Com. v. Fulton, L.

J-A05042-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAMONT FULTON :
:
Appellant : No. 80 EDA 2020
Appeal from the PCRA Order Entered December 13, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0413241-2002
BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: Filed: April 22, 2021
Appellant, Lamont Fulton, appeals pro se from the order entered in the
Court of Common Pleas of Philadelphia County dismissing as untimely his third
petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A §
9541-9545. He contends dismissal was erroneous because his petition
satisfied both the “new constitutional right” and the “newly-discovered fact”
exceptions of the PCRA. We affirm.
A panel of this Court previously has set forth the relevant facts and
procedural history of Appellant’s case, as follows:
Following a bench trial, which was held on March 8, 2006,
Appellant was found guilty but mentally ill of first-degree murder
and guilty of possession of an instrument of crime (“PIC”). On
May 8, 2006, the trial court sentenced Appellant to a term of life
imprisonment without the possibility of parole on the murder
conviction and a concurrent term of two and one-half to five years
____________________________________________
* Former Justice specially assigned to the Superior Court.
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of incarceration for the PIC conviction. Appellant filed a direct
appeal to this Court, and in a memorandum filed on November 16,
2007, this Court affirmed Appellant's judgment of sentence
Commonwealth v. Fulton, 1535 EDA 2006, 944 A.2d 791 (Pa.
Super. November 16, 2007) (unpublished memorandum).
Appellant did not pursue an appeal in the Pennsylvania Supreme
Court.
On August 11, 2008, Appellant filed a PCRA petition seeking the
reinstatement of his right to file a petition for allowance of appeal
with the Pennsylvania Supreme Court. Counsel was appointed,
and on December 18, 2009, the PCRA court reinstated Appellant's
right to seek allowance of appeal in the Supreme Court. On
August 11, 2010, the Supreme Court denied Appellant's petition.
Commonwealth v. Fulton, 3 A.3d 670 (Pa. 2010).
On September 17, 2010, Appellant filed a pro se PCRA petition.
The PCRA court appointed counsel, and Appellant filed an
amended PCRA petition on May 9, 2012. On May 3, 2013,
pursuant to Pa.R.Crim.P. 907, the PCRA [court] notified Appellant
of its intent to dismiss the PCRA petition without a hearing. The
PCRA court dismissed Appellant's PCRA petition in an order filed
on July 11, 2013. On July 29, 2013, Appellant filed a timely
appeal.
[ ] Appellant averred trial counsel had been ineffective for failing
to pursue a claim of diminished capacity in light of his suffering
from a serious mental illness at the time of the offense. In finding
no merit to this claim and in affirming the PCRA court's Order, this
Court noted that:
[t]he record reveals that trial counsel pursued a
diminished capacity defense and provided supporting
documentation in the form of Appellant's mental
health evaluations, diagnoses, opinions, and medical
records. N.T., Trial, 3/8/06, at 108–110. Moreover,
trial counsel argued that, should the trial court find
Appellant guilty, in light of Appellant's mental health
issues which are supported by the aforementioned
documents, the conviction should only be for third-
degree murder due to Appellant's mental health. Id.at 160–164.
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Commonwealth v. Fulton, No. 2168 EDA 2013, unpublished
memorandum at 1–2, 5-6 (Pa.Super. filed July 30, 2014). The
Pennsylvania Supreme Court denied Appellant's Petition for
Allowance of Appeal on January 26, 2015. Commonwealth v.
Fulton, 630 Pa. 740, 108 A.3d 34 (2015).
On February 3, 2015, Appellant filed [a] PCRA petition, his second,
pro se. Appellant thereafter filed amended and/or supplemental
petitions on February 15, 2015, August 26, 2015, September 15,
2015, January 6, 2016, May 14, 2016, and October 26, 2016.
After notifying Appellant of its intent to dismiss the PCRA petition
without a hearing pursuant to Pa.R.Crim.P 907 on July 17, 2017,[]
the PCRA court dismissed Appellant's petition in its Order filed on
September 15, 2017.
...
[On appeal, Appellant] argued ineffective assistance of all prior
counsel. His main contention, however, was that trial counsel was
ineffective for advancing a diminished capacity defense that
contradicted [Appellant's] own testimony that he was innocent.
PCRA petition, 2/18/15 [sic] at 21–44; see also Amended PCRA
petition, 9/18/15, Response to 907, 7/24/17, and Pro se
Correspondence, 7/26/17. [We concluded, however, that] in
pleading his claim, [Appellant] utterly failed to invoke an
exception to the timeliness exception, electing, instead, to
address the alleged merits of his underlying claims. . . .
Additionally, a careful review of the record reveal[ed] that his
ineffectiveness claim regarding the diminished capacity defense
was raised by Ms. Elayne Bryn, who was his counsel on his first
PCRA petition.[] This claim was dismissed, the dismissal affirmed
by the Superior Court, and allocator denied by the Pennsylvania
Supreme Court. As this ineffectiveness claim was previously
litigated, [Appellant] was not eligible for relief. 42 Pa.Cons. Stat.
§ 9543(a)(3).
...
To the extent Appellant attempt[ed] to invoke the newly
recognized constitutional right exception in his appellate brief, he
[ ] waived any such argument, as an exception to the PCRA time
bar must be pled in a PCRA petition and cannot be raised for the
first time on appeal. Commonwealth v. Burton, 936 A.2d 521,
525 (Pa. Super. 2007), appeal denied, 598 Pa. 786, 959 A.2d 927-3-
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(2008); see also, Pa.R.A.P. 302(a)(providing that issues not
raised before the lower court are waived and cannot be raised for
the first time on appeal). Moreover, [we observed that] the cases
to which Appellant cite[d], McQuiggen v. Perkins, 569 U.S. 383,
133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013) and Martinez v. Ryan,
566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) pertain to
federal habeas corpus law, not PCRA petitions; thus, they are not
dispositive of Appellant's claims.
Commonwealth v. Fulton, No. 3275 EDA 2017, 2018 WL 2077855, at *1
(Pa. Super. 2018).
On May 29, 2018, Appellant filed pro se the present PCRA petition, his
third. As noted, it raises claims effectively asserting that his patently untimely
petition qualifies for an exception to the time-bar under either the new
constitutional right exception or the newly-discovered fact exception. On
December 13, 2019, the PCRA court dismissed the petition as untimely. This
appeal followed.
When reviewing the denial of a PCRA petition, our standard of review is
limited to examining whether the PCRA court's determination is supported by
evidence of record and whether it is free of legal error. Commonwealth v.
Smallwood, 155 A.3d 1054, 1059 (Pa. Super. 2017) (citations omitted).
At the outset, we consider whether this appeal is properly before us.
The question of whether a petition is timely raises a question of law, and where
a petitioner raises questions of law, our standard of review is de novo and our
scope of review is plenary. Commonwealth v. Callahan, 101 A.3d 118, 121
(Pa. Super. 2014).
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All PCRA petitions must be filed within one year of the date upon which
the judgment of sentence became final, unless one of the statutory exceptions
set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The petitioner bears the
burden of pleading and proving an applicable statutory exception. If the
petition is untimely and the petitioner has not pleaded and proven an
exception, the court must dismiss the petition without a hearing for want of
jurisdiction to consider the merits. Commonwealth v. Taylor, 65 A.3d 462,
468 (Pa.Super. 2013).
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:
(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 of sentence 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.A. § 9545(b)(1). In addition, any petition attempting to invoke one
of these exceptions “shall be filed within one year of the date the claim could
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have been presented.” 42 Pa.C.S.A. § 9545(b)(2) (effective January 16, 1996,
to December 24, 2018).1
As indicated in the procedural history recited above, Appellant’s
judgment of sentence became final on or about November 11, 2010. See 42
Pa.C.S.A. § 9545(b)(3) (“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”). Therefore, Appellant had to file the present petition by
November 11, 2011, for it to be considered timely. Because the instant PCRA
petition was filed on May 29, 2018, it is patently untimely, and the burden fell
upon Appellant to plead and prove that one of the enumerated exceptions to
the one-year time-bar applied to his case. See 42 Pa.C.S.A. § 9545(b)(1);
Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to
invoke a statutory exception to the PCRA time-bar, a petitioner must properly
plead and prove all required elements of the exception).
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1 We note that effective December 24, 2018, the time period in which to file
a petition invoking one of the three exceptions was extended from 60 days to
one year. 42 Pa.C.S.A. § 9545(b)(2) (current version). This amendment
applies to claims arising one year prior to the effective date of the amendment,
i.e., on December 24, 2017, or later. Act 2018, Oct. 24, P.L. 894, No. 146, §
3. Because Appellant filed the instant PCRA petition on May 29, 2018, the
amendment applies.
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Though Appellant’s pro se brief lacks a clear statement of the questions
presented, a generous reading allows this panel to discern the briefing of two
discrete issues, each claiming an applicable exception to the PCRA time-bar.2
First, Appellant argues that he meets the new constitutional right exception
based on McQuiggen.3 It is apparent, however, that more than five years
have lapsed between the filing of the 2013 decision and the instant petition
raising this claim, and Appellant has failed to plead, let alone prove, a plausible
explanation as to how his presentation of this claim satisfies Section
9545(b)(2).
By Appellant’s own admission, he possessed sufficient clarity of mind by
2013 to recognize he suffered from a mental illness, and the record otherwise
____________________________________________
2 Subsequent to the filing of his brief, Appellant filed with this Court two pro
se applications for relief on February 3, 2021 and February 16, 2021,
respectively. Because we deem each application largely incoherent and, thus,
incapable of meaningful review, we deny the requested relief.
3 In McQuiggen, the United States Supreme Court held that in federal habeas
corpus proceedings, strict compliance with the one-year statute of limitations
imposed by 28 U.S.C. § 2244(d) will not be required when the petitioner
advances a convincing claim of actual innocence. McQuiggen, 133 S.Ct. at
1928. Instead, under McQuiggen, petitioners who assert a convincing actual
innocence claim may invoke the miscarriage of justice exception to overcome
the federal habeas corpus statute of limitations. Id. However, in
Commonwealth v. Brown, 143 A.3d 418, 420-21 (Pa. Super. 2016) this
Court addressed the applicability of McQuiggen to the timeliness provisions
set forth in the PCRA and found the decision “irrelevant to the time restrictions
of our PCRA.”
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reflects his active participation in his collateral appeals starting in 2008. Even
if we were to credit Appellant’s initial attempt to raise the McQuiggen issue
in his appeal from the 2017 order dismissing his second PCRA petition,4 that
still occurred more than four years after McQuiggen was filed. Given this
record, Appellant’s claim raising a new constitutional right exception fails to
satisfy Section 9545(b)(2), as we discern no reason why Appellant could not
have presented this claim within one year of the 2013 McQuiggen decision
Second, Appellant posits that his alleged first-time realization in
February of 2013 that he suffered from a mental illness qualifies the present
petition for the newly discovered fact exception to the one-year filing
requirement. See Appellant’s brief, at 5. Again, even if we accept this
unsubstantiated timeline as true, it does not qualify his petition for the newly-
discovered fact exception because, inter alia, Appellant failed to meet his
obligation under Section 9545(b)(2) to file a petition raising this exception
within one year of his discovery of the new fact.
For the foregoing reasons, we conclude that the PCRA court properly
dismissed Appellant’s patently untimely third PCRA petition, as Appellant failed
to plead and prove the applicability of an exception to the time-bar.
Order affirmed.
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4 Appellant raised this very issue in his 2015 PCRA appeal, and this Court
reasoned that McQuiggen was inapposite to Appellant’s PCRA case even if he
had preserved the issue by raising it in his petition.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/22/21
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