Com. v. Payne, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOSHUA PAYNE :
:
Appellant : No. 331 EDA 2021
Appeal from the PCRA Order Entered January 4, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0904611-2005
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 13, 2021
Joshua Payne (Payne) appeals pro se from the order entered in the Court
of Common Pleas of Philadelphia County (PCRA court) dismissing his second
petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546 as untimely. Payne raises claims of ineffective assistance of
counsel. We affirm.
I.
The relevant facts and procedural history of this case are as follows. On
May 10, 2006, Payne entered a negotiated guilty plea to third-degree murder,
carrying a firearm without a license and possession of an instrument of a
crime. The trial court sentenced him to an aggregate term of 25 to 50 years’
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* Retired Senior Judge assigned to the Superior Court.
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incarceration. Payne did not file a direct appeal. in 2007, he unsuccessfully
litigated his first PCRA petition in which he claimed he was induced to plead
guilty because he was misled about the negotiated term of imprisonment.
In July 2018, Payne filed this pro se PCRA petition in which he averred
that PCRA counsel were ineffective by “neglecting to produce documentation
of his mental health history” and “denying him a mental health evaluation and
possibly a[n] insanity or diminish[ed] capacity defense.” (PCRA Petition,
7/17/18, at 3). Payne did not address the timeliness of his petition or plead
any statutory exception to the timeliness requirement. The PCRA court issued
notice of its intent to dismiss the petition without a hearing on October 10,
2020. See Pa.R.Crim.P. 907(1).
On December 1, 2020, Payne responded to the Rule 907 notice by
asserting, for the first time, that his claim fell within the newly-discovered
facts exception to the PCRA’s time-bar. Payne attached a letter dated August
10, 2015, addressed to him from Robert W. Meek of the Disability Rights
Network of Pennsylvania advising him of his various mental health and
substance abuse disorders and then-current medications. Payne claims that
if trial counsel had requested a competency hearing at the time of the guilty
plea, the evidence would have shown that he was incompetent to enter the
plea.
On January 4, 2021, the PCRA court dismissed the PCRA petition as
untimely. It explained that Payne’s petition did not plead and prove
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applicability of any exception to the PCRA time-bar, and that his claims of
ineffective assistance of counsel did not meet the statutory requirements for
such exception. Payne timely appealed.1
II.
Before considering the merits of Payne’s PCRA petition, we must first
determine whether it is timely in accordance with the PCRA’s jurisdictional
time-bar.2 A PCRA petition, “including a second or subsequent petition, shall
be filed within one year of the date the judgment becomes final.” 42 Pa.C.S.
§ 9545(b)(1). “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. § 9545(b)(3). Because the timeliness requirements
of the PCRA are jurisdictional in nature, courts cannot address the merits of
an untimely petition. See Commonwealth v. Moore, 247 A.3d 990, 998
(Pa. 2021).
Payne’s judgment of sentence became final in June 2006 after he
declined to file a direct appeal. See 42 Pa.C.S. § 9545(b)(3). Because he did
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1 The PCRA court did not order Payne to file a Rule 1925(b) statement. It
refiled its January 4, 2021 opinion on January 21, 2021. See Pa.R.A.P.
1925(a)-(b).
2 Whether a PCRA petition is timely raises a question of law over which our
standard of review is de novo. See Commonwealth v. Reid, 235 A.3d 1124,
1166 (Pa. 2020).
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not file the instant PCRA petition until more than a decade later, on July 17,
2018, it is facially untimely and he must plead and prove one of the exceptions
to the PCRA’s timeliness requirements. There are three limited exceptions to
the jurisdictional time-bar:
(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).
Payne’s PCRA petition did not allege any of these timeliness exceptions
but, instead, raised allegations of ineffective assistance of counsel. However,
as the PCRA court explained, there is no statutory exception to the PCRA time-
bar applicable to ineffective assistance of counsel claims. See
Commonwealth v. Vinson, 249 A.3d 1197, 1206 (Pa. Super. 2021). “It is
a well-settled proposition that couching post-conviction issues in terms of
ineffectiveness cannot ‘save’ an untimely filed PCRA petition that does not fall
into any of the exceptions to the PCRA’s jurisdiction time bar.” Id. (citation
omitted). Payne’s claims of ineffective assistance of counsel do not overcome
the court’s lack of jurisdiction to address them.
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With regard to Payne’s invocation of the newly-discovered facts
exception at Section 9545(b)(1)(ii), the first time he pled it was in his
response to the PCRA court’s Rule 907 notice. As the Commonwealth notes,
this is an inadequate means of meeting his burden under the PCRA. (See
Commonwealth’s Brief, at 8-9).
A Rule 907 pre-dismissal notice affords a petitioner the opportunity to
seek leave to amend his petition to correct any material defects. See
Commonwealth v. Weimer, 167 A.3d 78, 86 (Pa. Super. 2017). “The rule
does not treat a response to its notice of dismissal as either an amended
petition or a serial petition.” Commonwealth v. Rykard, 55 A.3d 1177,
1187 (Pa. Super. 2012). The law requires leave of court to submit an
amended petition. See id.; see also Pa.R.Crim.P. 905(A). If Payne wished
to properly allege the newly-discovered facts exception after the court issued
the Rule 907 notice, he should have sought leave to amend his petition in
order to present such allegations. See Commonwealth v. Derrickson, 923
A.2d 466, 468-69 (Pa. Super. 2007) (concluding that because appellant’s
PCRA petition failed to allege any exception to the PCRA’s jurisdictional time-
bar and he invoked an exception for first time in response to Rule 907 notice,
court did not err in dismissing PCRA petition without a hearing).
Finally, even if Payne had raised his argument regarding the after-
discovered facts exception in his PCRA petition, he would not be entitled to
relief. Payne was required to present his claim based on the August 2015
. 2
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letter within 60 days after his receipt of it based on the prior version of Section
9545(b)(2) of the PCRA. See 42 Pa.C.S. § 9545(b)(2).3 Because this letter is
dated August 2015, his petition filed in July 2018 is well outside of the 60-day
time frame for raising his claim. For all of the foregoing reasons, we affirm
the PCRA court’s order dismissing Payne’s second PCRA petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2021
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3 As of December 24, 2018, Section 9545(b)(2) states that any PCRA petition
invoking a time-bar exception must be filed within one year of the date the
claim could first have been presented. See Act 2018, Oct. 24, P.L. 894, No.
146, § 3, effective Dec. 24, 2018. The amendment applies only to claims
arising on or after December 24, 2017. The instant letter was written to Payne
in 2015, prior to the effective date of the amendment.
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