Com. v. McKinnon, A. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ALFRED MCKINNON :
:
Appellant : No. 1536 EDA 2020
Appeal from the PCRA Order Entered July 6, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0714541-2000
BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED OCTOBER 1, 2021
Alfred McKinnon appeals from the July 6, 2020 order dismissing as
untimely his third petition for relief pursuant to the Post-Conviction Relief Act
(“PCRA”). We affirm.
On the evening of June 15, 2000, Appellant fatally stabbed his uncle,
Fletcher McKinnon, on North 4th Street in the City of Philadelphia. Ultimately,
Appellant entered a plea of guilty but mentally ill to an ungraded count of
homicide, which the trial court accepted after the parties stipulated to his
condition and admitted his medical records for review.1 See N.T. Plea
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* Retired Senior Judge assigned to the Superior Court.
1 The precise nature of Appellant’s mental illness is not well-documented in
the certified record, although we glean from the available transcripts that he
had been declared incompetent during prior proceedings in the same case.
See N.T. Plea Hearing, 8/19/03, at 12. In the instant PCRA petition, Appellant
described his condition as a schizoaffective disorder.
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Hearing, 8/19/03, at 11-12; see also 18 Pa.C.S. § 314(b). The trial court
determined that Appellant was guilty but mentally ill of third-degree murder.
During this plea hearing, Appellant acknowledged being aware that he was
suffering from a “mental illness” and confirmed that he was taking medication
as part of his treatment regimen. Id. at 3-4. The same day, on August 19,
2003, Appellant was sentenced to twenty to forty years of incarceration at an
appropriate facility. No direct appeal was filed.
On January 18, 2007, Appellant filed his first pro se PCRA petition. PCRA
counsel was appointed, but ultimately elected to file a petition to withdraw
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The
PCRA court dismissed the petition as frivolous. No appeal was taken.
On September 1, 2011, Appellant filed a second pro se PCRA petition
seeking unspecified relief on account of his mental illness. The PCRA court
dismissed the petition after concluding that it was untimely and noting that
Appellant had not invoked any of the timeliness exceptions set forth at 42
Pa.C.S. § 9545(b)(1)(i)-(iii). Appellant filed an appeal to this Court, but it
was dismissed after he failed to file a brief. See Order, 10/23/13, at 1.
On April 19, 2017, Appellant filed a petition for a writ of mandamus in
the Commonwealth Court of Pennsylvania arguing that the Department of
Corrections (“DOC”) had not properly credited him for his pre-trial
incarceration. The Commonwealth Court denied Appellant’s application after
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finding that he failed “to plead sufficient facts to support a mandamus claim
for additional sentence credit.” Appellant’s brief at Exhibit C.
On July 18, 2017, Appellant filed his third pro se PCRA petition that is
at issue in the instant appeal. Therein, he argued that his sentence is illegal
because he allegedly has not received credit for approximately two and one-
half years of his pre-trial incarceration. See PCRA Petition, 7/18/17, at 3. He
also asserts that “claims that were defaulted due to the PCRA petitioner’s
mental incompetence may qualify under the statutory after-discovered
evidence exception on [the] basis that incompetence rendered [the] petitioner
unable to timely discover the factual bases for collateral claims.” Id. at 10
(citing 42 Pa.C.S. § 9545(b)(1)(ii)).
Thereafter, Appellant’s petition languished on the docket for
approximately two and one-half years. On February 27, 2020, Appellant filed
a pro se petition for a writ of mandamus in the Pennsylvania Supreme Court
asking that the High Court direct the PCRA court to adjudicate his still-pending
petition. In an order dated April 29, 2020, our Supreme Court granted the
request and directed the PCRA court to issue a ruling within ninety days.
On June 10, 2020, the PCRA court provided notice of its intent to dismiss
Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907. On June
24, 2020, Appellant filed a petition for an extension of time to file a response
to the PCRA court’s Rule 907 notice that was related to Appellant’s alleged
lack of access to the prison law library. On July 6, 2020, the PCRA court
dismissed Appellant’s PCRA petition without granting him an extension.
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On July 16, 2020, Appellant filed a timely notice of appeal to this Court.
The PCRA court did not direct Appellant to file a concise statement of errors
pursuant to Pa.R.A.P. 1925(b) and Appellant did not prepare one. The trial
court did, however, file an opinion pursuant to Rule 1925(a) explaining its
reasoning. Accordingly, the case is ripe for our disposition.
Appellant has raised a single issue for our consideration: “Whether the
trial court’s failure to award [Appellant] time credit for the three years he was
confined in jail awaiting sentencing renders his sentence illegal since the time
he served combined with the sentence exceeds the statutory maximum?”
Appellant’s brief at 4. Before addressing the merits of Appellant’s claim for
relief, we must assess whether his PCRA petition is timely. See
Commonwealth v. Brown, 141 A.3d 491, 499 (Pa.Super. 2016) (“The
timeliness requirement for PCRA petitions is mandatory and jurisdictional in
nature, and the court may not ignore it in order to reach the merits of the
petition.” (cleaned up)).
All petitions filed under the PCRA, “including a second or subsequent
petition, shall be filed within one year of the date the judgment [of sentence]
becomes final[.]” 42 Pa.C.S. § 9545(b)(1). For the purposes of PCRA
timeliness, a defendant’s sentence 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. § 9543(b)(3). A timely petition is required
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even when, as here, Appellant’s claim implicates the legality of his sentence.2
See Commonwealth v. Jones, 932 A.2d 179, 182 (Pa.Super. 2007).
This time bar can be overcome if the petitioner pleads and proves the
applicability of one of three statutory exceptions, which are codified as follows:
(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.
42 Pa.C.S. 9545(b). At the time that Appellant filed his request for relief, any
PCRA petitions invoking one of these timeliness exceptions were required to
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2 “A claim asserting that the trial court failed to award credit for time served
implicates the legality of the sentence.” Commonwealth v. Gibbs, 181 A.3d
1165, 1166 (Pa.Super. 2018).
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be filed “within sixty days of the date the claim could have been presented.”3
42 Pa.C.S. § 9545(b)(2).
Instantly, Appellant’s judgment of sentence became final at the
expiration of his time to seek appellate review in this Court on September 18,
2003. See Pa.R.A.P. 903(a). Accordingly, his PCRA petition is facially
untimely by approximately fourteen years. However, Appellant asserts that
his allegations concerning his mental illness satisfy the “after-discovered
evidence” exception enshrined at § 9545(b)(1)(ii).
The following legal principles will guide our review:
The timeliness exception set forth in Section 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the facts
upon which he based his petition and could not have learned those
facts earlier by the exercise of due diligence. Due diligence
demands that the petitioner take reasonable steps to protect his
own interests. A petitioner must explain why he could not have
obtained the new fact(s) earlier with the exercise of due diligence.
This rule is strictly enforced.
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010)
(cleaned up).
Appellant is correct in observing that mental incompetence can satisfy
the requirements of this PCRA timeliness exception. See Commonwealth v.
Cruz, 852 A.2d 287, 288 (Pa. 2004) (“We hold that mental incompetence at
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3 Effective December 24, 2018, the General Assembly amended 42 Pa.C.S. §
9545(b)(2) to provide petitioners with one year in which to present their claim.
See 42 Pa.C.S. § 9545(b)(2) (effective December 24, 2018). The amendment
only applies to claims arising on or after December 24, 2017. See 2018 Pa.
Legis. Serv. Act 2018-146 (S.B. 915) at §§ 3-4.
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the relevant times, if proven, may satisfy the requirements of Section
9545(b)(1)(ii)[.]” (emphasis in original)). However, “[o]nly under a very
limited circumstance has the Supreme Court ever allowed a form of mental
illness or incompetence to excuse an otherwise untimely PCRA petition.”
Monaco, supra at 1080-81. “[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.” Id. at 1081.
Our review of the certified record makes clear that Appellant has not
acted with the requisite due diligence. With respect to Appellant’s mental
illness, the transcript of Appellant’s plea and sentencing confirm without
question that Appellant was fully aware that he was suffering from and being
medicated for a mental illness as early as August 2003. See N.T. Plea
Hearing, 8/19/03, at 3-4. Indeed, Appellant’s second PCRA petition filed in
September 2011 explicitly referenced his mental illness in seeking PCRA relief.
Additionally, Appellant was fully aware of the alleged discrepancy regarding
his sentence no later than April 19, 2017, i.e., when he filed a petition for a
writ of mandamus in the Commonwealth Court seeking correction of his
criminal sentence. Yet, the instant PCRA petition was filed more than sixty
days after that date. Cf. 42 Pa.C.S. § 9545(b)(2).
Consequently, we conclude that Appellant does not qualify for the newly
discovered fact exception to the PCRA timeliness requirements. See Monaco,
supra at 1082 (holding that a PCRA petition did not act with due diligence
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where he failed to take the necessary steps to pursue his claim of mental
incompetence under § 9545(b)(1)(ii) in a timely fashion). Accordingly, we
affirm the PCRA court’s order dismissing Appellant’s petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/1/2021
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