*1 controversy cation of the under the criteria
set forth Pa.R.C.P. 1708. analy- Finally, light the above sus- finding Appellant and our has
sis certification, we
tained his burden for class discov-
need not address the merits of the cer-
ery regarding issue admission of evidentiary hearing
tain documents at previously disclosed to Appellant. carefully reviewing 38 After the entire allowing def- appropriate
record and after decision,
erence to the trial court’s we hold
that there was an abuse of discretion in
this case. we reverse denying
trial court’s certifica- order class Appellant
tion and find that has sustained
his burden for class certification.
¶ 39 Reversed and remanded. Jurisdic- relinquished.
COMMONWEALTH OF
PENNSYLVANIA,
Appellee, KUBIS,
George Appellant. V.
Superior Pennsylvania. Court April
Submitted Sept.
Filed *2 Kubis,
George appellant, V. pro se. Mary Killinger, M. At- Assistant District Norristown, torney, for Com. JOHNSON, BOWES, Before: OLSZEWSKI, JJ.
OLSZEWSKI, J.: ¶ 1 George appeals Kubis nunc tunc from the lower court’s denial of his pursuant for relief to the Post Conviction (“PCRA” “Act”), Relief Act or 42 Pa.C.S. § 9541 et affirm. seq.1 We Appellant Sep- claims to petition. Appellant’s from the al of his first PCRA brief 21, 2000, permitting tember order him to clearly indicates that he intended to nunc tunc. This order reinstated from the later order. 27, 2000, April dismiss- ¶4 counsel, 20, 1995, January jury Through after a Theodore On trial, Thompson, appellant two filed a PCRA appellant was convicted of counts 31, 1999, in he set forth on March which robbery, counts of theft of movable prior various claims of counsel’s ineffect possession two counts of property, and *3 Attorney petitioned Thompson iveness.4 at an instrument of a crime. The evidence counsel, and the 1993, the court to withdraw in September trial demonstrated that granted petition. The court then court his appellant a man identified as cased two Bauer, III appointed Attorney Paul A. who Philadelphia and then gas stations petition appel on filed amended PCRA days knifepoint. them at robbed Several appar the lant’s behalf but did not address robberies, these two police after officers petition. The lower ent untimeliness of his a a spotted matching description car of the petition this dismissed car gas thiefs at a third station. The 2000, 27, after a Coun April hearing. on that at- gas officers testified station appellant notifying sent a him letter screaming ran that store that tendant from but he was moved to of his Appellant was about to robbed. he As prison and did not it. a another receive his car. then exited the store entered result, he the deadline. missed car approached appellant’s The officers him of DUI suspicion and arrested for request, Attorney At appellant’s station observing after his behavior. The then Bauer filed a Petition to Withdraw as attendants from both identified robberies Appeal a Motion to File Nunc Counsel and them, appellant as the man who robbed granted petition Tunc. Pro The court they later testified to this at trial. permitted appellant withdraw and 2000, 27, nunc appeal April order appellant 3 The court sentenced on all Appellant appeal tunc. filed instant charges aggregate to an term of six to (1) he maintains that: he filed his which years imprisonment thirteen followed 31,1999, year petition March within one 18, August years probation. On judgment the date his sentence became 1995, appeal appellant timely filed a direct (2) final; comply even if he did not with alleging judgment from sentence deadline, petition this falls within the twenty-one grounds of error. The (3) exception; after discovered evidence 1925(a) opinion court issued a on October of coun- effective assistance did receive appellant’s and this Court denied (4) petition; preparing sel in April in an dated 1997.2 order counsel on failing appoint court erred in Appellant application then filed Appellant’s the instant Brief 3. appeal. reargument, which we denied on June petition may for allow- 6 Before address these 1997. He did not file issues, appel- whether Court.3 must determine Supreme ance with petition 4.Appellant premature filed a 2. This was not filed on the record until order August pend- direct was still in 1996 while his ing. provides petitioners with a The PCRA Appellant claims to have filed a Petition For review, appli- no of collateral but has means Assumption Extraordinary Jurisdiction cability judgment of sentence be- until the Court, evi- Supreme we find no with the but Therefore, premature comes final. this petition Nev- dence of such a ertheless, in the record. petition. tion does not constitute first PCRA allegedly petition was filed after final, and judgment of sentence became analy- our therefore will not affect timeliness sis under the PCRA. court, petition nunc tunc was dismissed lant’s constitutes of his or a as a result. Id. at 688. prejudice” continuation first PCRA “without petitioner’s second We have held As in substantive repeatedly provides “effectively that the PCRA means for waived” as a result sole issues were attorney’s Al any collateral blatant mistake. Id. obtaining review and sought filed after had withdraw judgment though sen Turner/Finley, final will as a pursuant tence becomes be treated neverthe Hutch his client in preparing Commonwealth v. less abandoned ins, Id. appealing 52 n. 1 its dismissal. appellant’s Since first PCRA was Since was petitioner’s *4 and he that a to appeal dismissed did not dis dismissed result of counsel’s failure missal, order, subsequent the ruled filing comply this must con with court’s we second not of a petition. sidered a PCRA that he had received the “benefit Therefore, appeal.” counseled Id. we con ¶ circumstances, 7 In certain we limited untimely to be sidered his second PCRA a have held second PCRA to be petition an of timely petition. extension first “merely an extension of first Appellant’s Id. at 689. calculating for petition” purposes PCRA of Leasa, cases, however, 759 two not timeliness. Commonwealth v. 9 These do A.2d 942 treat (Pa.Super.2000). proposition In stand for the that we will petitioner’s appeal petition the of the of a of dismissal second as an extension PCRA petition every his first PCRA dismissed petition appointed was the first time prejudice” attorney’s “without due to his counsel is deemed ineffective. In Leasa Peterson, an appellate failure to file Id. at was brief. and counsel’s ineffectiveness 941. Counsel’s error waived it the “effectively so severe that waived” petitioner’s substantive of error. for relief in petitioners’ claims claims and resulted Id. petitioner successfully The of their petitioned petitions. the dismissal to appeal lower reinstate his failure to address While rights nunc tunc. Id. we On first apparent petitioner’s untimeliness a although held petition asking that for petition constitutes as- PCRA ineffective technically reinstatement was a second counsel sistance of under Pa.R.Crim.P. petition, we it as an would treat Perez, Commonwealth timely extension Id. petition. first (Pa.Super. *4 at WL conclusion, In reaching at 942. this 2002), May this error does not rise petition that emphasized the first PCRA severity within needed to come level of appeal timely and the of its dismissal were exception created the limited Leasa filed, that original that was Perez, petitioner’s coun- Peterson. In prejudice without result of dismissed as a argument peti- regarding sel made no error. Id. counsel’s untimeliness, tion’s and the apparent Id. This Court result as such. reached a similar court dismissed this timely appealed in in which petitioner Commonwealth 849. The during and a justice petition, it was in his first ruled that the interests dismissal Court held that “failure petitioner’s peti- panel second of this this treat representation virtu- extension of rendered [counsel’s] as an his first Id. at 853. Since ally meaningless.” Court- this timely appeal file a from appointed petitioner that case failed to filed dismissal, was untimely second an amended PCRA as ordered no shall provide appoint this Court and we had no occasion the PCRA court before the narrow attorney represent reach issue addressed a dur- Therefore, we must Leasa Peterson. petition when dem- ing his he first broadly. be careful to read Perez too or that he is “unable afford onstrates procure otherwise counsel.” Pa.R.Crim.P. case, 11 The bears factu- instant which 904(A). This to an extends similarity distinguished al can be court’s the lower dismissal from both Leasa and Peterson. In the 904(D). Attorney Bauer Pa.R.Crim.P. cases, latter we treated through stages all represented appellant second PCRA the extension concerning petition, his first litigation timely order to serve only permission with- granted was justice” protect “interests lapsed appealing draw after time from errors of After tioner court’s If we had ruled thoroughly reviewing the record and coun- lower dismissal. case, representation appel- sel’s we con- this to be continuation compelling clude that no exist petition, such factors lant’s first would have still treating as an support exten- entitled to the of counsel. assistance *5 appellant’s sion of PCRA right subsequent Since no such for exists in Unlike counsel Leasa and not petitions, lower did not on appellant appeal Bauer did abandon failing appoint err in to counsel. to failing file a court-ordered document Furthermore, ¶ or failure ad- brief. his to addition, peti 15 In this second petition’s apparent dress untimeliness with independently comply tion does not any did waive of not the sub- requirements, Act’s timeliness and raised in appellant’s peti- stantive claims have mer jurisdiction do not to reach the tion, and this ineffectiveness was not the Gamboa-Taylor, its. Commonwealth petition’s cause of dismissal. (2000). 70, 780, A.2d 562 Pa. 753 783 Sec 9545(b)(1) file requires petitioner ¶ tion appellant true 12 While it is did year any petition under Act within one informing him not receive counsel’s letter judgment date of sentence be due appeal rights, his this was final, exceptions unless one comes he moved another prison fact that was (i-iii) in applies. subsection Where listed appropriately his mail was not for- prior final judgment became The appellant’s peti- warded. dismissal of Act, passage of the otherwise his this dismissal tion and failure qualify will filed first PCRA as not the result of blatant error was year” one if the filed it “within we find Leasa year and will treat one of the effective date of inapplicable Peterson within 16, Act Act, by January of No appellant’s second PCRA or 17, 1118, 1995, P.L. 32 vember No. 3(1). 1), § “These timeli (Spec.Sess. No. ¶ yields impor- This 13 conclusion mandatory jur are requirements ness first, consequences: had no appellant tant nature,” we “may [not] isdictional appointed prepar- have reach disregard or alter them order to second, ing petition; peti- the instant Murray, the merits.” Commonwealth Act’s not with the timeli- comply does (2000). 1, 201, Pa. 203 753 requirements. ness [Act], judg- “For of this earlier, purposes As alluded final at becomes the conclusion Pennsylvania Rules Criminal Procedure ment Breakiron, direct review ... expiration 323, or at the of Commonwealth v. 566 Pa. (2001). time for seeking the review.” 42 Pa.C.S. 9545(b)(3). § Since on appeal ap- direct clearly 19 Appellant comply failed to pellant filed an application reargument for First, requirements. with these he did not Court,
with this he thirty days had from newly invoke the discovered evidence ex- the denial reargument for ception sixty days within of when it could allowance of Pennsylvania with the brought. Appellant first be claims he be- Supreme Court. See Pa.R.A.P. 1113. We came aware of Morgan’s account in Octo- denied reargument petition on June admission, ber of but his own sentence, judgment there- did not exception raise this until he filed fore, final July became on Ap- nunc pro tunc on October pellant did not file his first clearly 2000. This exception’s exceeds the 31, 1999, until March beyond well the one- sixty-day deadline. year deadline. Since his first ¶ Regardless, the statements the tion was untimely, jurisdiction we lack gas station attendant appellant’s made to over all subsequent petitions. investigator do qualify newly discov ered evidence. Appellant was well aware maintains, 17 Appellant however, identity this attendant’s during trial that he is untimeliness, excused from this since both officers who arrested him testi because his newly satisfies the fied plea to the individual’s help. The discovered exception. evidence Specifical fact that appellant only recently became ly, argues through private investi aware Morgan’s version of the facts gators he discovered the favorable testimo *6 bring does not petition within the after ny of Morgan, Talbert the attendant from discovered exception. easily evidence He gas the station where he was arrested. could have discovered this information This individual allegedly appel informed through the of diligence. Ap exercise due lant that he never police told that he was pellant expressly admits this in his PCRA being robbed on night the of the arrest. petition by claiming prior counsel was reviewing After appellant’s petition, we failing ineffective for to call Morgan as a conclude newly discovered evi result, witness. As the instant is petition dence exception not apply. does untimely jurisdiction. lack we ¶ 9545(b)(1) 18 Section provides that the ¶ 21 Order affirmed. jurisdiction Court will have over an other- wise untimely petition PCRA if “the facts JOHNSON, 22 Dissenting Opinion By upon which the claim predicated is were J. unknown petitioner and could not JOHNSON, J., Dissenting: have been ascertained the exercise of 9545(b)(l)(ii). due 42 diligence.” § Pa.C.S. 1 I respectfully dissent. The Majority petitioner For a successfully invoke ei- has determined that George Kubis’s ther of these exceptions, he must file tion for reinstatement nunc tunc of his petition days “within 60 of the date right the denial of his first claim could have presented.” 42 Pa. petition untimely is itself an second 9545(b)(2). §C.S. satisfy filing petition. To Majority The reaches this con- deadline, why, must explain despite clusion the failure of Kubis’s coun- exercising after diligence, due he “could petition, advocate his first PCRA see not ... obtain earlier.” [this information] Commonwealth v. 799 A.2d 202 by although Finley he filed a letter with (Pa.Super.2002),
852-53 and dereliction court, v. authorities, Finley, prison who failed to forward trial see Commonwealth (Pa.Su- A.2d 213 Pa.Super of the first 379 550 notice Kubis denial petition per.1988), allow him to failed await leave of court sufficient time to withdrawing See appeal, representation. file an Commonwealth v. Jer before cf. Peterson, man, 756 The 368 A.2d at 689. 762 A.2d In first my opinion, both occurrences denied then denied the defendant’s filed a second PCRA complete Kubis his to a coun When defendant petition allegations of petition merely restating review of his first seled first, raises in that considerations post-conviction claims he concluded justice recognition of appeal. untimely simple compelled Kubis’s Consequently, the defendant’s “second” should be treated as the second appellate attempt of his first and the mat inartful to secure review extension allegations previously of the raised. appointment ter remanded for new petition was See id. Because that second it back facially untimely, we related recognize 2 limited circum Our cases for appoint- and remanded matter first stances under which an “second” ment of new counsel. See id. asserting post-conviction petition claims Leasa, peti Similarly, recognized but not advocated in the first raised denial appellate tion must be treated as an extension of the that where review the first is Commonwealth v. a defendant’s See (Pa.2001); precluded by resulting inaction Kutnyak, 781 A.2d counsel’s 366, 368; petition, 762 A.2d Common dismissal his second (Pa.Su Leasa, untimely, merely is although “extension wealth the first. per.2000), litigation” See Commonwealth we determined (Pa.Super.2000). Although A.2d at 942. Majority acknowledges the “extension that the second must related required doctrine back to first and reinstate- litigation” or “relation-back” apply it that ment nunc tunc of the defendant’s apply, these cases refuses *7 substantially peti- the denial of first doctrine here under similar and, fact, attempts in lim See id. circumstances tion. remedy it available to much narrower rationale, Majority’s Contrary reading fair circumstances than a any nor neither Leasa nor Peterson Op. (concluding at 200 suggests. cases progeny have limited “relation- their does not that doctrine of “relation-back” doctrine to counsel’s abandonment back” post-conviction apply appointed because a failing to file court-ordered docu- “by appellant ap “did on counsel not abandon brief;” required nor that ment or have a docu peal by failing to file court-ordered action waive substan- counsel’s brief’).
ment or fact, Op. point claims. at 200. In tive Peterson, applied the doctrine under varied In that the we have we concluded circumstances, did im- not dismissing in some which trial court erred defen- See plicate the of counsel. untimely performance as dant’s “second” PCRA Jerman, 368; Kutnyak, at A.2d suffered ineffective because in Accordingly, at 1261-62. amend A.2d appointed assistance counsel Leasa and Peterson applied coun- we both his first PCRA Peterson’s petition where petition and relate back a second PCRA not file an amended did court staff accept refused to petitioner’s legal right defen tained to the dant’s appear because it did not on merely not on the cause of that harm. approved form. See 762 at 368. case, 7 In this Kubis suffered clear When the defendant then filed a subse through harm both ineffectiveness of coun- quent petition, reasserting grounds sel and nonfeasance prison authorities. raised, had previously the trial court Although appointed deemed that a “second” petition, petition, advance Kubis’s first PCRA appoint counsel, refused to and dismissed counsel failed to petition’s ap- address the the defendant’s untimely. claims as See untimebness, parent and the court con- review, id. at Upon 368. recognized cluded that was indeed un- the defendant’s subsequent petition timely. 10/3/01, Opinion, Trial Court at 3- extension of the first to assure that Although Majority concedes that defendant was accorded his entitled review this omission rendered represen- counsel’s post-conviction claims. See id. Conse ineffective, tation it importance, denies its quently, we vacated the trial court’s order concluding that “this error does not rise to and remanded the appointment matter for the level of severity needed to come within of counsel. id. See at 369. See also Kutn exception bmited created Leasa and yak, 781 A.2d at (relating 1261-62 back Op. Peterson.” I find this conclu- untimely second PCRA petition where discussed, sion I untenable. As have court employees accept refused to doctrine, “relation-back” appbed Pe- petition that appear did not approved on terson and followed Jerman and form). not, Kutnyak, contends, is as the Majority ¶ 6 Although our decision in Jerman confined to the most egregious malfea- express makes no analogy to the facts in Rather, sance of counsel. applies it under Leasa or our rebanee on those varied peti- circumstances to assure the cases, coupled with the circumstances right meaningful tioner’s counseled re- Jerman, compels recognition of a principal post-conviction view of his claims. broader than that acknowledged by the “[wjhen expressly 8 We have held Majority. These cases do premise appointed counsel is represent petitioner’s right to through relief the “re- tioner on a PCRA is lation-back” doctrine strictly on abandon- face, on its appointed duty counsel’s first is Rather, ment they require [peti- consider timeliness of the that every petitions who re- defendant tion].” Commonwealth v. under the PCRA is entitled to one lief meaningful evaluation his claims where appointed indigent “counsel to assist an *8 circumstances which he bears no re- apparently untimely on an sponsibility prevent timely his access to investigate must at least and Although review. the ex- effective whether the untimely, is indeed by treme acts of dereliction counsel on so, if whether the fits one of Majority which the rebes establish a clear exceptions right, violation of this PGRA’s timeliness recognize our cases just provisions.” Id. If counsel fails to right surely also is discuss under- by representation mined less the timeliness issue “his is extreme derebetion coun- system per- virtually meaningless.” “[Vjirtuaby the nonfeasance of Id. 368; sonnel. meaningless” representation See 762 A.2d at does not ful- Kutnyak, 781 A.2d at fill Simply right effectively 1261-62. Kubis’s to an counseled stated, these eases focus on the harm sus- than petition any more Only Majority Kutnyak, 781 A.2d 1261-62.
wholesale abandonment manner Kubis afforded the applica- would establish as a threshold for can See post- tion of the “relation-back” doctrine. to counseled review of right effective at 852 (quoting id. Commonwealth claims to which he is entitled. conviction (Pa.Su- Hampton, adopt 1253-54 the Majority Because refuses to (“[Wjhen appointed course, counsel fails per.1998) I compelled am dissent. inarticulately pro amend an se drafted or fails otherwise [post-conviction] petition, participate meaningfully, this court will were, for all proceedings
conclude that in vio-
practical purposes uncounselled require- representation
lation
ment.”))
Perez).
(emphasis
mal
9 In
of the trail of
consideration
Pennsylvania,
COMMONWEALTH
case,
only
in this
I can
feasance evident
Appellant,
deprived
has
conclude that Kubis
right
to an effective counseled review
ap
post-conviction
of his
claims. Kubis’s
FINN, Appellee.
Daniel
even
pointed
provide
counsel failed
during
pen-
plausible representation
Superior
Pennsylvania.
Court
entirely
dency
petition, failing
of his first
July
Submitted
facially
why
untimely peti
discuss
Per
might
timely.
be considered
See
Sept.
Filed
When,
result,
ez,
authorities allowed Kubis with elapse providing before
court’s notice dismissal and
extinguished right appeal. See Jer
man, 368; Kutnyak, 762 A.2d at judge re Although
at 1261-62. correctly by restoring Kubis’s
sponded tunc, Majori pro nunc declining
ty now disavows Kubis’s apply “relation-back” doctrine
declaring nunc tunc Kubis’s second PCRA my opinion, 10 In circumstances these acknowledge
compel us to Kubis’s to his first
nunc tunc relation back matter to remand the *9 new appointment
to the excep- the timeliness discuss that should have
tions by prior
discussed counsel. See 853; 368; A.2d at A.2d at