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Despite an August Pennsylvania Supreme Court decision that allows criminal defendants to file untimely Post Conviction Relief Act appeals because of attorney malfeasance, the Superior Court has ruled that case didn’t apply to a convicted sex offender whose attorney failed to file an appellate brief. Even in light of the Supreme Court’s decision in Commonwealth v. Bennett, the split three-judge panel ruled in Commonwealth v. Geer that Benjamin Geer Jr.’s situation didn’t fit the parameters of Bennett because he failed to file his PCRA petition within 60 days of the dismissal of his first appeal. Prior to Bennett defendants had to file PCRA petitions — including additional ones — within one year of their sentences becoming final, unless one of the exceptions under 42 Pa. C.S. Section 9545 applied. In Bennett a deeply divided Supreme Court ruled that an attorney’s failure to file a brief fell within the exception pertaining to the discovery of previously unknown facts or evidence that would have supported a claim.” The defendant in Bennett appealed within 60 days of discovering no appellate brief was filed in his case, but Geer did not indicate he acted within 60 days of his similar discovery, Superior Court Judge Correale F. Stevens said in his majority opinion. “Unlike in Bennett, an examination of the record and appellate brief reveals that appellant has made no allegation that he presented his claim within 60 days of when he discovered this court dismissed his first PCRA appeal,” Stevens said. “Since appellant has made no averment that he filed his second PCRA petition and sought to invoke one of the timeliness exceptions within 60 days of the date the claim could have been presented, we conclude the petition was untimely.” Judge Maureen Lally-Green joined Stevens. Supreme Court Chief Justice Ralph Cappy said that the Bennett case was the first opportunity to examine appellate rights under Section 9545 (b)(1)(ii) when a criminal defendant was abandoned by his appellate attorney. Bennett’s case was remanded for an evidentiary hearing over when the convicted murderer became aware that his appellate attorney failed to file an appellate brief and if he is entitled to reinstatement of his untimely PCRA rights. In Geer, Superior Court Judge John T. Bender argued in his dissent that Bennett substantially changes the law impacting the Geer case and that Geer also should be remanded for an evidentiary hearing at the Common Pleas Court level to discover when Geer learned that his appeal had been dismissed because of his lawyer’s failure to file an appellate brief. “The prevailing view was that although this situation was unfortunate, and resulted in a loss of the appellant’s appeal rights, unless restorative action was taken within one year of his judgment of sentence becoming final, the PCRA petitioner had no recourse,” Bender said. “Under Bennett II, we can now conclude that the dismissal of an appeal due to counsel’s dereliction can be rectified via a second PCRA petition, although it would still be incumbent upon the petitioner to act promptly once learning that the appeal had been dismissed, i.e., within 60 days,” Bender said. Read more about it in Tuesday’s Legal.

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