Com. v. Cruz

• Decision Date: 22 June 2004
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jose G. CRUZ, Appellant.
• Court: Pennsylvania Supreme Court

852 A.2d 287

578 Pa. 325

COMMONWEALTH of Pennsylvania, Appellee v. Jose G. CRUZ, Appellant.

Supreme Court of Pennsylvania.

Submitted April 23, 2003.

Decided June 22, 2004.

Kristin Luene Rice, for, Jose G. Cruz, Appellant.

Michael Anthony George, Paul T. Dean, Warren Philip Bladen, for Com. of PA, Appellee.

Before: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice CASTILLE.

In this appeal under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq., the issue is whether a petitioner's alleged mental incompetence during which the statutory period for filing a PCRA petition expired may trigger the "after-discovered evidence" exception to the PCRA time-bar. See 42 Pa.C.S. § 9545(b)(1)(ii). We hold that mental incompetence at the relevant times, if proven, may satisfy the requirements of Section 9545(b)(1)(ii), in which case, the claims defaulted by operation of that incompetence may be entertained. Appellant was denied an opportunity to attempt to prove that he qualified under the exception because the courts below—which did not have the benefit of this Court's recent decision in Commonwealth v. Haag, 570 Pa. 289, 809 A.2d 271 (2002), certiorari denied Haag v. Pennsylvania, 539 U.S. 918, 123 S.Ct. 2277, 156 L.Ed.2d 136 (2003)—held that allegations regarding competency and/or mental illness are insufficient to trigger the after-discovered evidence exception. Accordingly, we vacate and remand this matter to the PCRA court for a limited hearing where appellant will be afforded the opportunity to prove: (1) that he was and remained incompetent throughout the period during which his right to file a PCRA petition lapsed; and (2) that his current petition was timely filed within 60 days of his becoming sufficiently competent to ascertain the facts upon which his underlying claims are predicated. If appellant can succeed in making these showings, the PCRA court shall proceed to the merits of appellant's underlying claims. If appellant does not succeed, the court should confirm its dismissal order on time-bar grounds.

The factual scenario giving rise to these charges is that in the early morning hours of November 28, 1992, appellant, who was armed with a .45 caliber handgun, broke into the home of his ex-girlfriend, Rebecca Cota, in Franklin Township, Adams County, with the intention of forcibly taking her from the premises. Once inside, however, appellant shot and killed Rebecca Cota, Benjamin Cota, and Roland Dela Cruz, and injured four others, who survived their gunshot wounds. Before surrendering, appellant attempted suicide by shooting himself in the head, but he survived.

On October 13, 1994, appellant, who faced multiple charges of first degree murder and a possible death sentence, in addition to other charges, entered a negotiated, counseled plea of nolo contendere to three counts of second-degree murder, thus sparing him the prospect of a death sentence. At the outset of the plea hearing, the court asked appellant's trial counsel why he thought a "nolo contendere plea is appropriate here," and counsel replied:

[H]ad this case gone to trial ... the police would have testified that on his way to exiting the building, [appellant] suffered a gunshot wound, which apparently was ... self inflicted. [Appellant] was hospitalized down in Maryland for quite some time, and I have had him evaluated by Dr. Hostetter, a psychiatrist and medical doctor obviously and in his report Dr. Hostetter indicated to me that what happened during the shooting incident was that [appellant] actually lost part of his brain. Dr. Hostetter described it as lobotomized and [appellant is] not able to express emotions and really discuss the facts of this case in any sort of sensible way and that's the reason that we have offered or requested to plead no contest.

N.T. 10/13/94, at 2-3.¹ Despite his representation that appellant was unable to discuss the facts of the case in a sensible way, and that this inability was the reason for the plea, defense counsel did not claim that appellant was incompetent, nor did the court inquire into competency sua sponte. Nor does it definitively appear from the record whether a competency evaluation was ever performed.

After conducting a waiver colloquy with appellant, the court accepted the plea, noting that: "After discussing the circumstances of [appellant's] head wound with defense counsel, the Court has determined that a plea of nolo contendere is appropriate and accepts it." N.T. 10/13/94, at 14-15.² In conformity with the plea arrangement, appellant was sentenced that same day to three consecutive terms of life imprisonment on the murder charges. Appellant was informed of his appellate rights, but did not file post-sentence motions and did not pursue a direct appeal. Accordingly, his judgment of sentence became final on November 14, 1994.³

Almost six years later, on July 25, 2000, appellant filed a pro se PCRA petition, alleging that his constitutional rights had been violated and that he had been denied the effective assistance of counsel at his plea proceeding. In his petition, appellant alleged the following facts in support of his claims of error:

Mental disorder, at the time of offense, due to head injury; being treated at the time I was prevailed upon and could offer no participation in my defense due to as[:]

1. Non-capacity to recognize reality[;]

2. Capacity to respond appropriately was grossly impaired[;]

3. Paranoid schizophrenic[;]

4. Extreme emotional disturbance[.]

Pro Se PCRA Petition, at 3. In an exhibit attached to the petition, appellant elaborated that he "was to[o] grossly impaired, that I could offer no assistance in my defense, at time of trial, with my head injuries, I was suffering from paranoid schizophrenic [sic], under medication and experiencing hallucination...." Exhibit I, at 2. Thereafter, present counsel was appointed.

On August 16, 2000, the Commonwealth moved to dismiss the petition without a hearing on the basis that it was untimely, pursuant to Section 9545(b)(1) of the PCRA, because it was filed almost six years after the judgment became final. That same day, the PCRA court issued a notice of intent to dismiss the PCRA on grounds of untimeliness.

On September 1, 2000, appellant filed a counseled response to the Commonwealth's motion to dismiss, alleging that appellant was suffering from brain damage at the time of the plea hearing due to the gunshot wound to his head. Counsel further quoted plea counsel's representations at the plea hearing concerning appellant's inability to discuss the facts of the case, as well as the court's record acknowledgement of the injury. Counsel then averred that:

6. [Appellant's] brain has been slowly recovering its normal functions. [Appellant] has only within the past six months finally returned to the level of literacy and comprehension necessary to filing his pro se P.C.R.A. petition.

7. [Appellant] asserts, therefore, that his failure to file within the one-year time limit for filing a P.C.R.A. should fall within the exception found at 42 Pa.C.S.A. § 9545(b)(1)(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."

Response, at 2.

On November 21, 2000, the PCRA court held a pre-hearing conference on the Commonwealth's motion. PCRA counsel reiterated her argument that appellant's brain damage rendered him incapable of earlier exercising his PCRA rights and thus qualified him under the after-discovered evidence exception to the PCRA time-bar. Counsel noted that she had spoken to a psychologist who informed her that when a person "become[s] lobotomized that you lose all sense of temporal awareness ... which might explain why [appellant] didn't really have the sense of time that would be necessary to meet this sort of deadline." N.T. 11/21/00, 2-3. Counsel added that she had a copy of the psychiatrist's report which was prepared for plea counsel in 1994. Counsel characterized the report as revealing that:

[appellant] functions as a lobotomized person because of the permanent damage due to the shot. This went through the frontal portion of his brain. He says that the brain damage he has received has caused serious impairment of his judgment and that he is in a permanent lobotomized state, which has markedly altered his personality function and interferes with his abstract thinking.

Id. at 3. Counsel proffered that she would provide expert testimony on the effect of a lobotomy on the brain and "how it can recover," and also would offer testimony from appellant regarding his mental state "back in `93 and `94 and how through time and through the brain's ability to repair itself or compensate, he is moving forward in terms of his ability to read and comprehend." Id. at 3-4. The Commonwealth responded that no proof had been forwarded that appellant's brain injury affected his "ability to read or comprehend;" that the 1994 psychiatric report revealed that the part of the brain affected by the injury was that which governed emotions; that appellant was able to interact with the interviewer; that he had been serving as an interpreter while in prison before entering his plea; and that the plea colloquy itself revealed that the plea was intelligently and voluntarily entered. Id. at 4-5.

The PCRA court then asked counsel what substantive claim she would pursue. Counsel replied that: "if we could get past the timeliness issue, what [appellant] would be asserting is because of his brain injury he was not able to understand the plea colloquy or participate meaningfully in his defense." Id. at 5. The court then suggested that claims premised upon incapacity generally do not toll operation of the time-bar and, thus, that hurdle had to be cleared "before we can decide whether or not you're entitled to introduce expert testimony about the effects of [a] gunshot wound to the brain." Id. at 6. Counse...