A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

Clck to download OpinionC. v. Smith

A 2 to 1 ruling by a panel of the Superior Court of Pennsylvania has reversed the denial of PCRA relief in the matter of COMMONWEALTH of Pennsylvania v. Ronald SMITH, Appellant, 2011 WL 5999871, 2011 PA Super 260, 978 EDA 2009 (Dec. 1, 2011). This was an appeal from the PCRA Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. CP–51–CR–1018353–1992. The Panel was composed of Judges SHOGAN, FREEDBERG and STRASSBURGER. Judge Shogan wrote the Opinion.

The Appellant, Ronald Smith, appealed pro se from the order that denied as untimely his third petition for relief filed pursuant to the Post Conviction Relief Act. Appellant claimed that the PCRA court erred in dismissing his third PCRA petition as untimely, despite Appellant satisfying the after-discovered facts exception to the PCRA’s time-bar as set forth in Commonwealth v. Bennett, 930 A.2d 1264 (2007).

The Appellant was convicted of first degree murder, robbery, possessing instrument of crime, and criminal conspiracy. Following a penalty hearing, the jury returned a sentence of life imprisonment. On September 14, 1994, Appellant was sentenced to 10 to 20 years’ imprisonment for the robbery conviction, 2 1/2 to 5 years for the possessing instrument of crime conviction, and 5 to 10 ten years for the conspiracy conviction. Judgment of sentence was affirmed and the Supreme Court denied Appellant’s petition for allowance of appeal. Commonwealth v. Smith, 688 A.2d 1231 (Pa.Super.1996), appeal denied, 548 Pa. 647, 695 A.2d 785 (1997).

On December 5, 1997, Appellant filed his first PCRA petition. Counsel was appointed and filed an amended petition. On June 6, 2000, the PCRA court dismissed the petition. Appellant filed a timely notice of appeal. However, on February 20, 2001, this Court dismissed the appeal due to counsel’s failure to file an appellate brief. On April 3, 2001, and still represented by counsel, Appellant filed a second PCRA petition seeking reinstatement of his appeal rights nunc pro tunc from the denial of his first PCRA petition. Without considering whether the second petition was timely filed, the PCRA court granted nunc pro tunc relief on April 12, 2002. This appeal followed. Subsequently, Appellant requested to proceed pro se and remove appointed counsel. Appellant’s request to proceed pro se was granted. This Court determined that Appellant’s second PCRA petition was untimely and quashed the appeal. As noted above, the Supreme Court denied allowance of appeal.

The Appellant claimed that the decision in Commonwealth v. Bennett, 930 A.2d 1264 (2007), provides a new theory or method of obtaining relief on collateral review and, thus satisfies an exception to the timing requirements of the PCRA. In Bennett, the petitioner’s counsel failed to file an appellate brief on appeal from the denial of a first PCRA petition, which led to this Court dismissing the appeal. Bennett filed a pro se PCRA petition more than 60 days later, seeking reinstatement of his PCRA rights nunc pro tunc and claiming all prior counsel were ineffective. The PCRA court granted the reinstatement of his appellate rights. However, the Superior Court quashed the appeal, concluding that the second PCRA petition was untimely. Allowance of appeal was granted by the Supreme Court, which held that petitioner’s counsel’s failure to perfect the appeal constituted an abandonment by counsel and could serve as a newly discovered fact under 42 Pa.C.S.A. § 9545(b)(1)(ii). Concerned that Bennett did not have access to public records while incarcerated despite exercising due diligence, the Supreme Court vacated and remanded.

The court’s challenge in this case was trying to reconcile the language of the PCRA with the controlling case law, and to provide further guidance to the PCRA courts in determining the parameters of the after discovered fact exception. The plain language of section 9545(b)(1)(ii) and section 9545(b)(2) creates a three-part test: 1) the discovery of an unknown fact; 2) the fact could not have been learned by the exercise of due diligence; and 3) the petition for relief was filed within 60 days of the date that the claim could have been presented. The specific question presented by this case is when the claim could have been presented.

If the claim does not involve a new theory or method of obtaining relief on collateral review, a petition must be filed within sixty days of discovering the fact exercising due diligence. If the claim does involve a new theory or method of obtaining relief on collateral review, a petition must have been filed within sixty days of discovering the factual predicate for the claim exercising due diligence. In addition, the denial of such claim on the basis of untimeliness must then have been appealed to the Supreme Court, and the petition seeking relief under section 9545(b)(1)(ii) must have been filed within sixty days of the new theory or method of obtaining relief being recognized. Given that the judicial decision by the Supreme Court in Bennett recognized a new theory or method of obtaining relief on collateral review, this Appellant satisfied these requirements.

As in Bennett, Appellant in this case filed a timely first PCRA petition, and while his second petition was untimely, it was filed within sixty days of being notified of the fact that his first PCRA had been dismissed. Appellant’s initial appeal was denied due to counsel’s abandonment in the failure to file a brief. Appellant filed a new PCRA petition within sixty days. The PCRA court granted the reinstatement of Appellant’s appellate rights, but the Court quashed the appeal. Appellant then attempted to “become Bennett” by seeking allowance of appeal in the Supreme Court, but that petition was denied. Within 60 days of the filing of the decision in Bennett, Appellant filed a third PCRA petition. Appellant exercised due diligence and was not attempting to tailor the factual predicate of his claim to circumvent the PCRA filing deadline. The Appellant availed himself of the opportunities afforded by the PCRA, and yet his petition escaped review. For those reasons, the Court reversed the order denying his PCRA petition and remanded the matter to the PCRA court to address the petition.

Judge STRASSBURGER filed a Dissenting Opinion.

The Free Student Research Center is now OPEN. It will be open on Mondays, Wednesdays and Fridays, from 9AM to 3PM. The Free Student Research Center is available for use by attorneys who are current members of the Philadelphia Bar Association’s Criminal Justice Section and who are court-appointed to the case for which they seek research (either state or CJA!).

The Free Student Research Center is located in the Jack Myers Memorial Lounge on the Third Floor of the CJC. You may make a research request in person or via the Criminal Justice Section website at http://www.philadelphiabar.org/page/CJResearch

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