J-S38039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JAMES LEE TROUTMAN

                            Appellant                No. 3477 EDA 2015


                 Appeal from the PCRA Order October 23, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0003674-2011


BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED JULY 06, 2016

        Appellant James Lee Troutman appeals pro se from the order entered

in the Montgomery County Court of Common Pleas, which dismissed his

petition filed for relief pursuant to the Post Conviction Relief Act (“PCRA”).1

We affirm.

        The trial court set forth the relevant facts and procedural history of

this appeal as follows:

          On March 19, 2012, [Appellant] entered into a negotiated
          guilty plea to the charges of first degree murder,
          involuntary deviate sexual intercourse with a child,
          kidnapping and abuse of a corpse for heinously raping,
          murdering and disposing of the young victim, 9 year-old
          [S.K.] on May 9, 2011. [Appellant] also agreed to be
          sentenced to a life term of imprisonment without the
          possibility of parole, followed by a 10 to 20 year term of
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1
    42 Pa.C.S. § 9541-9546.
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       imprisonment, in exchange for the Commonwealth’s
       withdrawal of its intent to seek the death penalty.

       This negotiated guilty plea followed an extensive oral
       colloquy, in addition to two written plea colloquies, which
       were reviewed by [Appellant] with his attorney and signed
       by him. Pertinent to this appeal are the portions of the
       oral and written colloquies that addressed his previous
       mental health issues and hospitalizations. During the oral
       colloquy, the then 25 year-old [Appellant] affirmed that in
       the past he had received mental health treatment at
       various facilities, although he denied being under the care
       of a psychiatrist or taking medication for any mental health
       issue at the time of the guilty plea. (Negotiated Guilty
       Plea 3/19/12 p. 6, 9). The District Attorney also
       questioned [Appellant] during the oral colloquy and
       verified that he had been in and out of several facilities in
       regard to his mental health and that his last mental health
       treatment occurred in 2005, when he was 17 years old and
       that from the time he was 18 until the time of the colloquy
       he had not undergone mental health treatment Id. at 24-
       25. Also important is his acknowledgement in his written
       colloquy that he has a history of mental illness. See,
       Exhibit “D-2”, Guilty Plea Colloquy, p. 1. [Appellant] did
       not file a direct appeal with the Pennsylvania Superior
       Court.

       On September 21, 2012, [Appellant] filed a timely pro se
       PCRA petition. PCRA counsel was appointed to assist
       [Appellant] with his petition. After a conscientious review
       of the record, PCRA counsel determined all issues lacked
       merit and submitted a no-merit letter dated November 9,
       2012, [and also sought] to withdraw. [Appellant] filed an
       opposition to counsel’s request on November 23, 2012.
       On December 6, 2012, pre-dismissal notice was issued in
       accordance with Pa.R.Crim.P. 907. [Appellant] did respond
       by filing a motion for leave to amend PCRA petition under
       Pa.R.Crim.P. 905. Prior to ruling on his request to amend,
       on January 22, 2013, [Appellant] filed an amended PCRA
       petition, alleging in part that trial counsel was ineffective in
       failing to pursue an insanity defense rather than advising
       him to plead guilty. On January 23, 2013, [the PCRA c]ourt
       denied [Appellant’s] request to amend and on January 24,
       2013, [the PCRA c]ourt dismissed his improperly filed

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        amended PCRA petition. Finally, on January 25, 2013,
        [the PCRA c]ourt issued a final order of dismissal,
        dismissing his PCRA petition without a hearing. [Appellant]
        appealed from the orders dated January 24, 2013 and
        January 25, 2013 to the Pennsylvania Superior Court. On
        February 25, 2014, the Superior Court affirmed both
        orders.

        On September 10, 2015, [Appellant] filed his untimely
        second PCRA petition, which is at issue in this appeal.
        Therein, he alleged that trial counsel was ineffective in
        failing to pursue an organic brain disease defense rather
        than have him plead guilty.

PCRA Court Pa.R.A.P. 1925(a) Opinion, filed January 8, 2016, at 2-4.

     On September 16, 2015, the PCRA court issued a notice of its intent to

dismiss Appellant’s petition without a hearing, pursuant to Pa.R.Crim.P. 907.

On October 26, 2015, the PCRA court dismissed Appellant’s petition.       On

November 18, 2015, Appellant timely filed a notice of appeal.      The court

ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied.

     Appellant presents the following issues for our review:

        1. DID THE PCRA COURT COMMIT LEGAL ERROR AND /OR
        ABUSE ITS DISCRETION BY FAILING TO DETERMINE
        WHETHER THE MENTAL HEALTH RECORDS WERE NEWLY
        DISCOVERED FACTS THAT DEMONSTRATE [APPELLANT]
        SUFFERS FROM AN ORGANIC BRAIN DISEASE THAT
        IMPAIRS HIS MENTAL CAPACITY TO THE DEGREE THAT NO
        REASONABLE TRIER OF FACT COULD FIND THE
        DELIBERATE INTENT NECESSARY TO CONVICT HIM ON
        THE MURDER CHARGE FOR WHICH HE [PLED] GUILTY
        BEFORE DISMISSING THE PCRA PETITION WITHOUT
        HOLDING A[N] EVIDENTIARY HEARING[?]

        2. WHETHER PLEA COUNSEL PROVIDED INEFFECTIVE
        ASSISTANCE UNDER THE SIXTH AND FOURTEENTH

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         AMENDMENTS TO THE CONSTITUTION OF THE UNITED
         STATES BY PERSUADING [APPELLANT] TO PLEAD GUILTY
         RATHER THAN PURSUING AN ORGANIC BRAIN DISEASE
         DEFENSE[?]

         3. WHETHER PCRA COUNSEL WAS INEFFECTIVE FOR
         FAILING  TO   RAISE PLEA COUNSEL’S DEFICIENT
         PERFORMANCE IN PERSUADING PETITIONER TO PLEAD
         GUILTY RATHER THAN PURSUING AN ORGANIC BRAIN
         DISEASE DEFENSE[?]

Appellant’s Brief at 4.

      Before we address the merits of Appellant’s claims, we must determine

whether his PCRA petition was timely.     The timeliness of a PCRA petition

implicates the jurisdiction of both this Court and the PCRA court.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal

denied, 50 A.3d 121 (Pa.2012).      “Pennsylvania law makes clear that no

court has jurisdiction to hear an untimely PCRA petition.”    Id. To “accord

finality to the collateral review process[,]” the PCRA “confers no authority

upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA

timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With

respect to jurisdiction under the PCRA, this Court has further explained:

         The most recent amendments to the PCRA...provide a
         PCRA petition, including a second or subsequent petition,
         shall be filed within one year of the date the underlying
         judgment becomes final. 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
         time for seeking the review.




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Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);

see also 42 Pa.C.S. § 9545(b). This Court may review a PCRA petition filed

more than one year after the judgment of sentence becomes final only if the

claim falls within one of the following three statutory exceptions, which the

petitioner must plead and prove:

            (i) the failure to raise the claim 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.

42 Pa.C.S. § 9545(b)(1).       Further, if a petition pleads one of these

exceptions, the petition will not be considered unless it is “filed within 60

days of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2).

     Here, Appellant was sentenced on March 19, 2012.          Because he did

not file a direct appeal, his judgment of sentence became final on April 18,

2012, when his time to appeal to this Court expired.        See 42 Pa.C.S. §

9545(b)(3). Accordingly, he had until April 18, 2013 to file a timely PCRA


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petition. He filed the present pro se PCRA petition on September 9, 2015.

Thus, his PCRA petition is facially untimely, and we must determine whether

Appellant has pled and proved any of the exceptions to the PCRA time

limitation. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

      Appellant attempts to invoke the § 9545(b)(1)(ii) exception to the

PCRA time-bar by claiming that he just discovered his medical records when

his mother gave them to him on August 17, 2015. He alleges he brought his

claim within 60 days of the date his mother gave him the records, and thus

we should consider it as a newly discovered fact exception to the PCRA time-

bar. We disagree.

      To establish the newly-discovered fact exception to the PCRA time-bar,

the petitioner must allege and prove that

         there were facts that were unknown to him and that he
         could not have ascertained those facts by the exercise of
         due diligence. The focus of the exception is on the newly
         discovered facts, not on a newly discovered or newly
         willing source for previously known facts.

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa.2008) (internal

quotations and citations omitted) (emphasis in original).

      Appellant likely knew about the existence of his medical records, and if

he did not, they could have been ascertained by the exercise of due

diligence.   His medical records indicate that he had a mental health

condition. Appellant, however, was aware of his mental illness when he was

sentenced for his crimes. Both in his written guilty plea colloquy and at his



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oral guilty plea colloquy on March 19, 2012, Appellant indicated that he had

been committed to mental institutions and mental treatment facilities for the

treatment of various issues. See N.T. 3/19/2012, at 6. His medical records

are only additional sources for previously known facts. Thus, Appellant fails

to invoke the § 9545(b)(1)(ii) exception to the PCRA time-bar.

     The PCRA court did not err in dismissing Appellant’s petition as

untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




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