J. S31037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                Appellee                 :
                                         :
                   v.                    :
                                         :
                                         :
MICHAEL SEABURY,                         :
                                         :
               Appellant                 :    No. 1734 MDA 2015


               Appeal from Order Entered September 16, 2015
             in the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0002212-2000


BEFORE: SHOGAN, OTT, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                        FILED JUNE 07, 2016

      Michael Seabury (Appellant) appeals pro se from the September 16,

2015 order dismissing his petition filed pursuant to the Post Conviction Relief

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

      The trial court set forth the relevant factual background of this case as

follows.

            On February 3, 1999, [Appellant] was charged with
      [c]riminal [h]omicide and [c]riminal [c]onspiracy to commit
      [c]rimnal [h]omicide for the shooting death of Kirkland Hardy on
      January 18, 1999. On November 15, 2000, following a jury trial,
      [Appellant] was convicted on all charges. On January 11, 2001,
      the trial court sentenced [Appellant] to a term of life
      imprisonment without parole on the homicide charge and a
      concurrent ten to twenty year sentence on the conspiracy
      charge. On August 29, 2001, [this Court] affirmed [Appellant’s]
      judgment of sentence. [Appellant] did not file a petition for
      allowance of appeal with our Supreme Court.


*Retired Senior Judge assigned to the Superior Court.
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              On April 22, 2015, [Appellant] filed a pro se PCRA petition,
       approximately fourteen and one-half years after his judgment of
       sentence became final. [The trial court] appointed counsel for
       [Appellant] and granted an extension of time to file an amended
       petition.   On June 29, 2015, appointed counsel filed a
       Turner/Finley letter in lieu of an amended petition. Counsel
       concluded that [Appellant] did not have a meritorious claim for
       PCRA relief and sought the Court’s permission to withdraw from
       the matter.

Trial Court’s Rule 907 Notice (907 Notice), 8/24/2015, at 1-2 (footnote

removed).

       On August 24, 2015, the PCRA court issued a notice of intent to

dismiss Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907 and

permitted Appellant’s counsel to withdraw. On August 28, 2015, Appellant

sent correspondence to the clerk of courts requesting a copy of his trial and

sentencing transcripts.1     See Appellant’s Brief at 5.       By order dated

September 16, 2015, the PCRA court dismissed the petition without a

hearing.

       On October 5, 2015, Appellant timely filed a notice of appeal and

complied with the PCRA court’s order to file a concise statement pursuant to

Pa.R.A.P. 1925.

    Appellant states the following issues for this Court’s consideration:

       [Did] the learned PCRA court erroneously dismiss[] Appellant’s
       post[-] conviction relief petition, as untimely filed?



1
 Appellant’s request was granted by the trial court; however, according to
Appellant, he only received one volume of a multiple-volume trial transcript.
See Appellant’s Brief at 8.


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      Was [Appellant’s] letter to the court where he [] informed the
      PCRA jurist that he is mental competent of his state of mind [sic]
      to file his PCRA petition under the statutory provision pursuant
      to § 9545(b)(1)(ii) of Title 42 Pa.C.S. [i]n accord with
      Commonwealth v. Cruz, 852 A.2d 287 (Pa. 2004)[?]

Appellant’s Brief at 2 (unnecessary capitalizations removed).

      The timeliness of a post-conviction petition is jurisdictional.      See,

e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f

a PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition.   Without jurisdiction, we simply do not have

the legal authority to address the substantive claims.”).

      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

of sentence is final.   42 Pa.C.S. § 9545.    Exceptions exist if the petition

alleges, and the petitioner proves, that one of the following exceptions to the

time for filing the petition is met:

      (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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42 Pa.C.S. § 9545(b).
Further, for an exception to apply, the claim must be raised within 60 days

of the date on which it became available. 42 Pa.C.S. § 9545(c).

       It is clear that Appellant’s 2015 petition is facially untimely: his

judgment of sentence became final in 2001. However, Appellant alleges that

his   petition   meets   a   timeliness   exception   pursuant   to   42   Pa.C.S.

§ 9545(b)(1)(ii), due to mental incompetence, which prohibited him from

timely filing a PCRA petition.2 PCRA Petition, 4/22/2015, at 3.

       “[A]ny petition filed pursuant to any of these timeliness exceptions

must be filed within 60 days of when the petition could have been

presented.”      Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa.

2010)(citations removed). “[T]he 60–day rule requires a petitioner to plead

and prove that the information on which he relies could not have been

obtained earlier, despite the exercise of due diligence.” Id.

       The trial court specifically found Appellant failed to establish the

reasons for his incompetence or how such incompetence rendered him

unable to file a PCRA petition. 907 Notice, 8/24/2015, at 5. Further, the

trial court noted that Appellant had yet to establish when he had “regain[ed]

sufficient competency to file the present PCRA petition” but found that the


2
   In Commonwealth v. Cruz, our Supreme Court held that “in some
circumstances, claims that were defaulted due to the PCRA petitioner’s
mental incompetence may qualify under the statutory after-discovered
evidence exception.” 852 A.2d 287, 293 (Pa. 2004).


                                    -4-
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December 29, 2014 letter sent by Appellant to the court inquiring about

filing an ineffective claim “reveal[ed] that he was sufficiently competent and

could have filed a PCRA petition … as of December 29, 2014.” Id. (footnote

omitted).3

      Appellant himself contends that he became competent as of December

29, 2014.      See Appellant’s Brief at 6 (“Appellant asserts his letter

constitutes a date certain of the predicate fact that he became [competent]

to fall within the purview of Commonwealth v Cruz”).4 Appellant filed his

petition on April 22, 2015, more than sixty days after he discovered the fact

of his incompetence. Thus, the petition was untimely filed.




3
  The trial court also found that Appellant had failed to provide any evidence
or facts to invoke the timeliness exception based on mental incompetence.
We agree. Regardless, because the petition was filed more than sixty days
after Appellant allegedly discovered the fact of his incompetence, the result
would be the same even if we determined that Appellant did plead sufficient
facts.
4
   We note that Appellant’s brief is at times contradictory.         Appellant
acknowledges he became competent as of December 29, 2014, but also
states at various points within his brief that he “remains unequipped
mentally and otherwise,” “remains incompetent mentally,” and is “still
incurring mental difficulties.” Appellant’s Brief at 6-7. This Court reads
Appellant’s statements, in conjunction with his argument that he is entitled
to proceed based on a timeliness exception and through the various filings
he has initiated with this Court and trial court, as though he is competent to
understand the proceedings he has undertaken.



                                 -5-
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      Accordingly, because Appellant has failed to establish an exception to

the timeliness requirements, we affirm the order of the PCRA court denying

Appellant’s petition.5

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/7/2016




5
  In doing so, we deny Appellant’s request within his brief that we remand
his case based upon the PCRA court’s failure to provide Appellant with a
complete set of transcripts to assist Appellant in “effectuating his claims.”
See Appellant’s Brief at 8.


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