J-S75010-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

OLIVER LAFONZO FREEMAN

                        Appellant                  No. 374 EDA 2016


               Appeal from the PCRA Order October 14, 2015
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0001317-1992


BEFORE: BOWES, MOULTON AND MUSMANNO JJ.

MEMORANDUM BY BOWES, J.:                      FILED FEBRUARY 08, 2017

     Oliver Freeman appeals from the order dismissing his PCRA petition as

untimely. We affirm.

     We set forth the factual history of this case in an April 27, 2014

memorandum affirming the dismissal of Appellant’s second, counseled PCRA

and adopt it herein:

     [Freeman] was charged on February 3, 1992 with Murder in the
     First Degree, Murder in the Second Degree, Murder in the Third
     Degree, Robbery, Aggravated Assault, Recklessly Endangering
     Another Person, Theft by Unlawful Taking, Possessing an
     Instrument of Crime, and Possession of Firearms. These charges
     arose from the February 2, 1992 shooting of George Schroeder
     in Chester, PA. On that day Mr. Schroeder traveled to 10th and
     Booth Streets expecting to buy drugs. Instead he was ambushed
     and robbed. [Freeman] admitted to shooting Mr. Schroeder and
     led detectives to the location of the .38 caliber handgun that he
     used when he robbed and shot the victim. On February 3, 1992
     Mr. Schroeder died as a result of the gunshot wounds that
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       [Freeman] inflicted. On July 7, 1992 the Commonwealth filed a
       Notice of Aggravating Circumstances, indicating its intent to seek
       the imposition of a sentence of . . . death. However, on
       November 4, 1992 [Freeman] entered a negotiated guilty plea to
       second[-]degree Murder. The negotiated plea was accepted by
       the Trial Court and a mandatory life sentence was imposed.
       [Freeman] did not file a direct appeal from judgment of
       sentence.

Commonwealth v. Freeman, 2014 WL 10965718 at *1 (Pa.Super. 2014)

(citing PCRA Court Opinion) (all alterations in original).

       As our prior memorandum noted, Appellant did not file a direct appeal.

Instead, he filed a pro se PCRA petition on June 29, 1993.             The court

ultimately dismissed the petition on May 3, 1994. Appellant appealed, which

was dismissed due to the failure to file a brief.

       No further action occurred until August 2, 2012, when Appellant filed a

second petition for PCRA relief.1              He alleged that appointed counsel

ineffectively failed to file an appellate brief in 1994, and attempted to raise a

claim of plea counsel ineffectiveness.          The PCRA court appointed counsel,

who filed an amended petition, which was dismissed on September 4, 2013.

____________________________________________


1
   The PCRA was enacted in 1988, replacing the Post Conviction Hearing Act.
See Commonwealth v. Descardes, 136 A.3d 493, 497 (Pa. 2016).
Appellant sought PCRA relief in 1994, which was denied. In 1995, the
statute was amended, effective January 16, 1996, and provided a one-year
grace period from the time constraints of filing a PCRA petition, expiring
January 16, 1997, for petitioners whose judgment of sentence became final
prior to the effective date of the amendments and if that petition was the
first under the PCRA. Commonwealth v. Alcorn, 703 A.2d 1054 (Pa.
1997).



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We affirmed, finding that the petition was untimely and that Appellant failed

to plead and prove any exception to the time-bar.       Id.   Appellant sought

discretionary review with our Supreme Court, which was denied on

September 18, 2014.          Commonwealth v. Freeman, 99 A.3d 924 (Pa.

2014).

       On August 6, 2015, Appellant filed the instant petition, maintaining

that “It wasn’t until the last few years (i.e. 2011-12) that I finally got well

enough to pursue some type of relief from my wrongful conviction . . . . it

was at that moment that I filed my 2nd PCRA petition in August 2012[.]”

Exhibit B to pro se PCRA petition, 8/6/15, at 4 (unnumbered).

       On September 5, 2015, the PCRA court issued a notice of intent to

dismiss the petition, to which Appellant responded on September 28, 2015.

The PCRA court dismissed the petition on October 14, 2015.         This appeal

followed.2 Appellant poses one claim for our consideration:

____________________________________________


2
   The PCRA court entered an order attaching a copy of the certified mail
receipt demonstrating that Appellant received the order dismissing his
petition on November 18, 2015. Order, 11/18/15, at 1. The notice of
appeal was not docketed until January 20, 2016, well outside the thirty day
window dictated by Pa.R.A.P. 903 (notice of appeal shall be filed within thirty
days).

However, Appellant’s January filing represented that he had sent a notice of
appeal on November 12, 2015, which was apparently not received or
docketed, and provided a cash slip from the jail to that effect. Neither the
PCRA court nor the Commonwealth has challenged the authenticity of the
document and we therefore elect to treat the notice of appeal as timely filed
(Footnote Continued Next Page)


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      Whether the PCRA court erred in dismissing Appellant’s third
      PCRA petition (without appointing counsel or holding an
      evidentiary hearing) on the basis that this petition was untimely
      on its face, although Appellant satisfied the timeliness
      requirements under Cruz and Santiago?

Appellant’s brief at 3.

      All PCRA petitions must be filed within one year of the date a

defendant's judgment becomes final unless an exception to the one-year

time restriction applies. 42 Pa.C.S. § 9545(b)(1).            If a PCRA petition is

untimely, “neither this Court nor the trial court has jurisdiction over the

petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014).

(citation omitted).         We review that legal conclusion de novo.            Id.

Appellant’s sentence became final in 1992 and the instant petition is timely

only if one of the statutory exceptions applies.

      Appellant relies upon Commonwealth v. Cruz, 852 A.2d 287 (Pa.

2004), which established that claims defaulted as a result of mental

incompetence     may       be   revived    through   the   exception codified at §

9545(b)(1)(ii). That exception requires the petitioner to establish (1) that

the facts upon which the claim was predicated were unknown and (2) that

the facts could not have been discovered through the exercise of due

                       _______________________
(Footnote Continued)

under the “prisoner mailbox” rule. See Commonwealth v. Jones, 700
A.2d 423 (Pa. 1997) (interpreting Rule 903 as containing an exception for
pro se prisoners; notice of appeal must be delivered to prison authorities
within the filing deadline).



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diligence. Commonwealth v. Bennet, 930 A.2d 1264, 1272 (Pa. 2007).

Specifically, Cruz requires Appellant to establish that the mental condition

prevented him from learning the factual bases of his claims or otherwise

impacted his ability to communicate his PCRA claims.           “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. Monaco, 996 A.2d 1076, 1081 (Pa.Super. 2010).                    A

petition invoking any of these exceptions must be filed within sixty days of

the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).

     We find that Appellant is not entitled to the time-bar exception.

Preliminarily, we note that Appellant does not claim he was incompetent

during the pendency of his second PCRA proceedings. In Commonwealth

v. Ali, 86 A.3d 173 (Pa. 2014), our Supreme Court considered a Cruz

mental incompetence PCRA exception claim wherein a capital defendant had

litigated a timely PCRA petition from June 25, 1999 through December 29,

2010. Ultimately, the appellant secured the right to represent himself to our

Supreme Court on appeal of the PCRA.            Id. at 176.   The Supreme Court

denied relief on December 29, 2010. Id. (citing Commonwealth v. Ali, 10

A.3d 282 (Pa. 2010)).

     Following   denial   of   that   appeal,    attorneys    from   the   Defender

Association of Philadelphia, Federal Court Division, filed, on February 25,

2011, a serial PCRA petition raising the Cruz exception. Id. The petition

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claimed that Ali was mentally incompetent throughout the time for filing and

litigating his timely PCRA.   Id. at 177.     The Supreme Court focused its

analysis on whether Ali proved “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.” Id. at 178.

      In contrast, Appellant herein concedes that he became competent

prior to filing his second PCRA.     Therefore, Appellant is now seeking to

invoke the § 9545(b)(1)(ii) exception on the theory that appointed counsel

for his second PCRA petition ineffectively failed to advance the Cruz claim

during that litigation.   “Had counsel been aware of our State’s Supreme

Court ruling in [Cruz, supra], he could’ve used this case to circumvent the

PCRA time-bar.” Appellant’s brief at 11.

      However, prior counsel’s ineffectiveness cannot satisfy the time-bar

exceptions. Commonwealth v. (Antyane) Robinson, 139 A.3d 178, 186

(Pa. 2016) (“This Court has never suggested that the right to effective PCRA

counsel can be enforced via an untimely filed PCRA petition.”).     Thus, we

need not reach the question of whether Appellant presented sufficient

evidence entitling him to a hearing regarding his purported incompetency

during the relevant time periods or whether Appellant would have been

entitled to such a hearing if prior counsel had advanced that claim in 2012.

      Next, Appellant claims that the PCRA court should have treated the

instant petition as an extension of his second PCRA petition. Our Supreme

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Court has rejected this precise theory.          Commonwealth v. (Michael)

Robinson, 837 A.2d 1157 (Pa. 2003) (subsequent PCRA petition cannot be

characterized as extension of earlier, final petition). Therefore, the PCRA

court properly treated the third petition as a new PCRA petition seeking to

advance a distinct claim.3

       Finally, Appellant relies upon Commonwealth v. Santiago, 855 A.2d

682 (Pa. 2004), which notes that the issue of incompetency cannot be

waived, as a basis for entertaining the third PCRA petition. However, while

the issue of mental competency is not subject to waiver and is always

cognizable in a PCRA petition, jurisdiction is a predicate to addressing the

substantive aspects of any claim. See Commonwealth v. Fahy, 737 A.2d

214, 223 (Pa. 1999) (“Although legality of sentence is always subject to

review within the PCRA, claims must still first satisfy the PCRA's time limits

or one of the exceptions thereto.”). Since Appellant has failed to invoke any

exception as a matter of law, the PCRA court’s ruling is free from legal error.

       Order affirmed.



____________________________________________


3
  Even if Appellant could rely on his PCRA counsel ineffectiveness claim, he
has failed to address the requirement that any such filing must be made
within sixty days of when the claim could have first been presented. Our
Supreme Court denied his petition for allowance of appeal regarding his
second PCRA petition on September 18, 2014, and the instant third petition
was not filed until August 6, 2015.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/8/2017




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