The presumption of access to information available in the public domain does not apply to an untimely pro se petitioner under the Post Conviction Relief Act (PCRA), an en banc panel of the Pennsylvania Superior Court held in Com. v. Burton, __ A.3d __ (No. 1459 WDA 2013, filed August 25, 2015). Appellant Shawn Burton was convicted of first degree murder and conspiracy in 1993 in connection with the strangulation death of Seth Floyd. Co-defendant Melvin Goodwine was convicted of conspiracy but acquitted of murder. Burton’s direct appeal and first PCRA petition were unsuccessful. In 2013, the Pennsylvania Innocence Project informed Burton that Goodwine had filed a motion to expunge his criminal record in 2009 in which he confessed to killing Floyd in self-defense. Based on this new information, Burton filed pro se a second PCRA petition. The PCRA court denied the petition as untimely without a hearing because it was not filed within one year of the date on which Burton’s judgment of sentence became final, November 13, 1997.
On appeal to the Superior Court, Burton acknowledged that his petition was untimely but asserted that his discovery of the contents of Goodwine’s expunction motion satisfied the “after-discovered facts” exception to the PCRA’s timeliness requirement. Pursuant to this exception, a petitioner must establish that he was unaware of the facts upon which his claim for post-conviction relief was predicated and could not have learned those facts earlier with the exercise of due diligence. 42 Pa. C.S. §9545(b)(1)(ii). The petitioner must also file “within 60 days of the date the claim could have been presented.” 42 Pa. C.S. §9545(b)(2). The en banc panel, in a 6-3 majority opinion authored by President Judge Emeritus Bender, sided with Burton. Drawing upon an extensive analysis of the meaning of “due diligence,” the Court held that it “requires neither perfect vigilance nor punctilious care, but rather it requires reasonable efforts by a petitioner, based on the particular circumstances, to uncover facts that may support a claim for collateral relief.” Reading a “subjective element” into Section 9545(b)(1)(ii)’s due diligence standard, the majority declined to impose an irrebuttable presumption that public information cannot be “unknown” to a pro se petitioner who lacks access to information otherwise readily available to the public. The Court concluded that, based on the extant record, it was premature for the PCRA court to presume Burton had access to the exculpatory information in Goodwine’s expunction motion. Accordingly, the matter was remanded for an evidentiary hearing.
Judge Olson, in a dissenting opinion joined by President Judge Gantman and Judge Shogan, criticized the majority for granting a blanket exemption to pro se PCRA petitioners from Section 9545(b)’s “public records” rule, which requires a petition invoking the “after-discovered” facts exception to be filed within 60 days of the date the information entered the public domain. Judge Olson opined that the majority’s “subjective, status-based approach to assessing due diligence” fails to consider what actions a pro se petitioner actually took to uncover new facts, and improperly shifts the burdens of pleading and proof on collateral review to the Commonwealth. Finally, based on the PCRA court’s extensive knowledge of the case, Judge Olson perceived no error in the court’s determination that Burton had every reason to be vigilant of Goodwine’s criminal record filings as a source of exculpatory information.