J-S20019-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                   OF PENNSYLVANIA
                         Appellee

                    v.

RALTO LINDSAY

                         Appellant                 No. 1573 EDA 2019


             Appeal from the PCRA Order entered May 20, 2019
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0011932-2008


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.:                        FILED AUGUST 11, 2020

     Appellant, Ralto Lindsay, appeals from the May 20, 2019 order entered

in the Court of Common Pleas of Philadelphia County denying his petition for

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

42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

     The factual and procedural background of the instant appeal is not at

issue. Briefly, Appellant attacked the victim on two separate occasions. As a

result, following a non-jury trial, Appellant was found guilty of attempted

murder, aggravated assault, possession of an instrument of crime, simple

assault, and recklessly endangering another person.       On July 1, 2009,

Appellant was sentenced to consecutive terms of twenty to forty years’

imprisonment for attempted murder, ten to twenty years’ imprisonment for
J-S20019-20



aggravated assault, and an additional two and one-half to five years’

imprisonment for possession of an instrument of crime.

      After Appellant challenged counsel’s failure to file a direct appeal, the

trial court reinstated Appellant’s appellate rights. On direct appeal, Appellant

challenged the legality and discretionary aspects of his sentence.          We

affirmed. See Commonwealth v. Lindsay, No. 1801 EDA 2011, unpublished

memorandum (Pa. Super. filed April 17, 2012).

      Appellant filed his first PCRA petition in 2012, alleging ineffective

assistance of counsel. After appointing counsel, the PCRA court dismissed the

PCRA petition on July 23, 2015.            On appeal, we affirmed.         See

Commonwealth v. Lindsay, No. 2541 EDA 2015, unpublished memorandum

(Pa. Super. filed February 15, 2017).

      Appellant filed his second PCRA petition on October 4, 2017, which the

PCRA court dismissed on April 30, 2018.

      Appellant filed the instant PCRA petition, his third, on August 2, 2018,

alleging that on June 15, 2018, he discovered that his trial counsel had been

diagnosed in 2013 with Attention Deficit Hyperactivity Disorder (“ADHD”), and

that counsel’s medical condition negatively affected his representation of

Appellant. See PCRA Petition, 8/2/19.

      In response, the Commonwealth argued that Appellant’s third PCRA

petition was untimely and did not meet any exceptions to the timeliness

requirement.    The PCRA court issued a notice of intent to deny under




                                     -2-
J-S20019-20



Pa.R.Crim.P. 907 on April 15, 2019 and formally denied Appellant’s third PCRA

petition on May 20, 2019. This timely appeal followed.

      “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).

All PCRA petitions, “including a second or subsequent petition, shall be filed

within one year of the date the judgment becomes final” unless an exception

to timeliness applies.    42 Pa.C.S.A. § 9545(b)(1).        “The PCRA’s time

restrictions are jurisdictional in nature. Thus, if a PCRA petition is untimely,

neither this Court nor the [PCRA] court has jurisdiction over the petition.

Without jurisdiction, we simply do not have the legal authority to address the

substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.

2006) (internal citations and quotation marks omitted).        As timeliness is

separate and distinct from the merits of Appellant’s underlying claims, we first

determine whether this PCRA petition is timely filed.     Commonwealth v.

Stokes, 959 A.2d 306, 310 (Pa. 2008). The timeliness requirements of the

PCRA petition must be met, even if the underlying claim is a challenge to the

legality of the sentence. See Commonwealth v. Fahy, 737 A.2d 214, 223

(Pa. 1999) (“Although legality of sentence is always subject to review within

the PCRA, claims must still first satisfy the PCRA’s time limits or one of the

exceptions thereto”) (citation omitted).




                                     -3-
J-S20019-20



       As noted above, Appellant filed the instant petition on August 2, 2018,

more than five years after his judgment of sentence became final. 1 As such,

the instant petition is facially untimely.

       All PCRA petitions, “including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final.” 42 Pa.C.S.A.

§ 9545(b)(1). The one-year time limitation, however, can be overcome if a

petitioner (1) alleges and proves one of the three exceptions set forth in

Section 9545(b)(1)(i)-(iii) of the PCRA, and (2) files a petition raising this

exception within one year of the date the claim could have been presented.

42 Pa.C.S.A. § 9545(b)(2).2

       Here, Appellant argues he meets the requirements of the newly-

discovered fact exception in Section 9545(b)(1)(ii). This exception requires a

petitioner to plead and prove two components: 1) the facts upon which the

claim was predicated were unknown, and (2) these unknown facts could not

have been ascertained by the exercise of due diligence. See Commonwealth

v. Burton, 158 A.3d 618, 638 (Pa. 2017).
____________________________________________


1 Appellant’s judgment of sentence became final thirty days after the
expiration of the time to file an appeal with the Supreme Court. See 42
Pa.C.S.A. § 9545(b)(3).

2Section 9545(b)(2) was recently amended to enlarge the deadline from sixty
days to one year. The amendment applies only to claims arising on or after
December 24, 2017. Here, Appellant alleges that he discovered counsel’s
condition on June 15, 2018. We do not need to decide whether the sixty day
or the one year deadline is applicable here, as the instant petition is untimely
under either timeframe.



                                           -4-
J-S20019-20



       Here, the alleged newly discovered evidence is trial counsel’s ADHD

diagnosis in 2013. According to Appellant, trial counsel’s condition affected

his performance, resulting in an unfair, excessive sentence. In other words,

Appellant challenges counsel’s effectiveness based on the discovery of

counsel’s medical condition.3

       Appellant’s argument has several defects.      First, petitioners cannot

satisfy the newly-discovered facts exception by alleging ineffectiveness of

counsel.    Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa.

2000). Second, even assuming that counsel’s ineffectiveness qualifies as a

newly-discovered fact, the PCRA court aptly observed from the Appellant’s

petition that Appellant failed to establish that trial counsel’s diagnosis “was

unknown and undiscoverable to him at the time of trial or within the past 5

years.” PCRA Court Opinion, 7/16/19, at 7; see also Commonwealth’s Brief

at 8-9.    Finally, even if counsel suffered from ADHD at the time of trial,

Appellant failed to establish that the condition affected counsel’s performance

and that Appellant suffered prejudice from counsel’s performance. See, e.g.,

Commonwealth v. Vance, 546 A.2d 611, 638 (Pa. Super. 1988) (quoting

Berry v. King, 765 F.2d 451, 454 (5th Cir.1985)) (“[T]he fact that an

attorney used drugs is not, in and of itself, relevant to an effective assistance
____________________________________________


3 “[T]o prove counsel ineffective, the petitioner must show that: (1) his
underlying claim is of arguable merit; (2) counsel had no reasonable basis for
his action or inaction; and (3) the petitioner suffered actual prejudice as a
result.” Commonwealth v. Spotz, 84 A.3d 294, 312 (Pa. 2014) (citation
omitted).


                                           -5-
J-S20019-20



claim.    The critical issue is whether, for whatever reason, counsel’s

performance was deficient and whether the deficiency prejudiced the

defendant”). Appellant’s claim therefore fails.

      To the extent Appellant argues that counsel’s undisclosed illness

violated Appellant’s due process right to a fair trial, even claims of

constitutional    dimension   are   subject   to   the   same   timeliness   rules.

Commonwealth v. Turner, 80 A.3d 754, 767 (Pa. 2013) (“we have already

held that, in the context of the jurisdictional timeliness restrictions on the right

to bring a PCRA petition, the constitutional nature of a collateral claim does

not overcome the legislature’s restrictions on collateral review”) (internal

citation omitted). Since Appellant’s petition was untimely, no relief is due on

his due process claim.

      Finally, Appellant argues the PCRA court erred in not holding a hearing

on his claim.      We disagree.     As noted above, Appellant unsuccessfully

attempted to invoke the newly-discovered fact exception to establish

timeliness under the PCRA. Since courts have no jurisdiction to entertain

untimely PCRA petitions, Chester, 895 A.2d at 522, a hearing would have

been pointless.

      Order affirmed.




                                       -6-
J-S20019-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2020




                          -7-
