Com. v. Owens, R.
CourtSuperior Court of Pennsylvania
Date FiledNovember 13, 2026
Docket668 WDA 2026
JudgeFord Elliott
StatusUnpublished
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Full Opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUSSELL CARY OWENS :
:
Appellant : No. 668 WDA 2026
Appeal from the PCRA Order Entered April 9, 2026
In the Court of Common Pleas of Crawford County Criminal Division at
No(s): CP-20-CR-0000483-2017
BEFORE: OLSON, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: November 13, 2026
Appellant, Russell Cary Owens, appeals from the order of the Court of
Common Pleas of Crawford County that dismissed his untimely petition filed
pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. § 9541, et seq.
(“PCRA”). In the petition, he collaterally challenged his nolo contendere plea
convictions for five counts of recklessly endangering another person
(“REAP”).1 The PCRA court dismissed the petition because it was untimely filed
and Appellant did not properly invoke an exception to the PCRA time-bar. We
affirm.
Appellant was charged with aggravated assault and REAP for sexual
encounters with different women after he was made aware of his HIV status
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2705.
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and denied to each woman, before having unprotected intercourse with them,
that he had any communicable disease. See N.T. Plea Hearing, 8/2/18, 19-
22. As part of the plea negotiations, the Commonwealth agreed to drop all of
the aggravated assault charges and the remaining REAP charges in exchange
for Appellant’s nolo contendere plea to five counts of REAP and an agreed-
upon sentencing recommendation of twelve to twenty-four months on each
conviction to be served consecutively to each other and the sentence he was
then serving in another criminal matter.2 See id., 26-33; Appellant’s Motion
Requesting to Be Sentenced at Time of Plea, 7/26/18, ¶ 3 (negotiated
sentence terms); Sentence Order, 8/3/18; Plea Agreement, 8/3/18; Written
Plea Colloquy, 8/3/18.
The PCRA court accurately described the subsequent procedural history
of the case, as follows:
[Appellant] did not file a post-sentence motion or a direct appeal,
and thus his judgment of sentence became final for PCRA
purposes on September 3, 2018. See [42 Pa.C.S. § 9545(b)(1),
(3)].
[Appellant’s] “Motion for Correction of Sentence” dated June 2,
2025, and docketed on June 12, 2025 (the “Motion”), was
regarded as a PCRA petition, and Christopher D. Ferry, Esq., was
appointed to represent him. Order & Am. Order, 6/13/25
(docketed 6/16/25, 1/8/26). [Appellant] then [filed] a pro se
“Motion for Post Conviction Collateral Relief,” docketed on January
5, 2026 (the “Petition”), which was directed to both this case and
[CP-20-CR-0001146-2016]. Attorney Ferry was granted sixty
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2Appellant was then serving a sentence of six to fifteen years imposed on
September 4, 2017, at CP-20-CR-0001146-2016. See PCRA Court
Memorandum and Order, 3/16/25, 2 n.3.
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days from January 8, 2026, to file an amended petition as to the
instant case (only) and […] timely complied.
PCRA Court Memorandum and Order, 3/16/25, 1-2 (noting PCRA court’s intent
to dismiss the petition). See also Appellant’s Pro Se Motion for Correction of
Sentence, 6/12/25 (alleging statute of limitations violation); PCRA Court
Order, 6/16/25 (deeming motion a PCRA petition and appointing counsel);
Appellant’s Pro Se PCRA Petition, 1/5/26; Amended PCRA Petition, 3/9/26.
On April 8, 2026, the PCRA court issued a written order dismissing
Appellant’s PCRA petition without a hearing. See PCRA Court Order, 4/8/26
(dismissing petition). Appellant timely filed a notice of appeal. See Notice of
Appeal, 5/7/26. The PCRA court and Appellant complied with Pennsylvania
Rule of Appellate Procedure 1925(b). See Pa.R.A.P. 1925(b); PCRA Court
Order, 5/13/26; Appellant’s Statement of Errors Complained of on Appeal,
6/3/26 (raising nine errors); Pa.R.A.P. 1925 Opinion, 6/5/26.
In his brief, Appellant presents four questions for our review:
1. Whether the PCRA court erred in finding that the Appellant’s
PCRA petition was time-barred and denying the Appellant an
evidentiary hearing?
2. Whether the PCRA court erred in failing to find trial counsel
ineffective when trial counsel failed to timely file a pre-trial
motion to dismiss the charges for [REAP] and for failing to
notify Appellant that the REAP counts were barred by the
statute of limitations?
3. Whether the PCRA court erred in failing to find trial counsel
ineffective for permitting a plea of nolo contendere to be taken
to charges that could not be sustained at trial since they were
time-barred and then failing to file a post-sentence motion to
challenge the legality of the sentence and plea?
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4. Whether the PCRA court erred in not finding trial counsel
ineffective for not presenting the Appellant’s mental health
condition and military service record to the court as a
mitigating factor at sentencing?
See Appellant’s Brief, 3-4 (suggested answers omitted).
When reviewing an order denying a PCRA petition, we examine whether
the determination of the PCRA court is supported by the record and free of
legal error. See Commonwealth v. Drummond, 285 A.3d 625, 633 (Pa.
2022). We “consider the record in the light most favorable to the prevailing
party at the PCRA level,” and “grant great deference to the PCRA court’s
findings that are supported in the record.” Commonwealth v. Diaz, 183 A.3d
417, 421 (Pa. Super. 2018) (internal quotation marks and citations omitted).
Our standard of review of a PCRA court’s legal conclusions, however, is de
novo. Commonwealth v. Johnson, 289 A.3d 959, 979 (Pa. 2023).
“Crucial to the determination of any PCRA appeal is the timeliness of the
underlying petition. Thus, we must first determine whether the instant PCRA
petition was timely filed.” Commonwealth v. Brown, 141 A.3d 491, 499 (Pa.
Super. 2016) (citation omitted). “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.” Id. (internal quotation
marks and citation omitted); see also Commonwealth v. Fantauzzi, 275
A.3d 986, 994 (Pa. Super. 2022) (“the timeliness of a PCRA petition is
jurisdictional and [] if the petition is untimely, courts lack jurisdiction over the
petition and cannot grant relief”); Commonwealth v. Callahan, 101 A.3d
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118, 121 (Pa. Super. 2014) (“[a]s a threshold jurisdictional matter, however,
the timeliness of the PCRA petition must be addressed”) (citation omitted).
A PCRA petition must be filed within one year of the date that judgment
of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). A judgment of
sentence becomes final for purposes of the PCRA “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. § 9545(b)(3). The “period for filing a PCRA
petition is not subject to the doctrine of equitable tolling; instead, the time for
filing a PCRA petition can be extended only if the PCRA permits it to be
extended, i.e., by operation of one of the statutorily enumerated exceptions
to the PCRA time-bar.” Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014)
(internal quotation marks and citation omitted).
Appellant was sentenced on August 2, 2018. Neither a post-sentence
motion nor a notice of appeal was filed prior to the expiration of the appeal
period on Monday, September 3, 2018.3 Therefore, Appellant’s judgment of
sentence became final on that date. See Commonwealth v. Brown, 943
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3 Because the thirty-day deadline for filing the notice of appeal fell on
Saturday, September 1, 2018, Appellant would have had until Monday,
September 3, 2018, to file an appeal. See Pa.R.A.P. 107 incorporating by
reference rules of construction in Pennsylvania Rules of Judicial Administration
including R.J.A. 107(a)-(b), relating to computation of time to exclude first
date and include last date of time period, generally, but to omit the last date
if it falls on Saturday, Sunday, or a legal holiday); see also Pa.R.A.P. 903(a)
(general rule requiring notices of appeal to be filed “within 30 days after the
entry of the order from which the appeal is taken”).
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A.2d 264, 268 (Pa. 2008) (stating “in circumstances in which no timely direct
appeal is filed relative to a judgment of sentence, and direct review is
therefore unavailable, the one-year period allowed for the filing of a post-
conviction petition commences upon the actual expiration of the time period
allowed for seeking direct review, as specified in the PCRA”).
Accordingly, Appellant had until September 3, 2019, to file a timely PCRA
petition. See 42 Pa.C.S. § 9545(b)(1).
The pro se motion to correct sentence, filed on June 12, 2025, was
facially untimely. Indeed, Appellant conceded in his counseled amended
petition that the pro se motion and pro se PCRA petition were untimely filed.
See Amended PCRA Petition, 3/9/26, ¶ 17. “If a PCRA petition is untimely
filed, the jurisdictional time-bar can only be overcome if the petitioner alleges
and proves one of the three statutory exceptions[.]” Fantauzzi, 275 A.3d at
996. These exceptions are colloquially known as exceptions for governmental
interference, a newly-discovered fact, or a newly-recognized constitutional
right that applies retroactively. See 42 Pa.C.S. § 9545(b)(1). Moreover,
Appellant had to plead and prove that he filed his petition within one year of
the date any claims for application of the statutory time-bar exceptions “could
have been presented.” 42 Pa.C.S. § 9545(b)(2). “[I]t is the petitioner who
bears the burden to allege and prove that one of the timeliness exceptions
applies.” Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008).
In his amended PCRA petition, Appellant alleged that his claim met the
requirements for the newly-discovered fact exception. See Amended PCRA
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Petition, 3/9/26, ¶ 18. He alleged that he “suffers from severe health and
mental health maladies,” and “did not gain insight into his mental health
issues until the Spring of 2023.” Id., ¶19-20. He alleged that from that point
forward, he became invested in his treatment or the lack thereof from the
Department of Corrections. See id., ¶ 21. He “received a specific mental
health diagnosis” on December 31, 2024. Id., ¶ 22. Although Appellant had
“several significant health setbacks[,]” he filed his motion in June “upon
learning of the issue regarding the statute of limitations.” Id., ¶ 23. Counsel
then incorporated the specific details regarding Appellant’s mental health and
the chronology associated therewith as set forth in the pro se PCRA petition.
See id., ¶ 24.
In his pro se petition, Appellant alleged that symptoms of Post-
Traumatic Stress Disorder (“PTSD”) “emerged in Seeking Safety therapeutic
group (DOC),” and he was ultimately diagnosed by a prison psychiatrist with
PTSD from combat trauma. Pro Se PCRA Petition, 1/5/26, 3. Notably, he did
not acknowledge the existence of the PCRA time-bar or the newly-discovered
fact exception in his pro se petition. He alleged the ineffective assistance of
counsel for failing to “uncover and present” evidence of his mental health or
impairment “as defense or mitigation” and for failing to raise a statute of
limitations objection. Id. He attached to the pro se petition documents
purporting to be medical records in support of the diagnosis. See id., 4 &
Attachments.
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In further explanation of his mental health history, Appellant asserted
that he was in the United States Military from 1985 until 1994. See Pro Se
PCRA Petition, 1/5/26, 8. “He struggled with adjusting to civilian life as classic
symptoms of PTSD began to manifest[,] like hypervigilance, sleep
disturbances, irritability, aggression, impulse control[,] and behavior
changes[,] along with a notable loss in his field of vision, […] all of which were
observed by his family, but not by [Appellant] until the Spring of 2023.” Id.
He admits that “[i]n hindsight,” there were many indications, including “failed
marriages, numerous job changes,” that were “living testaments to the
decades of maladjustment and cyclical criminal behavior that impacted
victims, family and [Appellant] from undiagnosed and untreated mental health
and neurological injuries from his military service.” Id. His recovery began in
January 2023 when he transferred to the Veteran Services Unit at SCI-Mercer
and took part “in numerous veteran therapeutic groups.” Id. He sought
assistance through the Department of Corrections, but “his requests were
ultimately ignored and denied.” Id., 9. He then found help through veterans’
assistance groups. See id. On December 31, 2024, Appellant “was diagnosed
with PTSD from combat related trauma with dissociation,” with additional
diagnoses following a stroke, multiple traumatic brain injuries, meningioma,
and ischemic optic neuropathy. Id. He alleged that the “evidence of PTSD and
other diagnosed neurological injuries would have been relevant to his defense
and sentencing” underlying his claim of ineffective assistance of trial counsel.
Id., 10.
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On appeal, Appellant argues that the facts necessary to establish the
newly-discovered fact exception to the time-bar “require his testimony at an
evidentiary hearing.” Appellant’s Brief, 12. He states that he “had difficulty in
obtaining treatment while incarcerated,” but “gained insight into the fact that
he has mental health issues that impair his ability to function.” Id. It was not
until December 31, 2024, that he “received a diagnosis,” of PTSD as a result
of events that occurred during his military service, and “was able to treat his
impairment.” Id. He alleges that the treatment while incarcerated has helped
him “to reverse his mental health circumstances and gain competence that he
did not have in 2018.” Id.
Thereafter, [] Appellant learned of the issues involving the statute
of limitations and that nothing was presented to the trial court
regarding his military service and mental health condition.
Being severely mentally disabled for an extended period of time
after his military service through his incarceration[,] the Appellant
was not in a position to know that the statute of limitations had
expired with respect to the charges subject to his plea. There
could be no factual basis to argue that the REAP charges would
end in a conviction.
Id., 13.4
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4 But see Commonwealth v. Rossetti, 863 A.2d 1185, 1190 n.5 (Pa. Super.
2004) (finding a statute of limitations claim explicitly waived but stating that
it would also be meritless because the “Appellant deserves no remedy where
he attempted to manipulate the criminal justice process by first requesting a
charge on a lesser included offense, only to seek dismissal of the conviction
when he is convicted on that charge”).
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Appellant discusses our Supreme Court’s decision in Commonwealth
v. Cruz, 852 A.2d 287 (Pa. 2004). He argues that, like the petitioner in Cruz,
he was entitled to a hearing to prove he was “incompetent throughout the
period during which his right to file a PCRA petition lapsed” and “timely filed
his petition after he became sufficiently competent to ascertain the facts upon
which his underlying claims are predicated.” Appellant’s Brief, 14.
“Broad claims of mental illness do not satisfy a statutory exception to
the PCRA time-bar.” Commonwealth v. Shaw, 217 A.3d 265, 270 (Pa.
Super. 2019) (citing Commonwealth v. Hoffman, 780 A.2d 700, 701 (Pa.
Super. 2001)). In Cruz, “our Supreme Court carved out a narrow exception
to the general rule where a PCRA petitioner’s mental incompetence prevented
him from filing a timely PCRA petition.” Shaw, 217 A.3d at 270. That is, “in
some circumstances, claims that were defaulted due to the PCRA petitioner’s
mental incompetence may qualify under the statutory [newly-discovered fact]
exception.” Commonwealth v. Liebensperger, 904 A.2d 40, 46 (Pa Super.
2006) (quoting Cruz, 852 A.2d at 293). “[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.” Shaw, 217 A.3d at
271.
Here, the PCRA court recognized that a “mental infirmity that previously
had prevented the discovery and presentation of PCRA-cognizable claims may
qualify the afflicted petitioner” for a time-bar exception. PCRA Court
Memorandum and Order, 3/16/25, 4 (citing Cruz). Appellant, “however, [did]
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not claim any such incapacity due to his PTSD or otherwise, ‘and so does not
fall within the narrow Cruz holding.’” Id. (quoting from Commonwealth v.
Monaco, 996 A.2d 1076, 1082-83 (Pa. Super. 2010)). We explained in
Monaco that the petitioner did not allege his PTSD impaired his mental ability
to raise or communicate his claim and therefore held that the “PTSD diagnosis
[did] not fall within the narrow Cruz holding.” Id. at 1082-83.
We agree with the PCRA court that Appellant proffered no support that
he was incompetent at any point in time. See Commonwealth v. Ali, 86
A.3d 173, 178 (Pa. 2014) (“to qualify for the newly-discovered evidence
exception, therefore, Appellant bears the burden of proving by a
preponderance of the evidence that he was mentally incompetent during the
period in which to raise and preserve claims in his first PCRA petition”); see
also Shaw, 217 A.3d at 271 (“Pennsylvania courts have continued to construe
narrowly the limited holding in Cruz”). Appellant only argued that because of
his PTSD he disregarded the signs that he had PTSD. Even if Appellant was
not aware that he suffered from PTSD, that did not establish he could not have
raised a post-conviction claim in a timely PCRA petition with respect to the
statute of limitations or legality of his sentence. Before the PCRA court he
contended only that he was unaware of any legal claims and that he struggled
with undiagnosed PTSD. Combined, these allegations do not warrant
application of the time-bar exception set out in Cruz. See Shaw, 217 A.3d at
271; Monaco, 996 A.2d at 1082-83. Appellant simply did not contend that
the PTSD rendered him incompetent to enter a plea agreement or unable to
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assist in his defense, much less to present collateral challenges in a timely
PCRA petition.
The newly-discovered fact exception to the time-bar is “claim specific.”
See Commonwealth v. Porter, 35 A.3d 4, 13 (Pa. 2012). It may be properly
invoked for one claim but not for another. In his pro se PCRA petition,
Appellant asserted a claim that trial counsel was ineffective for failing to
“uncover and present” evidence of his mental health or impairment as a
defense to the charges or in mitigation of sentence. Pro Se PCRA Petition,
1/5/26, 3. This allegation asserted a substantive claim based on the newly-
discovered fact of his December 2024 diagnosis of PTSD and a claim-specific
basis for the newly-discovered exception distinct from his argument, based on
Cruz, that his PTSD rendered him completely unable to timely file a PCRA
petition. Addressing this ineffectiveness claim, the PCRA court explained it
found the allegation that counsel was ineffective for failing to “uncover”
evidence of his PTSD “specious, because [Appellant] himself had to be then
unaware of his mental illness to now qualify for exemption for timeliness; thus
counsel could not have known of it.” PCRA Court Memorandum and Order,
3/16/25, 6. We agree that the way Appellant raised this ineffectiveness claim
in his pro se petition contradicted his reliance on Cruz as the basis for a time-
bar exception. Moreover, Appellant waived from further review this claim-
specific assertion of the newly-discovered fact exception by limiting his
argument on appeal to Cruz. See Commonwealth v. D’Amato, 856 A.2d
806, 814 (Pa. 2004) (undeveloped arguments that are the functional
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equivalent of no argument at all are waived); Commonwealth v. Taylor,
277 A.3d 577, 590-91 (Pa. Super. 2022) (“[w]here an appellate brief fails to
provide any discussion of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable of review that claim
is waived”).
Accordingly, we affirm the PCRA court’s order dismissing Appellant’s
PCRA petition without a hearing.
Order affirmed.
DATE: 11/13/2026
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