Opinion
974 MDA 2021
09-13-2022
COMMONWEALTH OF PENNSYLVANIA Appellee v. LUIS BERNAL Appellant
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered June 30, 2021 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000615-2014
Joseph D. Seletyn, Esq.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
MEMORANDUM
KING, J.
Appellant, Luis Bernal, appeals from the order entered in the Huntingdon County Court of Common Pleas, which denied his second petition filed under the Post Conviction Relief Act ("PCRA"). We affirm.
The facts and procedural history of this case are as follows. Appellant was arrested following an 18-month investigation into a heroin dealing operation in Huntingdon County, where Appellant and his girlfriend were bringing heroin from New York City into the area for distribution. On September 11, 2015, a jury found Appellant guilty of three counts of possession of a controlled substance with intent to deliver ("PWID"), two counts of corrupt organizations, and one count each of conspiracy, criminal use of a communication facility, and dealing in proceeds of unlawful activities. On January 5, 2016, the court sentenced Appellant to an aggregate 16 to 32 years of imprisonment. This Court affirmed the judgment of sentence on February 27, 2017. Commonwealth v. Bernal, 161 A.3d 390 (Pa.Super. 2017) (unpublished memorandum).
Appellant filed a timely pro se PCRA petition on February 20, 2018. Counsel filed an amended petition on May 31, 2018, raising various claims of trial and appellate counsel's ineffectiveness. After conducting a PCRA hearing, the court denied relief on January 21, 2020. This Court affirmed the denial of PCRA relief on January 21, 2021. Commonwealth v. Bernal, 248 A.3d 495 (Pa.Super. 2021) (unpublished memorandum).
Appellant filed the instant pro se PCRA petition on February 18, 2021. Appellant subsequently retained private counsel, who filed an amended petition on May 10, 2021. On May 17, 2021, the PCRA court issued notice of its intent to dismiss the petition as untimely per Pa.R.Crim.P. 907. Appellant did not file a response to the court's notice, and on June 30, 2021, the court dismissed the petition as untimely. Appellant filed a timely notice of appeal on July 27, 2021. Thereafter, the court ordered Appellant to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b), and Appellant timely complied on August 31, 2021.
Appellant raises the following issues on appeal:
1. Did the court err and abuse its discretion in denying Appellant's second PCRA petition which is a timely collateral
attack of previous PCRA counsel's effectiveness?
2. Did the court err and abuse its discretion in denying Appellant's second PCRA petition with regard to previous counsel's ineffectiveness in reviewing [Appellant's] sentence, specifically the offense gravity score?
3. Did the court err and abuse its discretion in denying Appellant's second PCRA petition with regard to previous counsel's ineffectiveness in waiving a claim of inadequate cross examination of Aaron Dimoff?
4. Did the court err and abuse its discretion in denying Appellant's second PCRA petition with regard to previous counsel's ineffectiveness in waiving a claim of a failure to object to hearsay?(Appellant's Brief at 6).
Preliminarily, the timeliness of a PCRA petition is a jurisdictional prerequisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). 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). The statutory exceptions to the PCRA time-bar allow for very limited circumstances under which the late filing of a petition will be excused; a petitioner asserting a timeliness exception must also file the petition within the required statutory window. 42 Pa.C.S.A § 9545(b)(1-2). These exceptions to the one-year time-bar are as follows: "(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) (citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)).
Instantly, Appellant's judgment of sentence became final on March 29, 2017, upon the expiration of the 30-day period to file a petition for allowance of appeal with the Pennsylvania Supreme Court. See Pa.R.A.P. 1113(a). Accordingly, Appellant had until March 29, 2018 to file a timely PCRA petition. Appellant filed the current petition on February 18, 2021, which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).
Here, Appellant claims his allegations of ineffectiveness of PCRA counsel are permissible in this appeal under Commonwealth v. Bradley, Pa., 261 A.3d 381 (2021). Appellant argues that, under Bradley, his petition was timely because he raised these claims "with lightning speed" once this Court affirmed the dismissal of his initial PCRA petition. (Appellant's Brief at 12).
In Bradley, our Supreme Court expanded 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 PCRA counsel [wa]s by filing of a response to the PCRA court's Rule 907 dismissal notice." Bradley, supra at__, 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, raise claims of PCRA counsel's ineffectiveness at the first opportunity to do so, even if on appeal." Id. at__, 261 A.3d at 401. The Bradley Court explained that when the ineffective assistance of original PCRA counsel claim is raised on collateral appeal, such a claim is deemed "to spring from the original petition itself" and consideration of the claim by an appellate court "does not amount to impermissibly allowing a 'second or subsequent' serial petition" in violation of the PCRA's one-year jurisdictional time-bar. Id., 261 A.3d at 404.
Significantly, however, Appellant is not appealing the denial of his first PCRA petition and raising PCRA counsel's ineffectiveness in that appeal. Rather, he has attempted to raise PCRA counsel's ineffectiveness in a subsequent, untimely PCRA petition. Appellant does not allege that his untimely petition would be eligible for one of the three exceptions to the PCRA time-bar. Therefore, Appellant's current PCRA petition remains time-barred and the court properly dismissed it without a hearing. Accordingly, we affirm the PCRA court's order dismissing Appellant's petition. Order affirmed.
In his concurrence, Justice Dougherty opined that the majority decision "does not create an exception to the PCRA's jurisdictional time-bar, such that a petitioner represented by the same counsel in the PCRA court and on PCRA appeal could file an untimely successive PCRA petition challenging initial PCRA counsel's ineffectiveness because it was his 'first opportunity to do so'" and that "our new rule allows PCRA counsel ineffectiveness claims to be raised on collateral appeal, rather than in a serial PCRA petition." Bradley, supra at__, 261 A.3d at 406 (Dougherty, J. concurrence). Since our Supreme Court's holding in Bradley, this Court has had the occasion to consider whether the Bradley decision provided an avenue for appellants to circumvent the PCRA time-bar when a claim of PCRA counsel's ineffectiveness is raised in a facially untimely petition. We have concluded that it does not. See Commonwealth v. Deloatch, No. 457 MDA 2021, unpublished memorandum at 5 (Pa.Super. filed July 25, 2022) (finding that raising PCRA counsel's ineffective assistance in subsequent, untimely PCRA petition does not overcome PCRA time-bar); Commonwealth v. Leisure, No. 9 MDA 2022, unpublished memorandum at 3 (Pa.Super. filed June 10, 2022) (declining to apply Bradley because "Bradley, unlike the instant case, involved a timely first PCRA petition"); Commonwealth v. Jones, No. 786 MDA 2021, unpublished memorandum at 4 (Pa.Super. filed June 7, 2022) (concluding that Bradley Court did not create exception to PCRA's jurisdictional time-bar; therefore, appellant's untimely petition failed to plead any timeliness exception); Commonwealth v. McMullen, No. 1269 MDA 2021, unpublished memorandum at 5 (Pa.Super. filed Mar. 15, 2022) (agreeing that Bradley did not hold that claims of ineffective assistance of PCRA counsel are excluded from PCRA's time bar). We may cite unpublished non-precedential decisions of the Superior Court filed after May 1, 2019, for their persuasive value. See Pa.R.A.P. 126(b).
Judgment Entered.