J-S23017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JONOTHAN E. PRATHER                        :
                                               :
                       Appellant               :   No. 1099 WDA 2018

               Appeal from the PCRA Order Entered July 18, 2018
       In the Court of Common Pleas of Potter County Criminal Division at
                        No(s): CP-53-CR-0000004-2012


BEFORE:      BENDER, P.J.E., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.:                                 FILED MAY 21, 2019

        Appellant Jonothan E. Prather appeals pro se from the order dismissing

his untimely third petition under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. Appellant claims that his discovery of McWilliams v.

Dunn, 137 S. Ct. 1790 (June 19, 2017), provides an exception to the PCRA’s

time-bar. We affirm.

        The PCRA court set forth the relevant facts of this appeal as follows:

        By way of history, on February 22, 2012, [Appellant], who was an
        indigent defendant, pled guilty to one count of first-degree
        murder.[1] Thereafter, on March 26, 2012, [Appellant] was
        sentenced by the [c]ourt to life imprisonment, without possibility
        of parole, and a $50,000 fine. [Appellant] previously filed a PCRA
        petition on June 25, 2014, which was denied [on March 3, 2015].
        Additionally, [Appellant] filed a second PCRA [petition] on March

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   At the time of his plea, Appellant was represented by Brent Petrosky, Esq.
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      22, 2016, which was denied. . . . [This Court affirmed the order
      denying PCRA relief, and our Supreme Court denied Appellant’s
      petition for allowance of appeal on April 3, 2018.          See
      Commonwealth v. Prather, 169 A.3d 1168 (Pa. Super. 2017)
      (unpublished mem.), appeal denied, 183 A.3d 976 (Pa. Apr. 3,
      2018).]

      On April 20, 2018, [Appellant] filed the instant [pro se] PCRA
      [petition] contending that his counsel was ineffective for failing to
      seek further psychiatric evaluations to help prepare an insanity
      defense or a diminished capacity defense.

                                  *    *    *

      [Appellant] contend[ed] that McWilliams . . . provides an
      exception to the time-bar under 42 Pa.C.S. § 9545(b)(1)(iii).

Pa.R.Crim.P. 907 Notice, 5/22/18, at 1-2.

      On May 22, 2018, the PCRA court issued a Rule 907 notice of its intent

to dismiss Appellant’s petition without a hearing. The court determined that

Appellant’s reliance on McWilliams did not qualify as an exception to the

PCRA’s time-bar under section 9545(b)(1)(iii):

      McWilliams was based on clearly established federal law from
      Ake [v. Oklahoma, 470 U.S. 68 (1985)]: that when a defendant
      is indigent, his mental condition is relevant to the punishment he
      might suffer, and [when] that mental condition is seriously in
      question, the State must provide, upon counsel’s request, the
      assistance of a mental health expert who is sufficiently available
      to the defense, and independent from the prosecution, to
      effectively assist in the evaluation, preparation, and presentation
      of the defense. The Supreme Court in McWilliams, which
      [Appellant] predicates his timeliness argument under, merely
      interpreted Ake’s holdings and did not establish a new
      Constitutional right.

Id. at 5.

      On June 27, 2018, Appellant filed a pro se motion to amend the PCRA

petition. Appellant argued that his current petition “erroneously quoted 42

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Pa.C.S. [§] 9545(b)(1)(iii), when he clearly should have filed his petition

pursuant to [section] 9545(b)(1)(ii). . . .”     Mot. to Amend, 6/27/18, at 2

(unpaginated). Further, Appellant claimed that he “was never aware of the

decision in Ake,” and his discovery of the McWilliams Court’s analysis of Ake

amounted to a previously unknown fact. Id.

       On July 18, 2018, the PCRA court dismissed Appellant’s “petition and

amendment.”2        Order, 7/18/18 (some capitalization omitted).      Appellant

timely filed a pro se notice of appeal and court-ordered Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. On December 19, 2018,

the PCRA court filed a responsive opinion concluding that Appellant had failed

to prove the applicability of any exception to the PCRA’s timeliness

requirements.

       Appellant now raises four questions for our review:

       [1.] Did the [PCRA] court err when it dismissed [Appellant’s] PCRA
       petition as untimely?

       [2.] Did the [PCRA] court abuse its discretion in not allowing
       [Appellant] the chance to amend his PCRA petition?

       [3.] Was trial counsel ineffective for not pursuing further
       psychological testing for [Appellant]?

       [4.] Did the [PCRA] court err when it failed to hold an evidentiary
       hearing pursuant to Pa.R.Crim.P. 908, to hear the testimony of
       the expert witnesses . . . as to the reports they gave in regards to
       the examination of [Appellant]?


____________________________________________


2The text of the order demonstrates that the PCRA court considered the merits
of the arguments raised in Appellant’s pro se motion to amend.

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Appellant’s Brief at 9.

      We address Appellant’s first three claims together, as they assert error

in the PCRA court’s conclusion that Appellant untimely filed the current

petition. Appellant relies on section 9545(b)(1)(ii), claiming that the decision

in McWilliams “was [a] newly discovered fact to [Appellant], as he had never

heard of a standard pertaining to psychological examinations for criminal

defendants or that there was a predecessor case that McWilliams was based

off of.” Id. at 14. Appellant emphasizes that a “pro se petitioner does not

have access to information otherwise readily available to the public,” and “the

fact that [Appellant] had waited almost seven years [to raise the current

claims] should not be taken into consideration when deciding whether this

instant petition [is] timely.” Id. at 14, 16. Further, Appellant contends he

acted with due diligence by filing the current petition within days of the

Pennsylvania Supreme Court’s denial of the petition for allowance of appeal

related to his prior PCRA petition. Id. at 13.

      Regarding his motion to amend, Appellant claims the PCRA court’s Rule

907 notice alerted him to the fact that he “erroneously quoted 42 Pa.C.S. §

9545(b)(1)(iii), when he clearly should have filed his petition pursuant to

[section] 9545(b)(1)(ii).” Id. at 18. Appellant insists he “can find no reason

as to why the [PCRA c]ourt would not allow [him] to amend his PCRA petition

to achieve substantial justice and [proceed] with the claims in his petition.”

Id. Moreover, Appellant maintains that the current petition raises genuine

issues   of   material    fact,   because   he   demonstrated   trial   counsel’s

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ineffectiveness for failing to pursue additional psychiatric testing.3 Id. at 19-

20.

       Our standard of review for the dismissal of a PCRA petition is limited to

“whether the record supports the PCRA court’s determination and whether the

PCRA court’s decision is free of legal error.” Commonwealth v. Lawson, 90

A.3d 1, 4 (Pa. Super. 2014) (citation omitted).

       It is well-settled that “the timeliness of a PCRA petition is a jurisdictional

[pre-]requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super.

2015) (citation omitted). “A PCRA petition, including a second or subsequent

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

becomes final.” Id. (citation omitted). “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.’”          Id. (quoting 42 Pa.C.S. §

9545(b)(3)).

       Courts may consider a PCRA petition filed more than one year after a

judgment of sentence becomes final only if the petitioner pleads and proves

one of the following three statutory exceptions:


____________________________________________


3 Although he acknowledges that before his plea, counsel facilitated some
psychiatric evaluation, Appellant complains that “none of it was used to
formulate a defense,” and “[c]ounsel was not even willing to discuss the
results” of the testing after he learned that one of the experts deemed
Appellant competent to stand trial. Appellant’s Brief at 22.

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      (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).    Significantly, “the Pennsylvania Supreme

Court has held that ‘subsequent decisional law does not amount to a new ‘fact’

under section 9545(b)(1)(ii) of the PCRA.’” Commonwealth v. Whitehawk,

146 A.3d 266, 271 (Pa. Super. 2016) (quoting Commonwealth v. Watts, 23

A.3d 980, 987 (Pa. 2011)).

      Instantly, there is no dispute that Appellant failed to file the instant

PCRA petition within one year of his judgment of sentence becoming final. To

the extent Appellant attempts to characterize the McWilliams decision as a

previously unknown fact, we reiterate that subsequent judicial decisions do

not amount to new “facts” under section 9545(b)(1)(ii). See Whitehawk,

146 A.3d at 271. Accordingly, the PCRA court properly dismissed Appellant’s

current petition as untimely filed. See Brown, 111 A.3d at 175.

      In his final issue, Appellant claims that the PCRA court failed to conduct

a hearing, even though Appellant “met the criteria for an evidentiary hearing

when he showed the [c]ourt that his PCRA petition contained genuine issues

of material fact that were supported by the record. . . .” Appellant’s Brief at


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31. Nevertheless, “a PCRA court has discretion to dismiss a PCRA petition

without a hearing if the court is satisfied that there are no genuine issues

concerning any material fact; that the defendant is not entitled to post-

conviction collateral relief; and that no legitimate purpose would be served by

further proceedings.” Commonwealth v. Burton, 158 A.3d 618, 622 n.4

(Pa. 2017) (citations omitted). Here, Appellant failed to raise any genuine

issue of fact regarding the timeliness of his petition, and the PCRA court lacked

jurisdiction to consider his claims.     Therefore, the court did not err in

dismissing Appellant’s petition without a hearing. See id.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/2019




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