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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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* 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(unpublished mem.), appeal denied, 183 A.3d 976 (Pa.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]?
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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:
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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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