J-S40020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                      v.

CORLIVEETH MCMILLIAN,

                            Appellant                    No. 3441 EDA 2015


           Appeal from the PCRA Order entered October 8, 2015,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0815631-1984


BEFORE: BOWES, SOLANO, and MUSMANNO, JJ.

MEMORANDUM BY SOLANO, J.:                              FILED AUGUST 19, 2016

      Appellant, Corliveetho McMillian, appeals from the order dismissing his

latest petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546.            The PCRA court found the petition untimely and

therefore not within its jurisdiction. We affirm.

      At the conclusion of a bench trial on December 28, 1984, Appellant

was convicted of first-degree murder and possession of an instrument of

crime (PIC).     Thereafter, the trial court sentenced Appellant to life

imprisonment for the murder conviction and a concurrent two to four year

term of imprisonment for the PIC conviction. Appellant filed a timely appeal,

and   we   affirmed        his    judgment   of   sentence   on   April   6,   1987.

Commonwealth v. McMillian (Pa. Super. Apr. 6, 1987) (unpublished
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memorandum).         Appellant did not file a timely petition for allowance of

appeal with our Supreme Court.1

       Appellant unsuccessfully sought post-conviction relief in PCRA petitions

filed in 1996, 2002, and 2003. He also unsuccessfully filed several pleadings

with the federal courts seeking such relief. Appellant filed the PCRA petition

at issue here on June 23, 2015. On July 21, 2015, the PCRA court issued a

Pa.R.Crim.P. 907 notice of intent to dismiss this petition on the basis that it

was untimely and Appellant had failed to plead an exception to the PCRA’s

time bar. On July 29, 2015, Appellant filed a pro se response indicating that

he wished to assert the PCRA’s newly-discovered evidence exception.         By

order entered October 8, 2015, the PCRA court dismissed Appellant’s

petition as untimely. This appeal followed.

       On appeal, Appellant raises the following issues, as stated:

          1. Was trial counsel ineffective in representing [Appellant]
             by allowing him to be tried while he was incompetent?

          2. Did the trial court violate [Appellant’s] due process
             rights under the Fifth and Fourteenth Amendments of
             the United States Constitution by trying him when he
             was incompetent?

Appellant’s Brief at 13.




____________________________________________


1
  Subsequently, Appellant filed a pro se motion for permission to appeal
nunc pro tunc, which the Supreme Court of Pennsylvania denied.




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        Before addressing Appellant’s claims, we must first determine whether

the PCRA court correctly concluded that because the petition was untimely

filed, it lacked jurisdiction to consider Appellant’s latest PCRA petition.

        This Court’s standard of review regarding an order dismissing a

petition under the PCRA is “to determine whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.

The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record.” Commonwealth v. Barndt, 74 A.3d

185, 191-92 (Pa. Super. 2013) (citations omitted).

        The   timeliness     of   a    post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

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

is final unless the petition alleges and the petitioner proves one of the three

exceptions to the time limitations for filing the petition set forth in Section

9545(b)(1) of the statute.2           See 42 Pa.C.S. § 9545(b).      A PCRA petition



____________________________________________


2
    The three exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of government officials with the presentation of the
        claim in violation of the Constitution or laws of this
        Commonwealth or the Constitution or laws of the United States.

(Footnote Continued Next Page)


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invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.” See Hernandez, 79 A.3d

at 651-52; see also 42 Pa.C.S. § 9545(b)(2). Asserted exceptions to the

time restrictions for the PCRA must be included 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).

      Here, Appellant’s judgment of sentence became final on May 6, 1987,

when the thirty-day time period for filing an allocatur petition with our

Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3). However, because

his judgment of sentence became final prior to the 1995 amendments to the

PCRA, which added the time restrictions, Appellant was permitted to file his

first PCRA petition by January 16, 1996. See generally Commonwealth

v. Crawley, 739 A.2d 108 (Pa. 1999).              As Appellant filed his latest PCRA

petition nearly three decades after his judgment of sentence became final, it


                       _______________________
(Footnote Continued)

      (ii) 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; or

      (iii) the right asserted is a constitutional right that was
      recognized by the Supreme Court of the United States or the
      Supreme Court of Pennsylvania after the time period provided in
      this section and has been held by that court to apply
      retroactively.

42 Pa.C.S. § 9545(b)(1).




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is patently untimely unless he has satisfied his burden of pleading and

proving that one of the enumerated exceptions applies. See Hernandez.

      In his latest PCRA petition, Appellant neither acknowledged the PCRA’s

time bar nor attempted to prove any exception to it.          Within his brief,

Appellant attempts to invoke the newly-discovered evidence exception in 42

Pa.C.S. § 9545(b)(1)(ii), based on his general assertion that he had mental

health issues that resolved and he became competent two weeks prior to

filing his latest petition. See Appellant’s Brief at 17. Because Appellant did

not raise this claim before the PCRA court in his petition, it is waived. See

Burton; see also Pa.R.A.P. 302(a).        Further, Appellant’s assertion in his

brief that he should have been provided with counsel in order to ensure

against this waiver is unavailing.   PCRA petitioners are entitled to appointed

counsel only on the first petition; this right does not extend to subsequent

petitions like this one. Pa.R.Crim.P. 904(A); Commonwealth v. Kubis, 808

A.2d 196 (Pa. Super. 2002).

      Finally, we note that a mere allegation of mental illness does not

constitute a valid exception to the PCRA’s time bar.           See generally

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

the PCRA court addressed Appellant’s mental incompetency claim and

properly concluded that Appellant failed to meet his statutory burden. The

PCRA court explained:

         [Appellant] has offered nothing to indicate, when, if ever,
         the crucial point in time at which he passed from

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            incompetence to competence may have actually occurred.
            [Appellant] has failed to offer any evidence or suggest
            reasons as to the cause of his lapse into incompetence.
            [Appellant] does not elaborate on exactly how he became
            aware of this information of his incompetence, when he
            became incompetent, or when he became aware of this
            information.     Additionally, [Appellant] did not provide
            information as to why he was incompetent. [Appellant]
            did not act with due diligence in presenting this claim and
            it therefore does not qualify for an exception to the time
            bar of the PCRA requirements. [Appellant] has not set
            forth sufficient facts which properly invoke the timeliness
            exception on the basis of mental incompetence. A detailed
            review of [Appellant’s] case demonstrates that the
            circumstances presented by this case . . . do not provide
            an example of incompetence and inability to discover facts
            in the exercise of due diligence.

PCRA Opinion, 12/11/15, at 2-3.

          Based on the foregoing, the PCRA court correctly concluded that it

lacked jurisdiction to consider Appellant’s untimely PCRA petition.       We

therefore affirm the PCRA court’s order denying Appellant post-conviction

relief.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




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