J-S72003-16

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*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOHN STONE

Appellant No. 1787 MDA 2015

Appeal from the PCRA Order September 11, 2015

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0003745-2010

BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY GANTMAN, P.J.: FILED SEPTEMBER 19, 2016

Appellant, John Stone, appeals from the order entered in the Luzerne 

County Court of Common Pleas, which dismissed as untimely his first 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), at 42 

Pa.C.S.A. §§ 9541-9546. On September 19, 2011, a jury convicted 

Appellant of first-degree murder in connection with his fatal attack of his exgirlfriend. The court sentenced Appellant on November 1, 2011, to life 

imprisonment. This Court affirmed the judgment of sentence on November 

15, 2012. See Commonwealth v. Stone, 63 A.3d 829 (Pa.Super. 2012). 

Appellant did not seek further direct review. On January 29, 2014, Appellant 

filed a pro se PCRA petition. The court appointed counsel, who filed 

supplemental PCRA petitions on October 29, 2014 and May 8, 2015. The 
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court held a PCRA hearing on July 14, 2015. On September 11, 2015, the 

court denied relief. Appellant timely filed a notice of appeal on October 9, 

2015. PCRA counsel subsequently filed a motion to withdraw, which the 

court granted and appointed new counsel for the appeal. Appellant timely 

complied with Pa.R.A.P. 1925(b). 

Preliminarily, the timeliness of a PCRA petition is a jurisdictional 

requisite. Commonwealth v. Robinson, 12 A.3d 477 (Pa.Super. 2011). A 

PCRA petition must be filed within one year of the date the underlying 

judgment becomes final; a judgment is deemed final at the conclusion of 

direct review or at the expiration of time for seeking review. 42 Pa.C.S.A. § 

9545(b)(1), (3). The statutory exceptions to the timeliness provisions allow 

for very limited circumstances to excuse the late filing of a petition; a 

petitioner asserting an exception must file a petition within 60 days of the 

date the claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(1-

2). The exception at Section 9545(b)(1)(ii) requires the petitioner to show 

he did not know the facts underlying his petition and could not have learned 

them earlier by the exercise of due diligence. Commonwealth v. Bennett, 

593 Pa. 382, 930 A.2d 1264 (2007). Due diligence requires the petitioner to 

take reasonable steps to protect his own interests. Commonwealth v. 

Carr, 768 A.2d 1164 (Pa.Super. 2001). A petitioner must explain why he 

could not have learned the new fact(s) earlier with the exercise of due 

diligence; this rule is strictly enforced. Commonwealth v. Monaco, 996 
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A.2d 1076 (Pa.Super. 2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 

(2011). Instantly, Appellant’s judgment of sentence became final on 

December 15, 2012, upon expiration of the time to seek review by our 

Supreme Court. See Pa.R.A.P. 1113. Appellant filed the current petition on 

January 29, 2014, which is patently untimely. See 42 Pa.C.S.A. § 

9545(b)(1). Appellant attempts to invoke the “new facts” exception at 

Section 9545(b)(1)(ii), claiming he did not discover until December 2013 

that his direct appeal had been decided on November 15, 2012, after his 

inquiry in November 2013 to the Prothonotary and the Public Defender;1and 

he filed his PCRA petition within 60 days of this discovery. Appellant insists 

his petition is timely under Bennett, supra (allowing abandonment by 

counsel on appeal to satisfy “new facts” exception under only very limited 

circumstance where counsel completely abandoned petitioner on appeal, 

abandonment was unknown to petitioner, and petitioner filed for relief within 

60 days and could not have discovered abandonment sooner with exercise of 

due diligence). Unlike the petitioner in Bennett, however, Appellant learned 

of counsel’s alleged abandonment on December 2, 2013, thirteen days 

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1 Appellant attached (1) a copy of his November 18, 2013 inquiry letter to 

the Prothonotary; (2) the Prothonotary’s response on December 2, 2013; (3) 

an inmate request form indicating Appellant heard nothing from counsel 

between May 1, 2012 and November 22, 2013; and (4) a letter from the 

Public Defender’s Office dated December 6, 2013. Contrary to Appellant’s 

assertions, the Public Defender’s letter did not say that Appellant’s counsel 

lost track of Appellant’s file and failed to notify him of this Court’s decision. 
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before expiration of the 1-year time-bar. See Commonwealth v. Watts, 

611 Pa. 80, 23 A.3d 980 (2011) (explaining petitioner’s claim is premised 

upon dismissal of his direct appeal, which was brought to his attention more 

than two weeks before 1-year time-bar expired; petitioner had ample time 

to file timely PCRA petition, yet he inexplicably failed to do so; Bennett did 

not authorize courts to grant PCRA relief in every instance of alleged 

abandonment). Further, almost two years passed before Appellant even 

inquired about the status of his direct appeal, and he failed to prove the 

exercise of due diligence. See Monaco, supra. Thus, Appellant’s petition 

remains untimely.2 Accordingly, we affirm and grant counsel’s petition to 

withdraw. 

Order affirmed. Petition to withdraw is granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/19/2016

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2

PCRA appellate counsel has filed a motion to withdraw and “no-merit” brief 

per Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). 

Counsel has substantially complied with the Turner/Finley requirements. 

See Commonwealth v. Wrecks, 931 A.2d 717 (Pa.Super. 2007) 

(discussing counsel’s obligations under Turner/Finley). Appellant has 

responded pro se.