J. S40009/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JONATHAN R. THOMAS, : No. 1090 WDA 2014
:
Appellant :
Appeal from the PCRA Order, June 13, 2014,
in the Court of Common Pleas of Washington County
Criminal Division at No. CP-63-CR-0001619-1995
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 08, 2015
Jonathan R. Thomas appeals from the order of the Court of Common
Pleas of Washington County which dismissed, without a hearing, his second
petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. We affirm.
On December 11, 1994, appellant entered an A-Plus Mini Market on
McMurray Avenue in Peters Township, pointed a shotgun at the clerk, and
demanded money. After the clerk handed appellant $283, appellant raised
the shotgun and attempted to fire the weapon. The weapon did not fire
initially. Appellant then adjusted the weapon and fired again, this time
hitting the clerk and causing his death. During the pendency of the case,
appellant signed a release in November of 1996 for his trial counsel to obtain
medical and mental health records. His counsel retained a psychiatrist to
* Retired Senior Judge assigned to the Superior Court.
J. S40009/15
examine appellant’s records and conduct other investigations related to his
mental health. On November 21, 1996, that expert, Dr. Lawson Bernstein,
prepared a report which indicated that appellant’s substantive cognitive
impairments may have impaired his ability to form specific criminal intent at
the time of the alleged homicide.
The Commonwealth sought a first-degree murder conviction and the
death penalty, but allowed appellant to plead guilty to murder in the second
degree and robbery.1 Prior to entering his plea, appellant and his trial
counsel completed and signed a written guilty plea colloquy and explanation
of rights form. The trial court conducted an oral colloquy of appellant in
open court, and noted that defense counsel “worked diligently on a
diminished capacity [defense.]” (Plea and sentencing transcript, 3/3/97 at
30.) After entering his plea of guilty, the trial court sentenced appellant to
the statutory penalty of life imprisonment without the possibility of parole.
On March 25, 1997, appellant appealed from the judgment of sentence
and alleged that his guilty plea was invalid because his mental condition
rendered him incapable of entering a plea. He also alleged that his guilty
plea was invalid because the trial court accepted his plea without first
holding a competency hearing. This court denied appellant’s appeal on
April 16, 1998. Commonwealth v. Thomas, No. 641 Pittsburgh 1997,
unpublished memorandum (Pa.Super. filed April 16, 1998). We found
1
18 Pa.C.S.A. §§ 2502(b) and 3701(a)(1), respectively.
-2-
J. S40009/15
appellant competent because he understood the nature and objective of the
proceedings against him, he cooperated with his legal representation in
preparing his defense, and he was involved in the plea negotiations.
Nothing in the record indicated that appellant did not knowingly, voluntarily,
and intelligently enter a guilty plea. Appellant filed a timely petition for
allowance of appeal which the supreme court denied on November 9, 1998.
On November 4, 1999, appellant filed a pro se petition for
post-conviction relief alleging constitutional violations and ineffective
assistance of counsel. The PCRA court appointed Michael Savona, Esq. to
represent appellant. (Docket #57.) The court allocated $500 to retain a
psychological expert to review the records relative to appellant’s mental
health history. (Docket #61.) On May 3, 2005, Attorney Savona filed a “No
Merit” letter; and on May 23, 2005, the PCRA court issued appellant a notice
of its intent to dismiss the petition without a hearing. Appellant then hired
John Ceraso, Esq. On June 13, 2005, Attorney Ceraso filed a motion for
leave to file an amended PCRA petition. (Docket #64.) The PCRA did not
rule on that motion, and Attorney Ceraso took no further action on
appellant’s behalf.
Nothing happened in the case until February 20, 2009, when
appellant, through new counsel, Mark Rubenstein, Esq., filed an amended
PCRA petition raising three issues. Appellant claimed trial counsel failed to
present psychiatric evidence that would have provided a defense to the
-3-
J. S40009/15
murder charge. Appellant claimed he suffered from psychological problems
that prevented him from forming the requisite mens rea to commit an
intentional murder. He also alleged discovery of new evidence; namely, the
recantation of an eyewitness whose statements induced him to enter his
guilty plea. On April 1, 2009, the PCRA court issued a notice of its intent to
dismiss the petition without a hearing. (Docket #68.) Appellant responded.
On May 27, 2009, the PCRA court denied and dismissed appellant’s PCRA
petition. Appellant appealed to this court and argued, among other things,
that trial counsel was ineffective for failing to investigate the possibility of a
mental health defense. On June 8, 2010, this court affirmed.
Commonwealth v. Thomas, No. 1108 WDA 2009, unpublished
memorandum (Pa.Super. filed June 8, 2010). We found the underlying issue
to be without merit because the record demonstrated that there was a
mental health evaluation prior to trial and that trial counsel considered
appellant’s mental health; however, trial counsel concluded that the
certainty of accepting the plea bargain and avoiding the death penalty
outweighed the presentation of diminished mental capacity as a strategic
matter.
On March 21, 2014, new counsel, Neil Jokelson, Esq., entered his
appearance on behalf of appellant. On April 30, 2014, appellant filed the
second PCRA petition at issue here. Appellant alleged that trial counsel was
ineffective because counsel was aware, based on psychiatric treatment
-4-
J. S40009/15
records and expert reports prepared by defense counsel and the
Commonwealth, of appellant’s significant history of mental illness. He
argued that neither appellate counsel nor PCRA counsel attacked trial
counsel’s failure to advise appellant that he could enter or attempt to enter a
plea of guilty but mentally ill pursuant to 18 Pa.C.S.A. § 314(b). Appellant
argued that had he pled guilty but mentally ill, he would have been entitled
to psychiatric treatment while serving his life sentence in accordance with
the Mental Health Procedures Act, 50 P.S. § 7101-7503. 42 Pa.C.S.A.
§ 9727(b)(1); see also Commonwealth v. Trill, 543 A.2d 1106, 1132
(Pa.Super. 1988), appeal denied, 562 A.2d 826 (Pa. 1989). Appellant
requested an evidentiary hearing to determine if he:
was eligible to tender a plea of guilty but mentally ill
at the time he tendered his guilty plea and with a
further instruction that if it is determined that
appellant was so eligible he should be allowed to
withdraw his pleas of guilty and in their stead enter
pleas of guilty but mentally ill.
Appellant’s reply brief at 4-5.
On May 21, 2014, the PCRA court notified appellant of its intent to
dismiss the PCRA petition without a hearing pursuant to
Pa.R.Crim.P. 907(1). The PCRA court concluded it did not have jurisdiction
to hear appellant’s petition because it was not filed within one year of the
date the judgment became final. 42 Pa.C.S.A. § 9545(b)(3). Specifically,
the window for appellant to file a PCRA petition closed on November 9, 1999.
The instant petition was filed on April 30, 2014. The PCRA court found that
-5-
J. S40009/15
none of the exceptions to the one-year filing rule applied. Commonwealth
v. Lawson, 549 A.2d 107 (Pa. 1988).
On appeal, appellant raises the following three issues:
(1) DID THE COURT BELOW HAVE JURISDICTION
TO HEAR THE APPELLANT’S COUNSELED
PETITION FOR POST CONVICTION RELIEF
WHICH WAS FILED MORE THAN ONE YEAR
AFTER THE DATE THAT THE JUDGMENTS OF
SENTENCE BECAME FINAL, BUT THE FACTS
WHICH THE CLAIM FOR RELIEF AS SET FORTH
IN THE INSTANT PCRA WERE UNKNOWN TO
THE APPELLANT AND WERE NOT
ASCERTAINABLE BY HIM THROUGH THE
EXERCISE OF DUE DILIGENCE AS EXPLAINED
IN THE PCRA PETITION?
(2) DID THE COURT BELOW ERR IN DISMISSING
THE’S [sic] PCRA PETITION, WITHOUT THE
HOLDING OF AN EVIDENTIARY HEARING ON
THE BASIS THAT ALL OF THE ISSUES RAISED
IN THE INSTANT PCRA “HAVE BEEN
PREVIOUSLY LITIGATED OR WAIVED” WHEN
THEY WERE NOT?
(3) DID THE COURT BELOW ERR IN STATING
THAT “. . . THIS COURT WILL NOT ENTERTAIN
THE INSTANT PCRA PETITION BECAUSE A
STRONG PRIMA FACIE SHOWING HAS NOT
BEEN MADE THAT A MISCARRIAGE OF JUSTICE
HAS OCCURRED . . .” WHEN IN FACT THERE
EXISTS A COMPELLING PUBLIC POLICY,
LEGISLATIVELY ADOPTED, THAT A PERSON IN
APPELLANT’S POSITION WHO WAS DENIED
MENTAL HEALTH TREATMENT PURSUANT TO
THE MENTAL HEALTH PROCEDURES ACT VIA A
PLEA OF GUILTY BUT MENTALLY ILL HAS BEEN
FUNDAMENTALLY HARMED RESULTING IN A
MISCARRIAGE OF JUSTICE?
Appellant’s brief at 2-3.
-6-
J. S40009/15
All PCRA petitions must be filed within one year of when a defendant’s
judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). If the
petition is untimely, we lack jurisdiction. Commonwealth v. Callahan, 101
A.3d 118 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely
PCRA). “A judgment becomes final at the conclusion of direct review,
including discretionary review in the Supreme Court of the United States and
our Pennsylvania Supreme Court, or at the expiration of time for seeking the
review.” Id. at 122, quoting 42 Pa.C.S.A. § 9545(b)(3). In this case, we
affirmed appellant’s sentence on April 16, 1998. Appellant timely petitioned
for allocatur which was denied on November 9, 1998. United States
Supreme Court Rule 13 provides that “[a] petition for writ of certiorari
seeking review of a judgment of a lower state court that is subject to
discretionary review by the state court of last resort is timely when filed with
the Clerk within 90 days after entry of the order denying discretionary
review.” U.S. Sup.Ct. Rule 13, 28 U.S.C.A. Under this rule, appellant had 90
days (i.e., until February 7, 1999) to file a petition for certiorari in the
United States Supreme Court with respect to the Pennsylvania supreme
court's order. Thus, appellant's judgment became final on February 7, 1999.
42 Pa.C.S.A. § 9545(b)(3). See also Commonwealth v. Owens, 718 A.2d
330 (Pa.Super. 1998). Under 42 Pa.C.S.A. § 9545(b)(1), appellant had one
year from this date, until February 7, 2000, to file his PCRA petition; and his
-7-
J. S40009/15
present one, which was filed on April 30, 2014, failed to satisfy that time
limitation.
There are three exceptions to the one-year time bar: when the
government has interfered with the defendant’s ability to present the claim,
when the defendant has recently discovered the facts upon which his PCRA
claim is predicated, or when either the Supreme Court of the United States
or our supreme court has recognized a new constitutional right and made
that right retroactive. 42 Pa.C.S.A. § 9545(b)(1)(i-iii); Commonwealth v.
Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The defendant has the
burden of pleading and proving the applicability of any exception.
42 Pa.C.S.A. § 9545(b)(1).
Appellant seeks to withdraw his guilty plea based upon his mental
health issues and the fact that he was not advised that he could enter or
attempt to enter a guilty but mentally ill plea. This claim does not satisfy
any exception to the PCRA. All these facts were within appellant’s
knowledge as of the date his judgment of sentence was imposed. Appellant
and his counsel could have ascertained this allegedly new information before
the PCRA window closed on February 7, 2000. Given the numerous
arguments appellant has made since entering his guilty plea regarding the
invalidity of his plea due to his mental illness, appellant and his various
counsel have had ample opportunity to ascertain and argue that his trial
counsel failed to inform him of his option to plead guilty but mentally ill.
-8-
J. S40009/15
Appellant’s counsel for his direct appeal and prior PCRA counsel knew
enough about appellant’s mental illness to argue in those proceedings that
appellant’s plea was invalid due to his diminished mental capacity.
Therefore, they were certainly able to discover and argue that trial counsel
failed to advise appellant of his option to plead guilty but mentally ill before
his PCRA window closed in February 2000.2
Our independent review of the record confirms that appellant’s
averments in his PCRA petition do not afford him relief. Hence, we concur in
the PCRA court’s analysis that there is no merit to his request for PCRA
relief. The PCRA court did not abuse its discretion in dismissing appellant’s
second PCRA petition as untimely. Because we find the PCRA petition was
untimely, we need not address appellant’s remaining two substantive issues.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/08/2015
2
We also note that appellant’s argument assumes, without analysis, both
the viability of this plea agreement and its omission as adversely affecting
him. A plea of guilty but mentally ill is not a matter of right. Such a plea
agreement in this case would have required both the consent of the
Commonwealth and the approval of the court. Pa.R.Crim.P. 590(A)(3). See
Commonwealth v. Brandwein, 10 Pa. D. & C. 5th 13 (Carbon Cty. 2009).
-9-
J. S40009/15
- 10 -