J-S31013-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

AUSTIN PARKINSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1286 EDA 2022

Appeal from the PCRA Order Entered April 11, 2022

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0008405-2017

BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED OCTOBER 06, 2022

Austin Parkinson appeals pro se from the dismissal of his second petition 

filed pursuant to the Post Conviction Relief Act (“PCRA”) as untimely. 

We affirm.

On August 29, 2018, Appellant entered a negotiated guilty plea to third 

degree murder with a deadly weapon, conspiracy to commit murder, robbery

with a deadly weapon, and conspiracy to commit robbery in relation to the 

2017 stabbing death and robbery of Chad Konata.1 See N.T. Guilty Plea 

Hearing, 8/29/18, at 13-14. The same day, the trial court imposed the agreed 

upon aggregate sentence of forty to eighty years of incarceration. Id. at 29-

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* Former Justice specially assigned to the Superior Court.

1 Appellant committed the homicide and robbery of Mr. Konata with the 

assistance of his wife, Lana Lare. See N.T. Guilty Plea Hearing, 8/29/18, at 

17. Mrs. Lare also entered a negotiated guilty plea, receiving an aggregate 

sentence of thirty to sixty years of incarceration. 
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31. Appellant did not pursue a post-sentence motion or direct appeal from 

his judgment of sentence.

Appellant filed a timely pro se PCRA petition, alleging that his plea was 

invalid because he was mentally ill, heavily medicated, suicidal, and unaware 

that his individual sentences would run consecutively to each other at the time 

that he entered the negotiated guilty plea. Appellant also requested an 

evidentiary hearing so that he could present testimony of a physician at the 

Montgomery County Correctional Facility to testify that Appellant was taking 

psychiatric medication and suicidal at the time of his guilty plea. Thereafter, 

appointed counsel filed a no-merit letter pursuant to Commonwealth v. 

Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 

213 (Pa.Super. 1988) (en banc). After issuing Pa.R.Crim.P. 907 notice and 

allowing PCRA counsel to withdraw, on September 16, 2019, the PCRA court 

denied the petition without a hearing. Appellant did not appeal.

On January 4, 2022, Appellant filed a second pro se PCRA petition and 

a memorandum in support, which is the subject of this appeal. Therein, 

Appellant conceded that his petition was facially untimely, but nevertheless 

argued that he had met the exceptions to the PCRA’s jurisdictional time bar 

because his sentence was illegal and both prior counsels were ineffective for 

failing to present and preserve his sentencing claim. The PCRA court issued 

Rule 907 notice of its intent to dismiss the petition as untimely and Appellant 

filed a response. After reviewing Appellant’s response, the PCRA court 

concluded that Appellant still had not established the applicability of any of 
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the timeliness exceptions and entered a final order denying the petition. This 

appeal followed. The PCRA court did not order Appellant to file a Pa.R.A.P. 

1925(b) statement but did submit a Rule 1925(a) opinion. 

Appellant presents the following issue for our review: “Did the lower 

court err in dismissing Appellant’s second PCRA petition for lack of jurisdiction 

when Appellant plead and proved cognizable exceptions to 42 Pa.C.S. 

§ 9545(b)(1)(i)-(iii)?” Appellant’s brief at 4.

“Our standard of review of a PCRA court’s dismissal of a PCRA petition 

is limited to examining whether the PCRA court’s determination is supported 

by the record evidence and free of legal error.” Commonwealth v. 

Whitehawk, 146 A.3d 266, 269 (Pa.Super. 2016). In order for a petition to 

be timely under the PCRA, it must be filed within one year of the date that a 

petitioner’s judgment of sentence became final. See 42 Pa.C.S. § 9545(b)(1). 

Appellant’s petition, filed more than two years after his judgment of sentence 

became final, is patently untimely. Thus, unless Appellant pled and proved 

one of the three exceptions to the PCRA time-bar outlined in 42 Pa.C.S. 

§ 9545(b)(1)(i-iii),2 we cannot address the claim he asserts therein.

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2 These exceptions are:

(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 of laws of this Commonwealth 

or the Constitution or laws of the United States;

(Footnote Continued Next Page)
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First, Appellant asserts that he has pled a newly-discovered fact 

exception in order to overcome the PCRA time bar based on his recently 

obtained mental health records. See Appellant’s brief at 12-14. The newlydiscovered fact exception set forth at § 9545(b)(1)(ii) has two components, 

which must be alleged and proven as an initial jurisdictional threshold. 

Commonwealth v. Diggs, 220 A.3d 1112, 1117 (Pa.Super. 2019). Namely, 

the petitioner must establish that: (1) the facts upon which the claim was 

predicated were unknown; and (2) they could not have been ascertained by 

the exercise of due diligence. See 42 Pa.C.S. § 9545(b)(1)(ii); see also 

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007). “Due 

diligence demands that the petitioner take reasonable steps to protect his own 

interests” and explain why he could not have learned the new facts earlier 

with the exercise of due diligence. Commonwealth v. Burton, 121 A.3d 

1063, 1069 (Pa.Super. 2015).

Appellant explains that the recently acquired mental health assessments 

from multiple state mental health hospitals demonstrate that he was suffering 

from suicidal behavior and bipolar disorder prior to and during sentencing. 

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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).
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See Appellant’s brief at 11-14. Since the trial court did not have access to 

these records at sentencing, Appellant alleges that they should be deemed 

newly-discovered facts. Id. Appellant further contends that he has shown 

the necessary due diligence because he has been working diligently to obtain 

these health records since his sentencing hearing concluded. Id. at 14. 

After reviewing the record, the PCRA court disagreed, explaining:

The exception listed in subsection 9545(b)(1)(ii) cannot apply to 

the sentencing claims for two reasons. First, [Appellant] was 

present in court when the undersigned sentenced him, so he must 

have been aware of the putative defects he alleges in regard to 

the sentence and sentencing procedure. Second, the 

memorandum argued that medical, psychiatric or psychological 

reports regarding [Appellant’s] mental health before and after the 

murder should be deemed newly discovered evidence, but the 

records and the facts within them could have been ascertained 

previously be the exercise of due diligence. At his guilty plea 

hearing, [Appellant] produced a written colloquy in which he 

stated that he had been a patient in two mental hospitals, 

diagnosed with bipolar disorder. Sentencing Hearing, Exhibit D1, p.2. During his oral guilty plea colloquy, he stated that he was 

taking psychiatric medication while in prison awaiting trial, and 

that he had taken medicine for bipolar disorder in the past. N.T. 

August 29, 2018, pp. 3-4. In view of these facts of record, 

[Appellant] failed to plead grounds for claiming that the reports 

regarding the state of his mental health could not have been 

previously ascertained by the exercise of due diligence.

The facts regarding [Appellant’s] mental state were not 

newly ascertained, but were available to him when he pled guilty. 

PCRA Court Opinion, 5/27/22, at 5-6. We agree.

Our review of the certified record confirms the PCRA court’s findings that 

Appellant has not uncovered any new facts. Instead, the sentencing court 

was well-aware of Appellant’s prior mental health issues and current mental 
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state before it accepted Appellant’s guilty plea and issued the negotiated 

sentence:

The Court: Are you under the influence of any drug, alcohol or 

medication this afternoon?

Appellant: No.

The Court: You’ve indicated to me that, on prior occasions, you 

did receive some treatment for bipolar disorder; is 

that correct?

Appellant: Yes.

The Court: Okay. You were previously prescribed medication for 

that disorder; is that correct?

Appellant: Correct.

The Court: Are you currently taking any medication for that 

disorder?

Appellant: No.

The Court: Are you currently taking any medications at all?

Appellant: Yes.

The Court: What medications are you taking presently?

Appellant: Medication for sleeping and nightmares.

The Court: Does the fact that you take that prescription 

medication for sleeping and for nightmares affect your 

ability to understand what you’re doing here in the 

courtroom at all?

Appellant: Not at all.

See N.T. Guilty Plea Hearing, 8/29/18, at 3-4. Thus, the medical records 

relied upon by Appellant amount only to a new source of facts that were known 
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to Appellant at the time of his guilty plea and sentencing hearing. See 

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (“the focus 

of [the 42 Pa.C.S. § 9545(b)(1)(ii)] exception is on the newly discovered facts, 

not on a newly discovered or newly willing source for previously known facts.”) 

(quotation and citation omitted). Accordingly, Appellant has failed to establish 

the newly discovered fact exception to the PCRA time bar.

Second, Appellant contends that his PCRA petition falls within the 

timeliness exception for a new constitutional right. 42 Pa.C.S. at

§ 9545(b)(1)(iii). The new constitutional right exception has two 

requirements: (1) the right asserted is a constitutional right that was 

recognized by the federal Supreme Court or the state Supreme Court after the 

time provided in the PCRA; and (2) the right has been held by that Court to 

apply retroactively. Id. Thus, Appellant must prove both a “new” 

constitutional right and retroactive application. Id. 

Herein, Appellant asserts that Commonwealth v. Bradley, 261 A.3d 

381 (Pa. 2021), created a new constitutional rule that applies to him. See 

Appellant’s brief at 9. In Bradley, the Pennsylvania Supreme Court expanded 

the opportunities for PCRA petitioners, allowing them to raise claims of

ineffective assistance of first PCRA counsel’s ineffectiveness at their first 

opportunity, even if on appeal. Id. at 405. In his brief, Appellant contends 

that Bradley applies to him because he raised his claim of PCRA counsel 

ineffectiveness at his first opportunity after reading the decision. See 

Appellant’s brief at 6. However, Bradley did not create a new, non-statutory 
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exception to the PCRA time bar. See Bradley, supra at 406 (Justice 

Dougherty concurring) (“Importantly, our decision today does not create an 

exception to the PCRA’s jurisdictional time-bar, such that a petitioner 

represented by the same counsel in the PCRA court and on PCRA appeal could 

file an untimely successive PCRA petition challenging initial PCRA counsel’s 

ineffectiveness because it was his ‘first opportunity to do so.’”). Since

Appellant cannot invoke Bradley as a basis to overcome the PCRA time bar 

pursuant to § 9545(b)(1)(iii), we agree with the PCRA court that Appellant 

has not alleged a violation of a constitutional right. See PCRA Court Opinion, 

5/27/22, at 7.

Based on the foregoing, we find the PCRA court’s conclusion that 

Appellant’s petition was untimely to be fully supported by the record and free 

of legal error.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/6/2022