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Despite an August Pennsylvania Supreme Court decision that allows criminal defendants to file untimely Post Conviction Relief Act (PCRA) 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 plead that he filed 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 � and an attorney failing to file a brief had never been considered a trigger to one of those exceptions. In Bennett, a deeply divided Supreme Court ruled that an attorney’s failure to file an appellate brief fell within the exception pertaining to the discovery of previously “unknown facts or evidence that would have supported a claim.” While the defendant in Bennett appealed within 60 days of discovering that no appellate brief had been filed in his case, 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. In his majority opinion in Bennett, Supreme Court Chief Justice Ralph Cappy said that the 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 on whether the convicted murderer met the proof requirements triggering the timeliness exception � that there were facts unknown to him, including the fact that his PCRA appeal was dismissed for his attorney’s failure to file an appellate brief, and that he exercised due diligence in ascertaining those facts � and therefore whether he was entitled to reinstatement of his PCRA rights. In Bennett, counsel who was appointed to handle Bennett’s PCRA case did not file an appellate brief in Bennett’s appeal. Bennett filed a pro se PCRA appeal, which was granted and led to the Superior Court decision the Supreme Court vacated and remanded, Cappy said. Prior cases, like the 2000 decision in Commonwealth v. Gamoba-Taylor, that found that ineffectiveness of counsel couldn’t be invoked as a newly discovered fact do not apply to cases where appellate attorneys abandoned their clients by not filing any appellate papers at all, Cappy said. “This court has recognized a distinction between situations in which counsel has narrowed the ambit of appellate review by the claims he has raised or foregone versus those instances, as here, in which counsel has failed to file an appeal at all. � Subsection (b)(1)(ii) is a limited extension of the one-year time requirement under circumstances when a petitioner has not had the review to which he was entitled due to a circumstance that was beyond his control,” Cappy said in Bennett. In Geer, the split three-judge panel’s Nov. 7 decision centered on whether the court’s Aug. 23 decision in Bennett applied. In his dissent, Superior Court Judge John T. Bender argued that Bennett substantially changed 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. In Bennett, the Supreme Court ruled that appellant Tony Bennett petitioned for the revival of his PCRA rights within 25 days of discovering that his appeal had been rejected because his attorney failed to file an appellate brief. Because of that, he was entitled to an exception to the PCRA one-year time limit on appeals, Cappy said for the 4-3 majority. Justices Max Baer, Cynthia A. Baldwin and James J. Fitzgerald III joined Cappy. In Geer, the majority determined that the defendant did not act in the same timely manner. Geer pleaded guilty Jan. 7, 2002, in Crawford County Common Pleas Court to involuntary deviate sexual intercourse and aggravated indecent assault for the sexual abuse of a female child between May and August 2000, Stevens said. Geer, currently held in the State Correctional Institution at Waymart, was sentenced to eight and a half to 17 years in prison. He did not directly appeal the denial of his post-sentencing motions, but he filed a pro se PCRA petition, which was followed by an amended PCRA petition filed by a court-appointed attorney, evidentiary hearings and the trial court’s denial of the PCRA petition in June 2005, Stevens said. Geer appealed, but his attorney failed to file an appellate brief and his appeal was rejected. The trial record includes a letter from attorney Ross Prather stating that he would file a brief, but Prather did not do so, Stevens said. Geer filed a second pro se PCRA petition; the court-appointed attorney Ed Hatheway and gave leave to Geer to file an appeal of the June 2005 denial of his first PCRA appeal. Geer’s appellate attorney, Hatheway, of Meadville, said he was not sure how and when Geer learned that his appeal of his initial PCRA rejection was quashed. The attorney expressed remorse that, in addition to failing to file the PCRA appeal, Geer’s initial counsel may have missed that Geer needed to request an exception within 60 days. Hatheway said he understood the need for finality in appeals, but said he found it harsh to dump appeals over the failure to file a brief. “The dissent said remand it back rather than bust this guy’s chops. Instead, the majority didn’t even give him that chance,” Hatheway said. “We can’t remedy appellants’ and their counsel’s mistakes every time. You’ve got a guy who wanted to take an appeal and you’ve got two lawyers who screwed it up.” Francis Schultz, the Crawford County district attorney, said defendants should have the right to a PCRA exception if their appellate counsel failed to file a brief, but the exception must be sought within 60 days. Geer did not meet that exception, Shultz said. “We have to have some time limits,” Schultz said. “They simply can’t go on forever. This is an individual who pleaded guilty and underwent a very lengthy colloquy and he understood what rights he was giving up. That was in January 2002 and here we are still dealing with it.” In a brief dissent in Bennett, Justice J. Michael Eakin argued that under the court’s 2006 decision in Commonwealth v. Chester, matters of public record like the dismissal of the appeal are not facts unknown to PCRA claimants, and Bennett can’t meet the exception under PCRA Section 9545. In reply, Cappy said Eakin’s dissent did not afford the full context to Bennett’s case because the order dismissing Bennett’s PCRA appeal after his attorney did not file an appellate brief was not sent to Bennett, only to the attorney who failed to file his brief, and it was not within Bennett’s access to learn of his appeal’s rejection. Justice Thomas G. Saylor, who issued a separate dissent, said the majority’s approach, despite claiming to interpret the plain meaning of PCRA Section 9545, was misaligned with the Pennsylvania General Assembly’s intent and undermined the traditional PCRA limitations. “Whatever kind of approach the majority’s is, it is not a plain-meaning one,” Saylor said. The failure of Bennett’s attorney to file an appellate brief did not qualify as an eligible PCRA claim, including a claim of ineffective assistance of counsel that yielded prejudice, Saylor said. The objective of the PCRA is to narrow the categories of claims under which appellate relief is available and to include all post-conviction relief within the PCRA framework conflict, he said. But it must be accepted that the imposition of time limitations on appellate review will lead to the exclusion of some legitimate claims, he said. “Nevertheless, a time bar applicable to post-conviction review is a rational, and perhaps necessary, legislative response to serial challenges raised by prisoners that undermine finality and tax government resources, and to effectively implement a limitation, exceptions by their nature must contain effective boundaries to prevent them from undermining the general rule,” Saylor said. Justice Ronald D. Castille joined both Eakin’s and Saylor’s dissents. Ironically, Cappy said in a footnote to his majority opinion that the issues in Bennett will not occur frequently because the Superior Court no longer dismisses appeals when attorneys fail to file appellate briefs. Hugh Burns Jr., with the Philadelphia District Attorney’s Office, said he hopes the courts will re-examine the legal concerns in Bennett. The dissents in Bennett are correct that a new PCRA exception would conflict with the plain language of the PCRA and with prior Supreme Court decisions, Burns said. The Bennett decision came a month after Hatheway filed Geer’s brief. Hatheway said he also expects that Geer will want to appeal to the Supreme Court. Mitchell Strutin, Bennett’s appellate attorney, declined comment. Bennett’s remand hearing will be held in late December. (Copies of the 12-page opinion in Commonwealth v. Geer , PICS No. 07-1785, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.) �

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