J-S59006-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
BARRY JONES,
Appellant No. 3090 EDA 2015
Appeal from the PCRA Order Entered September 9, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0211883-1988
BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 20, 2016
Appellant, Barry Jones, appeals pro se from the post-conviction court’s
September 9, 2015 order denying, as untimely, his petition filed under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
The PCRA court briefly summarized the procedural history of
Appellant’s case, as follows:
On October 29, 1988, following a jury trial, [Appellant] was convicted of second-degree murder, robbery, and criminal conspiracy. On March 22, 1989, [Appellant] was sentenced to life imprisonment. On May 11, 1990, following a direct appeal, the Superior Court affirmed the judgment of sentence.2 [Appellant] did not seek allocatur [with the Pennsylvania Supreme Court].
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S59006-16
2 Commonwealth v. Jones, 578 A.2d 38 (Pa. Super. 1990)[](unpublished memorandum).
[Appellant] filed his first pro se PCRA petition on January 23, 1996.3 Attorney James Bruno, Esq. was appointed. The petition was subsequently denied on March 10, 2000, following an evidentiary hearing. The Superior Court dismissed the corresponding appeal on September 12, 2000, for failure to file a brief. 3 The current version of the PCRA contains a provision permitting a defendant whose conviction became final prior to January 16, 1996, the date the current version of the PCRA took effect, to file a timely first PCRA petition within one year of that date. See Commonwealth v. Alcorn, 703 A.2d 1054, 1056-57 (Pa. Super. 1997)[](holding that where a petitioner’s judgment of sentence became final on or before the effective date of the amendment to the PCRA, the amended PCRA contained a provision whereby a first PCRA petition could be filed by January 16, 1997, even if the conviction in question became final more than a year prior to the date of the filing).
[Appellant’s] second PCRA petition was filed on July 27, 2001. Counsel was appointed and an amended petition was filed seeking reinstatement of appellate rights [from the denial of Appellant’s first petition]. The lower court subsequently dismissed the petition as untimely and the Superior Court affirmed on September 29, 2004.4 A federal district court [also] dismissed [Appellant’s] habeas corpus petition, and the United States Court of Appeals for the Third Circuit denied a certificate of appealability in 2009. 4 Commonwealth v. Jones, 864 A.2d 579 (Pa. Super. 2004)[](unpublished memorandum). Petition for reargument denied December 8, 2004.
[Appellant] filed his third PCRA petition on December 29, 2009. The lower court subsequently dismissed [Appellant’s] PCRA Petition as untimely on April 24, 2013. The Superior Court affirmed the lower court’s dismissal on April 9, 2014.5 5 Commonwealth v. Jones, 102 A.3d 526 (Pa. Super. 2014)[](unpublished memorandum).
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[Appellant’s] current PCRA petition, his fourth, was filed pro se on January 5, 2015. Pursuant to Pennsylvania Rule of Criminal Procedure 907, [Appellant] was served with notice of the court’s intention to dismiss his PCRA petition on July 20, 2015. The lower court thereafter dismissed [Appellant’s] petition as untimely on September 9, 2015. On October 7, 2015, the instant notice of appeal was timely filed to the Superior Court.
PCRA Court Opinion (PCO), 11/9/15, at 1-2.
In his pro se appellate brief, Appellant presents six questions for our
review. See Appellant’s Brief at ix. Before we may address any of those
claims, however, we must examine the timeliness of Appellant’s petition,
because the PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded in order to address the merits of a petition. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for post-conviction relief, including a second or
subsequent one, must be filed within one year of the date the judgment of
sentence becomes final, unless one of the following exceptions set forth in
42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(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;
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(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). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant attempts to invoke the ‘new fact’ exception of section
9545(b)(1)(ii). The ‘new fact’ Appellant asserts is that his first PCRA
counsel, Attorney Bruno, has mental health issues which, according to
Appellant, caused Attorney Bruno to ineffectively abandon him on appeal
from the denial of initial PCRA petition. Appellant claims that he discovered
the ‘new fact’ of Attorney Bruno’s mental health issues when he read
an article published in Pennsylvania Law Weekly on December 2, 2014[,] detailing attorney James Bruno’s recent temporary suspension for violating Rules of Professional Conduct in unrelated cases. See PCRA petition, 1/5/15 at exhibit 1. The article also indicated that [Attorney] Bruno was diagnosed with attention-deficit hyperactive disorder and dysthymia in December [of] 2011. Id.
PCO at 4. Appellant claims that he could not have discovered Attorney
Bruno’s confidential medical diagnosis earlier, and that he filed his petition
within 60 days of his discovery of this new information. Accordingly, he
argues that he has satisfied the ‘new fact’ exception of section
9545(b)(1)(ii).
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The PCRA court disagreed, stating as follows:
Unpacking [Appellant’s] claim, although [Attorney] Bruno’s ineffectiveness was apparent since the adjudication of his first PCRA petition, the exact reason why counsel underperformed remained a mystery. [Appellant] believes that the recent article provided this elusive explanation, thereby satisfying the PCRA time-bar.
Even assuming the accurate explanatory power of the psychological diagnosis, the proposed cause of counsel’s dereliction did not revive [Appellant’s] untimely PCRA petition.
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J-S59006-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
BARRY JONES,
Appellant No. 3090 EDA 2015
Appeal from the PCRA Order Entered September 9, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0211883-1988
BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 20, 2016
Appellant, Barry Jones, appeals pro se from the post-conviction court’s
September 9, 2015 order denying, as untimely, his petition filed under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
The PCRA court briefly summarized the procedural history of
Appellant’s case, as follows:
On October 29, 1988, following a jury trial, [Appellant] was convicted of second-degree murder, robbery, and criminal conspiracy. On March 22, 1989, [Appellant] was sentenced to life imprisonment. On May 11, 1990, following a direct appeal, the Superior Court affirmed the judgment of sentence.2 [Appellant] did not seek allocatur [with the Pennsylvania Supreme Court].
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S59006-16
2 Commonwealth v. Jones, 578 A.2d 38 (Pa. Super. 1990)[](unpublished memorandum).
[Appellant] filed his first pro se PCRA petition on January 23, 1996.3 Attorney James Bruno, Esq. was appointed. The petition was subsequently denied on March 10, 2000, following an evidentiary hearing. The Superior Court dismissed the corresponding appeal on September 12, 2000, for failure to file a brief. 3 The current version of the PCRA contains a provision permitting a defendant whose conviction became final prior to January 16, 1996, the date the current version of the PCRA took effect, to file a timely first PCRA petition within one year of that date. See Commonwealth v. Alcorn, 703 A.2d 1054, 1056-57 (Pa. Super. 1997)[](holding that where a petitioner’s judgment of sentence became final on or before the effective date of the amendment to the PCRA, the amended PCRA contained a provision whereby a first PCRA petition could be filed by January 16, 1997, even if the conviction in question became final more than a year prior to the date of the filing).
[Appellant’s] second PCRA petition was filed on July 27, 2001. Counsel was appointed and an amended petition was filed seeking reinstatement of appellate rights [from the denial of Appellant’s first petition]. The lower court subsequently dismissed the petition as untimely and the Superior Court affirmed on September 29, 2004.4 A federal district court [also] dismissed [Appellant’s] habeas corpus petition, and the United States Court of Appeals for the Third Circuit denied a certificate of appealability in 2009. 4 Commonwealth v. Jones, 864 A.2d 579 (Pa. Super. 2004)[](unpublished memorandum). Petition for reargument denied December 8, 2004.
[Appellant] filed his third PCRA petition on December 29, 2009. The lower court subsequently dismissed [Appellant’s] PCRA Petition as untimely on April 24, 2013. The Superior Court affirmed the lower court’s dismissal on April 9, 2014.5 5 Commonwealth v. Jones, 102 A.3d 526 (Pa. Super. 2014)[](unpublished memorandum).
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[Appellant’s] current PCRA petition, his fourth, was filed pro se on January 5, 2015. Pursuant to Pennsylvania Rule of Criminal Procedure 907, [Appellant] was served with notice of the court’s intention to dismiss his PCRA petition on July 20, 2015. The lower court thereafter dismissed [Appellant’s] petition as untimely on September 9, 2015. On October 7, 2015, the instant notice of appeal was timely filed to the Superior Court.
PCRA Court Opinion (PCO), 11/9/15, at 1-2.
In his pro se appellate brief, Appellant presents six questions for our
review. See Appellant’s Brief at ix. Before we may address any of those
claims, however, we must examine the timeliness of Appellant’s petition,
because the PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded in order to address the merits of a petition. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for post-conviction relief, including a second or
subsequent one, must be filed within one year of the date the judgment of
sentence becomes final, unless one of the following exceptions set forth in
42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(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;
-3- J-S59006-16
(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). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant attempts to invoke the ‘new fact’ exception of section
9545(b)(1)(ii). The ‘new fact’ Appellant asserts is that his first PCRA
counsel, Attorney Bruno, has mental health issues which, according to
Appellant, caused Attorney Bruno to ineffectively abandon him on appeal
from the denial of initial PCRA petition. Appellant claims that he discovered
the ‘new fact’ of Attorney Bruno’s mental health issues when he read
an article published in Pennsylvania Law Weekly on December 2, 2014[,] detailing attorney James Bruno’s recent temporary suspension for violating Rules of Professional Conduct in unrelated cases. See PCRA petition, 1/5/15 at exhibit 1. The article also indicated that [Attorney] Bruno was diagnosed with attention-deficit hyperactive disorder and dysthymia in December [of] 2011. Id.
PCO at 4. Appellant claims that he could not have discovered Attorney
Bruno’s confidential medical diagnosis earlier, and that he filed his petition
within 60 days of his discovery of this new information. Accordingly, he
argues that he has satisfied the ‘new fact’ exception of section
9545(b)(1)(ii).
-4- J-S59006-16
The PCRA court disagreed, stating as follows:
Unpacking [Appellant’s] claim, although [Attorney] Bruno’s ineffectiveness was apparent since the adjudication of his first PCRA petition, the exact reason why counsel underperformed remained a mystery. [Appellant] believes that the recent article provided this elusive explanation, thereby satisfying the PCRA time-bar.
Even assuming the accurate explanatory power of the psychological diagnosis, the proposed cause of counsel’s dereliction did not revive [Appellant’s] untimely PCRA petition. If section 9545(b)(1)(ii) countenanced explanations for malfeasance, counsel’s poor sleeping habits, acrimonious client relationships, stress, or the innumerable other possible “causes” of inaction on a particular day could conceivably rescue an untimely PCRA petition. [Appellant’s] speculative assessment of cause derived from the Pennsylvania Law Weekly article therefore failed to establish timeliness.
PCO at 4.
We are compelled to agree with the PCRA court’s reasoning.
Essentially, Appellant is attempting to trigger the jurisdiction of the PCRA
court, and this Court, to review whether Attorney Bruno acted ineffectively
in representing him during the litigation of his first PCRA petition. However,
the ‘new fact’ on which he relies to invoke our jurisdiction was not necessary
to proving Attorney Bruno’s ineffectiveness. In other words, a petitioner
alleging counsel’s ineffectiveness is not required to prove the cause of
counsel’s misconduct; rather, “[a] properly pled claim of ineffectiveness
posits that: (1) the underlying legal issue has arguable merit; (2) counsel’s
actions lacked an objective reasonable basis; and (3) actual prejudice befell
the petitioner from counsel’s act or omission.” Commonwealth v.
Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations omitted). In this case,
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Appellant could have pled (and arguably proven) each of the three prongs of
demonstrating Attorney Bruno’s ineffectiveness without the information
regarding counsel’s mental disorders. Therefore, because Attorney Bruno’s
mental health diagnosis had no bearing on Appellant’s ability to litigate the
underlying issue of counsel’s ineffectiveness, we must agree with the PCRA
court that Attorney Bruno’s diagnosis is not a ‘new fact’ that can satisfy the
exception of section 9545(b)(1)(ii).
In any event, we note that Appellant has previously litigated the
overarching issue of whether Attorney Bruno acted ineffectively by
abandoning him on appeal from the denial of his first PCRA petition.
Specifically, Appellant raised this claim in his second, untimely PCRA petition
filed on July 27, 2001. The PCRA court dismissed that petition because
Appellant had not made any attempt to plead or prove the applicability of a
timeliness exception. See PCRA Court Opinion, 1/16/04, at 5-6. On appeal
to this Court, Appellant again failed to make any attempt to plead or prove
that a timeliness exception applied to his claim. See Commonwealth v.
Jones, No. 1828 EDA 2003, unpublished memorandum at 1 (Pa. Super. filed
October 12, 2004) (stating that Appellant wholly failed to “address [the]
crucial problem” of the untimeliness of his petition, and he did not “assert
the application of any of the enumerated exceptions to the PCRA’s one-year
filing requirement.”). Consequently, this Court affirmed the denial of his
petition asserting Attorney Bruno’s ineffectiveness.
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Based on this record, it is apparent that the underlying issue raised by
Appellant was previously litigated. See 42 Pa.C.S. § 9544(a)(3) (stating
that, under the PCRA, “an issue has been previously litigated if: … it has
been raised and decided in a proceeding collaterally attacking the conviction
or sentence”). Accordingly, even if Appellant’s discovery of Attorney Bruno’s
mental disorders satisfied the ‘new fact’ exception of section 9545(b)(1)(ii),
we would conclude that his underlying ineffectiveness claim does not entitle
him to post-conviction relief. See 42 Pa.C.S. § 9543 (stating that to be
eligible for PCRA relief, the petitioner must prove “[t]hat the allegation of
error has not been previously litigated or waived”).1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/20/2016
1 We do not address any of Appellant’s remaining issues (most of which assert trial counsel’s ineffectiveness or trial court errors), as he does not plead or prove the applicability of any timeliness exception to those claims.
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