Com. v. Brown, A. ( 2015 )

J-S35012-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALTON D. BROWN
Appellant No. 1459 EDA 2014
Appeal from the PCRA Order April 14, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0001095-1997
BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED AUGUST 13, 2015
Appellant, Alton D. Brown, appeals from the April 14, 2014 order
dismissing as untimely his latest serial petition, filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
consideration, we affirm.
The PCRA court has summarized the anfractuous procedural history of
this case as follows.
On November 19, 1997, following a three-day
jury trial, this court found Appellant guilty of two
charges of robbery[,18 Pa.C.S.A. § 3701(a)(2),] and
two charges of possession of a weapon with criminal
intent,[ 18 Pa.C.S.A. § 907(b),] arising from his
actions in the course of two separate convenience
store robberies at knife-point on January 16 and 27
of that year. On January 8, 1998, the court held a
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S35012-15
sentencing hearing and found that Appellant was a
high risk, dangerous offender [in accordance with 42
Pa.C.S.A. § 9714]. As a result, Appellant was
sentenced to ten to twenty years[’] incarceration on
each count of Robbery to be served consecutively
[and consecutively to a 30-70 year sentence from a
conviction in Delaware County]. On December 22,
1998, the Superior Court of Pennsylvania affirmed
this sentence, and on June 16, 1999, the Supreme
Court of Pennsylvania denied further appellate
review of the case. [See Commonwealth v.
Brown, 736 A.2d 4 (Pa. Super. 1998) (unpublished
memorandum), appeal denied, 739 A.2d 1055 (Pa.
1999).]
Appellant filed his first of many pro se petitions
for post conviction relief under the []PCRA[] on April
20, 2000, and the court appointed counsel, Carol A.
Sweeney, Esquire, to assist him in his claim.
Appellant filed a petition to proceed pro se on June
6, 2000, which this court denied. Subsequently, this
court denied his PCRA petition on November 28,
2000 following a full hearing. Then, after a lengthy
series of petitions, appeals, and remands in
Appellant’s initial PCRA claim, on November 21,
2007, the Supreme Court of Pennsylvania denied his
Petition for Allowance of Appeal and Application for
Writ of Mandamus. [See Commonwealth v.
Brown, 797 A.2d 1021 (Pa. Super. 2002)
(unpublished memorandum, affirming the PCRA
court’s denial of PCRA relief), vacated, 845 A.2d 199
(Pa. 2004) (per curiam order, remanding to PCRA
court for a Grazier hearing), Commonwealth v.
Brown, 928 A.2d 1119 (Pa. Super. 2007)
(unpublished memorandum, affirming the PCRA
court’s determination that Appellant knowingly
waived his right to counsel during his appeal from
the denial of his first PCRA petition), appeal denied,
934 A.2d 1275 (Pa. 2007).]
However, Appellant had previously and
prematurely filed a second PCRA petition on
September 19, 2002 while his initial PCRA petition
was still pending. Accordingly, on October 10, 2002,
-2-
J-S35012-15
this court deferred consideration of the second
petition until the resolution of the first. This
occurred on September 22, 2008 when this court
notified Appellant that his second PCRA petition
would be dismissed without a hearing. Appellant
objected on October 6, 2008, and this court
conducted an evidentiary hearing and argument on
January 5, 2009 out of an abundance of caution.
After a thorough review of the record,
including supplemental briefs submitted by the
Appellant and the Commonwealth, this court
dismissed Appellant’s second PCRA motion in the
Order of July 7, 2009 because Appellant had failed to
timely file that petition. Appellant appealed this
order, and on November 24, 2010, the Superior
Court affirmed that Appellant failed to timely file his
second PCRA petition[, and] on October 18, 2011,
the Supreme Court of Pennsylvania denied
Appellant’s Petition for Allowance of Appeal. [See
Commonwealth v. Brown, 22 A.3d 1079 (Pa.
Super. 2010) (unpublished memorandum), appeal
denied, 30 A.3d 1192 (Pa. 2011).]
Undeterred, Appellant filed a third round of
PCRA petitions. After his petitions of December 19,
2011 and January 3, 2012, this court appointed
Bonnie Keagy, Esquire, on January 18, 2012 to
represent Appellant in these further actions. After
Appellant filed two more PCRA petitions on January
20, 2012 and February 17, 2012, Ms. Keagy filed a
petition to withdraw on March 23, 2012, which
included the requisite Finley letter. [See
Commonwealth v. Finley, 550 A.2d 213, 215 (Pa.
Super. 1988).] This court reviewed Ms. Keagy’s
Finley letter and conducted a full and independent
review of the claims, reaching the same conclusions.
On March 26, 2012, this court granted Ms. Keagy’s
petition to withdraw and denied Appellant’s PCRA
petitions.
Displaying uncanny persistence, Appellant filed
a further motion for post conviction relief on April 5,
2012 for the reconsideration of the court’s March 26,
-3-
J-S35012-15
2012 denial of his PCRA motion. In response, in two
separate orders on April 12, 2012, the court granted
Appellant an evidentiary hearing to further establish
his claim and appointed Coley Reynolds, Esquire, to
represent him in the matter. … Following the
repetitive pattern of Appellant’s post conviction
actions, he appealed this court’s denial of his Motion
for Modification of Sentence. On July 3, 2013, the
Superior Court reviewed and affirmed this court’s
decision. [See Commonwealth v. Brown, 82 A.3d
1053 (Pa. Super. 2013) (unpublished
memorandum).]
In the fourth and final round of pro se PCRA
motions, bringing the case to the current appeal,
Appellant filed a pro se correspondence with this
court on December 31, 2013, attempting to resurrect
his PCRA claims. In response, this court issued its
order of January 15, 2014, stating that Appellant’s
February 17, 2012 PCRA petition had been denied
and further reiterated that his petitions of March 26,
2012, April 20, 2012, April 30, 2012, May 2, 2012,
and May 9, 2012 had all been dismissed. Appellant
filed a motion to reconsider that order on February
7, 2014, which this court granted in the March 13,
2014 order. Accordingly, in that order, this court
reappointed Ms. Keagy to represent Appellant in the
reexamination of his claims. Unhappy with Ms.
Keagy, Appellant requested to proceed pro se in the
matter on March 21, 2014, and Ms. Keagy filed a
petition to withdraw once again from the case on
March 25, 2014, including her second Finley letter
addressed to Appellant. In three separate orders on
April 15, 2014, this court granted Ms. Keagy’s
petition to withdraw, allowed Appellant to continue
pro se, and issued the order presently on appeal.
The April 14, 2014 order presently on appeal
denied Appellant’s February 17, 2012 Amended
Petition for Post Conviction Relief because of his
failure to timely file the petition with this court. That
order also specifically denied all of Appellant’s PCRA
petitions and related motions, [filed on December
19, 2011, January 3, 2012, January 20, 2012,
-4-
J-S35012-15
February 17, 2012, April 5, 2012, April 26, 2012,
May 7, 2012, May 9, 2012, February 4, 2014, and
March 20, 2014, respectively,] including the
underlying December 19, 2011 Petition for Post
Conviction Relief. On May 12, 2014, Appellant filed a
Notice of Appeal to the Superior Court and requested
review of the April 14, 2014 order. Accordingly on
May 18, 2014, this court ordered Appellant to file a
Concise Statement of Matters Complained of on
Appeal within 21 days. Appellant filed his Concise
Statement on June 16, 2014, 28 days after the order
demanding it.
PCRA Court Opinion, 7/11/14, at 1-5 (footnotes omitted).
On appeal, Appellant raises the following questions for our review.
I. [Whether the] trial court erred in denying
[Appellant’s] motion for appointment of unbias [sic]
counsel not associated with its judicial system and/or
request for leave to proceed pro se, and, by
appointing bias [sic] counsel to represent [Appellant]
after [Appellant] had notified [the trial court] of a
conflict between the two, and after counsel had been
previously allowed to withdraw?
II. Whether trial court erred in its summery [sic]
denial of post-conviction relief?
Appellant’s Brief at 1.
Our standard of review of the denial of a PCRA
petition is limited to examining whether the court’s
rulings are supported by the evidence of record and
free of legal error. This Court treats the findings of
the PCRA court with deference if the record supports
those findings. It is an appellant’s burden to
persuade this Court that the PCRA court erred and
that relief is due.
Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)
(citation omitted).
-5-
J-S35012-15
Instantly, the PCRA court dismissed Appellant’s current PCRA petition
as untimely. “[I]t is well-settled that … a question of timeliness implicates
the jurisdiction of our Court.” Commonwealth v. Gandy, 38 A.3d 899,
902 (Pa. Super. 2012) (internal quotation marks and citation omitted),
appeal denied, 49 A.3d 442 (Pa. 2012). “Because these timeliness
requirements are mandatory and jurisdictional in nature, no court may
properly disregard or alter them in order to reach the merits of the claims
raised in a PCRA petition that is filed in an untimely manner.”
Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa. 2012) (internal quotation
marks and citation omitted). The PCRA “confers no authority upon this
Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]”
Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted).
This is to “accord finality to the collateral review process.” Id. “It is well
settled that [a]ny and all PCRA petitions must be filed [in a timely manner]
unless one of three statutory exceptions applies.” Commonwealth v.
Garcia, 23 A.3d 1059, 1061-1062 (Pa. Super. 2011) (internal quotation
marks and citations omitted), appeal denied, 38 A.3d 823 (Pa. 2012). “We
have repeatedly stated it is the appellant’s burden to allege and prove that
one of the timeliness exceptions applies. Whether Appellant has carried his
burden is a threshold inquiry prior to considering the merits of any claim.”
Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013) (citation
omitted), cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013).
-6-
J-S35012-15
Consequently, an appellant must acknowledge that his PCRA petition is
untimely, and demonstrate with particularity that one or more of the
statutory exceptions applies. See Commonwealth v. Wharton, 886 A.2d
1120, 1125-26 (Pa. 2005).
The Act provides for the following possible exceptions to the timeliness
requirement.
§ 9545. Jurisdiction and proceedings
…
(b) Time for filing petition.—
(1) Any petition under this subchapter,
including a second or subsequent petition, shall
be [timely] filed … 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
-7-
J-S35012-15
and has been held by that court to apply
retroactively.
(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.
…
42 Pa.C.S.A. § 9545(b).
Appellant’s instant PCRA petition is facially untimely. His sentence
became final on September 14, 1999, 90 days after our Supreme Court
denied Appellant’s petition for allowance of appeal on June 16, 1999, being
the time allowed to file a writ of certiorari with the United States Supreme
Court. See U.S. S. Ct. R. 13(1). Therefore, Appellant had until September
14, 2000, one year from that date, to file a first or any subsequent PCRA
petition. See 42 Pa.C.S.A. § 9545(b)(3). As noted, it is required that
Appellant pleads and proves one of the statutory exceptions to the PCRA’s
time limits to invoke the PCRA or this Court’s jurisdiction to consider his
petition. See Edmiston, supra.
In an effort to implicate the Section 9545(b)(1)(ii) newly-discovered
fact exception, Appellant makes a bald assertion that he “was incompetent
during sentencing, direct appeal, and post-conviction proceedings.”
Appellant’s Brief at 5. Citing Commonwealth v. Cruz, 852 A.2d 287 (Pa.
2004), Appellant avers his incompetence qualifies as an after-discovered fact
-8-
J-S35012-15
for the purpose of the Section 9545(b)(1)(ii) timeliness exception to the
PCRA. Id. at 6.
Claims that were defaulted due to [Appellant’s]
mental incompetence may qualify under the
statutory after-discovered evidence exception on the
basis that incompetence rendered petitioner unable
to timely discover the factual basis for collateral
claims. Indeed, the unique nature of Appellant’s
claims sounding in incompetency requires that he be
afforded an opportunity to attempt to prove that he
was incompetent at the relevant times and that
incompetence qualifies under the after-discovered
evidence exception to the PCRA time-bar.
Appellant’s Brief at 6 (citation omitted).
In Cruz, our Supreme Court held that incompetence, rendering an
individual “unable to discover the facts that would form the basis of his
substantive PCRA claims,” can qualify as an after-discovered fact. Cruz,
supra at 296-297. In that case, the record showed the appellant, at the
time of the homicides for which he was charged, shot himself in the head
and, at the time of his nolo contendere plea, was unable to discuss the facts
of the case with his attorney. Id. at 288. Further, no inquiry into
competency was ever made on the record. Id. at 296. Under those
circumstances, the Supreme Court held the appellant “should be afforded an
opportunity to attempt to prove that he was incompetent at the relevant
times and that the incompetence qualifies under the after-discovered
evidence exception….” Id. at 297.
-9-
J-S35012-15
In this case, no such factual predicate, suggesting the possibility of
Appellant’s incompetence, exists in the record, and Appellant alludes to
none. To the contrary, the record of this case with its repeated and
extensive litigation, including determinations by the trial court that Appellant
knowingly, intelligently, and voluntarily waived his right to counsel to
proceed pro se, belies any suggestion of Appellant’s incompetency. As this
Court has clarified, Cruz does not stand for the proposition that a bald claim
of incompetency will entitle a PCRA petitioner to a hearing to prove a Section
9545(b)(1)(ii) exception applies. Commonwealth Liebensperger, 904
A.2d 40, 47 (Pa. Super. 2006) (noting the “unique facts” of Cruz and
holding that a petitioner’s failure to assert the causes and timing of his
alleged incompetence and the timing of his emergence therefrom precludes
application of the after-discovered evidence exception recognized in Cruz).
“[T]he general rule remains that mental illness or psychological condition,
absent more, will not serve as an exception to the PCRA’s jurisdictional time
requirements.” Commonwealth v. Monaco, 996 A.2d 1076, 1081 (Pa.
Super. 2010) (citation omitted), appeal denied, 20 A.3d 1210 (Pa. 2011).
Because Appellant failed to adequately plead an exception to the
PCRA’s time constraints, we discern no error by the trial court in dismissing
Appellant’s latest PCRA petition as untimely. Lacking jurisdiction to address
- 10 -
J-S35012-15
this court deferred consideration of the second
petition until the resolution of the first. This
occurred on September 22, 2008 when this court
notified Appellant that his second PCRA petition
would be dismissed without a hearing. Appellant
objected on October 6, 2008, and this court
conducted an evidentiary hearing and argument on
January 5, 2009 out of an abundance of caution.
After a thorough review of the record,
including supplemental briefs submitted by the
Appellant and the Commonwealth, this court
dismissed Appellant’s second PCRA motion in the
Order of July 7, 2009 because Appellant had failed to
timely file that petition. Appellant appealed this
order, and on November 24, 2010, the Superior
Court affirmed that Appellant failed to timely file his
second PCRA petition[, and] on October 18, 2011,
the Supreme Court of Pennsylvania denied
Appellant’s Petition for Allowance of Appeal. [See
Commonwealth v. Brown, 22 A.3d 1079 (Pa.
Super. 2010) (unpublished memorandum), appeal
denied, 30 A.3d 1192 (Pa. 2011).]
Undeterred, Appellant filed a third round of
PCRA petitions. After his petitions of December 19,
2011 and January 3, 2012, this court appointed
Bonnie Keagy, Esquire, on January 18, 2012 to
represent Appellant in these further actions. After
Appellant filed two more PCRA petitions on January
20, 2012 and February 17, 2012, Ms. Keagy filed a
petition to withdraw on March 23, 2012, which
included the requisite Finley letter. [See
Commonwealth v. Finley, 550 A.2d 213, 215 (Pa.
Super. 1988).] This court reviewed Ms. Keagy’s
Finley letter and conducted a full and independent
review of the claims, reaching the same conclusions.
On March 26, 2012, this court granted Ms. Keagy’s
petition to withdraw and denied Appellant’s PCRA
petitions.
Displaying uncanny persistence, Appellant filed
a further motion for post conviction relief on April 5,
2012 for the reconsideration of the court’s March 26,
-3-