Com. v. Alicea, H. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HUMBERTO ALICEA,
Appellant No. 2130 MDA 2014
Appeal from the PCRA Order entered November 21, 2014,
in the Court of Common Pleas of Berks County,
Criminal Division, at No(s): CP-06-CR-0003169-2012
BEFORE: ALLEN, OTT, and STRASSBURGER*, JJ.
MEMORANDUM BY ALLEN, J: FILED JULY 20, 2015
Humberto Alicea (“Appellant”) appeals pro se from the order denying
his first petition for relief under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent procedural history is as follows: On February 11, 2013,
Appellant entered into a negotiated guilty plea to one count of persons not
to possess firearms. In exchange, the Commonwealth agreed to a sentence
of four to ten years of imprisonment, and withdrew an additional firearms
charge. That same day, the trial court sentenced Appellant in accordance
with the plea. Appellant filed neither post-sentence motions nor a direct
appeal.
*Retired Senior Judge assigned to the Superior Court.
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On May 15, 2014, Appellant filed a pro se PCRA petition, and the PCRA
court appointed counsel. After being granted several extensions of time,
PCRA counsel filed a motion to withdraw and 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).
On October 28, 2014, the PCRA court granted PCRA counsel’s motion
to withdraw. That same day, the PCRA court issued Pa.R.Crim.P. 907 notice
of its intent to dismiss Appellant’s PCRA petition without a hearing. On
November 11, 2014, Appellant filed a response. Following a review of
Appellant’s response, the PCRA court dismissed Appellant’s PCRA petition by
order entered November 21, 2014. This timely appeal followed. Both
Appellant and the PCRA court have complied with Pa.R.A.P. 1925.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
hearing on the petition if the PCRA court determines that the petitioner’s
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011
(Pa. Super. 2001).
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Before addressing the merits of Appellant’s appeal, we must first
consider whether the PCRA court correctly determined that Appellant’s
petition was untimely. The timeliness of a post-conviction petition is
jurisdictional. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.
2010) (citation omitted). Thus, if a petition is untimely, neither an appellate
court nor the PCRA court has jurisdiction over the petition. Id. “Without
jurisdiction, we simply do not have the legal authority to address the
substantive claims” raised in an untimely petition. Id.
Generally, a petition for relief under the PCRA must be filed within one
year of the date the judgment becomes final unless the petition alleges, and
the petitioner proves, an exception to the time for filing the petition.
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000); 42
Pa.C.S.A. § 9545(b)(1). Under these exceptions, the petitioner must plead
and prove that: “(1) there has been interference by government officials in
the presentation of the claim; or (2) there exists after-discovered facts or
evidence; or (3) a new constitutional right has been recognized.”
Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (citations
omitted). A PCRA petition invoking one of these statutory exceptions must
“be filed within sixty days of the date the claim first could have been
presented.” Gamboa-Taylor, 753 A.2d at 783. See also 42 Pa.C.S.A. §
9545(b)(2). Moreover, exceptions to the time restrictions of the PCRA must
be pled in the petition, and may not be raised for the first time on appeal.
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see
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also Pa.R.A.P. 302(a) (“Issues not raised before the lower court are waived
and cannot be raised for the first time on appeal.”).
For purposes of the PCRA’s time restrictions, Appellant’s judgment of
sentence became final on March 13, 2013, after the thirty-day time for filing
a direct appeal to this Court had expired. 42 Pa.C.S.A. § 9545(b)(3).
Therefore, Appellant had to file his petition by March 13, 2014, in order for it
to be timely. As Appellant filed the instant petition on May 15, 2014, it is
untimely unless he has satisfied his burden of pleading and proving that one
of the enumerated exceptions applies. See Commonwealth v. Beasley,
741 A.2d 1258, 1261 (Pa. 1999).
Within his PCRA petition, Appellant did not assert the applicability of
any of the exceptions to the PCRA’s time restrictions. In his response to the
PCRA Court’s Pa.R.Crim.P. 907 notice, however, Appellant asserted that he
“clearly stated [to PCRA counsel] that having a mental disorder impaired my
ability to [file] a timely PCRA.” Response, 11/11/14, at 5. According to
Appellant, his diagnosis qualifies under the exception found at section
9545(b)(i)(ii). We disagree.
This Court has summarized:
Only under a very limited circumstance has [our]
Supreme Court ever allowed a form of mental illness or
incompetence to excuse an otherwise untimely PCRA
petition. See, e.g., Commonwealth v. Cruz, 578 Pa.
325, 338-43, 852 A.2d 287, 294-97 (2004) (holding
defendant’s claims may fall under after discovered facts
exception to PCRA timeliness requirements where his
mental incompetence prevented him from timely raising or
communicating claims). But see [Commonwealth v.
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Sam, 597 Pa. 523, 952 A.2d 565 (2008)], and its
companion case Commonwealth v. Watson, 597 Pa.
483, 952 A.2d 541 (2008) (holding court erred in denying
Commonwealth’s request for involuntary administration of
antipsychotic medication to restore death-row inmate
competency so that he could participate in timely instituted
post-conviction proceedings). Thus, the general rule
remains that mental illness or psychological condition,
absent more, will not serve as an exception to the PCRA’s
jurisdictional time requirements. Commonwealth v.
Hoffman, 780 A.2d 700, 703 (Pa. Super. 2001).
Commonwealth v. Monaco, 996 A.2d 1076, 1080-81 (Pa. Super. 2010).
In Monaco, this Court affirmed the PCRA court’s determination that
the petitioner’s untimely PCRA petition did not qualify for the section
9545(b)(1)(ii) time bar exception because he did not exercise due diligence
in ascertaining the “newly discovered” fact of his diagnosis of Post-Traumatic
Stress Disorder (“PTSD”). Monaco, 996 A.2d at 1082-83. Here, Appellant’s
claim likewise fails. Our review of the record reveals that Appellant was
aware of his PTSD diagnosis prior to the entry of his guilty plea and
sentencing. See N.T., 2/11/13, at 8 (trial counsel informing the trial court
that Appellant suffers from PTSD). See Commonwealth v.
Liebensperger, 904 A.2d 40, 47-48 (Pa. Super. 2006) (concluding that the
petitioner did not adequately plead an exception to the PCRA’s time bar,
despite an earlier diagnosis of chronic depression and mild mental
retardation and his claim that he had only recently regained his mental
faculties). Therefore, Appellant’s claim that he has “newly discovered” facts
regarding his mental illness is without merit.
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In sum, because Appellant’s PCRA is untimely, and he has not met his
burden of establishing an exception to the PCRA’s time bar, the PCRA court
correctly determined that it lacked jurisdiction. Beasley, supra. We
therefore affirm the PCRA court’s order denying Appellant post-conviction
relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2015
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