J-S33032-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                  Appellee                :
          v.                              :
                                          :
BRADLEY SCOTT HERB,                       :
                                          :
                  Appellant               :   No. 18 MDA 2017

                 Appeal from the PCRA Order December 14, 2016
                in the Court of Common Pleas of Dauphin County
               Criminal Division at No(s): CP-22-CR-0003986-2011

BEFORE:        BENDER, P.J.E., OTT, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED JULY 28, 2017

      Bradley Scott Herb (Appellant) appeals pro se from the December 6,

2016 order which denied his petition for relief filed pursuant to the Post

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

      The PCRA court summarized the facts and procedural history of this

this case as follows.

      [Appellant] was arrested and charged with criminal attempt
      homicide, aggravated assault (3 counts), terroristic threats (2
      counts), simple assault (2 counts) and recklessly endangering
      another person (2 counts). He entered into a negotiated plea
      agreement on April 8, 2013. The Commonwealth withdrew the
      attempted homicide charge and [Appellant pled] no contest to
      the remaining charges for a sentence of 10-2[0] years of
      incarceration. [Appellant] was sentenced in accordance with this
      agreement. [Appellant] was represented during this phrase of
      the proceedings.

PCRA Court Opinion, 10/26/2016, at 1.         Appellant did not file a post-

sentence motion or direct appeal.


*Retired Senior Judge assigned to the Superior Court.
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     On August 5, 2016, Appellant pro se filed the instant PCRA petition. In

his petition, Appellant claimed that the newly-discovered facts exception to

the time bar applied to his petition.   See PCRA Petition, 8/5/2016, at 4

(citing 42 Pa.C.S. § 9545(b)(1)(ii) (“Any petition under this subchapter,

including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final, unless the petition alleges and the

petitioner proves that … 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[.]”). Appellant also averred that his petition was

“filed within 60 days of the date the claim could have been presented”

pursuant to 42 Pa.C.S. § 9545(b)(2). Id. at 5.

     Specifically, Appellant claimed that on June 30, 2016, he watched the

television program Good Morning America and learned, for the first time,

that the prescription drug Ambien could cause unusual behavior, especially

when mixed with other drugs.      In his petition, Appellant asserted that he

was under the influence of Ambien and other drugs during the incident

leading to his convictions.   PCRA Petition, 8/5/2016, at 2-3.    He further

claimed that he was prescribed a cocktail of drugs in jail prior to accepting

his plea agreement, resulting in his being in a “medicated daze” during the

plea hearing.   Id. at 4.     According to Appellant, his plea counsel was

ineffective because counsel did not investigate the effect Appellant’s

prescription medications could have had on Appellant’s behavior, both during


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the incident and at the plea hearing. Id. at 3-4. Citing to Commonwealth

v. Cruz, 852 A.2d 287 (Pa. 2004), Appellant argued the untimeliness of his

petition should be excused due to his “mental incompetence.” Id. at 4.

        The PCRA court appointed counsel.        Subsequently, counsel filed a

request 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 26, 2016, the PCRA court issued a memorandum and

Pa.R.Crim.P. 907 notice, granting counsel leave to withdraw and noticing its

intent to dismiss Appellant’s petition without a hearing.       Appellant filed a

response, and on December 14, 2016, the PCRA court dismissed Appellant’s

petition. Appellant timely filed a notice of appeal.1

        Appellant presents two issues for our consideration, but before we may

consider the merits of Appellant’s issues, we must determine whether his

PCRA petition was timely filed, as the timeliness of a post-conviction petition

is jurisdictional.   Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.

Super. 2011) (quoting Commonwealth v. Abu–Jamal, 941 A.2d 1263,

1267–68 (Pa. 2008) (“[O]ur Supreme Court has stressed that ‘[t]he PCRA's

timeliness requirements are jurisdictional in nature and must be strictly

construed; courts may not address the merits of the issues raised in a

petition if it is not timely filed.’”)). Generally, a petition for relief under the


1
    Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

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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. 42 Pa.C.S. § 9545.

      Appellant acknowledges that his petition is facially untimely. However,

Appellant alleges that his petition satisfies the newly-discovered facts

exception pursuant to 42 Pa.C.S. § 9545(b)(1)(ii).

           Our Supreme Court has previously described a petitioner’s
      burden under the newly-discovered fact exception as follows.

            [S]ubsection (b)(1)(ii) has two components, which
            must be alleged and proved. Namely, the petitioner
            must establish that: 1) “the facts upon which the
            claim was predicated were unknown” and 2) “could
            not have been ascertained by the exercise of due
            diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
            added).

      Commonwealth v. Bennett, [] 930 A.2d 1264, 1272 ([Pa.]
      2007).     Due diligence demands that the petitioner take
      reasonable steps to protect his own interests. A petitioner must
      explain why he could not have learned the new fact(s) earlier
      with the exercise of due diligence. This rule is strictly enforced.

Commonwealth v. Medina, 92 A.3d 1210, 1216 (Pa. Super. 2014) (some

citations and quotation marks omitted).

      This Court has observed that “[o]nly under a very limited circumstance

has [our] Supreme Court ever allowed a form of mental illness or

incompetence to excuse an otherwise untimely[-filed] PCRA petition.”

Commonwealth v. Monaco, 996 A.2d 1076, 1080-81 (Pa. Super. 2010).



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In Cruz, the case relied upon by Appellant, our Supreme Court held that a

PCRA petitioner may invoke the time-bar exception set forth in Section

9545(b)(1)(ii) of the PCRA, if the petitioner is able 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.” Cruz, 852 A.2d at 287.

However, outside of the limited circumstance described in Cruz, “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.”

Monaco, 996 A.2d at 1081 (citing Commonwealth v. Hoffman, 780 A.2d

700, 703 (Pa. Super. 2001)).

      The petitioner in Cruz had suffered a self-inflicted brain injury and

entered a plea of nolo contendere. At that time, his counsel stated that the

petitioner had “actually lost part of his brain,” rendering him “unable to

discuss the facts of the case in a sensible way.”    Id. at 289.    Almost six

years later, the petitioner claimed he regained his competency, and filed a

PCRA petition.   Our Supreme Court remanded the case for an evidentiary

hearing to afford the petitioner “an opportunity to prove that he was

incompetent at the relevant times and that incompetence qualifies under the

[newly-discovered-fact] exception to the PCRA time-bar.” Id. at 297.




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      The PCRA court offered the following analysis regarding Appellant’s

petition.

      [Appellant] cites to [] Cruz [] in an attempt to claim mental
      incompetence as grounds to overcome the PCRA timing
      requirements. He indicates that he should have an opportunity
      to prove that he was incompetent at the relevant times.

      In Cruz, a defendant who was suffering from a brain injury
      caused by a self-inflicted gunshot wound was entitled to an
      opportunity to prove he was incompetent during the one-year
      period for seeking relief under the PCRA because it prevented
      him from discovering factual bases for his claims.

      Conversely, in the case sub judice, [Appellant] does not aver
      that he was incompetent for the one[-]year period. Rather, he
      indicates that he had taken drugs (Ambien and numerous other
      substances) leading up to the day of his arrest in 2011. He
      indicates he was place[d] on prescriptions while housed at the
      Dauphin County Prison and that he remained on those
      prescriptions until recently when he weaned himself off. He then
      discovered via “Good Morning America” that mixing Ambien with
      other substance[s] may cause unusual behavior. He avers that
      he was in a medicated daze when he accepted the plea; but he
      does not aver that he was mentally incompetent during the
      one[-]year period for purposes of the PCRA such that he could
      not discover factual bases for his claim. The Cruz case has no
      bearing on this case. [Appellant] has not pleaded and proven
      one of the exceptions; [the PCRA] Court does not have
      jurisdiction to decide the petition on the merits.

PCRA Court Opinion, 10/26/2016, at 3.

      We agree with the PCRA court that Cruz is not applicable to the

instant case.   Unlike the petitioner in Cruz, whose severe brain injury

rendered him unable to comprehend the nature of the proceedings,

Appellant merely averred that he took drugs that may have caused him to

suffer general ill effects. See Monaco, 996 A.2d at 1083 (holding that the


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“narrow holding” in Cruz did not apply to PCRA petitioner who did not allege

that his post-traumatic stress disorder impaired his mental ability to raise or

communicate his claim).       Even if Appellant’s medications had affected

Appellant to such an extent that he was unable to comprehend the nature of

the plea proceedings, Appellant was required to plead and prove that the

drugs rendered him incompetent throughout the one-year timeframe for

timely filing a PCRA petition. He did not do this. Nor did he plead and prove

that he filed his petition within 60 days of “becoming sufficiently competent

to ascertain the facts upon which his underlying claims are predicated.” See

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

(rejecting PCRA petitioner's claim of mental incompetence where he failed to

plead or prove “the crucial point in time at which he passed from

incompetence to competence, discussing only his chronic mental illness”).

      Except for averring that he wrote a letter to his plea counsel’s law firm

days after watching Good Morning America to request that counsel

investigate the effects of Ambien, Appellant’s petition is devoid of any efforts

he made to discover the effect of the drugs that he was taking. Thus, we

conclude that Appellant has not established he acted with due diligence to

meet the newly-discovered-facts exception to the timeliness requirement.

See Monaco, 996 A.2d at 1082 (concluding that PCRA petitioner did not

exercise due diligence in ascertaining whether he had post-traumatic stress

disorder because he did not take           steps to confirm his diagnosis).


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Accordingly, Appellant’s petition was filed untimely without exception, and

the PCRA court lacked jurisdiction to consider it on the merits. See

Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming

dismissal of PCRA petition without a hearing because the appellant failed to

meet burden of establishing timeliness exception).

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 7/28/2017




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