J-S29038-16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

TOMMIE JONATHAN ELDER :

:

Appellant :

: No. 1673 WDA 2015

Appeal from the PCRA Order October 6, 2015

in the Court of Common Pleas of Jefferson County Criminal Division

at No(s): CP-33-CR-0000236-2013

BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 20, 2016

Appellant, Tommie Jonathan Elder, appeals from the order of the 

Jefferson County Court of Common Pleas dismissing his first Post Conviction 

Relief Act (“PCRA”) petition as untimely. Appellant claims that the PCRA 

court erred in rejecting his claim his petition was timely after he discovered 

prior counsel abandoned him. We remand this matter for a determination of 

responsibility for the failure to transmit a complete record in this appeal. 

On November 6, 2013, Appellant entered a negotiated guilty plea to 

involuntary deviate sexual intercourse with a child.1 That same day, the trial 

court sentenced him to ten to thirty years’ imprisonment, as agreed to by 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 3123(b). 
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the parties.2 Appellant was represented by Richard H. Milgrub, Esq. at the 

plea and sentencing proceedings.

The PCRA summarized the events that followed Appellant’s sentencing. 

[On November 22, 2013, Appellant] sent a letter to 

[Attorney] Milgrub that read, “I am writing to inform you 

that I want you to withdraw my guilty plea. I am not 

guilty of the charges that are brought against me and I 

feel that I was pressured to accept my sentence.” 

In response to [Appellant’s] claim, [Attorney] Milgrub 

immediately sent letters to the Court and Public Defender’s 

Office [on November 26, 2013,] explaining the situation 

and his intended course of action. [On November 27, 

2013, Attorney Milgrub] also filed a nunc pro tunc motion 

seeking leave for [Appellant] to withdraw his guilty plea 

and a motion to withdraw as counsel and have [John M. 

Ingros of] the Public Defender’s Office appointed to the 

case. [That same day, Attorney Milgrub] sent a letter to 

[Appellant] explaining what he was doing and advising him 

to seek alternate representation. He further informed 

[Appellant] that he had only 30 days from the date of 

sentencing to file an appeal and concluded, “If I don’t hear 

from you, I will file an appeal to protect your appellant 

[sic] rights and withdraw as your counsel shortly 

thereafter.” [Appellant] did not respond.

As the record reflects, [Attorney] Milgrub did not even 

allow time for [Appellant] to receive the letter before filing 

his motion to withdraw as counsel, and nor did he file a 

notice of appeal with the Clerk of Courts’ Office. Appointed 

to represent [Appellant] just two days before his appeal 

 

2 See 18 Pa.C.S. § 3123(d)(1) (authorizing maximum sentence of forty 

years for a violation of Section 3123(b)). We note that the United States 

Supreme Court decided Alleyne v. United States, 133 S. Ct. 2151 (2013), 

on June 17, 2013, almost five months before Appellant entered his plea and 

was sentenced. The PCRA court suggested that Attorney Milgrub 

“presumably knew that 42 Pa.C.S.A. § 9718 dictated [the ten-year minimum 

sentence] but was unaware of the future implications [of Alleyne] . . . .” 

PCRA Ct. Op., 10/6/15, at 2. 
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period was set to expire, Attorney Ingros did not file one, 

either, as Milgrub had led him to believe it had already 

been done. Accordingly, [Attorney] Ingros only instructed 

his secretary to expect further direction from Superior 

Court.

After receiving a letter from [Appellant] in July of 2014, 

[Attorney] Ingros discovered that [Attorney] Milgrub had 

not filed a notice of appeal. Based on what [Appellant] 

told him in that initial missive, however, [Attorney] Ingros 

advised him that the Post Conviction Relief Act was the 

more appropriate mechanism for seeking review. He also 

asked the defendant to more clearly articulate the issues 

he would raise if he went that route, and in letters dated 

October 13 and October 14, 2014, [Appellant] did precisely 

that. [Attorney] Ingros did not receive either one, though. 

He then forgot about the case until receiving [Appellant’s] 

letter asking about the status of his PCRA petition. 

[Attorney] Ingros answered him on January 23, 2015, 

explaining that he had not received his earlier 

correspondence and asking him to reiterate his claims. He 

also noted that he would be requesting an extension of 

time to file a PCRA petition. [Appellant, on February 20, 

2015,] replied with a hand-written letter outlining his 

complaints anew. He knew as he drafted it that Ingros 

was awaiting his reply before filing.

PCRA Ct. Op. at 2-3 (record citations omitted). 

On June 29, 2015, the PCRA court received Appellant’s first pro se

PCRA petition. Appellant alleged, inter alia, Attorney Ingros was ineffective 

and abandoned him when he sought to file a facially timely PCRA petition. 

Additionally, Appellant asserted Attorney Milgrub was ineffective for failing to 

seek withdrawal of his plea or filing a direct appeal. The PCRA court 

appointed George N. Daghir, Esq., on July 7, 2015. On September 24, 

2015, the court convened a hearing at which Appellant and Attorneys 
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Milgrub and Ingros testified. Additionally, the correspondence between 

Appellant and Attorneys Milgrub and Ingros were presented exhibits. 

On October 6, 2015, the PCRA court dismissed Appellant’s petition as 

untimely. The PCRA court concluded that “[Attorney] Ingros’s abandonment 

does not allow [Appellant] to take advantage of the § 9545(b)(1)(ii) 

exception, because it was not that abandonment that caused him to lose the 

opportunity to file a PCRA petition; it was his own lack of due diligence.” 

See PCRA Ct. Op. at 5. The court found that by October 2014, Appellant 

was informed that the one-year time-bar for filing a PCRA petition would 

expire in early December 2014. Id. The court determined that Appellant 

had “approximately 8 weeks to file. Although he had not heard back from 

[Attorney] Ingros, however, he failed to inquire about the status of his case 

until it was already 7 days too late to file a timely petition. This was an 

unreasonable course of action.” Id. The court thus suggested that Attorney 

Ingros’s “actions evolved into abandonment” on December 6, 2014, when he 

failed to file a facially timely PCRA petition, and Appellant “forfeited his PCRA 

rights.” See id. 

The PCRA court also proceeded to consider whether Appellant acted 

within sixty days of the abandonment. Id. (discussing 42 Pa.C.S. § 

9545(b)(2)). The court suggested that even if Appellant only discovered the 

abandonment after December 6, 2014, the fact that he filed his pro se PCRA 

petition in June 2015, violated the requirement that he file within sixty days 
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of the date he discovered or should have discovered the abandonment. Id.

The court found Appellant’s assertion that he could not have filed earlier due 

to a two-month prison lockdown was not credible or was too vague to 

establish due diligence. Id. Thus, the court found Appellant failed to 

establish jurisdiction under the PCRA. 

Appellant timely filed a notice of appeal and complied with the court’s 

order to submit a Pa.R.A.P. 1925(b) statement. The court permitted 

Appellant to proceed in forma pauperis.

Appellant presents the following question for review: 

Did the [PCRA] court err in its [October 6, 2015] opinion 

and order, which dismissed [Appellant’s] PCRA claim that 

abandonment of him by prior counsel entitled him to file a 

[PCRA] petition beyond one year from the date his 

judgment became final pursuant to 42 Pa.C.S.A. Sec. 

9545(b)(1)(ii)? 

Appellant’s Brief at 4. 

The principles governing our review are well settled. 

[O]ur scope of review is limited by the parameters of the 

[PCRA]. Our standard of review permits us to consider 

only whether the PCRA court’s determination is supported 

by the evidence of record and whether it is free from legal 

error. 

Commonwealth v. Blackwell, 936 A.2d 497, 499 (Pa. Super. 2007) 

(citations omitted). 

The timeliness of a PCRA petition is a threshold question that 

implicates the jurisdiction of a court to consider the merits of the relief 

requested. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014). 
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To be timely, a PCRA petition must be filed within one year 

of the date that the petitioner’s judgment of sentence 

became final, unless the petition alleges and the petitioner 

proves one or more of the following statutory exceptions:

(i) the failure to raise the claim previously was the 

result of interference by government officials with 

the presentation of the claim in violation of the 

Constitution or laws of this Commonwealth or the 

Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were 

unknown to the petitioner and could not have been 

ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that 

was recognized by the Supreme Court of the United 

States or the Supreme Court of Pennsylvania after 

the time period provided in this section and has been 

held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1).

We emphasize that it is the petitioner who bears the 

burden to allege and prove that one of the timeliness 

exceptions applies. In addition, a petition invoking any of 

the timeliness exceptions must be filed within 60 days of 

the date the claim first could have been presented. 42 

Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy the 60–

day requirement of Section 9545(b) if he or she fails to 

explain why, with the exercise of due diligence, the claim 

could not have been filed earlier.

Commonwealth v. Marshall, 947 A.2d 714, 719-20 (Pa. 2008) (some 

citations omitted). “[A]n untimely petition may be received when the 

petition alleges, and the petitioner proves, that any of the three limited 

exceptions to the time for filing the petition, set forth at [42 Pa.C.S. § 9545] 

are met.” Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) 

(footnote omitted).
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The general rule is that ineffective assistance of counsel will not give 

rise to a PCRA time-bar exception. See Commonwealth v. GamboaTaylor, 753 A.2d 780, 785 (Pa. 2000); see also 42 Pa.C.S. § 9545(b)(4) 

(indicating that the interference by government officials exception to the 

PCRA time bar does not include “defense counsel, whether appointed or 

retained”). However, the Pennsylvania Supreme Court has recognized 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”—that is, when the claim of 

ineffectiveness “emanates from the complete denial of counsel.” 

Commonwealth v. Bennett, 930 A.2d 1264, 1273 (Pa. 2007). Thus, the 

general rule set forth in Gamboa-Taylor “does not apply to situations when 

counsel abandons his client for purposes of appeal.” Id. 

Instantly, Appellant’s judgment of sentence became final on December 

6, 2013, when the time for taking a direct appeal expired. See 42 Pa.C.S. § 

9545(b)(1), (3); Pa.R.A.P. 903(a). The one-year period for filing a facially 

timely PCRA petition ended Monday, December 8, 2014. See 42 Pa.C.S. § 

9545(b)(1); see also 1 Pa.C.S. § 1908. Thus, Appellant’s petition filed in 

late June 2015, nearly seven months later, was untimely on its face. 

The principal argument on appeal is whether Appellant should have 

known that he was abandoned as of December 8, 2014. The PCRA court 

concludes Appellant failed to exercise due diligence because he was aware of 
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the one-year deadline for filing a timely PCRA petition and failed to contact 

Attorney Ingros before the December 8, 2014 deadline. Appellant responds 

that there was no support for the court’s determination that he was aware 

that the deadline was jurisdictional in nature. Appellant further seeks to 

support his claim that he timely filed his petition because he continued to 

rely on Attorney Ingros’s representation that counsel could obtain an 

extension of time for him and would file a PCRA petition on his behalf. 

Preliminarily, we note that Appellant has demonstrated not only PCRA 

counsel’s passive neglect, i.e. the failure to file a timely PCRA petition, but 

also possible misrepresentations, i.e. counsel’s representations that he could 

obtain an extension of time.3 Under these circumstances, we agree with 

Appellant that careful consideration of Attorney Ingros’s representations 

after the PCRA’s one-year filing requirement is critical to determining 

whether he acted diligently in discovering PCRA counsel’s abandonment. 

See Bennett, 930 A.2d at 1275.

However, Appellant’s brief mentions that “PCRA counsel, despite 

request for transcripts made at time of filing the Notice of Appeal was not in 

possession of the 9-24-2015 evidentiary hearing transcripts at the time of 

filing the within brief.” Appellant’s Brief at 14. This Court made an informal 

 

3 Neither the PCRA court nor Appellant addressed whether Attorney Ingros 

should have held himself out as possible PCRA counsel for Appellant in the 

first instance. We note that because Attorney Ingros was apparently acting 

as direct appeal counsel, he would have had to claim his own inattentiveness 

in an initial PCRA petition seeking reinstatement of Appellant’s direct appeal. 
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inquiry regarding the status of the transcript. We received indication that 

the transcript of the PCRA hearing was not prepared because the 

stenographer had not received payment. 

It is well settled that an appellant bears the burden of ensuring that 

this Court has a complete record for review, even if he is indigent. See 

Commonwealth v. Lesko, 15 A.3d 345, 410 (Pa. 2011); Commonwealth 

v. Bongiorno, 905 A.2d 998, 1000 (Pa. Super. 2006) (en banc). The 

Lesko Court recognized, however, that “if a party is indigent, and is entitled 

to taxpayer-provided transcripts or portions of the record, he will not be 

assessed costs.” Lesko, 15 A.3d at 410.

Although PCRA counsel complied with the threshold requirement that 

he request the record, he inexplicably took no further action after receiving 

notice that no transcript of the PCRA hearing was included in the record. He 

apparently prepared his brief based on his recollection of the PCRA hearing. 

See Appellant’s Brief at 10. Nevertheless, we note that Appellant was 

granted in forma pauperis status, but that the preparation of the transcript 

may have been delayed due to a payment issue. In light of this controversy, 

we remand this matter for a supplemental determination by the PCRA court 

regarding responsibility for the failure to include the transcripts in the 

record. If the court determines that PCRA counsel was not at fault for the 

inclusion of the transcripts and the exhibits admitted at the PCRA hearing, 

the court shall transmit those materials as a supplemental record. If the 
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court finds PCRA counsel was at fault, it shall enter its findings and 

conclusions and transmit them to this Court. The court shall comply with 

these instructions within thirty days of this memorandum.

Case remanded. Jurisdiction retained.