Opinion
J-S70037-16 No. 3747 EDA 2015
11-15-2016
COMMONWEALTH OF PENNSYLVANIA v. SHAWN BISHOP, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order November 16, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-1208991-2002 BEFORE: OLSON, OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Shawn Bishop ("Bishop"), pro se, appeals from the Order dismissing his second Petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court set forth in its Opinion the relevant procedural history underlying this appeal, which we incorporate as though fully set forth herein. See PCRA Court Opinion, 3/22/16, at 1-3.
In this timely appeal, Bishop presents the following questions for our review:
1. Did the PCRA court err[] in dismissing [Bishop's] PCRA Petition by conflating the [PCRA's] timeliness requirements with merit[]s review, contravening [the Pennsylvania] Supreme Court's decision in Commonwealth v. Bennett , 930 A.3d 1264 (Pa. 2007)?
2. Did the PCRA court err[] by dismissing [Bishop's] successive PCRA Petition as untimely where the Petition was filed within sixty days of PCRA Counsel (James Bruno[, Esquire
(hereinafter "PCRA counsel"),]) informing [Bishop] personally by letter that [PCRA counsel] was temporarily disbarred?Brief for Appellant at 4 (some capitalization omitted).
3. [Whether] the PCRA court erred by dismissing [Bishop's] PCRA Petition based[,] to any degree[,] on a finding that [Bishop] could not establish prejudice where PCRA counsel's mental condition interfered with counsel's ability to provide [Bishop] with his rule[-]base[d] right (Pa.R.Crim.P. 904) to effective assistance of counsel on his first PCRA Petition?
4. Did the PCRA court err[] by appointing [Bishop] an attorney who had a long[-]documented history of disciplinary issues[,] dating back to 1998, and accepting [Bishop's] pro se filings ([Bishop's response to the PCRA court's Pa.R.Crim.P.] 907 Notice, [and the] Notice of Appeal) below while [PCRA] counsel was still counsel of record?
5. Did the PCRA court err[] by not restoring [Bishop's] PCRA rights where [PCRA] counsel failed to perform his duties as required under Pa.R.Crim.P. 904?
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa. 2014). The review is limited to the findings of the PCRA court and the evidence of record. Id. The PCRA court's decision will be upheld if it is supported by the record and free of legal error. Commonwealth v. Fears , 86 A.3d 795, 803 (Pa. 2014).
Under the PCRA, any PCRA petition "shall be filed within one year of the date the judgment [of sentence] becomes final." 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final "at the conclusion of direct review, including discretionary review in the Supreme Court of Pennsylvania, or at the expiration time for seeking the review." Id. § 9545(b)(3). The PCRA's timeliness requirements are jurisdictional in nature, and a court may not address the merits of the issues raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht , 994 A.2d 1091, 1093 (Pa. 2010).
Here, Bishop's judgment of sentence became final on July 21, 2009, when the time to file a petition for writ of certiorari with the United States Supreme Court expired. See Commonwealth v. Wilson , 911 A.2d 942, 945 (Pa. Super. 2006). Therefore, Bishop's instant PCRA Petition, which was filed over six years later, is facially untimely. See 42 Pa.C.S.A. § 9545(b)(3).
However, Pennsylvania courts may consider an untimely PCRA petition if the appellant can explicitly plead and prove one of the three exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). To establish an exception to the timeliness requirement, the Petitioner must plead and prove 1) the failure to raise the claim was the result of government interference; 2) the facts upon which the claim is predicated were unknown and could not have been discovered with due diligence (hereinafter "the newly-discovered facts exception"); or 3) the right asserted is a Constitutional right recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in the section, and the court has held that it applies retroactively. Id. Any petition invoking one of these exceptions "shall be filed within 60 days of the date the claim could have been presented." Id. § 9545(b)(2).
We will address all of Bishop's claims simultaneously, as they are related. Bishop argues that the PCRA court improperly dismissed his second PCRA Petition because he (1) met the requirements of the newly-discovered facts exception; and (2) filed the PCRA Petition within 60 days of the date his claim concerning this exception could have been presented. See Brief for Appellant at 12, 15-16. Specifically, Bishop contends that the letter that PCRA counsel sent to Bishop on March 22, 2013 (hereinafter "the Suspension Letter"), informing Bishop of PCRA counsel's temporary suspension from the practice of law, constitutes a newly-discovered fact that meets the timeliness exception. Id. at 12-13, 15. According to Bishop, PCRA counsel's "ADHD [] caused [counsel] to abandon [Bishop] on his first PCRA [P]etition[,]" and PCRA counsel's representation was ineffective. Id. at 14, 19; see also id. at 18 (arguing that the Amended first PCRA Petition that PCRA counsel filed on behalf of Bishop "was so boilerplate and insufficient[,] in that it was substantially lacking in citation to any legal authorities and without any meaningful argument. In all likelihood[,] the deficient document is the result of [PCRA counsel's] cognitive disorders. [PCRA counsel] never consulted or communicated with [Bishop] throughout the PCRA proceedings.") (internal citation omitted).
Bishop attached to his brief a Report and Recommendation issued by the Disciplinary Board of the Pennsylvania Supreme Court, which detailed PCRA counsel's diagnosis of Attention Deficit-Hyperactivity Disorder ("ADHD") and depression, and counsel's violations of the Rules of Professional Conduct. See Brief for Appellant, Exhibit B.
In its Opinion, the PCRA court addressed Bishop's claims, concisely summarized the law pertaining to the newly-discovered facts exception, and determined that Bishop failed to meet this exception. See PCRA Court Opinion, 3/22/16, at 5-7. We affirm with regard to Bishop's issues based on the PCRA court's sound rationale, see id., with the following addendum.
Generally, claims of ineffective assistance of counsel, such as Bishop's claim, will not save an otherwise untimely petition from the application of the time restrictions of the PCRA. Commonwealth v. Edmiston , 65 A.3d 339, 349 (Pa. 2013); Commonwealth v. Gamboa-Taylor , 753 A.2d 780, 785 (Pa. 2000). However, the Supreme Court of Pennsylvania has determined that a PCRA petitioner's discovery that his counsel has abandoned him (by failing to file a requested appeal from an order denying his timely first PCRA petition, a court-ordered Pa.R.A.P. 1925(b) concise statement, or an appellate brief) can permit the petitioner to circumvent the PCRA time bar under the newly-discovered facts exception. Bennett , 930 A.2d at 1273; see also id. (stating that "subsection 9545(b)(1)(ii) is a limited extension of the one-year time requirement under circumstances where a petitioner has not had the review to which he was entitled due to a circumstance that was beyond his control.").
Bishop invoked Bennett in both his appellate brief and second PCRA Petition.
In the instant case, unlike in Bennett , Bishop was not deprived of his right to a counseled first PCRA appeal. Although PCRA counsel undeniably failed to file a court-ordered Rule 1925(b) concise statement on Bishop's behalf (regarding Bishop's appeal from the denial of his first PCRA Petition), after PCRA counsel withdrew his representation, the PCRA court appointed Bishop new counsel, and this Court decided Bishop's appeal on the merits. Accordingly, Bennett is of no avail to Bishop, and the PCRA court properly determined that Bishop failed to establish the newly-discovered facts exception.
Accordingly, because we conclude that Bishop did not meet any of the time timeliness exceptions necessary to save his facially untimely second PCRA Petition, and his ineffectiveness claim is unavailing, the PCRA court properly dismissed the Petition.
Order affirmed.
Judge Ott joins the memorandum.
Judge Olson concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/15/2016
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