J-S25020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KENNETH C. HOCKENBERRY

                            Appellant                 No. 1047 WDA 2015


                   Appeal from the PCRA Order June 8, 2015
              In the Court of Common Pleas of Armstrong County
              Criminal Division at No(s): CP-03-CR-0000535-2011


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                                FILED APRIL 6, 2016

        Appellant, Kenneth C. Hockenberry, appeals from the June 8, 2015

order dismissing, as untimely, his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.           After careful

review, we affirm.

        We summarize the relevant procedural history of this case as follows.

On January 5, 2012, Appellant entered a guilty plea to two counts each of

indecent assault and endangering the welfare of a child.1 On May 1, 2012,

the trial court imposed concurrent sentences of one to four years’

imprisonment on each count. Appellant filed a timely post-sentence motion



____________________________________________
1
    18 Pa.C.S.A. §§ 3126(a)(7) and 4304(a)(1), respectively.
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on May 10, 2012, which the trial court denied on May 30, 2012. Appellant

did not file a notice of appeal to this Court.

       On January 9, 2015, Appellant filed the instant pro se PCRA petition.

The PCRA court appointed counsel and conducted a hearing on June 5, 2015,

limited to the issue of timeliness. On June 8, 2015, the PCRA court entered

an order dismissing Appellant’s PCRA petition as untimely. On July 7, 2015,

Appellant filed a timely notice of appeal.2

       On appeal, Appellant raises the following issues for our review.

               [I.]   Whether the [PCRA c]ourt erred in its
                      finding/conclusion that the [PCRA p]etition filed
                      by []Appellant was untimely and the [PCRA
                      c]ourt was therefore without jurisdiction to
                      hear the same?

               [II.] Whether the [PCRA c]ourt erred in its
                     finding/conclusion that []Appellant failed to
                     meet any of the exceptions to any timeliness
                     requirement that may have been applicable?

Appellant’s Brief at 4.

       We begin by noting our well-settled standard of review. “In reviewing

the   denial    of    PCRA   relief,   we      examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings


____________________________________________
2
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”    Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).       “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”       Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      We address Appellant’s issues together, as they both pertain to the

timeliness of Appellant’s PCRA petition, which implicates the jurisdiction of

this Court and the PCRA court.      Commonwealth v. Davis, 86 A.3d 883,

887 (Pa. Super. 2014) (citation omitted). Pennsylvania law makes clear that

when “a PCRA petition is untimely, neither this Court nor the trial court has

jurisdiction over the petition.”   Commonwealth v. Seskey, 86 A.3d 237,

241 (Pa. Super. 2014) (citation omitted), appeal denied, 101 A.3d 103 (Pa.

2014). The “period for filing a PCRA petition is not subject to the doctrine of

equitable tolling; instead, the time for filing a PCRA petition can be extended

only if the PCRA permits it to be extended[.]” Commonwealth v. Ali, 86

A.3d 173, 177 (Pa. 2014) (internal quotation marks and citation omitted),

cert. denied, Ali v. Pennsylvania, 135 S. Ct. 707 (2014). This is to “accord

finality to the collateral review process.”   Commonwealth v. Watts, 23

A.3d 980, 983 (Pa. 2011) (citation omitted). “However, an untimely petition


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may be received when the petition alleges, and the petitioner proves, that

any of the three limited exceptions to the time for filing the petition, set

forth   at   42   Pa.C.S.A.   §   9545(b)(1)(i),   (ii),   and   (iii),   are   met.”

Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation

omitted). The PCRA provides, in relevant part, as follows.

             § 9545. Jurisdiction and proceedings

                                        …

             (b) Time for filing petition.—

                   (1) 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:

                         (i) the failure to raise the claim
                         previously was the result of interference
                         by   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;

                         (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.


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                     (2) Any petition invoking an exception
                     provided in paragraph (1) shall be filed within
                     60 days of the date the claim could have been
                     presented.

                                               …

42 Pa.C.S.A. § 9545(b).

       In the instant case, Appellant was sentenced on May 1, 2012 and filed

a timely post-sentence motion on May 10, 2012, which was denied on May

30, 2012.     As a result, Appellant’s judgment of sentence became final on

June 29, 2012, when the filing period for a notice of appeal to this Court

expired. See 42 Pa.C.S.A. § 9545(b)(3) (stating, “a judgment becomes final

at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review[]”); Pa.R.Crim.P.

720(A)(2)(a) (stating that a notice of appeal shall be filed “within 30 days of

the entry of the order deciding the [post-sentence] motion[]”).        Appellant

therefore had until July 1, 2013 to timely file his PCRA petition.3     See 42

Pa.C.S.A. § 9545(b)(1) (stating, “[a]ny petition under this subchapter,

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




____________________________________________
3
  We observe that June 29, 2013 was a Saturday; therefore, as weekends
are excluded from the computation of filing periods, Appellant’s PCRA
petition was due by Monday, July 1, 2013. See generally 1 Pa.C.S.A.
§ 1908.



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the date the judgment becomes final[]”). Appellant filed the instant petition

on January 9, 2015; as a result, it was facially untimely.

       However,      Appellant    avers        that   the   governmental   interference

exception applies to his petition.4 Appellant’s Brief at 16. In order to meet

the statutory requirements of the governmental interference exception,

“Appellant was required to plead and prove that his failure to raise the claim

previously was the result of interference by government officials with the

presentation of the claim [or claims] in violation of the Constitution or laws

of this Commonwealth or the Constitution or laws of the United States ….”

Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006) (internal

quotation marks and citation omitted; emphasis in original).               A defendant

claiming this exception must also show that “the information could not have

been obtained earlier with the exercise of due diligence.” Commonwealth

v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2006) (citation omitted).

       Additionally, as this Court has often explained, all of the time-bar

exceptions are subject to a separate deadline.

                    The statutory exceptions to the timeliness
              requirements of the PCRA are also subject to a
              separate time limitation and must be filed within
____________________________________________
4
  Appellant acknowledges that this exception was not raised in his PCRA
petition. Appellant’s Brief at 16. However, the PCRA court allowed Appellant
to argue this exception at the June 5, 2015 hearing. N.T., 6/5/15, at 12-29.
As it was properly before the PCRA court, and in light of the jurisdictional
nature of the PCRA time-bar, Appellant’s issue is preserved. See generally
Seskey, supra.



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             sixty (60) days of the time the claim could first have
             been presented. See 42 Pa.C.S.A. § 9545(b)(2).
             The sixty (60) day time limit … runs from the date
             the petitioner first learned of the alleged after-
             discovered facts. A petitioner must explain when he
             first learned of the facts underlying his PCRA claims
             and show that he brought his claim within sixty (60)
             days thereafter.

Id. (some citations omitted).      Our Supreme Court has held that Section

9545(b)(2) also requires a showing of due diligence insofar that a petitioner

must file the petition within 60 days that the claim could have first been

presented.   Commonwealth v. Edmiston, 65 A.3d 339, 350 (Pa. 2013),

cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013).

     In   this   case,   Appellant’s   governmental     interference    exception

argument consists of the following.

                   Based on the underlying facts of this matter,
             including, but not necessarily limited to []Appellant’s
             underlying medical condition, the absence of
             appropriate medical treatment from jail staff while in
             the County jail and in advance of his being
             incarcerated within the state correctional system,
             and particularly, resulting in the untimely occurrence
             of his seizure shortly before the entrance of his plea
             that left him without glasses, unable to read the
             relevant documents, in a state of “confusion” or “fog”
             that lasted throughout his plea and sentencing and
             until his ultimate receipt of appropriate medical
             treatment at the state correctional system, as well as
             his limited education, his absence of legal
             knowledge, particularly as to how the system works,
             and his assertion as to the absence of any response
             from the staff at the state correctional facility to his
             request for legal assistance to address his claim as to
             ineffectiveness of his trial counsel, []Appellant
             believes and maintains that at a minimum, such
             circumstances are sufficient and warrant the

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            invoking   of    the   “governmental    interference”
            exception to [the] one (1) year time deadline.

Appellant’s Brief at 16.

      After careful review of the certified record, we conclude Appellant is

not entitled to relief.    This Court has explained that “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)

(citation omitted), appeal denied, 20 A.3d 1210 (Pa. 2011). The only part of

Appellant’s argument that arguably alleges interference by governmental

officials is “the absence of appropriate medical treatment from jail staff while

in the County jail and in advance of his being incarcerated within the state

correctional system[.]”    Appellant’s Brief at 16.   Appellant’s brief does not

explain which government officials denied him medical treatment, what

treatment he needed, and how the absence of said treatment prevented him

from timely filing his PCRA petition.

      However, even if Appellant did explain all of the above, he would still

not be entitled to invoke Section 9545(b)(1). During Appellant’s testimony

at the PCRA hearing, Appellant conceded he was aware of the substantive

basis for his petition at the time of the plea and sentencing in 2012;

specifically, that plea counsel rendered ineffective assistance. N.T., 6/5/15,

at 19-20.   Furthermore, Appellant testified that he began to receive the

appropriate medication from SCI Somerset “a couple years” before the filing

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of his PCRA petition.   Id. at 21-22.   Therefore, Appellant’s PCRA petition,

filed on January 9, 2015, was filed beyond 60 days that his claims could

have first been presented.   Edmiston, supra.     As a result, Appellant has

not carried his burden to show that there was governmental interference in

this case, and even if he could show said interference, Appellant’s petition

did not comply with the 60-day rule at Section 9545(b)(2).

     Based on the foregoing, we conclude the PCRA court properly

dismissed Appellant’s petition as untimely.   Accordingly, the PCRA court’s

June 8, 2015 order is affirmed.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2016




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