COMMONWEALTH OF PENNSYLVANIA v. SHAMON KENNEDY
No. 441 EDA 2021
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED DECEMBER 16, 2021
2021 PA Super 249
LAZARUS, J., DUBOW, J., and PELLEGRINI, J.
Appeal from the PCRA Order Entered January 6, 2021 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001545-2008
BEFORE: LAZARUS, J., DUBOW, J., and PELLEGRINI, J.*
Shamon Kennedy appeals pro se from the order, entered in the Court of Common Pleas of Chester County, denying as untimely his fourth petition filed pursuant to the Post Conviction Relief Act (PCRA),
On April 1, 2009, Kennedy was sentenced to 25 years’ imprisonment in federal court on unrelated charges. In July 2009, Kennedy was convicted, in the instant case, of numerous charges, including aggravated assault, recklessly endangering another person, conspiracy, and firearms offenses.1 On December 11, 2009, the trial court sentenced Kennedy to a term of 12 to 24 years’ imprisonment; his sentence was ordered to be served consecutively to the federal sentence that he was then-currently serving. Kennedy filed a motion to modify sentence, which was denied by the trial court on April 15, 2010. On May 17, 2010, Kennedy filed a direct appeal; counsel sought to withdraw on appeal under Anders.2 This Court affirmed Kennedy‘s judgment of sentence and granted counsel‘s petition to withdraw. See Commonwealth v. Kennedy, 1338 EDA 2010 (Pa. Super. filed Nov. 24, 2010) (unpublished memorandum decision). Kennedy did not seek allowance of appeal with the Pennsylvania Supreme Court.
Kennedy filed four PCRA petitions. His first petition, which was timely filed on November 22, 2011, raised claims of ineffective assistance of counsel and a claim that the court improperly permitted the Commonwealth to cross-examine Kennedy about his prior federal drug conviction and related drug case. Appointed PCRA counsel3 filed an amended petition raising claims of ineffective assistance of counsel (failure to present defense witness; failure to file motion in limine to exclude mention of federal conviction). After the court issued
Kennedy filed a timely pro se notice of appeal; our Court ordered PCRA counsel to file either a Rule 1925(b) concise statement of errors complained of on appeal or a proper Anders4 brief. Counsel filed a
Subsequently, counsel filed an improper Anders brief, and our Court remanded the case and denied counsel‘s request to withdraw for failure to comply with the withdrawal requirements. Although counsel ultimately filed an advocate‘s brief on Kennedy‘s behalf, our Court found all of Kennedy‘s issues waived due to counsel‘s failure to file a Rule 1925(b) statement. Commonwealth v. Kennedy, 3166 EDA 2012 (Pa. Super. filed Sept. 18, 2013) (unpublished memorandum decision). PCRA counsel filed an unsuccessful motion for reconsideration that our Court denied on October 1, 2013. On April 16, 2014, the Pennsylvania Supreme Court denied Kennedy‘s petition for allowance of appeal.
On April 9, 2015, Kennedy filed a second PCRA petition alleging that PCRA counsel: was ineffective for failing to re-plead all of the claims he presented in his original, pro se petition; failed to file a Rule 1925(b) statement on collateral appeal; and filed an improper Anders brief, even after being instructed by our Court on remand how to properly proceed. The second petition was denied as untimely on May 7, 2015, after the PCRA court issued Rule 907 notice of its intent to dismiss the petition without a hearing and Kennedy filed a pro se response thereto.5 Kennedy filed a pro se appeal and Rule 1925(b) statement from the denial of that second petition.
While his collateral appeal was pending, Kennedy filed a third pro se PCRA petition on July 5, 2015,6 raising the newly-discovered facts and governmental interference exceptions under the PCRA. Kennedy asserted the PCRA court, the District Attorney, and “federal incarceration” were the entities that created governmental interference. See Pro Se 3rd PCRA Petition, 7/5/15, at 1-3. However, on July 28, 2015, the court quashed Kennedy‘s third petition, without prejudice, “as premature because [his] appeal from the denial of his second PCRA petition [was] still pending in the Superior Court of Pennsylvania.” Order, 7/28/15. On October 15, 2015, at Kennedy‘s request, our Court withdrew Kennedy‘s appeal, with prejudice. See Order, 10/15/15.
On January 29, 2016,7 Kennedy filed, pro se, an “Amended 3rd PCRA Petition,” seeking to resurrect the claims advanced in his prior, quashed petition. This amended third petition was also dismissed as untimely. Kennedy filed a pro se collateral appeal from that decision; the appeal was dismissed due to his failure to file an appellate
Kennedy filed the instant petition, his fourth, on August 20, 2020. The PCRA court issued its
- The PCRA court erred by holding Kennedy to an erroneous heightened standard of “diligence” in discovering unavailable evidence and law in aid[] to file a timely [and] proper appeal in state court in violation of Commonwealth v. Burton[, 121 A.3d 1063 (Pa. Super. 2015),] as it applies to prisoner[s] lacking access to public information[, thus] depriving him of due process.
- The PCRA court‘s err[or] of misapprehending Kennedy‘s governmental interference claim that is brought against the PCRA court and the Superior Court—not against the federal prison[-] caused an erroneous analysis under [section]
9545(b)(1)(i) [of the PCRA,] resulting in a due process violation. - The PCRA court‘s failure to order an evidentiary hearing for a full and fair opportunity to be heard will cause[] a fundamental miscarriage of justice in violation of the state and federal constitution[s] under procedural and substantive due process.
Brief of Appellant, at 9.
In reviewing the denial of PCRA relief, “we examine whether the PCRA court‘s determination is supported by the record and free of legal error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quotations and citations omitted).
Pursuant to the PCRA, any petition—including a second or subsequent one—must be filed within one year of the date the judgment of sentence becomes final.
Kennedy asserts that he lacked access to public information that he was only able to procure—after he finished serving a federal sentence—when he was remanded to SCI Rockview in 2019. In state confinement, Kennedy claims he had “access to state law [materials] and procedures” and that is where he “signed up for sessions in the Law Library where [he] gained access to the Rules of Criminal Procedure under the PCRA.” Appellant‘s Pro Se Brief, at 14-17; Appellant‘s Pro Se Reply Brief, at 2-3. Additionally, Kennedy asserts that because federal correctional institutions do not provide access to such state law cases or rules of procedure, “all state appellate recourse w[as] unknown to [him] from the time he was in federal custody from his start date of January 18, 2006[, until he was transferred to Chester County Prison on August 27, 2019].” Appellant‘s Pro Se Brief, at 17.10
The specific issue Kennedy asserts in his petition is that “[o]n his 1st PCRA [petition], Kennedy‘s attorney caused his appellate rights to be waived by failing to file a 1925(b) statement [] while he was in federal custody without access to state law and procedures[.]” Appellant‘s Brief, at 16 (emphasis added). Kennedy claims he was unaware that he could have filed a serial PCRA petition seeking reinstatement of his rights, still within the one-year time strictures of the PCRA, until he was able to research Pennsylvania procedure and case law in 2019.
The Pennsylvania Supreme Court has unanimously held that the PCRA “provides the exclusive remedy for post-conviction claims seeking restoration of an appellant‘s rights due to counsel‘s failure to perfect a direct appeal.” Commonwealth v. Eller, 807 A.2d 838 (Pa. 2002) (emphasis added). Here, Kennedy did perfect a direct appeal. On appeal, our Court reviewed counsel‘s Anders petition and brief and conducted its own independent review of the case, which included analyzing claims regarding the admission of expert testimony, the overruling of a defense objection, and the propriety of the Commonwealth‘s cross-examination of Kennedy. See Commonwealth v. Kennedy, 1338 EDA 2010 (Pa. Super. filed Nov. 24, 2010) (concluding appeal frivolous, permitting counsel to withdraw, and affirming judgment of sentence). On direct appeal, our Court also deferred Kennedy‘s claims of trial counsel‘s ineffectiveness for failing to raise certain objections to the Commonwealth‘s cross-examination regarding one or more federal cases in which Kennedy was the defendant and for not objecting to the court‘s cautionary instruction and/or not requesting a mistrial. See id. at *9; see also Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) (holding ineffectiveness claims must be raised in collateral proceedings under PCRA, not on direct appeal).
Instantly, PCRA counsel‘s failure to file a Rule 1925(b) statement caused Kennedy‘s collateral appeal rights to be foreclosed. Id., 3166 EDA 2012 (Pa. Super. filed Sept. 18, 2013). In Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), our Supreme Court held that while “PCRA counsel‘s ineffectiveness cannot be advanced as a newly-discovered ‘fact’ for purposes of application of the subsection 9545(b)(1)(ii) exception to the PCRA‘s one-year time bar, [it] has no application in cases where PCRA counsel‘s ineffectiveness per se completely forecloses review of collateral claims.” Id. at 1130. See
Here, counsel failed to file a Rule 1925(b) statement on appeal from the denial of Kennedy‘s first PCRA petition, after he unsuccessfully petitioned to withdraw on appeal. In that petition, Kennedy reiterated several claims of trial counsel‘s ineffectiveness that were raised on direct appeal, but where review of those claims was deferred to collateral proceedings pursuant to Grant, supra. When Kennedy filed his second PCRA petition, pro se, the PCRA‘s one-year filing time limit had expired. Thus, his petition was dismissed as untimely. Kennedy filed a pro se appeal from that dismissal, which he later withdrew. Kennedy filed a third PCRA petition that was also dismissed as untimely. Kennedy filed a collateral appeal from that decision; the appeal was dismissed for failure to file an appellate brief. Now, in his fourth petition, he alleges the newly-discovered facts exception under section 9545(b)(1)(ii), claiming that until 2019 he was unaware that he was entitled to have his collateral appeal rights reinstated nunc pro tunc after his claims were found waived by our Court.
Kennedy has chosen to proceed under subsection 9545(b)(1)(ii), which requires a petitioner to prove that the facts were “unknown” to him and that he could not uncover them with the exercise of “due diligence.”
Kennedy alleges that he “discovered [u]nknown [f]acts once a state impediment was removed which denied him adequate access to the court[.]” Appellant‘s Brief, at 14. Those “unknown facts” amounted to “legal materials, computer software or books pertaining to state law and procedure[,]” which he did not have access to when he was incarcerated in a federal penitentiary. Our Supreme Court has consistently held that judicial opinions do not amount to new “facts” under section 9545(b)(1)(ii) of the PCRA. See Commonwealth v. Reid, 235 A.3d 1124, 1148 (Pa. 2020); Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011) (subsequent decisional law does not amount to new fact under section 9454(b)(1)(ii)). Similarly, we find rules of state procedure are not “facts” for purposes of pleading the newly-discovered facts exception under the PCRA. As the Court noted in Watts, a “fact” is distinguishable from the “law,” the latter of which is “the embodiment of abstract principles applied to actual events.” Id. at 987. See also Commonwealth v. Baroni, 795 A.2d 1007 (Pa. Super. 2002) (defendant‘s actual knowledge of obscure rule of law involving proper charge under corpus delicti not considered “facts” as contemplated by section 9454(b)(ii)).
Kennedy also raises the governmental interference exception, found in section 9545(b)(1)(i), which provides that “the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States.”
In order 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 essence, Kennedy complains that because our Court did not remand his collateral appeal for the appointment of new counsel or for the filing of a nunc pro tunc 1925(b) statement, he was effectively prevented from having his claims addressed on their merits. Kennedy‘s argument merely attempts to challenge our Court‘s October 1, 2013 decision to deny his motion to reconsider. We find no merit to this claim where Kennedy fails to offer a reasonable explanation why, with the exercise of due diligence, he did not ascertain this alleged interference of governmental
Accordingly, because Kennedy has failed to plead and prove a PCRA timeliness exception, we affirm the PCRA court‘s dismissal of his petition as untimely.
Order affirmed.
Judge Dubow joins this Opinion.
Judge Pellegrini concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2021