J-S47006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-S47006-15



     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).

                                        -2-
J-S47006-15



      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

                                        -3-
J-S47006-15



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.

                                     -4-
J-S47006-15


         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.



                                     -5-
J-S47006-15



          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




                                       -6-
