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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MELKAMU LEGESSE GARUMA :
:
Appellant : No. 1902 MDA 2017
Appeal from the PCRA Order November 13, 2017
in the Court of Common Pleas of Lancaster County
Criminal Division at Nos.: CP-36-CR-0000783-2006
CP-36-CR-0005225-2005
BEFORE: PANELLA, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED AUGUST 14, 2018
Appellant, Melkamu Legesse Garuma, appeals, pro se, from the order of
November 13, 2017, dismissing, without a hearing, his second petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
Because the petition is untimely without an applicable exception, we affirm.
We take the underlying facts and procedural history in this matter from
this Court’s December 18, 2007 memorandum and our independent review of
the certified record.
[Appellant] was charged with the murder and rape of his
girlfriend, Estegenet Beyene, which occurred in the early morning
hours of September 23, 2005. Shortly after the killing, [Appellant]
went to the apartment of his friend, Ermias Amenti, and told him
that he had killed his girlfriend and that he wanted to kill himself.
Amenti called 9-1-1. Sergeant Christopher Laser of the Lancaster
Bureau of Police received a radio dispatch for a “homicide not in
progress” at 442 South Queen Street. Sergeant Laser and other
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* Retired Senior Judge assigned to the Superior Court.
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officers responded to that address. When they arrived, Amenti
motioned them into his apartment where [Appellant] was sitting.
After speaking with [Appellant] for several minutes, Sergeant
Laser placed him under arrest and brought him to the police
station for questioning.
On June 6, 2006, [Appellant] filed a motion to suppress
evidence, which was denied after an evidentiary hearing.
Thereafter, [Appellant] ple[a]d[ed] guilty to murder generally,
and the Commonwealth agreed to withdraw its intention to seek
the death penalty. [Appellant] also waived his right to a jury trial
on the rape charge. On October 24, 2006, [Appellant] proceeded
to a joint degree-of-guilt proceeding on the murder charge and a
bench trial on the rape charge. On November 3, 2006, the trial
court found [Appellant] guilty of first-degree murder and rape.
[Appellant] was sentenced to life in prison for murder and a
consecutive sentence of [not less than ten nor more than twenty]
years for rape. After the denial of his post-sentence motions,
[Appellant] timely appealed.
(Commonwealth v. Garuma, No. 272 MDA 2007, unpublished
memorandum at *1-2 (Pa. Super. filed Dec. 18, 2007)). On December 18,
2007, this Court affirmed the judgment of sentence. The Pennsylvania
Supreme Court denied leave to appeal on May 28, 2008. (See
Commonwealth v. Garuma, 951 A.2d 1160 (Pa. 2008)).
On August 27, 2008, Appellant, acting pro se, filed a timely first PCRA
petition. On October 2, 2008, the PCRA court appointed counsel. Counsel
filed an amended PCRA petition on March 3, 2009, and an evidentiary hearing
took place on November 19, 2009. On June 28, 2010, the PCRA court denied
Appellant’s petition. This Court affirmed the denial on May 11, 2011. (See
Commonwealth v. Garuma, 30 A.3d 535 (Pa. Super. 2011) (unpublished
memorandum)). On October 13, 2011, the Pennsylvania Supreme Court
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denied leave to appeal. (See Commonwealth v. Garuma, 30 A.3d 487 (Pa.
2011)).
On August 24, 2017, Appellant, acting pro se, filed the instant PCRA
petition. On September 1, 2017, the PCRA court issued notice of its intent to
dismiss the petition pursuant to Pennsylvania Rule of Criminal Procedure
907(1). Appellant filed a response on September 19, 2017. On November
13, 2017, the PCRA court dismissed the petition as untimely. The instant,
timely appeal followed. The PCRA court did not order Appellant to file a
concise statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).
On December 4, 2017, the PCRA court issued an opinion. See Pa.R.A.P.
1925(a).
On appeal, Appellant raises the following questions for our review.
[1.] Was the Appellant denied his Sixth and Fourteenth United
States Constitutional Amendment right(s) herein to assist trial,
appellate and PCRA counsel(s) with a defense where Appellant’s
mental health disability, previously unknown due to trial counsel’s
failure to conduct a proper investigation, coupled with Appellant’s
language barrier, hamper Appellant’s ability as would have
created a rebuttable presumption of competency existed at crucial
times which hampered Appellant’s ability to have presented this
information in time for trial thereby causing a structural defect
during those critical stages, as would require reversal of
Appellant’s conviction?
[2.] Was Appellant denied his Fifth, Sixth and Fourteenth United
States Constitutional Amendments in applying Pennsylvania’s Sex
Offender Registration and Notification Act [SORNA] in violation of
Appellant’s State and Federal ex post facto clause rights?
(Appellant’s Brief, at 4) (unnecessary capitalization omitted).
Our standard of review for an order denying PCRA relief is well-settled:
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This Court’s standard of review regarding a PCRA court’s
order is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Great
deference is granted to the findings of the PCRA court, and these
findings will not be disturbed unless they have no support in the
certified record. . . .
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a
trial court has no jurisdiction to entertain the petition.” Commonwealth v.
Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).
Here, Appellant filed his PCRA petition on August 24, 2017. The PCRA
provides that “[a]ny petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). Appellant’s judgment of
sentence as to these matters became final on August 26, 2008, ninety days
after the Pennsylvania Supreme Court denied leave to appeal and Appellant
did not file a petition for a writ of certiorari with the United States Supreme
Court. See U.S.Sup.Ct.R. 13. Because Appellant did not file his current
petition until August 24, 2017, the petition is facially untimely. See 42
Pa.C.S.A. § 9545(b)(1). Thus, he must plead and prove that he falls under
one of the exceptions at Section 9545(b) of the PCRA. See id.
Section 9545 provides that the court can still consider an untimely
petition where the petitioner successfully proves that:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
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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.
Id. at § 9545(b)(1)(i)-(iii). Further, a petitioner who wishes to invoke any
of the above exceptions must file the petition “within [sixty] days of the date
the claim could have been presented.” Id. at § 9545(b)(2). The Pennsylvania
Supreme Court has repeatedly stated that it is an appellant’s burden to plead
and prove that one of the above-enumerated exceptions applies. See, e.g.,
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert.
denied, 555 U.S. 916 (2008).
Here, Appellant seeks first to invoke the newly-discovered facts
exception, (see Appellant’s Brief, at 8-14), codified at 42 Pa.C.S.A. §
9545(b)(1)(ii), and discussed in the Pennsylvania Supreme Court’s decision in
Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), which held that this
exception refers not to after-discovered evidence, but to facts that were
previously unknown to the petitioner. See Bennett, supra at 1270. The
Court in Bennett also held, in accord with the statutory language, that an
appellant must prove that the facts upon which the claim is predicated could
not have been ascertained earlier through the exercise of due diligence. See
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id. at 1272; see also Commonwealth v. Taylor, 933 A.2d 1035, 1040-41
(Pa. Super. 2007), appeal denied, 951 A.2d 1163 (Pa. 2008).
In the instant matter, Appellant claims that medical personnel working
for the Department of Corrections (DOC) diagnosed him with a “mental health
disability” and that he has realized that he suffered from this “disability” at
the time of his offense. (Appellant’s Brief, at 9). Appellant does not specify
the nature of this disability, does not state when personnel diagnosed him,
and does not explain how he realized that he also suffered from this disability
at the time of the offense. (See id. at 9-10). Appellant does not provide any
medical documentation to support his contention, claiming that under DOC
policy he is unable to obtain copies of his own psychiatric records. (See id.
at 10-11). He did attach, as an appendix to his PCRA petition, a copy of a
visitor’s log, which labels him as “seriously mentally ill,” but provides no other
information. (PCRA Petition, 8/24/17, Appendix-(A)).
In Commonwealth v. Monaco, 996 A.2d 1076 (Pa. Super. 2010),
appeal denied, 20 A.3d 1210 (Pa. 2011), this Court addressed an extremely
similar situation. In Monaco, the appellant pleaded guilty to criminal
homicide generally in 1979 and, after a degree of guilty hearing, the trial court
found him guilty of murder in the first degree and sentenced him to life without
the possibility of parole. See Monaco, supra at 1077. The appellant was a
Vietnam War veteran and, in 2002, heard a speaker discuss post-traumatic
stress disorder (PTSD). See id. at 1078. Between 2003 and 2007, the
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appellant attempted to apply for veteran’s benefits based upon his belief that
he suffered from PTSD; he was evaluated by three different mental health
professionals who did not agree on the question of whether he suffered from
PTSD. See id. Ultimately, in April 2007, the Veteran’s Administration found
that the appellant suffered from a mild form of PTSD and granted him disability
benefits. See id. at 1079. The appellant filed a PCRA petition in June 2007,
claiming that his diagnosis constituted a newly discovered fact and an
exception to the time-bar. See id.
On appeal, this Court rejected the appellant’s contention; we initially
noted that, “[o]nly under a very limited circumstance has the Supreme Court
ever allowed a form of mental illness or incompetence to excuse an otherwise
untimely PCRA petition.” Id. at 1080-81 (citation omitted). We then
reiterated that, “the general rule remains that mental illness or psychological
condition, absent more, will not serve as an exception to the PCRA’s
jurisdictional time requirements.” Id. at 1081 (citation omitted). Ultimately,
this Court concluded that the appellant had not acted with due diligence in
pursuing his claim, finding that he was aware at the earliest in 2002 and at
the latest in 2005 that he suffered from PTSD but did not file his PCRA petition
until 2007. See id. at 1082-83. Moreover, we held that where the appellant
did not allege that his mental illness impaired his ability to “raise or
communicate his claims” his diagnosis did not fall within the limited mental
health exception. Id. at 1083.
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Here, as in Monaco, Appellant has not alleged that his mental illness
impaired his ability to file a PCRA petition or pointed to evidence of record that
he was not competent at the time of his plea and trial; thus, he does not fit
within the limited mental illness exception. See Monaco, supra at 1082-83;
see also Commonwealth v. Cruz, 852 A.2d 287, 288, 296 (Pa. 2004) (to
invoke mental illness exception petitioner must point to evidence of record
that he was not competent at time of trial, and show that illness made him
unable to discover facts forming basis of PCRA petition). Moreover, Appellant
has provided minimal detail about his efforts to demonstrate due diligence
compared to the appellant in Monaco, whose efforts we found insufficient.
See Monaco, supra at 1082-83; (Appellant’s Brief, at 8-14). His general
claims that at some unknown time unidentified mental health professionals
diagnosed him with an unspecified mental illness that rendered him
incompetent to enter a guilty plea more than ten years prior to the filing of
the instant petition are inadequate to show he exercised due diligence in filing
the instant claim. See Bennett, supra at 1272; Monaco, supra at 1082-
83. Thus, the PCRA court neither erred nor abused its discretion in finding
that Appellant did not meet the newly-discovered facts exception, codified at
42 Pa.C.S.A. § 9545(b)(1)(ii).1
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1 Appellant does not present an exception to the time-bar by claiming
ineffective assistance of counsel. See Commonwealth v. Davis, 816 A.2d
1129, 1135 (Pa. Super. 2003), appeal denied, 839 A.2d 351 (Pa. 2003)
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In his second claim, Appellant appears to contend that his petition is
timely under Section 9545(b)(1)(iii), specifically that the Pennsylvania
Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017), cert. denied, 138 S.Ct. 925 (2018), renders his sentence illegal. (See
Appellant’s Brief, at 15-20). We disagree.
In Muniz, the Pennsylvania Supreme Court found the retroactive
application of SORNA was unconstitutional as it violated the ex post facto
clause of the Pennsylvania Constitution. See Muniz, supra at 1193.
However, in a recent decision, a panel of this Court held that an appellant
“cannot rely on Muniz to meet that timeliness exception[,]” to the PCRA
because the Pennsylvania Supreme Court has not held that it applies
retroactively which is required “to satisfy section 9545(b)(1)(iii).”
Commonwealth v. Murphy, 180 A.3d 402, 406 (Pa. Super. 2018) (citation
omitted). Therefore, Appellant’s claim must fail.2
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(“[A]ttempts to utilize ineffective assistance of counsel claims as a means of
escaping the jurisdictional time requirements for filing a PCRA petition have
been regularly rejected by our courts.”) (citations omitted); see also
Appellant’s Brief, at 9-10). Moreover, his claim that counsel was ineffective
for failing to conduct a proper investigation prior to trial and thus failed to find
the evidence of Appellant’s mental illness clearly contradicts his claim that this
is a newly discovered fact that he was unaware of until diagnosed by DOC
medical personnel.
2In any event, it is not readily apparent that Muniz is applicable in this matter
because Appellant was required to register as a lifetime offender prior to the
enactment of SORNA. (See Commonwealth’s Brief, at 10).
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Thus, Appellant’s PCRA petition is untimely with no statutory exception
to the PCRA time-bar applying. See Hutchins, supra at 53. Accordingly, we
affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/18
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