J-S59006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

BARRY JONES,

                            Appellant                        No. 3090 EDA 2015


              Appeal from the PCRA Order Entered September 9, 2015
               In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0211883-1988


BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED OCTOBER 20, 2016

        Appellant, Barry Jones, appeals pro se from the post-conviction court’s

September 9, 2015 order denying, as untimely, his petition filed under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful

review, we affirm.

        The    PCRA   court    briefly   summarized    the    procedural   history   of

Appellant’s case, as follows:

               On October 29, 1988, following a jury trial, [Appellant]
        was convicted of second-degree murder, robbery, and criminal
        conspiracy. On March 22, 1989, [Appellant] was sentenced to
        life imprisonment. On May 11, 1990, following a direct appeal,
        the Superior Court affirmed the judgment of sentence.2
        [Appellant] did not seek allocatur [with the Pennsylvania
        Supreme Court].

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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        2
          Commonwealth v. Jones, 578 A.2d 38 (Pa. Super.
        1990)[](unpublished memorandum).

            [Appellant] filed his first pro se PCRA petition on January
     23, 1996.3 Attorney James Bruno, Esq. was appointed. The
     petition was subsequently denied on March 10, 2000, following
     an evidentiary hearing.        The Superior Court dismissed the
     corresponding appeal on September 12, 2000, for failure to file a
     brief.
        3
           The current version of the PCRA contains a provision
        permitting a defendant whose conviction became final prior
        to January 16, 1996, the date the current version of the
        PCRA took effect, to file a timely first PCRA petition within
        one year of that date. See Commonwealth v. Alcorn,
        703 A.2d 1054, 1056-57 (Pa. Super. 1997)[](holding that
        where a petitioner’s judgment of sentence became final on
        or before the effective date of the amendment to the
        PCRA, the amended PCRA contained a provision whereby a
        first PCRA petition could be filed by January 16, 1997,
        even if the conviction in question became final more than a
        year prior to the date of the filing).

           [Appellant’s] second PCRA petition was filed on July 27,
     2001. Counsel was appointed and an amended petition was filed
     seeking reinstatement of appellate rights [from the denial of
     Appellant’s first petition].   The lower court subsequently
     dismissed the petition as untimely and the Superior Court
     affirmed on September 29, 2004.4 A federal district court [also]
     dismissed [Appellant’s] habeas corpus petition, and the United
     States Court of Appeals for the Third Circuit denied a certificate
     of appealability in 2009.
        4
          Commonwealth v. Jones, 864 A.2d 579 (Pa. Super.
        2004)[](unpublished  memorandum).    Petition for
        reargument denied December 8, 2004.

           [Appellant] filed his third PCRA petition on December 29,
     2009. The lower court subsequently dismissed [Appellant’s]
     PCRA Petition as untimely on April 24, 2013. The Superior Court
     affirmed the lower court’s dismissal on April 9, 2014.5
        5
          Commonwealth v. Jones, 102 A.3d 526 (Pa. Super.
        2014)[](unpublished memorandum).



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             [Appellant’s] current PCRA petition, his fourth, was filed
      pro se on January 5, 2015. Pursuant to Pennsylvania Rule of
      Criminal Procedure 907, [Appellant] was served with notice of
      the court’s intention to dismiss his PCRA petition on July 20,
      2015.     The lower court thereafter dismissed [Appellant’s]
      petition as untimely on September 9, 2015. On October 7,
      2015, the instant notice of appeal was timely filed to the
      Superior Court.

PCRA Court Opinion (PCO), 11/9/15, at 1-2.

      In his pro se appellate brief, Appellant presents six questions for our

review. See Appellant’s Brief at ix.    Before we may address any of those

claims, however, we must examine the timeliness of Appellant’s petition,

because the PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the merits of a petition.      See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for post-conviction relief, including a second or

subsequent one, must be filed within one year of the date the judgment of

sentence becomes final, unless one of the following exceptions set forth in

42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (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;




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            (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)(i)-(iii).         Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, Appellant attempts to invoke the ‘new fact’ exception of section

9545(b)(1)(ii).        The ‘new fact’ Appellant asserts is that his first PCRA

counsel, Attorney Bruno, has mental health issues which, according to

Appellant, caused Attorney Bruno to ineffectively abandon him on appeal

from the denial of initial PCRA petition. Appellant claims that he discovered

the ‘new fact’ of Attorney Bruno’s mental health issues when he read

      an article published in Pennsylvania Law Weekly on December 2,
      2014[,] detailing attorney James Bruno’s recent temporary
      suspension for violating Rules of Professional Conduct in
      unrelated cases. See PCRA petition, 1/5/15 at exhibit 1. The
      article also indicated that [Attorney] Bruno was diagnosed with
      attention-deficit hyperactive disorder and dysthymia in
      December [of] 2011. Id.

PCO at 4.       Appellant claims that he could not have discovered Attorney

Bruno’s confidential medical diagnosis earlier, and that he filed his petition

within 60 days of his discovery of this new information.              Accordingly, he

argues   that     he    has   satisfied   the    ‘new   fact’   exception   of   section

9545(b)(1)(ii).


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      The PCRA court disagreed, stating as follows:

            Unpacking [Appellant’s] claim, although [Attorney] Bruno’s
      ineffectiveness was apparent since the adjudication of his first
      PCRA petition, the exact reason why counsel underperformed
      remained a mystery. [Appellant] believes that the recent article
      provided this elusive explanation, thereby satisfying the PCRA
      time-bar.

             Even assuming the accurate explanatory power of the
      psychological diagnosis, the proposed cause of counsel’s
      dereliction did not revive [Appellant’s] untimely PCRA petition. If
      section     9545(b)(1)(ii)     countenanced     explanations    for
      malfeasance, counsel’s poor sleeping habits, acrimonious client
      relationships, stress, or the innumerable other possible “causes”
      of inaction on a particular day could conceivably rescue an
      untimely PCRA petition. [Appellant’s] speculative assessment of
      cause derived from the Pennsylvania Law Weekly article
      therefore failed to establish timeliness.

PCO at 4.

      We are compelled to agree with the PCRA court’s reasoning.

Essentially, Appellant is attempting to trigger the jurisdiction of the PCRA

court, and this Court, to review whether Attorney Bruno acted ineffectively

in representing him during the litigation of his first PCRA petition. However,

the ‘new fact’ on which he relies to invoke our jurisdiction was not necessary

to proving Attorney Bruno’s ineffectiveness.         In other words, a petitioner

alleging counsel’s ineffectiveness is not required to prove the cause of

counsel’s misconduct; rather, “[a] properly pled claim of ineffectiveness

posits that: (1) the underlying legal issue has arguable merit; (2) counsel’s

actions lacked an objective reasonable basis; and (3) actual prejudice befell

the   petitioner   from   counsel’s   act   or   omission.”   Commonwealth v.

Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations omitted). In this case,

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Appellant could have pled (and arguably proven) each of the three prongs of

demonstrating Attorney Bruno’s ineffectiveness without the information

regarding counsel’s mental disorders. Therefore, because Attorney Bruno’s

mental health diagnosis had no bearing on Appellant’s ability to litigate the

underlying issue of counsel’s ineffectiveness, we must agree with the PCRA

court that Attorney Bruno’s diagnosis is not a ‘new fact’ that can satisfy the

exception of section 9545(b)(1)(ii).

      In any event, we note that Appellant has previously litigated the

overarching   issue   of   whether   Attorney   Bruno    acted   ineffectively   by

abandoning him on appeal from the denial of his first PCRA petition.

Specifically, Appellant raised this claim in his second, untimely PCRA petition

filed on July 27, 2001.      The PCRA court dismissed that petition because

Appellant had not made any attempt to plead or prove the applicability of a

timeliness exception. See PCRA Court Opinion, 1/16/04, at 5-6. On appeal

to this Court, Appellant again failed to make any attempt to plead or prove

that a timeliness exception applied to his claim.       See Commonwealth v.

Jones, No. 1828 EDA 2003, unpublished memorandum at 1 (Pa. Super. filed

October 12, 2004) (stating that Appellant wholly failed to “address [the]

crucial problem” of the untimeliness of his petition, and he did not “assert

the application of any of the enumerated exceptions to the PCRA’s one-year

filing requirement.”).     Consequently, this Court affirmed the denial of his

petition asserting Attorney Bruno’s ineffectiveness.




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       Based on this record, it is apparent that the underlying issue raised by

Appellant was previously litigated.            See 42 Pa.C.S. § 9544(a)(3) (stating

that, under the PCRA, “an issue has been previously litigated if: … it has

been raised and decided in a proceeding collaterally attacking the conviction

or sentence”). Accordingly, even if Appellant’s discovery of Attorney Bruno’s

mental disorders satisfied the ‘new fact’ exception of section 9545(b)(1)(ii),

we would conclude that his underlying ineffectiveness claim does not entitle

him to post-conviction relief.        See 42 Pa.C.S. § 9543 (stating that to be

eligible for PCRA relief, the petitioner must prove “[t]hat the allegation of

error has not been previously litigated or waived”).1

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2016




____________________________________________


1
  We do not address any of Appellant’s remaining issues (most of which
assert trial counsel’s ineffectiveness or trial court errors), as he does not
plead or prove the applicability of any timeliness exception to those claims.




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