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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  :      IN THE SUPERIOR COURT OF
                                              :            PENNSYLVANIA
                       v.                     :
                                              :
JONATHAN R. THOMAS,                           :          No. 1090 WDA 2014
                                              :
                            Appellant         :


                     Appeal from the PCRA Order, June 13, 2014,
                in the Court of Common Pleas of Washington County
                  Criminal Division at No. CP-63-CR-0001619-1995


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED OCTOBER 08, 2015

       Jonathan R. Thomas appeals from the order of the Court of Common

Pleas of Washington County which dismissed, without a hearing, his second

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

42 Pa.C.S.A. §§ 9541-9546. We affirm.

       On December 11, 1994, appellant entered an A-Plus Mini Market on

McMurray Avenue in Peters Township, pointed a shotgun at the clerk, and

demanded money. After the clerk handed appellant $283, appellant raised

the shotgun and attempted to fire the weapon.              The weapon did not fire

initially.   Appellant then adjusted the weapon and fired again, this time

hitting the clerk and causing his death. During the pendency of the case,

appellant signed a release in November of 1996 for his trial counsel to obtain

medical and mental health records.           His counsel retained a psychiatrist to


* Retired Senior Judge assigned to the Superior Court.
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examine appellant’s records and conduct other investigations related to his

mental health. On November 21, 1996, that expert, Dr. Lawson Bernstein,

prepared a report which indicated that appellant’s substantive cognitive

impairments may have impaired his ability to form specific criminal intent at

the time of the alleged homicide.

        The Commonwealth sought a first-degree murder conviction and the

death penalty, but allowed appellant to plead guilty to murder in the second

degree and robbery.1      Prior to entering his plea, appellant and his trial

counsel completed and signed a written guilty plea colloquy and explanation

of rights form.    The trial court conducted an oral colloquy of appellant in

open court, and noted that defense counsel “worked diligently on a

diminished capacity [defense.]” (Plea and sentencing transcript, 3/3/97 at

30.) After entering his plea of guilty, the trial court sentenced appellant to

the statutory penalty of life imprisonment without the possibility of parole.

        On March 25, 1997, appellant appealed from the judgment of sentence

and alleged that his guilty plea was invalid because his mental condition

rendered him incapable of entering a plea. He also alleged that his guilty

plea was invalid because the trial court accepted his plea without first

holding a competency hearing.       This court denied appellant’s appeal on

April 16, 1998.    Commonwealth v. Thomas, No. 641 Pittsburgh 1997,

unpublished memorandum (Pa.Super. filed April 16, 1998).             We found


1
    18 Pa.C.S.A. §§ 2502(b) and 3701(a)(1), respectively.


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appellant competent because he understood the nature and objective of the

proceedings against him, he cooperated with his legal representation in

preparing his defense, and he was involved in the plea negotiations.

Nothing in the record indicated that appellant did not knowingly, voluntarily,

and intelligently enter a guilty plea.       Appellant filed a timely petition for

allowance of appeal which the supreme court denied on November 9, 1998.

      On November 4, 1999, appellant filed a pro se petition for

post-conviction   relief    alleging   constitutional   violations   and   ineffective

assistance of counsel.      The PCRA court appointed Michael Savona, Esq. to

represent appellant.       (Docket #57.)    The court allocated $500 to retain a

psychological expert to review the records relative to appellant’s mental

health history. (Docket #61.) On May 3, 2005, Attorney Savona filed a “No

Merit” letter; and on May 23, 2005, the PCRA court issued appellant a notice

of its intent to dismiss the petition without a hearing. Appellant then hired

John Ceraso, Esq.      On June 13, 2005, Attorney Ceraso filed a motion for

leave to file an amended PCRA petition. (Docket #64.) The PCRA did not

rule on that motion, and Attorney Ceraso took no further action on

appellant’s behalf.

      Nothing happened in the case until February 20, 2009, when

appellant, through new counsel, Mark Rubenstein, Esq., filed an amended

PCRA petition raising three issues. Appellant claimed trial counsel failed to

present psychiatric evidence that would have provided a defense to the



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murder charge. Appellant claimed he suffered from psychological problems

that prevented him from forming the requisite mens rea to commit an

intentional murder. He also alleged discovery of new evidence; namely, the

recantation of an eyewitness whose statements induced him to enter his

guilty plea. On April 1, 2009, the PCRA court issued a notice of its intent to

dismiss the petition without a hearing. (Docket #68.) Appellant responded.

On May 27, 2009, the PCRA court denied and dismissed appellant’s PCRA

petition. Appellant appealed to this court and argued, among other things,

that trial counsel was ineffective for failing to investigate the possibility of a

mental    health   defense.     On   June    8,   2010,   this   court   affirmed.

Commonwealth         v.   Thomas,     No.   1108    WDA     2009,    unpublished

memorandum (Pa.Super. filed June 8, 2010). We found the underlying issue

to be without merit because the record demonstrated that there was a

mental health evaluation prior to trial and that trial counsel considered

appellant’s mental health; however, trial counsel concluded that the

certainty of accepting the plea bargain and avoiding the death penalty

outweighed the presentation of diminished mental capacity as a strategic

matter.

      On March 21, 2014, new counsel, Neil Jokelson, Esq., entered his

appearance on behalf of appellant.      On April 30, 2014, appellant filed the

second PCRA petition at issue here. Appellant alleged that trial counsel was

ineffective because counsel was aware, based on psychiatric treatment



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records   and    expert   reports   prepared   by   defense   counsel   and   the

Commonwealth, of appellant’s significant history of mental illness.           He

argued that neither appellate counsel nor PCRA counsel attacked trial

counsel’s failure to advise appellant that he could enter or attempt to enter a

plea of guilty but mentally ill pursuant to 18 Pa.C.S.A. § 314(b). Appellant

argued that had he pled guilty but mentally ill, he would have been entitled

to psychiatric treatment while serving his life sentence in accordance with

the Mental Health Procedures Act, 50 P.S. § 7101-7503.             42 Pa.C.S.A.

§ 9727(b)(1); see also Commonwealth v. Trill, 543 A.2d 1106, 1132

(Pa.Super. 1988), appeal denied, 562 A.2d 826 (Pa. 1989).               Appellant

requested an evidentiary hearing to determine if he:

            was eligible to tender a plea of guilty but mentally ill
            at the time he tendered his guilty plea and with a
            further instruction that if it is determined that
            appellant was so eligible he should be allowed to
            withdraw his pleas of guilty and in their stead enter
            pleas of guilty but mentally ill.

Appellant’s reply brief at 4-5.

      On May 21, 2014, the PCRA court notified appellant of its intent to

dismiss    the    PCRA      petition   without      a   hearing   pursuant     to

Pa.R.Crim.P. 907(1). The PCRA court concluded it did not have jurisdiction

to hear appellant’s petition because it was not filed within one year of the

date the judgment became final. 42 Pa.C.S.A. § 9545(b)(3). Specifically,

the window for appellant to file a PCRA petition closed on November 9, 1999.

The instant petition was filed on April 30, 2014. The PCRA court found that


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none of the exceptions to the one-year filing rule applied. Commonwealth

v. Lawson, 549 A.2d 107 (Pa. 1988).

      On appeal, appellant raises the following three issues:

            (1)   DID THE COURT BELOW HAVE JURISDICTION
                  TO HEAR THE APPELLANT’S COUNSELED
                  PETITION FOR POST CONVICTION RELIEF
                  WHICH WAS FILED MORE THAN ONE YEAR
                  AFTER THE DATE THAT THE JUDGMENTS OF
                  SENTENCE BECAME FINAL, BUT THE FACTS
                  WHICH THE CLAIM FOR RELIEF AS SET FORTH
                  IN THE INSTANT PCRA WERE UNKNOWN TO
                  THE     APPELLANT    AND   WERE     NOT
                  ASCERTAINABLE BY HIM THROUGH THE
                  EXERCISE OF DUE DILIGENCE AS EXPLAINED
                  IN THE PCRA PETITION?

            (2)   DID THE COURT BELOW ERR IN DISMISSING
                  THE’S [sic] PCRA PETITION, WITHOUT THE
                  HOLDING OF AN EVIDENTIARY HEARING ON
                  THE BASIS THAT ALL OF THE ISSUES RAISED
                  IN   THE   INSTANT   PCRA  “HAVE   BEEN
                  PREVIOUSLY LITIGATED OR WAIVED” WHEN
                  THEY WERE NOT?

            (3)   DID THE COURT BELOW ERR IN STATING
                  THAT “. . . THIS COURT WILL NOT ENTERTAIN
                  THE INSTANT PCRA PETITION BECAUSE A
                  STRONG PRIMA FACIE SHOWING HAS NOT
                  BEEN MADE THAT A MISCARRIAGE OF JUSTICE
                  HAS OCCURRED . . .” WHEN IN FACT THERE
                  EXISTS A COMPELLING PUBLIC POLICY,
                  LEGISLATIVELY ADOPTED, THAT A PERSON IN
                  APPELLANT’S POSITION WHO WAS DENIED
                  MENTAL HEALTH TREATMENT PURSUANT TO
                  THE MENTAL HEALTH PROCEDURES ACT VIA A
                  PLEA OF GUILTY BUT MENTALLY ILL HAS BEEN
                  FUNDAMENTALLY HARMED RESULTING IN A
                  MISCARRIAGE OF JUSTICE?

Appellant’s brief at 2-3.



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      All PCRA petitions must be filed within one year of when a defendant’s

judgment of sentence becomes final.       42 Pa.C.S.A. § 9545(b)(1).     If the

petition is untimely, we lack jurisdiction. Commonwealth v. Callahan, 101

A.3d 118 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA).    “A judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

our Pennsylvania Supreme Court, or at the expiration of time for seeking the

review.” Id. at 122, quoting 42 Pa.C.S.A. § 9545(b)(3). In this case, we

affirmed appellant’s sentence on April 16, 1998. Appellant timely petitioned

for allocatur which was denied on November 9, 1998.              United States

Supreme Court Rule 13 provides that “[a] petition for writ of certiorari

seeking review of a judgment of a lower state court that is subject to

discretionary review by the state court of last resort is timely when filed with

the Clerk within 90 days after entry of the order denying discretionary

review.” U.S. Sup.Ct. Rule 13, 28 U.S.C.A. Under this rule, appellant had 90

days (i.e., until February 7, 1999) to file a petition for certiorari in the

United States Supreme Court with respect to the Pennsylvania supreme

court's order. Thus, appellant's judgment became final on February 7, 1999.

42 Pa.C.S.A. § 9545(b)(3). See also Commonwealth v. Owens, 718 A.2d

330 (Pa.Super. 1998). Under 42 Pa.C.S.A. § 9545(b)(1), appellant had one

year from this date, until February 7, 2000, to file his PCRA petition; and his




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present one, which was filed on April 30, 2014, failed to satisfy that time

limitation.

      There are three exceptions to the one-year time bar:                when the

government has interfered with the defendant’s ability to present the claim,

when the defendant has recently discovered the facts upon which his PCRA

claim is predicated, or when either the Supreme Court of the United States

or our supreme court has recognized a new constitutional right and made

that right retroactive. 42 Pa.C.S.A. § 9545(b)(1)(i-iii); Commonwealth v.

Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The defendant has the

burden   of   pleading   and   proving   the   applicability   of   any   exception.

42 Pa.C.S.A. § 9545(b)(1).

      Appellant seeks to withdraw his guilty plea based upon his mental

health issues and the fact that he was not advised that he could enter or

attempt to enter a guilty but mentally ill plea. This claim does not satisfy

any exception to the PCRA.          All these facts were within appellant’s

knowledge as of the date his judgment of sentence was imposed. Appellant

and his counsel could have ascertained this allegedly new information before

the PCRA window closed on February 7, 2000.                Given the numerous

arguments appellant has made since entering his guilty plea regarding the

invalidity of his plea due to his mental illness, appellant and his various

counsel have had ample opportunity to ascertain and argue that his trial

counsel failed to inform him of his option to plead guilty but mentally ill.



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Appellant’s counsel for his direct appeal and prior PCRA counsel knew

enough about appellant’s mental illness to argue in those proceedings that

appellant’s plea was invalid due to his diminished mental capacity.

Therefore, they were certainly able to discover and argue that trial counsel

failed to advise appellant of his option to plead guilty but mentally ill before

his PCRA window closed in February 2000.2

      Our independent review of the record confirms that appellant’s

averments in his PCRA petition do not afford him relief. Hence, we concur in

the PCRA court’s analysis that there is no merit to his request for PCRA

relief. The PCRA court did not abuse its discretion in dismissing appellant’s

second PCRA petition as untimely. Because we find the PCRA petition was

untimely, we need not address appellant’s remaining two substantive issues.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/08/2015

2
  We also note that appellant’s argument assumes, without analysis, both
the viability of this plea agreement and its omission as adversely affecting
him. A plea of guilty but mentally ill is not a matter of right. Such a plea
agreement in this case would have required both the consent of the
Commonwealth and the approval of the court. Pa.R.Crim.P. 590(A)(3). See
Commonwealth v. Brandwein, 10 Pa. D. & C. 5th 13 (Carbon Cty. 2009).


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