(Pa. Super. 2020) (unpublished memorandum at *3). We initially found
waiver based on the inadequacies of Appellant’s brief. In the alternative, we
explained:
[E]ven if not waived, we would conclude that Appellant’s claims
have no merit. … [The PCRA court’s] analysis accurately and
thoroughly disposed of the issues raised by Appellant.
Accordingly, if Appellant’s issues were not waived, we would adopt
[the PCRA court’s] analysis as our own with respect to the issues
Appellant raised on appeal.
Id. (footnote omitted). Thus, Appellant has not satisfied the governmental
interference exception, because PCRA counsel’s alleged ineffectiveness did not
“wholly deprive” Appellant of either collateral or appellate review. See Stahl,
242 A.3d at 1134.
Lastly, Appellant contends he met the newly discovered facts exception
because “PCRA counsel’s performance fell well below what would be deemed
satisfactory.” Appellant’s Brief at 16. Appellant argues counsel abandoned
him in the PCRA court and on appeal by failing to file an amended PCRA
petition, failing to file a response to the PCRA court’s Rule 907 notice, and by
filing a deficient appellate brief. Id. at 16-17.
In Bradley, our Supreme Court rejected a similar contention that claims
of ineffective assistance of PCRA counsel constitute a newly discovered fact:
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We decline to adopt the approach … that would deem a petitioner’s
“discovery” of initial PCRA counsel’s ineffective assistance to
constitute a “new fact” that was unknown to petitioner, allowing
such petitioner to overcome, in a successive petition, the PCRA’s
time bar provision under the “new fact” exception. See 42 Pa.C.S.
§ 9545(b)(1)(ii). We have repeatedly rejected such an
understanding of the “new fact” exception to the PCRA’s one-year
time bar. See Commonwealth v. Gamboa-Taylor, [753 A.2d
780, 785 (Pa. 2000)] (“[S]ubsequent counsel’s review of previous
counsel’s representation and a conclusion that previous counsel
was ineffective is not a newly discovered ‘fact’ entitling [a]ppellant
to the benefit of the exception for after-discovered evidence.”)[.]
Bradley, 261 A.3d at 404, n.18. Thus, Appellant’s “discovery” of PCRA
counsel’s alleged ineffectiveness is not a newly discovered fact. Id.
Appellant’s PCRA petition is untimely. Because he failed to plead and
prove an exception to the PCRA’s time-bar, we affirm the order dismissing his
PCRA petition.
Order affirmed.
Judge Olson and Judge Stabile concur in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2023
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