J-A19045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 ANTHONY JOHNSON                           :
                                           :
                    Appellant              :    No. 3577 EDA 2017

                Appeal from the PCRA Order October 3, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-1010381-2002


BEFORE:    PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                   FILED SEPTEMBER 13, 2019

      Appellant, Anthony Johnson, appeals pro se from the order entered in

the Court of Common Pleas of Philadelphia County dismissing his second

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §

9541-9546. After a careful review, we affirm.

      The relevant facts and procedural history have been set forth by this

Court previously, in part, as follows:

            On September 20, 2002, Appellant was arrested and
      charged with a number of offenses committed while robbing his
      father’s girlfriend, including the killing of her father and her five-
      year-old son. Subsequently, on January 7, 2003, Appellant
      entered a negotiated guilty plea to two counts of first degree
      murder, 18 Pa.C.S.A. § 2502(a); robbery graded as a first degree
      felony, 18 Pa.C.S.A. § 3701; and possession of an instrument of
      crime, 18 Pa.C.S.A. § 907. The trial court sentenced Appellant
      that same day in accordance with the terms of the plea to serve
      mandatory life imprisonment for each of the murders, to be served
      consecutively, and concurrent prison terms of ten (10) to twenty
      (20) years for the robbery and two and a half (2½) to five (5)
____________________________________
* Former Justice specially assigned to the Superior Court.
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      years for possession of an instrument of crime. Appellant did not
      file a direct appeal.
            On December 18, 2003, Appellant, acting pro se, filed a
      [timely]    PCRA     petition.   The    PCRA    court   thereafter
      appointed…counsel to represent Appellant on February 10, 2004.
      The Commonwealth filed a motion to dismiss on August 20, 2004.
      On October 26, 2004, the PCRA court issued notice of its intention
      to dismiss the petition without a hearing pursuant to Pa.R.Crim.P.
      907. Subsequently, the PCRA court dismissed the petition on
      November 30, 2004. Appellant filed a timely notice of appeal[.]

Commonwealth v. Johnson, 3293 EDA 2004, at *1-2 (Pa.Super. filed

10/4/05) (unpublished memorandum) (citation to record omitted).

      On appeal, Appellant contended the PCRA court should have permitted

him to withdraw his guilty plea on the basis it was involuntarily entered as

Appellant was under the influence of several prescribed medications at the

time he entered his plea. He averred the medications he was taking affected

his ability to understand the nature of the plea or the nature of the crimes to

which he was pleading guilty. Additionally, Appellant argued the PCRA court

should have held an evidentiary hearing on his claim.

      This Court concluded Appellant waived his challenge to the entry of his

guilty plea and, in any event, there was no merit to the claim. Id. Moreover,

this Court concluded the PCRA court properly denied Appellant’s claim without

an evidentiary hearing.    Id.   Consequently, this Court affirmed the PCRA

court’s order denying Appellant’s first PCRA petition. Appellant filed a petition

for allowance of appeal, which our Supreme Court denied on March 10, 2006.




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       On or about September 15, 2014, Appellant filed a second pro se PCRA

petition, and the PCRA court appointed counsel. On August 19, 2017, counsel

filed a petition to withdraw, as well as a Turner/Finley1 “no-merit” letter.

On August 28, 2017, the PCRA court provided Appellant with notice of its

intention to dismiss without an evidentiary hearing, and by order entered on

October 3, 2017, the PCRA court dismissed Appellant’s petition. Appellant

filed a timely, pro se notice of appeal on October 27, 2017, and all Pa.R.A.P.

1925 requirements have been met.2

       On appeal, Appellant presents the following issues in his “Statement of

the Questions Involved” (verbatim):

       I.     Was Appellant denied his rights under the Sixth Amendment
              of the United States Constitution and Article 1, Section 9 of
              the Pennsylvania Constitution, where trial/plea counsel was
              ineffective for failing to serve as his client’s advocate in
              failing to present Appellant’s psychological defects before
              the Court?
       II.    Whether initial PCRA counsel was ineffective for failing to
              raise the ineffectiveness of trial/plea counsel for advising
              Appellant to plead guilty to first-degree murder, where he
              had a viable defense?
       III.   Whether the trial court abused its discretion where the Court
              accepted a guilty plea from Appellant for first-degree
              murder while Appellant was highly medicated and/or
              mentally incompetent?

____________________________________________


1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).

2 Upon initial review, noting the docket failed to indicate whether the PCRA
court had granted counsel permission to withdraw, this Court filed an order
remanding for a determination with regard thereto. On July 26, 2018, the
PCRA court made a docket entry indicating counsel was permitted to withdraw.

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Appellant’s Brief at 4 (suggested answers omitted).

      Preliminarily, we must determine whether Appellant’s instant PCRA

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000). In reviewing the propriety of the PCRA court’s dismissal of

Appellant’s petition, we are limited to determining whether the PCRA court’s

findings are supported by the record, and whether the order is free of legal

error. Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582 (1999).

      Pennsylvania law makes it clear that no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837

A.2d 1157 (2003). The PCRA provides that a PCRA petition, including a second

or subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed

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 the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition

must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law of the United States;

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J-A19045-19


       (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.A. § 9545(b)(1)(i)-(iii).

       “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).

Moreover, “the PCRA limits the reach of the exceptions by providing that a

petition invoking any of the exceptions must be filed within 60 days of the

date the claim first could have been presented.” Commonwealth v. Walters,

135 A.3d 589, 592 (Pa.Super. 2016) (citations omitted). See 42 Pa.C.S.A. §

9545(b)(2).3

       In the case sub judice, Appellant was sentenced on January 7, 2003,

and he did not file a direct appeal therefrom. Consequently, his judgment of

sentence became final thirty days later on February 6, 2003, when the time

within which to file an appeal to this Court expired.     See 42 Pa.C.S.A. §


____________________________________________


3 As of December 24, 2018, Section 9545(b)(2) now allows that any PCRA
petition invoking a timeliness exception must be filed within one year of the
date the claim first could have been presented. See Act 2018, Oct. 24, P.L.
894, No. 146 § 2, effective in 60 days (December 24, 2018). This amendment
does not apply to Appellant’s case, which arose before the effective date of
the amendment.

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J-A19045-19


9545(b)(3); Pa.R.A.P. 903(a).      Appellant, thus, had until February 6, 2004,

to file a timely PCRA petition; however, Appellant filed the instant PCRA

petition on or about September 15, 2014. Therefore, it is patently untimely.

       This does not end our inquiry, however, as Appellant contends that he

is   entitled   to   the   newly-discovered   facts   exception   of   Subsection

9545(b)(1)(ii). Specifically, Appellant contends that, because of his mental

incompetence, the facts underlying his substantive PCRA claims were

unknowable to him. He suggests that he could not have learned of the facts

underlying his claims until he became competent and, after he became

competent, he filed the instant PCRA petition.

       This Court has explained:

       The timeliness exception set forth in Section 9545(b)(1)(ii)
       requires a petitioner to demonstrate he did not know the facts
       upon which he based his petition and could not have learned those
       facts earlier by the exercise of due diligence. Due diligence
       demands that the petitioner take reasonable steps to protect his
       own interests. 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. Additionally, the focus of this
       exception is on the newly discovered facts, not on a newly
       discovered or newly willing source for previously known facts.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (citations

and quotation marks omitted).

       Initially, we note that Appellant has not proffered when he allegedly

passed from incompetence to competence. Even if Appellant could prove his

incompetence at the time he entered his plea, he was still required to establish

that he filed his PCRA petition within sixty days of regaining competence,

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which he failed to do. See Commonwealth v. Liebensperger, 904 A.2d 40,

48   (Pa.Super.   2006)   (rejecting   PCRA   petitioner’s   claim   of   mental

incompetence where he failed to plead or prove “the crucial point at which

time he passed from incompetence to competence, discussing only his chronic

mental illness”). Accordingly, Appellant has not met the initial threshold of

pleading and proving that his claim was raised within 60 days of the date the

claim first could have been presented. 42 Pa.C.S.A. § 9545(b)(2).

      Moreover, we note that “[b]road claims of mental illness do not satisfy

a statutory exception to the PCRA time-bar.” Commonwealth v. Shaw, ___

A.3d ___, 2019 WL 3852219, at *3 (Pa.Super. filed 8/16/19) (citation

omitted).   In Commonwealth v. Cruz, 578 Pa. 325, 852 A.2d 287, 288

(2004), upon which Appellant relies in support of his argument, our Supreme

Court carved out a narrow exception to the general rule where a PCRA

petitioner’s mental incompetence prevented him from filing a timely PCRA

petition.

            The appellant in Cruz shot and killed a number of victims
      before turning his handgun on himself and attempting to commit
      suicide. The appellant survived, but he sustained a severe brain
      injury that left him essentially lobotomized. The appellant entered
      a plea of nolo contendere to three counts of second-degree
      murder, and the court sentenced him to consecutive terms of life
      imprisonment for each offense. At the time of the plea, the parties
      informed the court that the appellant was pleading nolo
      contendere because he was unable to express emotions or discuss
      the facts of the case in any sensible way due to his brain injury.
      Almost six years later, the appellant filed a PCRA petition alleging
      his brain injury had been slowly resolving in the months just
      before he filed his PCRA petition. The Cruz Court recognized that
      the PCRA does not include an exception for mental incapacity but

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       held “in some circumstances, claims that were defaulted due to
       the PCRA petitioner’s mental incompetence may qualify under the
       statutory [newly-discovered fact] exception. Id. at 336, 852 A.2d
       at 293.

Shaw, 2019 WL 3852219, at *3.

       This Court has characterized the holding in Cruz as follows:

       Only under a very limited circumstance has the Supreme Court
       ever allowed a form of mental illness or incompetence to excuse
       an otherwise untimely PCRA petition. See, e.g., [Cruz, 852 A.2d
       at 294-97] (holding defendant’s claims may fall under [newly-]
       discovered facts exception to PCRA timeliness requirements where
       his mental incompetence prevented defendant from timely raising
       or communicating claims)....Thus, the general rule remains that
       mental illness or psychological condition, absent more, will not
       serve as an exception to the PCRA’s jurisdictional time
       requirements.

Commonwealth v. Monaco, 996 A.2d 1076, 1080–81 (Pa.Super. 2010)

(some citations omitted).4

       Instantly, we conclude Appellant’s claim is distinguishable from Cruz.

Cruz presented evidence that he was “lobotomized” and a psychiatrist opined

that, at the time he entered the plea, Cruz was unable to comprehend the


____________________________________________


4 In Monaco, the petitioner attempted to invoke the newly-discovered facts
exception on the basis that his post-traumatic stress disorder diagnosis was
unknown to him and could not have been ascertained by the exercise of due
diligence. In rejecting the petitioner’s claim, this Court found the petitioner
did not exercise due diligence to discover whether he suffered from post-
traumatic stress disorder. Also, this Court found the petitioner’s claim did not
fall within the Cruz holding because the petitioner failed to allege his post-
traumatic stress disorder “impaired his mental ability to raise or communicate
his claim.” Monaco, 996 A.2d at 1082-83.




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nature of the proceedings. In contrast, Appellant’s claim of mental

incompetence in the instant case was based on the assertion he has dealt with

mental illness “his entire life.”5 See Appellant’s Brief at 12. “Having a history

of mental illness…does not rise to the same level of unique circumstances

found in Cruz.” Shaw, 2019 WL 3852219, at *4 (citation to the PCRA court

opinion omitted). “[A] mental illness or psychological condition, absent more,

will not serve as an exception to the PCRA’s jurisdictional time requirements.”

Monaco, 996 A.2d at 1081.

       Furthermore, Appellant has failed to demonstrate that he exercised due

diligence in learning the purported “newly-discovered” fact. See id. Appellant

has not explained how his alleged mental incompetence prevented him from

presenting or communicating his claims. See id. at 1080. Thus, we agree

with the PCRA court that Appellant has not met the newly-discovered facts

exception.

       For all of the foregoing reasons, we affirm the PCRA court’s order

dismissing Appellant’s second PCRA petition.

       Affirmed.




____________________________________________


5 Appellant also noted, without any details, that he allegedly attempted to
commit suicide while in jail awaiting trial and/or the entry of his guilty plea.
However, Appellant has not explained why he could not have learned of this
fact sooner with the exercise of due diligence or how this impaired his mental
ability to raise or communicate his claims. See Monaco, supra.

                                           -9-
J-A19045-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/19




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