J-S74019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                         Appellee

                    v.

JOSEPH WALLACE

                         Appellant                  No. 1714 EDA 2018


            Appeal from the PCRA Order Entered April 19, 2018
             In the Court of Common Pleas of Chester County
            Criminal Division at No.: CP-15-CR-0001266-2000


BEFORE: LAZARUS, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                         FILED MARCH 15, 2019

      Appellant Joseph Wallace pro se appeals from the April 19, 2018 order

entered in the Court of Common Pleas of Chester County, dismissing as

untimely his second petition for collateral relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46.      Upon review, we

affirm.

      The facts and procedural history of this case are undisputed.        As

recounted by a prior panel of this Court:

             On February 28, 2000, [Appellant] stabbed his wife Eileen
      as she slept in her bed. Eileen [] died as a result of her wounds.
      On December 6, 2000, [Appellant] entered a plea of guilty but
      mentally ill to the charges of third[-]degree murder, possessing
      an instrument of crime and tampering with physical evidence. He
      was sentenced that day to a term of imprisonment of twenty-three
      and one-half to forty-seven years. [Appellant] did not appeal his
      sentence. On September 3, 2013, [Appellant] filed a pro se PCRA
      petition. Because this was [Appellant’s] first PCRA petition, [the
      PCRA court] appointed Robert Brendza, Esquire [“Attorney
      Brendza”] as [Appellant’s] counsel. [Attorney] Brendza reviewed
      [Appellant’s] claims and court file, determined that [Appellant’s]
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      PCRA [petition] was not timely, and moved to withdraw his
      appearance as PCRA counsel. [The PCRA court] also reviewed the
      file and record, [and] also determined that [Appellant’s] PCRA
      [petition] was untimely, and on June 18, 2014, [the PCRA court]
      gave [Appelant] notice of [the court’s] intent to dismiss his
      petition without a hearing. [Appellant] responded to this notice
      with two pro se filings. On July 17, 2014, [the PCRA court]
      directed that [Attorney] Brendza review these submissions, and
      inform the [c]ourt of his findings. [Attorney] Brendza complied
      with this order, and after [the PCRA court’s] review revealed that
      [Appellant] was entitled to no post-conviction relief, [the court]
      dismissed [Appellant’s] PCRA petition on September 24, 2014
      [and granted Attorney Brendza’s Motion to withdraw].

Commonwealth          v.    Wallace,     No.   2868    EDA    2014,    unpublished

memorandum, at 1-2 (Pa. Super. March 31, 2015) (citations omitted). On

appeal, Appellant argued, inter alia, that his petition was timely because he

satisfied the newly-discovered facts exception to the PCRA’s time-bar.

Specifically, Appellant argued that one of the defense psychologists, Dr.

Gerald Cooke, who evaluated him was unaware of the prescription

medications that Appellant was taking, including Ambien, Ritalin and Paxil,

when he murdered Eileen. In support, Appellant presented the supplemental

opinion of Dr. Cooke, concluding that the medications may have exacerbated

Appellant’s psychosis and may provide Appellant with a partial defense of

involuntary intoxication.    Id. at 4.    Nonetheless, Dr. Cooke deferred to a

psychopharmacologist to provide expert opinion on this issue. We concluded

that “these are not ‘newly-discovered facts,’ but merely ‘a newly willing source

for previously known facts.’” Id. As a result, we held that Appellant’s claim

did   “not   invoke   the   timeliness   exception    at   Section   9545(b)(1)(ii).

Accordingly, on March 31, 2015, we affirmed the PCRA court’s dismissal of

Appellant’s first petition. Appellant filed a petition for allowance of appeal,


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which our Supreme Court denied on July 29, 2015.            Commonwealth v.

Wallace, 119 A.3d 351 (Pa. 2015).

       On February 26, 2018, Appellant filed the instant, his second, PCRA

petition, which was dated February 20, 2018. On March 5, 2018, the PCRA

court issued a notice of its intention to dismiss Appellant’s petition without a

hearing under Pa.R.Crim.P. 907. On April 19, 2018, the PCRA dismissed as

untimely Appellant’s second petition. On May 15, 2018, Appellant pro se filed

a notice of appeal and a motion for reconsideration, which the PCRA court

denied on May 22, 2018.1            Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

       On appeal,2 Appellant raises five issues for our review:

       [I.] Did the PCRA court commit legal error in failing to recognize
       newly discovered facts with regard to the timely filing of
       Appellant’s PCRA petition?

       [II.] Did the lower court commit legal error and/or abuse its
       discretion when it; a) dismissed newly discovered facts without an
____________________________________________


1 Because the PCRA court had until May 21, 2018 to rule on Appellant’s
reconsideration motion, its May 22, 2018 denial of the same is null and void
because it fell outside of the thirty-day period. See Pa.R.A.P. 1701(b)(3)
(providing that a trial court may grant reconsideration of an order subject to
a petition for reconsideration, if the petition is filed “within the time provided
or prescribed by law,” and the trial court enters an order expressly granting
reconsideration within the time for filing a notice of appeal); see also
Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000) (noting
that “[f]ailure to ‘expressly’ grant reconsideration within the time set by the
rules for filing an appeal will cause the trial court to lose its power to act on
the application for reconsideration.” (citation omitted)).
2“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).

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      evidentiary hearing; b) ruled Appellant’s response to notice of
      intent to dismiss untimely; c) denied pro se Appellant a chance to
      amend brief, and; d) failed to order the district attorney to
      produced records requested in PCRA?

      [III.] Did the court incorrectly rule that Appellant’s mental health
      has already been fully considered?

      [IV.] Did the court commit legal error by failing to address
      material issues of fact regarding the merit of Appellant’s due
      process claims of; a) incompetency; b) unlawfully induced plea
      and ineffective assistance of counsel; c) miscarriage of justice?

      [V.] Did the court commit legal error by failing to allow Appellant
      to withdraw guilty plea?

Appellant’s Brief at ix (unnecessary capitalizations omitted) (sic).

      Before we may address the merits of this appeal, we must determine

whether the PCRA court had jurisdiction to entertain the underlying PCRA

petition. The PCRA contains the following restrictions governing the timeliness

of any PCRA petition.

      (b) Time for filing petition.--

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:

            (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.

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       (2) Any petition invoking an exception provided in paragraph (1)
       shall be filed within 60 days of the date the claim could have been
       presented.

       (3) For purposes of this subchapter, a judgment becomes final at
       the conclusion of direct review, including discretionary review in
       the Supreme Court of the United States and the Supreme Court
       of Pennsylvania, or at the expiration of time for seeking the
       review.

42 Pa.C.S.A. § 9545(b) (emphasis added).            Section 9545’s timeliness

provisions are jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.

2014). Additionally, we have emphasized repeatedly that “the PCRA confers

no authority upon this Court to fashion ad hoc equitable exceptions to the

PCRA time-bar in addition to those exceptions expressly delineated in the Act.”

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

omitted).

       Here, the record reflects Appellant’s judgment of sentence became final

on January 5, 2001.         See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).

Because Appellant had one year from January 5, 2001, to file his PCRA

petition, the current filing is facially untimely given it was filed on February

26, 2018.3

____________________________________________


3 The Commonwealth and the PRCA court note that Appellant did not raise his
newly-discovered facts claim within sixty days of the date the claim could have
been presented. See 42 Pa.C.S.A. § 9545(b) (2). Appellant counters that
the instant PCRA petition was filed within sixty days because he dated and
mailed the petition on February 20, 2018. The certified record here, however,
does not contain the envelope in which Appellant’s PCRA petition was mailed
and Appellant does not otherwise provide any certificate of mailing, cash slip,
prison account deduction slip, or affidavit. As noted earlier, even though the



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       The one-year time limitation, however, can be overcome if a petitioner

alleges and proves one of the three exceptions set forth in Section

9545(b)(1)(i)-(iii) of the PCRA. See Commonwealth v. Marshall, 947 A.2d

714, 719 (Pa. 2008). Here, Appellant alleges that he was unaware of the facts

underlying his claim and thereby calls upon the newly-discovered facts

exception to the PCRA’s time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Before

Appellant may avail himself of this exception, he first must establish that the

facts upon which the claim is predicated were unknown and that he could not

have    ascertained      those    facts    by    the   exercise   of   due   diligence.

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (citations and

quotation marks omitted).

       Here, Appellant asserts that on December 22, 2017, he obtained his

prison medical records revealing that he was mentally unfit to plead guilty on

December 6, 2000. In particular, Appellant refers to a March 2, 2000 note in

his medical chart that states “[u]nclear whether Ritalin use contributed to any

psychotic symptoms.”          Reproduced Record (R.R.) at 45.            Additionally,

Appellant claims that a psychiatric evaluation performed on December 28,

2000 (approximately three weeks after this guilty plea) at SCI Camp Hill,

reveals that “Appellant was in no condition to enter contract or assist attorney

____________________________________________


instant PCRA petition was dated February 20, 2018, it was not docketed until
February 26, 2018. Nonetheless, for purposes, and based on the outcome, of
this appeal, we need not address whether Appellant’s newly-discovered facts
claim was filed within sixty days of the date the claim could have been
presented.

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regarding relevant information due to being heavily medicated at the time.”

PCRA Petition, 2/26/18, at 3A.

      Appellant is not entitled to relief. As detailed above, Appellant raised

the issue challenging his mental fitness at the time of the guilty plea on his

first PCRA petition, the dismissal of which the prior panel of this Court

affirmed. See Wallace, supra. Indeed, issues previously raised and litigated

are not cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(3) (issue is

“previously litigated” if “it has been raised and decided in a proceeding

collaterally attacking the conviction or sentence”).    Moreover, his prison

records merely provide a new source for a previously known fact that his use

of medications, including Ritalin, could have impaired him or rendered him

incompetent at the time of the guilty plea. See Marshall, 947 A.2d at 720

(The focus of the exception is “on [the] newly discovered facts, not on a newly

discovered or newly willing source for previously known facts.”). Thus, the

issue continues to fail to satisfy the timeliness exception. Accordingly, we

affirm the PCRA court’s dismissal of Appellant’s second petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/19

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