Opinion
547 EDA 2023 J-S42043-23
01-17-2024
COMMONWEALTH OF PENNSYLVANIA v. TERRENCE BETHEA Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered February 6, 2023 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0003638-2003
Benjamin D. Kohler, Esq.
BEFORE: BOWES, J., STABILE, J., and DUBOW, J.
MEMORANDUM
DUBOW, J.
Appellant Terrence Bethea appeals pro se from the Order entered February 6, 2023, in the Lehigh County Court of Common Pleas denying his fourth petition filed pursuant to the Post Conviction Relief Act ("PCRA"). Citing Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), Appellant challenges the stewardship provided in 2003, by his trial counsel and in 2007, by his first PCRA counsel. After careful review, we affirm, and we dismiss Appellant's Application for Remand as moot.
In Bradley, our Supreme Court held that "a PCRA petitioner may, after a PCRA court denies relief and after obtaining new counsel or acting pro se, raise claims of PCRA counsel's ineffectiveness at the first opportunity to do so, even if on appeal." 261 A.3d at 401.
A.
We glean the following procedural history from the certified record. On November 8, 2004, a jury convicted Appellant of one count each of First-Degree Murder and Second-Degree Murder. On November 24, 2004, Appellant received two consecutive life sentences.
After the denial of his post-sentence motion, Appellant timely appealed. This Court affirmed his judgment of sentence, and, on April 25, 2007, our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Bethea, 913 A.2d 938 (Pa. Super. 2006) (unpublished memorandum), appeal denied, 921 A.2d 494 (Pa. 2007). Appellant's judgment of sentence became final 90 days later, on July 24, 2007, when the time to file a petition for writ of certiorari to the United States Supreme Court expired.
Appellant also filed pro se a motion alleging ineffective assistance of trial counsel, which the court denied without prejudice so that Appellant could raise this claim in a PCRA petition. Order, 1/6/04, at 1.
On October 3, 2007, Appellant filed his first timely PCRA petition, asserting that his trial counsel, Richard Webster, Esquire, had been ineffective. The court appointed Gavin Holihan, Esquire, who filed an amended petition. Following an evidentiary hearing, the PCRA court determined that Attorney Webster was not ineffective and denied the petition on March 5, 2009.
Appellant timely appealed. This Court affirmed, and our Supreme Court denied allowance of appeal. Commonwealth v. Bethea, No. 4 A.3d 701 (Pa. Super. 2010) (unpublished memorandum), appeal denied, 13 A.3d 473 (Pa. 2010). Appellant subsequently filed two additional PCRA petitions.
On October 20, 2022, Appellant pro se filed his fourth PCRA Petition, the denial of which is now before us, alleging layered ineffectiveness of Attorney Webster during his trial and Attorney Holihan during his 2007 PCRA proceedings. In support, Appellant argued that the Bradley decision created a new constitutional right that permits him to raise a claim of ineffective assistance of counsel retroactively.
In his PCRA petition, Appellant also stated that his appellate counsel was ineffective, but did not provide any explanation for this assertion. PCRA Petition, 10/20/22, at 2.
Id. at 1.
On October 31, 2023, the PCRA court issued a notice of intent to dismiss without a hearing pursuant to Pa.R.Crim.P. 907, concluding that it lacked jurisdiction because Appellant's petition is patently untimely and Appellant had failed to plead and prove the applicability of any of the PCRA's timeliness exceptions provided in 42 Pa.C.S. § 9545(b)(1)(i-iii). Appellant filed a response to the Court's Rule 907 notice. On February 6, 2023, the PCRA court entered an order dismissing the petition.
Appellant timely appealed. He failed to file a court-ordered Pa.R.A.P. 1925(b) Statement. Because the PCRA court did not have Appellant's Rule 1925(b) statement, it issued a brief Statement in lieu of an opinion.
B.
Appellant raises the following issues for our review:
[1. T]he PCRA court err[]ed and/or abused its discretion in dismissing [A]ppellant's PCRA petition on timeliness grounds as [A]ppellant assert[ed] the facts and argument that rendered the timeliness unactionable.
[2.] Further, the PCRA court err[ed] and/or abused its discretion in dismissing the PCRA petition without granting [A]ppellant specifically requested discovery which would have further substantiated [A]ppellant's claims of miscarriage of justice that started pretrial and continued throughout [A]ppellant's PCRA appeal.Appellant's Br. at 1.
C.
Before considering the timeliness of Appellant's PCRA petition, we reiterate that Appellant failed to file a Rule 1925(b) statement, as ordered by the PCRA court. Order, 3/1/2023, at 1. This Court has held that failure to file a court-ordered Rule 1925(b) statement results in waiver of all claims on appeal. Commonwealth v. Douglas, 835 A.2d 742, 744 (Pa. Super. 2003) ("[W]hen an appellant fails to serve a court-ordered Pa.R.A.P. 1925(b) statement upon the trial court judge and file such with the clerk of courts, the issues are waived as if the appellant failed to file a [Rule] Pa.R.A.P. 1925(b) statement at all."). Accordingly, Appellant has waived all of his issues on appeal.
Appellant has also filed an Application for Remand requesting that this Court remand this case to the PCRA court so that Appellant may file a Rule 1925(b) statement and asserting that he filed in the PCRA court a motion requesting an extension of time to file his Rule 1925(b) statement. We deny this Application as moot because our review confirms that Appellant's PCRA petition was untimely. Appellant attempted to plead and prove the newly recognized constitutional right exception to the PCRA's one-year time bar provided in 42 Pa.C.S. § 9545(b)(1)(iii). However, this Court has observed 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 or permits recognition of such a right." Commonwealth v. Stahl, 292 A.3d 1130, 1136 (Pa. Super. 2023). Moreover, the Bradley Court itself clarified that that "an approach favoring the consideration of ineffectiveness claims of PCRA counsel . . . does not sanction extra-statutory serial petitions." Bradley, 261 A.3d at 403. Finally, although this Court has not addressed the applicability of Bradley as to the newly recognized constitutional right exception in a published decision, several unpublished decisions have rejected the argument. See Commonwealth v. Ruiz-Figueroa, No. 1531 EDA 2022, unpublished memorandum at 2 (Pa. Super. filed June 22, 2023) (collecting cases); see also 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). Therefore, Appellant's attempt to challenge the effectiveness of his 2003 trial counsel and his 2007 PCRA counsel based on the holding in Bradley does not meet the PCRA's timeliness requirements.
D.
Appellant has waived all issues he sought to raise on appeal. We, thus, affirm the order dismissing his PCRA petition as untimely and deny as moot his Application for Remand.
Order affirmed. Application for Remand denied.
Judgment Entered.