APPELLATE LAW – CRIMINAL

Post-Conviction Relief • Rule 1925(b) Statement • Waiver of Appellate Issues

Commonwealth v. Houghton, PICS Case No. 14-0482 (C.P. Delaware March 2014) Nilon, Jr., J. (6 pages).

Where a criminal defendant failed to exercise due diligence to discover that his counsel failed to file an appeal on his behalf, the mere fact that counsel was allegedly ineffective for failing to file an appeal did not excuse a PCRA petition from the timeliness requirements. Affirmed.

Defendant Joseph Houghton filed an appeal from the order denying his PCRA petition, stemming from his conviction after a negotiated guilty plea for possession with intent to deliver. Defendant filed no post-sentence motions, or a direct appeal to the Superior Court. One year later, defendant filed a pro se application for permission to file nun pro tunc appeal with the Superior Court, which was denied without prejudice to apply for relief via the trial court pursuant to the PCRA.

Twenty-one months later, the defendant filed a PCRA petition, and counsel was appointed to represent defendant. PCRA counsel determined there were no issues of merit and submitted a “no merit” letter. The court, after considering counsel’s no merit letter and the record, denied defendant’s PCRA petition without hearing. Defendant then filed a timely notice of appeal, and was directed to file a Rule 1925(b) statement. Defendant failed to file his Rule 1925(b) statement.

The court found that defendant’s failure to file a Rule 1925(b) statement prevented meaningful appellate review. The court also noted that Pennsylvania courts had consistently held that failure to file a Rule 1925(b) statement resulted in automatic waiver of appellate review of the issues raised.

The court further held that defendant’s PCRA petition was itself untimely on its face. Although statutory exceptions exist to the one-year limitation for PCRA petitions, defendant met none of the exceptions. The court found that although defendant alleged that his plea counsel failed to file a direct appeal from his negotiated guilty plea, defendant either knew or should have known through the exercise of due diligence during the one-year PCRA petition filing period that no appeal was filed by his counsel. Therefore, defendant’s PCRA petition was untimely.