After discovered evidence of attorney abandonment extends deadline to file PCRA claims/ exceptions to law of the case doctrine

Commonwealth of Pennsylvania v. Smith, 2011 PA Super 260 (12/1/11) (12 pages)

Mr. Smith, convicted of murder, did not prevail in his first PCRA petition. His attorney filed a direct appeal, but the appeal was dismissed in 2001 for the attorney’s failure to file a brief. Smith filed a second PCRA within sixty days of the dismissal, but after the common pleas court reinstated the direct appeal of the first PCRA petition’s dismissal, the Superior Court, again in 2001, dismissed it because it was not filed within a year of Smith’s conviction becoming final. In 2007 though, the Pennsylvania Supreme Court, in Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264 (2007), held that counsel’s failure to perfect an appeal and his abandonment of his client could be a newly discovered fact, especially in light of an inmates lack of access to public records, under 42 Pa.C.S. §9545(b)(1)(ii). (Citing Commonwealth v. Starr, the Court held that the law of the case doctrine did not foreclose this petition because it fell within one of the exceptions to the application of the law of the case doctrine, which are (1) an intervening change in the law, (2) a substantial change in the facts, and (3) a clearly erroneous prior ruling which would create manifest injustice if followed.) Bennett, the panel concluded, provided a new theory of obtaining relief and thus helped Smith get around the time limits in 42Pa.C.S. §9545.  This petition was filed within sixty days of Bennett’s publication, and therefore met the requirement of filing the new PCRA petition within sixty days of discovering the new fact or circumstance justifying PCRA relief.  The opinion was careful to note the distinction between an appellate case being a newly discovered fact and a set of circumstances discussed in a new opinion being the newly discovered fact.

Shepardize this case before you use it as it is the type of case— one  expanding the availability of PCRA relief— surely to receive further scrutiny.

(This case can be accessed by following the links through the Pennsylvania Superior Court web site.)

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