J-S35024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JERRY C C. JEAN,

                        Appellant                  No. 2297 EDA 2015


                Appeal from the PCRA Order June 30, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0008323-2008


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED JUNE 14, 2016

     Appellant, Jerry C C. Jean, appeals from the post-conviction court’s

June 30, 2015 order denying, as untimely, his second petition under the Post

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

     The PCRA court summarized the facts of Appellant’s case as follows:

            On April 5, 2008, at approximately 6:00 a.m., [Appellant]
     was washing dishes in the house he shared with Jocelyn Desay.
     Desay had told [Appellant] to leave the house the day before
     and that he was no longer welcome there. [Appellant] and
     Desay began to argue and [Appellant] retrieved a razor blade
     from his room before returning and stabbing Desay three times
     in her neck, severing her right carotid artery, which resulted in
     her death. After stabbing Desay, [Appellant] wrapped her body
     in a blanket, dragged her body into a bedroom, and hid her body
     under the bed before cleaning the scene and leaving the house.
     Desay’s body was found by police on April 11, 2008. On April
     12, 2008, [Appellant] provided a statement to police in which he
     confessed to her murder.

PCRA Court Opinion (PCO), 10/7/15, at 2-3 (citations to the record omitted).
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      On October 6, 2011, Appellant entered a negotiated guilty plea to the

offenses of third-degree murder, abuse of a corpse, criminal trespass, and

possessing an instrument of crime. He was sentenced that same day to the

negotiated term of 28½ to 57 years’ imprisonment. Appellant did not file an

appeal from his judgment of sentence.

      On April 12, 2012, Appellant filed a timely, pro se PCRA petition.

Counsel was appointed, but he subsequently filed a petition to withdraw and

‘no merit’ letter in accordance with Commonwealth v. Turner, 544 A.2d

927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) (en banc).    The court ultimately dismissed Appellant’s petition, and

granted counsel’s petition to withdraw, by order entered September 4, 2013.

Appellant did not file an appeal.

      On August 21, 2014, Appellant filed his second pro se PCRA petition,

which underlies the present appeal.     Therein, he raised various claims of

ineffective assistance of trial counsel.    Appellant also alleged that he

satisfied the governmental interference and after-discovered evidence

exceptions to the PCRA’s one-year time bar. See 42 Pa.C.S. § 9545(b)(1)(i)

and (ii). On June 3, 2015, the PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss Appellant’s petition. Appellant did not respond, and

on June 30, 2015, the court issued an order dismissing his petition as being

untimely filed.

      Appellant filed a timely notice of appeal. On July 27, 2015, the PCRA

court ordered Appellant to file a Pa.R.A.P. 1925(b) statement of errors

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complained of on appeal. That order provided Appellant with 21 days to file

the statement, and explicitly declared that, “[a]ny issues not contained in a

Concise Statement of Errors Complained of on Appeal that is both timely

filed of record with the lower court and timely served on the trial judge in

accordance with the terms of this ORDER will be deemed to have been

waived.” Rule 1925(b) Order, 7/27/15. Nevertheless, Appellant failed to file

a Rule 1925(b) statement.1 On October 7, 2015, the PCRA court issued a

Rule 1925(a) opinion explaining why the claims raised in Appellant’s petition

failed to satisfy any exception to the PCRA’s timeliness requirement.

       Herein, Appellant presents one question for our review: “Did the PCRA

[c]ourt error [sic] in dismissing Appellant’s PCRA without considering or

addressing the timeliness exceptions Appellant raised or allowing him to

develop a factual basis?” Appellant’s Brief at 4 (unnumbered).

       Appellant has waived this claim for our review.       The court’s Rule

1925(b) order clearly advised Appellant of the time within which he had to
____________________________________________


1
  We acknowledge that the PCRA court cites to a Rule 1925(b) statement in
its opinion. See PCO at 2, 6. However, the lower court’s docket does not
contain any entry for Appellant’s Rule 1925(b) statement, and no concise
statement is included in the certified record. The court’s order explicitly
informed Appellant his statement had to be filed of record and served on the
PCRA judge. Thus, even if Appellant served the judge with a Rule 1925(b)
statement, his failure to also file that statement results in the waiver of his
claim. See Commonwealth v. Butler, 812 A.2d 631, 634 (Pa. 2002)
(stating “Rule 1925 is not satisfied when an appellant merely mails his Rule
1925(b) statement to the presiding judge[,]” and holding that failure to
properly file a concise statement waives any issues that may have been
raised).



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file a concise statement, and informed him that any issues not raised in a

timely-filed statement would be deemed waived. Appellant did not file any

Rule 1925(b) statement.    Therefore, his issue is waived, regardless of the

fact that the PCRA court filed a Rule 1925(a) opinion addressing Appellant’s

claims.   Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement

and/or not raised in accordance with the provisions of this paragraph (b)(4)

are waived.”); In re L.M., (“If an appellant does not comply with an order to

file a Rule 1925(b) statement, all issues on appeal are waived--even if the

Rule 1925(b) statement was served on the trial judge who subsequently

addressed in an opinion the issues raised in the Rule 1925(b) statement.”)

(citing Commonwealth v. Schofield, 888 A.2d 771, 773-74 (Pa. 2005)).

     In any event, even had Appellant preserved his claim, we would find

no error in the PCRA court’s decision to dismiss his petition.   This Court’s

standard of review regarding an order denying 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. Ragan, 923 A.2d

1169, 1170 (Pa. 2007). This Court is required to first address the timeliness

of a PCRA petition, because the PCRA’s time limitations implicate our

jurisdiction and may not be altered or disregarded in order to address the

merits of a claim. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the




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judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, Appellant’s judgment of sentence became final in 2011 and thus,

his petition filed in 2014 is patently untimely and, for this Court to have

jurisdiction to review the merits thereof, Appellant must prove that he meets

one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S.

§ 9545(b). As mentioned, supra, Appellant argues that he meets both the

after-discovered evidence exception of section 9545(b)(1)(ii), and the



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governmental interference exception of section 9545(b)(1)(i).       We will

address these arguments in turn.

     First, Appellant contends that he “suffers from severe mental illness”

that precluded him from ascertaining the facts on which his claim is based,

i.e., the ineffectiveness of his trial counsel, until August 20, 2014, when

another inmate, Ravanna Spencer, researched and discovered these claims

and informed Appellant of them. See Appellant’s Brief at 7 (unnumbered)

(relying on Commonwealth v. Cruz, 852 A.2d 287, 293 (Pa. 2003)

(holding 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” of section 9545(b)(1)(ii))).

     In rejecting Appellant’s argument, the PCRA court reasoned as follows:

            [Appellant] asserts that his claims were unknown to him
     because of his mental health, and that he “discovered” his claims
     after a jailhouse paralegal reviewed his case. However, “the
     general rule [is] 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). The exception is where
     mental illness or incompetence prevents a defendant from timely
     raising or communicating claims.        Id. at 1080-1081 (citing
     Commonwealth v. Cruz, 852 A.2d 287, 294-97 (Pa. 2004)).
     That exception was applied in Cruz, where the defendant was
     “lobotomized” as a result of a self[-]inflicted gunshot wound and
     was unable to discuss the facts of his case with his attorney at
     the time of [his nolo contendere plea]. Cruz, 852 A.2d at 288.
     Despite being unable to “discuss the facts of [his] case in [any
     sort of] sensible way” with his attorney, and without an
     investigation into his competency, Cruz entered a nolo
     contendere plea. Id. The Supreme Court remanded the matter
     to permit Cruz to attempt to prove that he was incompetent at
     the time of his plea and that this incompetence constituted

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      newly discovered evidence that was only discovered upon his
      return to competency. Id. at 297.

            The case at bar clearly does not fall within the Cruz
      exception. Here, unlike in Cruz, [Appellant’s] competency to
      stand trial was investigated. Prior to the guilty plea hearing,
      [Appellant] was committed to Norristown State Hospital for
      treatment and [a] competency evaluation. [Appellant] was later
      found competent to stand trial and only thereafter did the court
      accept [Appellant’s] guilty plea.    In addition, the [c]ourt
      conducted an extensive oral colloquy of [Appellant] at the time
      of his plea to determine that [he] voluntarily and intelligently
      waived his right to trial.   At the time of the guilty plea,
      [Appellant] stated that, while he was suffering from
      schizophrenia, the illness was in remission and he was being
      treated with medication.

            Moreover, after [Appellant] filed his First Petition, PCRA
      counsel was appointed by the [c]ourt to evaluate the case for
      any potential claims. At no time did [Appellant] contend that he
      was incompetent during the pendency of the First Petition.
      Accordingly, the record establishes that unlike the defendant in
      Cruz, the mental health of [Appellant] here did not prevent him
      from timely raising claims either at the time of his guilty plea or
      [at] the time of his timely filed First Petition.       Therefore,
      [Appellant’s] mental health cannot give rise to newly discovered
      evidence that could render his Second Petition to be timely.
      Monaco, 996 A.2d at 1080-1083; see Commonwealth v.
      Liebensperger, 904 A.2d 40, 46-48 (Pa. Super. 2006)
      (defendant’s mental health not an exception to the PCRA time
      bar as defendant was evaluated for competence to stand trial,
      was found competent, and was able to cooperate with counsel).

PCO at 4-6 (citations to the record omitted).

      After reviewing Appellant’s argument, the record, our Supreme Court’s

decision in Cruz, and the other cases cited by the PCRA court, we ascertain

no error in the court’s conclusion that Cruz is distinguishable from the facts

of Appellant’s case. Namely, Appellant’s competency was investigated prior

to his plea, and he was found to be competent. Additionally, he does not



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contend that he was incompetent during his first PCRA proceeding, wherein

he could have asserted the claims of trial counsel’s ineffectiveness he now

seeks to litigate. Accordingly, the PCRA court did not err in concluding that

Appellant failed to meet the exception of section 9545(b)(1)(ii) based on his

mental illness.

      Next,   Appellant    maintains      that   he   meets     the   governmental

interference exception of section 9545(b)(1)(i) because the Department of

Corrections (DOC) prohibits inmates from obtaining legal assistance from

other inmates, and it does not offer inmates access to an “adequate law

library” or “people trained in law to assist inmates in [the] preparation of

documents.”       Appellant’s Brief at 9 (unnumbered).        Appellant claims that

the DOC’s policies deny him “access to the courts,” thus constituting

governmental interference under section 9545(b)(1)(i). Id.

      Again, the PCRA court’s analysis of Appellant’s claim confirms that it

did not err in dismissing his petition:

             [Appellant] cannot demonstrate that his petition is timely
      under the governmental interference exception to the PCRA time
      bar. In his Second Petition, [Appellant] asserted that his Petition
      was timely under this exception as the Commonwealth had
      restricted his right to access the courts by: 1) providing a prison
      law library which [Appellant] was unable to utilize due to his
      mental capacity; 2) no longer providing outside legal assistance
      to [Appellant]; and 3) prohibiting inmates from assisting each
      other in their legal preparations. However, [Appellant] filed a
      timely First Petition[,] which was reviewed by appointed counsel.
      Additionally, [Appellant’s] ability to access help in the filing of his




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       Second Petition belies his claim that the prison prevented him
       from getting such help.[2] Moreover, the Unites States Supreme
       Court has held that there is no constitutional right to a jailhouse
       lawyer. Shaw v. Murphy, 121 S.Ct. 1475 (2001); see also
       Bronson v. Horn, 830 A.2d 1092, 1096 (Cmw[l]th[.] Ct. 2003)
       (“there is no right to a jailhouse lawyer”).               As the
       Commonwealth did not prevent [Appellant] from presenting his
       claims in a timely manner, [his] reliance upon this exception is
       unavailing.

PCO at 6-7 (citations to the record omitted).

       We agree with the court’s rationale.               Notably, Appellant was

represented by PCRA counsel during the disposition of his first petition. He

does not allege that the at-issue DOC policies somehow precluded his PCRA

attorney from raising the ineffectiveness of counsel claims that Appellant

presented     in   his   instant   petition.     Accordingly,   Appellant   has   not

demonstrated that his “failure to raise the claim previously was the result of

interference by government officials with the presentation of the claim….”

42 Pa.C.S. § 9545(b)(1)(i).          Accordingly, the PCRA court did not err in

concluding that Appellant failed to satisfy the governmental interference

exception to the PCRA’s one-year time-bar.

       Order affirmed.




____________________________________________


2
 Appellant’s present PCRA petition and his appellate brief were prepared by
another inmate, Ravanna Spencer. See Appellant’s Brief at 7.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




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