J-S05037-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
CHRISTOPHER NICHOLAS BAILEY,              :
                                          :
                 Appellant                :     No. 1240 WDA 2017

                 Appeal from the PCRA Order July 26, 2017
              in the Court of Common Pleas of Beaver County
            Criminal Division at No(s): CP-04-CR-0002114-2010

BEFORE:     OLSON, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                    FILED MARCH 28, 2018

      Christopher Nicholas Bailey (Appellant) appeals from the July 26, 2017

order which dismissed his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      On June 6, 2011, Appellant entered an open guilty plea to the third-

degree murder of Stephen Hardy, Jr., and the aggravated assault of Alonzo

McKenzie. That same day, the trial court imposed consecutive sentences of

20 to 40 and 7 to 14 years of imprisonment, respectively, along with

restitution. Appellant timely filed a post-sentence motion for reconsideration

of sentence, which the trial court denied by order filed July 27, 2011. 1




1 The order denying Appellant’s post-sentence motion was dated July 26,
2011, but was not entered on the docket until July 27, 2011.


*Retired Senior Judge assigned to the Superior Court.
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Appellant did not file a direct appeal; thus, his judgment of sentence became

final for purposes of the PCRA on August 26, 2011.2

      Appellant’s first PCRA petition was timely filed3 on July 26, 2012. After

appointment and change of counsel, the filing of an amended petition, and a

hearing, the PCRA court dismissed the petition.       This Court affirmed the

order dismissing the petition on October 24, 2014. Commonwealth v.

Bailey, 108 A.3d 122 (Pa. Super. 2014) (unpublished memorandum).

      Appellant filed another PCRA petition on February 3, 2017. The PCRA

court dismissed it as untimely-filed on April 4, 2017.       Appellant did not

appeal the dismissal.

      Appellant filed the PCRA petition that is the subject of the instant

appeal on May 15, 2017, claiming therein that his sentence is illegal.       On

June 6, 2017, the PCRA court issued notice of its intent to dismiss the

petition as untimely filed pursuant to Pa.R.Crim.P. 907. Appellant filed an

objection to the proposed dismissal, claiming that he had sufficiently pled an

exception to the PCRA’s timeliness requirements.             The PCRA court


2 The PCRA court, using the date of the order rather than its filing date,
incorrectly reported August 25, 2011, as the day Appellant’s judgment of
sentence became final. The error does not impact the timeliness analysis of
the instant PCRA petition.

3 Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final unless the petition alleges, and the petitioner proves,
that an exception to the time for filing the petition is met, and that the claim
was raised within 60 days of the date on which it became available. 42
Pa.C.S. § 9545(b).

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nonetheless dismissed Appellant’s petition as untimely filed by opinion and

order of July 26, 2017.    Appellant timely filed a notice of appeal to this

Court, to which he attached a statement of errors complained of on appeal.

The PCRA court thereafter satisfied its obligations under Pa.R.A.P. 1925(a),

and the case is now ripe for decision.

      We first consider the timeliness of Appellant’s petition, as the

timeliness of a post-conviction petition is jurisdictional. Commonwealth v.

Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013).          Because Appellant’s

judgment of sentence became final in 2011, it is facially untimely. Appellant

claimed that he could prove the following timeliness exception: “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[.]” 42 Pa.C.S.

§ 9545(b)(1)(ii).

            The timeliness exception set forth in [subs]ection
      9545(b)(1)(ii) requires a petitioner to demonstrate he did not
      know the facts upon which he based his petition and could not
      have learned those facts earlier by the exercise of due diligence.
      Due diligence demands that the petitioner take reasonable steps
      to protect his own interests. A petitioner must explain why he
      could not have obtained the new fact(s) earlier with the exercise
      of due diligence. This rule is strictly enforced.

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010)

(citations omitted).

      In attempting to plead this exception, Appellant alleged in his petition

that he suffered from mental incompetence and the effects of “psychotic



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medications” when he entered his guilty plea, that he was still incompetent

and/or under the influence of the prescribed drugs, and that he filed his

claim within 60 days of preparing the petition on May 10, 2017, “with the

assistance of a jail-house lawyer.” PCRA Petition, 5/15/2017, at 3-4. From

this we gather that Appellant claims that he only discovered his lack of

competence on May 10, 2017 when the “jail-house lawyer” so informed him.

      In making his claim, Appellant invoked our Supreme Court’s decision

in Commonwealth v. Cruz, 852 A.2d 287 (Pa. 2004). In that case, Cruz

suffered a severe brain injury from a self-inflicted gunshot wound prior to

entering his plea. Id. at 296. At the plea hearing, his counsel stated on the

record that Cruz was “‘lobotomized’ and ‘not able to ... really discuss the

facts of this case in any sort of sensible way.’” Id.   The Court held that “in

some circumstances, claims that were defaulted due to the PCRA petitioner’s

mental incompetence may qualify under the statutory after-discovered

evidence exception.” Id. at 293. It thus remanded the case to the PCRA

court to allow Cruz to attempt to prove “that he was incompetent at the

relevant times, that his incompetence rendered him unable to discover the

factual bases for the collateral claims he would raise, and that he acted in a

timely fashion once he became competent.” Id. at 296–97.

      The PCRA court determined that Appellant, unlike Cruz, failed to allege

facts sufficient to invoke the exception.




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     [Appellant] asserts that he suffered from mental incapacity at
     the time he entered the plea.

           He further asserts, as a means to meet the timeliness
     requirement … that his mental incapacity rendered the facts
     upon which his substantive PCRA claims would be based,
     unknowable to him until the point he became competent.
     However, [Appellant also] claims he is still mentally incompetent
     and does not state a single fact that is knowable to him now that
     was not knowable before; nor does [Appellant] state any basis
     for how he became aware of any fact of consequence while he
     remained mentally incompetent; nor does he state the time at
     which he gained knowledge of any fact of consequence. In
     short, he does not state when he became aware of the facts and
     does not even state what those facts are.

           Furthermore, [Appellant] has filed two PCRA motions since
     becoming incarcerated, participated in an extensive hearing
     regarding his first PCRA and filed a pro se appeal wherein the
     Superior Court affirmed that his counsel was effective and that
     he entered his plea voluntarily. At no time over the past seven
     years did [Appellant] allege or did anyone observe [Appellant]
     suffering from mental incompetence to any degree that would
     support the claims in this most recent PCRA [petition].

                                   ***

     [Appellant] offers only bald assertions and conclusory
     statements—not proof as is required under the Act. [Appellant]
     offers no substantive facts regarding the nature or state of his
     incompetency or any fact of consequence that he presently
     knows that he did not and could not know previously. Moreover,
     [Appellant] does not offer … a date or time at which he became
     aware of the alleged facts—information this Court would need in
     order to determine whether [Appellant] meets the exceptions to
     the timeliness requirement.

                                   ***

     In his “Objection to Rule 907(1) Opinion,” [Appellant] claims that
     his present petition was timely filed within sixty days pursuant to
     42 Pa.C.S. §9545(b)(2). [Appellant] further claims that he did
     not “become ‘aware of’ any operative facts until consultation


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      with jail-house lawyers.” Yet, a sentence prior, [Appellant]
      claims he “is still ‘unaware’ of the operative facts, based upon
      prescribed medication.” [Appellant] expects [the PCRA c]ourt to
      find that he qualifies for an exception to the time-bar by citing
      contradictory statements and bald assertions. If [Appellant’s]
      jail house lawyer had operative facts and prepared this petition
      for [Appellant], then [the PCRA c]ourt would expect such facts to
      make at least a brief showing in his petition or his subsequent
      pleading, yet all that was presented to [the PCRA c]ourt is more
      bald assertions and conclusory statements. … Not only are
      these facts not stated at all, the claims of [Appellant] alleged the
      existence of facts (but not what those facts actually are) that on
      their face could have been discoverable over the course of
      [Appellant’s] incarceration and previous PCRA petitions. Since
      [Appellant] claims that he is still unaware of what the facts are,
      there is no way that [the PCRA c]ourt can find that [Appellant]
      has discovered new facts without engaging in speculation as to
      what these new facts might be. It is the burden of [Appellant]
      to present these facts to the [PCRA c]ourt and he has not carried
      his burden.

PCRA Court Opinion, 7/26/2017, at 3-4, 5-6.

      The PCRA court’s determinations are supported by the record and

reveal no error of law.    While Appellant claimed that he filed his petition

within 60 days of its preparation by his “jail-house lawyer,” he does not

claim what new facts he discovered, let alone when he discovered them or

what efforts he took to discover them diligently.

      Appellant knew that he suffered from mental illness before he entered

his guilty plea.   Appellant’s mental illness is described on the written plea

colloquy, along with Appellant’s representation “I comprehend what I am

doing now.” Guilty Plea Colloquy, 6/6/2011, at ¶ 7. Appellant discussed his

mental health problems and his medications on the record with the trial



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court at the time he entered his plea. N.T., 6/6/2011, at 5-7. Nonetheless,

in contrast to Cruz, neither Appellant nor his counsel questioned his

competency. Moreover, Appellant does not claim or offer any proof that the

type of illness he suffers from is one that caused him to be legally

incompetent at any time, or that, if his illness rendered him incompetent, his

condition is the type that may improve to the point that he may become

competent.

      Accordingly, the PCRA court properly held that Appellant did not allege

facts to invoke the newly-discovered-facts timeliness exception.      Accord

Commonwealth v. Liebensperger, 904 A.2d 40, 48 (Pa. Super. 2006)

(“[Liebensperger] … has offered nothing to indicate when, if ever, the crucial

point in time at which he passed from incompetence to competence may

have actually occurred, discussing only his chronic mental illness. [He] has

failed to offer any evidence or suggested reasons as to the cause of his lapse

into incompetence… Similarly, [he] has not asserted in his petition even an

estimate of the timing or duration of the periods of incompetence he

allegedly suffered after his evaluation.   Further, [Liebensperger] has made

no assertions, and there is nothing in the record to indicate, that his

condition is of the type that may have recently improved or changed so that

he has only recently returned to the degree of competence required to file a




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PCRA petition.”). Because the petition was not filed timely, the PCRA court

lacked jurisdiction to consider the merits of Appellant’s claims.4

      Appellant also contends that the PCRA court erred in denying his

request for discovery, namely his medical records from the Beaver County

Jail and the Pennsylvania Department of Corrections.        Appellant’s Brief at

17-19 (citing PCRA Petition, 5/15/2017, at ¶ 17).

      Under the applicable rule, “no discovery shall be permitted at any

stage of [PCRA] proceedings, except upon leave of court after a showing of

exceptional circumstances.”    Pa.R.Crim.P. 902(E)(1).    The vague nature of

Appellant’s claims, as opposed to any allegations of what he believes the

requested documents will show, fails to convince us that the PCRA court

erred or abused its discretion in not granting his discovery request.       See,

e.g., Commonwealth v. Frey, 41 A.3d 605, 612 (Pa. Super. 2012)

(explaining that mere speculation about the existence of useful evidence

“does not constitute an exceptional circumstance warranting discovery”);

Commonwealth v. Miner, 44 A.3d 684, 688 (Pa. Super. 2012) (“It is an

appellant’s burden to persuade us that the PCRA court erred and that relief

is due.”).

      Order affirmed.


4 To the extent that Appellant contends that his challenge to the legality of
his sentence can never be waived, Appellant’s Brief at 20-21, we remind him
that no court can entertain a legality-of-sentence claim if it lacks jurisdiction
to do so based upon the untimeliness of the petition. Commonwealth v.
Fahy, 737 A.2d 214, 223 (Pa. 1999).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2018




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