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

v.

AUSTIN PARKINSON

Appellant : : : : : : : : : 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, Appel lant 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

-

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 Appellant committed th e 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. M rs . Lare also entere d a negotiated guilty plea , receiving an aggregate sentence of thirty to sixty years of incarceration.J

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3 1

. Appellant did not pursue a post

- sentence motion or direct appeal from his judg ment of sentence. Appellant filed a timely pro se PCRA petition, alleging that his p lea 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 suicida l 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 sub ject 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 ineffectiv e 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 ofJ

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the timeliness exceptions and entered a final o rder 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 di smissing 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 fi led 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.

_________________ __________ ______ ____ _______ 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)J

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First, Appellant asserts that he has pled a newly

- discovered fact exception in order to overcom e the PCRA time bar based on his recently obtained mental health records

. See Appellant’s brief at 12

- 14. The newly

discovered 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 dilig ence. 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 t he recently acquired me ntal health assessments f ro m multiple state mental health hospitals demonstrate that he was suffering from suicidal behavior and bipolar disorder prior to and during sentencing

.

_________________ __________ ______ ____ _______ (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 a pply retroactively. 42 Pa.C.S. § 9545(b)(1)(i)

- (iii).J

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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 alle ges 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 argue d 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 stat e d that he had been a patient in two mental hospitals, diagnosed with bipolar disorder. Sentencing Hearing, Exhibit D

1, p.2. During his oral guilty plea colloquy, he stated that he was taking psychiatric medication while in p r ison awaiting trial, and that he had t aken 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 asc ertained 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 con firms 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 mentalJ

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state before it accepted Appellant’s guilty plea and issu ed 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 Cou rt: 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 nigh tmares. 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 med ical records relied upon by Appellant amount only to a new source of facts that were knownJ

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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. § 9 545(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 a sserted 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 o f 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 PC R A counsel ineffectiveness a t his first opportunity after reading the decision

. See Appellant’s brief at 6. However, Bradley did not create a new, non

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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 a ppeal 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