J-S74019-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
JOSEPH WALLACE
Appellant No. 1714 EDA 2018
Appeal from the PCRA Order Entered April 19, 2018
In the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0001266-2000
BEFORE: LAZARUS, STABILE, and McLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 15, 2019
Appellant Joseph Wallace pro se appeals from the April 19, 2018 order
entered in the Court of Common Pleas of Chester County, dismissing as
untimely his second petition for collateral relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon review, we
affirm.
The facts and procedural history of this case are undisputed. As
recounted by a prior panel of this Court:
On February 28, 2000, [Appellant] stabbed his wife Eileen
as she slept in her bed. Eileen [] died as a result of her wounds.
On December 6, 2000, [Appellant] entered a plea of guilty but
mentally ill to the charges of third[-]degree murder, possessing
an instrument of crime and tampering with physical evidence. He
was sentenced that day to a term of imprisonment of twenty-three
and one-half to forty-seven years. [Appellant] did not appeal his
sentence. On September 3, 2013, [Appellant] filed a pro se PCRA
petition. Because this was [Appellant’s] first PCRA petition, [the
PCRA court] appointed Robert Brendza, Esquire [“Attorney
Brendza”] as [Appellant’s] counsel. [Attorney] Brendza reviewed
[Appellant’s] claims and court file, determined that [Appellant’s]
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PCRA [petition] was not timely, and moved to withdraw his
appearance as PCRA counsel. [The PCRA court] also reviewed the
file and record, [and] also determined that [Appellant’s] PCRA
[petition] was untimely, and on June 18, 2014, [the PCRA court]
gave [Appelant] notice of [the court’s] intent to dismiss his
petition without a hearing. [Appellant] responded to this notice
with two pro se filings. On July 17, 2014, [the PCRA court]
directed that [Attorney] Brendza review these submissions, and
inform the [c]ourt of his findings. [Attorney] Brendza complied
with this order, and after [the PCRA court’s] review revealed that
[Appellant] was entitled to no post-conviction relief, [the court]
dismissed [Appellant’s] PCRA petition on September 24, 2014
[and granted Attorney Brendza’s Motion to withdraw].
Commonwealth v. Wallace, No. 2868 EDA 2014, unpublished
memorandum, at 1-2 (Pa. Super. March 31, 2015) (citations omitted). On
appeal, Appellant argued, inter alia, that his petition was timely because he
satisfied the newly-discovered facts exception to the PCRA’s time-bar.
Specifically, Appellant argued that one of the defense psychologists, Dr.
Gerald Cooke, who evaluated him was unaware of the prescription
medications that Appellant was taking, including Ambien, Ritalin and Paxil,
when he murdered Eileen. In support, Appellant presented the supplemental
opinion of Dr. Cooke, concluding that the medications may have exacerbated
Appellant’s psychosis and may provide Appellant with a partial defense of
involuntary intoxication. Id. at 4. Nonetheless, Dr. Cooke deferred to a
psychopharmacologist to provide expert opinion on this issue. We concluded
that “these are not ‘newly-discovered facts,’ but merely ‘a newly willing source
for previously known facts.’” Id. As a result, we held that Appellant’s claim
did “not invoke the timeliness exception at Section 9545(b)(1)(ii).
Accordingly, on March 31, 2015, we affirmed the PCRA court’s dismissal of
Appellant’s first petition. Appellant filed a petition for allowance of appeal,
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which our Supreme Court denied on July 29, 2015. Commonwealth v.
Wallace, 119 A.3d 351 (Pa. 2015).
On February 26, 2018, Appellant filed the instant, his second, PCRA
petition, which was dated February 20, 2018. On March 5, 2018, the PCRA
court issued a notice of its intention to dismiss Appellant’s petition without a
hearing under Pa.R.Crim.P. 907. On April 19, 2018, the PCRA dismissed as
untimely Appellant’s second petition. On May 15, 2018, Appellant pro se filed
a notice of appeal and a motion for reconsideration, which the PCRA court
denied on May 22, 2018.1 Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
On appeal,2 Appellant raises five issues for our review:
[I.] Did the PCRA court commit legal error in failing to recognize
newly discovered facts with regard to the timely filing of
Appellant’s PCRA petition?
[II.] Did the lower court commit legal error and/or abuse its
discretion when it; a) dismissed newly discovered facts without an
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1 Because the PCRA court had until May 21, 2018 to rule on Appellant’s
reconsideration motion, its May 22, 2018 denial of the same is null and void
because it fell outside of the thirty-day period. See Pa.R.A.P. 1701(b)(3)
(providing that a trial court may grant reconsideration of an order subject to
a petition for reconsideration, if the petition is filed “within the time provided
or prescribed by law,” and the trial court enters an order expressly granting
reconsideration within the time for filing a notice of appeal); see also
Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000) (noting
that “[f]ailure to ‘expressly’ grant reconsideration within the time set by the
rules for filing an appeal will cause the trial court to lose its power to act on
the application for reconsideration.” (citation omitted)).
2“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).
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evidentiary hearing; b) ruled Appellant’s response to notice of
intent to dismiss untimely; c) denied pro se Appellant a chance to
amend brief, and; d) failed to order the district attorney to
produced records requested in PCRA?
[III.] Did the court incorrectly rule that Appellant’s mental health
has already been fully considered?
[IV.] Did the court commit legal error by failing to address
material issues of fact regarding the merit of Appellant’s due
process claims of; a) incompetency; b) unlawfully induced plea
and ineffective assistance of counsel; c) miscarriage of justice?
[V.] Did the court commit legal error by failing to allow Appellant
to withdraw guilty plea?
Appellant’s Brief at ix (unnecessary capitalizations omitted) (sic).
Before we may address the merits of this appeal, we must determine
whether the PCRA court had jurisdiction to entertain the underlying PCRA
petition. The PCRA contains the following restrictions governing the timeliness
of any PCRA petition.
(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;
(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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(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within 60 days of the date the claim could have been
presented.
(3) For purposes of this subchapter, 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.
42 Pa.C.S.A. § 9545(b) (emphasis added). Section 9545’s timeliness
provisions are jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.
2014). Additionally, we have emphasized repeatedly that “the PCRA confers
no authority upon this Court to fashion ad hoc equitable exceptions to the
PCRA time-bar in addition to those exceptions expressly delineated in the Act.”
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
omitted).
Here, the record reflects Appellant’s judgment of sentence became final
on January 5, 2001. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).
Because Appellant had one year from January 5, 2001, to file his PCRA
petition, the current filing is facially untimely given it was filed on February
26, 2018.3
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3 The Commonwealth and the PRCA court note that Appellant did not raise his
newly-discovered facts claim within sixty days of the date the claim could have
been presented. See 42 Pa.C.S.A. § 9545(b) (2). Appellant counters that
the instant PCRA petition was filed within sixty days because he dated and
mailed the petition on February 20, 2018. The certified record here, however,
does not contain the envelope in which Appellant’s PCRA petition was mailed
and Appellant does not otherwise provide any certificate of mailing, cash slip,
prison account deduction slip, or affidavit. As noted earlier, even though the
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The one-year time limitation, however, can be overcome if a petitioner
alleges and proves one of the three exceptions set forth in Section
9545(b)(1)(i)-(iii) of the PCRA. See Commonwealth v. Marshall, 947 A.2d
714, 719 (Pa. 2008). Here, Appellant alleges that he was unaware of the facts
underlying his claim and thereby calls upon the newly-discovered facts
exception to the PCRA’s time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Before
Appellant may avail himself of this exception, he first must establish that the
facts upon which the claim is predicated were unknown and that he could not
have ascertained those facts by the exercise of due diligence.
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (citations and
quotation marks omitted).
Here, Appellant asserts that on December 22, 2017, he obtained his
prison medical records revealing that he was mentally unfit to plead guilty on
December 6, 2000. In particular, Appellant refers to a March 2, 2000 note in
his medical chart that states “[u]nclear whether Ritalin use contributed to any
psychotic symptoms.” Reproduced Record (R.R.) at 45. Additionally,
Appellant claims that a psychiatric evaluation performed on December 28,
2000 (approximately three weeks after this guilty plea) at SCI Camp Hill,
reveals that “Appellant was in no condition to enter contract or assist attorney
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instant PCRA petition was dated February 20, 2018, it was not docketed until
February 26, 2018. Nonetheless, for purposes, and based on the outcome, of
this appeal, we need not address whether Appellant’s newly-discovered facts
claim was filed within sixty days of the date the claim could have been
presented.
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regarding relevant information due to being heavily medicated at the time.”
PCRA Petition, 2/26/18, at 3A.
Appellant is not entitled to relief. As detailed above, Appellant raised
the issue challenging his mental fitness at the time of the guilty plea on his
first PCRA petition, the dismissal of which the prior panel of this Court
affirmed. See Wallace, supra. Indeed, issues previously raised and litigated
are not cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(3) (issue is
“previously litigated” if “it has been raised and decided in a proceeding
collaterally attacking the conviction or sentence”). Moreover, his prison
records merely provide a new source for a previously known fact that his use
of medications, including Ritalin, could have impaired him or rendered him
incompetent at the time of the guilty plea. See Marshall, 947 A.2d at 720
(The focus of the exception is “on [the] newly discovered facts, not on a newly
discovered or newly willing source for previously known facts.”). Thus, the
issue continues to fail to satisfy the timeliness exception. Accordingly, we
affirm the PCRA court’s dismissal of Appellant’s second petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/19
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