J-S26036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LAMONT FULTON                              :
                                               :
                       Appellant               :   No. 3275 EDA 2017

                Appeal from the PCRA Order September 15, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0413241-2002


BEFORE:      BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                            FILED MAY 04, 2018

        Appellant Lamont Fulton appeals from the Order entered in the Court of

Common Pleas of Philadelphia County on September 15, 2017, denying as

untimely his petition filed pursuant to the Post Conviction Relief Act.1     We

affirm.

        A panel of this Court previously set forth the relevant facts and

procedural history on appeal from the Order entered on July 11, 2013, denying

his first PCRA petition as follows:

              Following a bench trial, which was held on March 8, 2006,
        Appellant was found guilty but mentally ill of first-degree murder
        and guilty of possession of an instrument of crime (“PIC”). On May
        8, 2006, the trial court sentenced Appellant to a term of life
        imprisonment without the possibility of parole on the murder
        conviction and a concurrent term of two and one-half to five years
        of incarceration for the PIC conviction. Appellant filed a direct
        appeal to this Court, and in a memorandum filed on November 16,
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Former Justice specially assigned to the Superior Court.
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      2007, this Court affirmed Appellant’s judgment of sentence
      Commonwealth v. Fulton, 1535 EDA 2006, 944 A.2d 791 (Pa.
      Super. November 16, 2007) (unpublished memorandum).
      Appellant did not pursue an appeal in the Pennsylvania Supreme
      Court.
             On August 11, 2008, Appellant filed a PCRA petition seeking
      the reinstatement of his right to file a petition for allowance of
      appeal with the Pennsylvania Supreme Court. Counsel was
      appointed, and on December 18, 2009, the PCRA court reinstated
      Appellant’s right to seek allowance of appeal in the Supreme
      Court. On August 11, 2010, the Supreme Court denied Appellant’s
      petition. Commonwealth v. Fulton, 3 A.3d 670 (Pa. 2010).
             On September 17, 2010, Appellant filed a pro se PCRA
      petition. The PCRA court appointed counsel, and Appellant filed an
      amended PCRA petition on May 9, 2012. On May 3, 2013,
      pursuant to Pa.R.Crim.P. 907, the PCRA [court] notified Appellant
      of its intent to dismiss the PCRA petition without a hearing. The
      PCRA court dismissed Appellant’s PCRA petition in an order filed
      on July 11, 2013. On July 29, 2013, Appellant filed a timely
      appeal.

Commonwealth v. Fulton, No.              2168   EDA 2013, unpublished

memorandum at 1-2 (Pa.Super. filed July 30, 2014).

      In his prior appeal, Appellant averred trial counsel had been ineffective

for failing to pursue a claim of diminished capacity in light of his suffering from

a serious mental illness at the time of the offense. In finding no merit to this

claim and in affirming the PCRA court’s Order, this Court noted that:

      [t]he record reveals that trial counsel pursued a diminished
      capacity defense and provided supporting documentation in the
      form of Appellant’s mental health evaluations, diagnoses,
      opinions, and medical records. N.T., Trial, 3/8/06, at 108-110.
      Moreover, trial counsel argued that, should the trial court find
      Appellant guilty, in light of Appellant’s mental health issues which
      are supported by the aforementioned documents, the conviction
      should only be for third-degree murder due to Appellant’s mental
      health. Id. at 160-164.




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Id. at 5-6. The Pennsylvania Supreme Court denied Appellant’s Petition for

Allowance of Appeal on January 26, 2015. Commonwealth v. Fulton, 630

Pa. 740, 108 A.3d 34 (2015).

       On February 3, 2015, Appellant filed the instant PCRA petition, his

second, pro se. Appellant thereafter filed amended and/or supplemental

petitions on February 15, 2015, August 26, 2015, September 15, 2015,

January 6, 2016, May 14, 2016, and October 26, 2016.            After notifying

Appellant of its intent to dismiss the PCRA petition without a hearing pursuant

to Pa.R.Crim.P 907 on July 17, 2017,2 the PCRA court dismissed Appellant’s

petition in its Order filed on September 15, 2017. This timely appeal followed.

       When reviewing the denial of a PCRA petition, our standard of review is

limited to examining whether the PCRA court's determination is supported by

evidence of record and whether it is free of legal error. Commonwealth v.

Smallwood, 155 A.3d 1054, 1059 (Pa.Super. 2017) (citations omitted).

       At the outset, we consider whether this appeal is properly before us.

The question of whether a petition is timely raises a question of law, and where

a petitioner raises questions of law, our standard of review is de novo and our

scope of review is plenary. Commonwealth v. Callahan, 101 A.3d 118, 121

(Pa.Super. 2014).



____________________________________________


2Appellant filed responses to the Rule 907 Notice on July 24, 2017, July 26,
2017, July 28, 2017, August 17, 2017, August 23, 2017, and August 31,
2017.

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      All PCRA petitions must be filed within one year of the date upon which

the judgment of sentence became final, unless one of the statutory exceptions

set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The petitioner bears the

burden of pleading and proving an applicable statutory exception.           If the

petition is untimely and the petitioner has not pled and proven an exception,

the petition must be dismissed without a hearing because Pennsylvania courts

are   without   jurisdiction   to   consider   the   merits    of   the   petition.

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013). This is true

even where, as herein, the appellant challenges the legality of his sentence.

Commonwealth v. Fahy, 558 Pa. 313, 331, 737 A.2d 214, 223 (1999)

(holding that claims challenging the legality of sentence are subject to review

within PCRA, but must first satisfy the PCRA's time limits).

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

      (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 of sentence 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:
             (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.

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42 Pa.C.S.A. § 9545(b)(1). In addition, 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.A. § 9545(b)(2).

      Herein, the Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal on August 11, 2010.        Thus, Appellant’s judgment of

sentence became final on or about November 11, 2010, at which time the

ninety-day period in which he had to seek review in the United States Supreme

Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (“a judgment becomes 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”).   A timely petition had to be filed

by November 11, 2011; therefore, the instant PCRA petition filed in February

of 2015 is patently untimely, and the burden fell upon Appellant to plead and

prove that one of the enumerated exceptions to the one-year time-bar applied

to his case. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947

A.2d 1284, 1286 (Pa.Super. 2008) (to invoke a statutory exception to the

PCRA time-bar, a petitioner must properly plead and prove all required

elements of the exception).

      Appellant did not attempt to invoke any of the aforementioned

exceptions to the PCRA time bar in his February 3, 2015, PCRA petition, and

he does not present a clear statement of the questions involved in his

appellate brief.   Indeed, his disorganized brief is comprised of rambling,

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repetitive and often incoherent statements through which he essentially

challenges the effectiveness of all prior counsel. In particular, he claims trial

counsel had been ineffective for advancing a diminished capacity defense

which contradicted his own claims he was innocent.          As the PCRA court

correctly noted in its Pa.R.A.P. 1925(a) Opinion:

              Here, [Appellant] argued ineffective assistance of all prior
      counsel. His main contention, however, was that trial counsel was
      ineffective for advancing a diminished capacity defense that
      contradicted [Appellant’s] own testimony that he was innocent.
      PCRA petition, 2/18/15 [sic] at 21-44; see also Amended PCRA
      petition, 9/18/15, Response to 907, 7/24/17, and Pro se
      Correspondence, 7/26/17. In pleading his claim, [Appellant]
      utterly failed to invoke an exception to the timeliness exception,
      electing, instead, to address the alleged merits of his underlying
      claims.     Contrary to [Appellant’s] arguments, allegations of
      ineffective assistance of counsel are insufficient to overcome [an]
      otherwise untimely PCRA claim. Commonwealth v. Lark, 746 A.2d
      585, 589 (Pa. 2000). Additionally, a careful review of the record
      reveals that his ineffectiveness claim regarding the diminished
      capacity defense was raised by Ms. Elayne Bryn, who was his
      counsel on his first PCRA petition.8 This claim was dismissed, the
      dismissal affirmed by the Superior Court, and allocator denied by
      the Pennsylvania Supreme Court. As this ineffectiveness claim
      was previously litigated, [Appellant] was not eligible for relief. 42
      Pa.Cons. Stat. § 9543(a)(3).
      ___

      8In her brief, Ms. Bryn argued the ineffectiveness of trial counsel’s
      strategy:
                [Appellant] was permitted to testify on his own
           behalf, unmedicated without the benefit of a current
           psychiatric evaluation of his then present mental state.
           This trial strategy negated the availability of a
           diminished capacity defense. . . Because counsel’s trial
           strategy cannot be reasonable absent adequate
           investigation of alternatives, trial counsel could not
           make a reasonable strategic decision to present a
           different defense in this present matter. Trial counsel
           did not adequately investigate [Appellant’s] mental

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         history, and therefore, counsel could not make a rational
         decision to avoid a diminished capacity defense.
      Amended PCRA, 5/4/12 at unnumbered 4-5 (citations omitted).

Trial Court Opinion, filed 11/21/17, at 3-4 (unnumbered).

      To the extent Appellant attempts to invoke the newly recognized

constitutional right exception in his appellate brief, See Brief for Appellant at

8-13 (unnumbered), he has waived any such argument, as an exception to

the PCRA time bar must be pled in a PCRA petition and cannot be raised for

the first time on appeal.   Commonwealth v. Burton, 936 A.2d 521, 525

(Pa.Super. 2007), appeal denied, 598 Pa. 786, 959 A.2d 927 (2008); see

also, Pa.R.A.P. 302(a)(providing that issues not raised before the lower court

are waived and cannot be raised for the first time on appeal). Moreover, the

cases to which Appellant cites, McQuiggen v. Perkins, 569 U.S. 383, 133

S.Ct. 1924, 185 L.Ed.2d 1019 (2013) and Martinez v. Ryan, 566 U.S. 1, 132

S.Ct. 1309, 182 L.Ed.2d 272 (2012) pertain to federal habeas corpus law, not

PCRA petitions; thus, they are not dispositive of Appellant’s claims.

      In McQuiggen, the United States Supreme Court held that in federal

habeas corpus proceedings, strict compliance with the one-year statute of

limitations imposed by 28 U.S.C. § 2244(d) will not be required when the

petitioner advances a convincing claim of actual innocence. McQuiggen, 133

S.Ct. at 1928. Under McQuiggen, petitioners who assert a convincing actual

innocence claim may invoke the miscarriage of justice exception to overcome

the federal habeas corpus statute of limitations. Id.              However, in


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Commonwealth v. Brown, 143 A.3d 418 (Pa.Super. 2016) this Court

addressed the applicability of McQuiggen to the timeliness provisions set

forth in the PCRA and declined to follow it on state-law grounds. Moreover,

Appellant failed to file the instant PCRA petition within 60 days of the date

McQuiggen was decided, May 28, 2013, as required by Section 9545(b)(2).

      Similarly, Martinez recognizes that for purposes of federal habeas

corpus relief, “[i]nadequate assistance of counsel at initial-review collateral

proceedings may establish cause for a prisoner's procedural default of a claim

of ineffective assistance of trial counsel.” Martinez, supra at 1315.

Nevertheless, this Court has held while Martinez represented a significant

development in federal habeas corpus law, it was inapposite with respect to

the way Pennsylvania courts apply the plain language of the time bar set forth

in section 9545(b)(1) of the PCRA. Commonwealth v. Saunders, 60 A.3d

162, 165 (Pa.Super. 2013), appeal denied, 621 Pa. 657, 72 A.3d 603 (2013),

cert. denied, 134 S.Ct. 944, 187 L.Ed.2d 811, 82 USLW 3406 (2014).

      In light of the foregoing, Appellant has filed a facially untimely PCRA

petition and has failed to plead and prove the applicability of any exception to

the PCRA time-bar. We, therefore, affirm the PCRA court’s Order.




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      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/18




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