IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL. Rule 907 Notice BY: KNISELY, J. August 24, 2015

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1 Commonwealth v. Seabury No Knisely, J. August 24, 2015 Criminal Law Post Conviction Relief Act (PCRA) Jurisdiction Timeliness Pa.R.Crim.P. 907 Notice. Defendant s PCRA petition is time barred where Defendant s PCRA petition was filed well beyond the one year deadline, and he neither pleads an exception nor sets forth facts to invoke an exception to the time bar. Defendant has not set forth sufficient facts which properly invokes the timeliness exception on the basis of mental incompetence.

2 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL COMMONWEALTH OF PENNSYLVANIA : : vs. : No : MICHAEL SEABURY : Rule 907 Notice BY: KNISELY, J. August 24, 2015 Defendant Michael Seabury has filed a pro se petition seeking relief pursuant to the Post Conviction Relief Act ( PCRA ). 1 Adam L. Szilagyi was appointed to represent Defendant and granted time to file an amended petition. In lieu of an amended petition, Attorney Szilagyi filed a Motion to Withdraw as Counsel and a Turner/Finley letter. 2 Following its independent review of the record, this Court agrees with appointed counsel that no purpose would be served by any further proceedings and Defendant is not entitled to PCRA relief. This Opinion serves as notice to Defendant, pursuant to Pa.R.Crim.P. 907, that the Court intends to dismiss his petition and grant counsel s motion unless Defendant responds to the proposed dismissal within 20 days and provides a reviewable basis for relief. On February 3, 1999, Defendant was charged with Criminal Homicide 3 and Criminal Conspiracy to commit Criminal Homicide 4 for the shooting death of Kirkland Hardy on January 18, On November 15, 2000, following a jury trial, Defendant was convicted on all charges. On January 11, 2001, the trial court sentenced Defendant to a term of life imprisonment without parole on the homicide charge and a concurrent ten to twenty year sentence on the 1 42 Pa.C.S.A See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) Pa.C.S. 2501(A) Pa.C.S

3 conspiracy charge. On August 29, 2001, the Superior Court affirmed Defendant s judgment of sentence. Defendant did not file a petition for allowance of appeal with our Supreme Court. On April 22, 2015, Defendant filed a pro se PCRA petition, approximately fourteen and one-half years after his judgment of sentence became final. This Court appointed counsel for Defendant and granted an extension of time to file an amended petition. 5 On June 29, 2015, appointed counsel filed a Turner/Finley letter in lieu of an amended petition. Counsel concluded that Defendant did not have a meritorious claim for PCRA relief and sought the Court s permission to withdraw from the matter. A PCRA petition must be filed within one year of the date petitioner s judgment of sentence becomes final unless he pleads and proves one of the enumerated exceptions. 42 Pa.C.S.A 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. 42 Pa.C.S.A. 9545(b)(3). The PCRA s timeliness requirements are jurisdictional in nature and a court may not address the merits of an untimely filed PCRA petition. Commonwealth v. Copenhefer, 596 Pa. 104, 108, 941 A.2d 646, (2007). The court is precluded from addressing the merits of a petition that does not invoke one of the statutorily enumerated exceptions. Commonwealth v. Wilson, 824 A.2d 331, 333(Pa.Super. 2003). Further, even if a petition is entitled to one of the enumerated exceptions, but is not filed within 60 days of the date the claim could have been first brought, the court may not address the merits of the petition. Id. Here, the petition under present consideration, filed April 22, 2015, is manifestly untimely. The Superior Court affirmed Defendant s judgment of sentence of August 29, Order of Court, Defendant s PCRA Petition (April 27, 2015). 3

4 Defendant s judgment became final as of November 27, 2001, upon expiration of the time to file a petition for allowance of appeal to the Supreme Court of Pennsylvania. See Pa.R.A.P. 1113(a). To be timely, Defendant s PCRA must have been filed within one year of that date unless he pleaded and proved that a timing exception applied. See 42 Pa.C.S. 9545(b)(1)(i)-(iii). Therefore, Defendant s current petition, filed on April 22, 2015, is untimely on its face unless he pleads and proves one of the statutory exceptions to the time-bar. Section 9545 of the PCRA provides only three exceptions that allow for review of an untimely PCRA petition: (1) the petitioner s inability to raise a claim because of governmental interference; (2) the discovery of previously unknown facts that would have supported a claim; and (3) a newly-recognized constitutional right. 42 Pa.C.S. 9545(b)(1)(i)-(iii). As noted above, a PCRA petition invoking one of these statutory exceptions must be filed within 60 days of the date the claim could have been presented. 42 Pa. C.S. 9545(b)(2). Defendant invokes the timeliness exception in subsection 9545(b)(1)(ii) to claim that he was mentally incompetent during the time frame set forth for filing a timely PCRA petition and only recently was rendered competent, thus qualifying him for the review under the PCRA s after-discovered evidence exception to the PCRA time bar. 6 Generally, mental illness does not serve as an exception to the PCRA s timeliness requirements. Commonwealth v. Hoffman, 780 A.2d 700, 703 (Pa.Super. 2001). In limited circumstances, however, mental incompetency may qualify as after discovered evidence if a defendant established that (1) he was incompetent when the time for filing his PCRA petition lapsed, and (2) he filed his PCRA petition within sixty days of becoming sufficiently competent. Commonwealth v. Cruz, 852 A.2d 287, (Pa. 6 See Motion for Post-Conviction Collateral Relief, 4/22/15, at page 3. 4

5 2004)(defendant with physical brain injury resulting from gunshot permitted attempt to prove timeliness exception where record revealed injury could heal over time). Since Cruz, the Superior Court has addressed the issue of what allegations the PCRA petitioner s pleadings must contain in order to obtain an evidentiary hearing. For example, in Commonwealth v. Liebensperger, 904 A.2d 40 (Pa.Super. 2006), the Court held that the petitioner failed to plead and prove the applicability of the mental incompetency exception. 904 A.2d at 48. Specifically the Superior Court explained: Appellant in the instant case has offered nothing to indicate when, if ever, the crucial point in time at which he passed from incompetence to competence may have actually occurred, discussing only his chronic mental illness. Appellant has failed to offer any evidence or suggested reasons as to the cause of his lapse into incompetence after Dr. Rotenberg's evaluation. Similarly, Appellant has not asserted in his petition even an estimate of the timing or duration of the periods of incompetence he allegedly suffered after his evaluation. Further, Appellant has made no assertions, and there is nothing in the record to indicate, that his condition is of the type that may have recently improved or changed so that he has only recently returned to the degree of competence required to file a PCRA petition. Since Appellant has not provided the aforementioned evidence or proofs, he is unable to establish that he filed his petition within the sixty-day requirement of the PCRA, or that he requires a hearing to determine if he has met this requirement. Therefore, Appellant has failed to meet his pleading requirements under the PCRA. 42 Pa.C.S.A. 9545(b). Id. In this case, Defendant has not set forth sufficient facts which properly invokes the timeliness exception on the basis of mental incompetence. A detailed review of the Defendant s case demonstrates that the circumstances presented by this case are distinguishable from the total incapacity evidenced in Cruz, and do not provide an extreme example of incompetence and inability to discover facts in the exercise of due diligence. Moreover, Defendant s petition did not establish that his alleged incompetence rendered him unable to file a timely PCRA petition, 5

6 the reasons for his incompetency during the relevant time for filing a timely petition, or when specifically he regained sufficient competency to file the present PCRA petition. 7 Nevertheless, even if Defendant were declared incompetent during the timeframe between his direct appeal ending and his PCRA deadline expiring, Defendant is still not entitled to relief. By way of a handwritten letter sent to this Court, dated December 29, 2014, Defendant formally began to inquire about filing a claim for ineffective assistance of trial counsel. This Court received Defendant s letter on March 16, 2015 (officially postmarked March 04, 2015) and responded the next day, informing Defendant of his right to file a PCRA petition. The contents of Defendant s letter reveals that he was sufficiently competent and could have filed a PCRA petition for ineffective assistance of counsel as of December 29, Therefore, even if a majority of the last fourteen years were exempt from Defendant s PCRA filing deadline as a result of mental incompetency, Defendant s PCRA petition must have been filed within sixty days of becoming sufficiently competent. Nevertheless, Defendant waited until April 22, 2015 to file the current petition. Consequently, it is clear to this Court that Defendant s petition, by any measure, is untimely. Accordingly, because Defendant s petition fails to establish that he was incompetent during the time for filing a timely PCRA petition and only recently was rendered competent, Defendant has failed to prove a timeliness exception under subsection 9545(b)(1)(ii) of the PCRA on the basis of mental incompetence. Therefore, Defendant s petition is time barred. Defendant neither pleads an exception to the time bar nor sets forth facts that invoke an exception. As such, this Court is precluded from addressing the merits of the petition. 7 See Motion for Post-Conviction Collateral Relief, 4/22/15, at pages

7 Defendant is not entitled to post-conviction relief, and no purpose would be served by any further proceedings. Defendant is hereby provided notice of this Court s intent to dismiss his petition without a hearing. Defendant may respond within twenty (20) days from the date of this Notice to demonstrate that he is entitled to relief under the PCRA. Accordingly, I enter the following: 7

8 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL COMMONWEALTH OF PENNSYLVANIA : : vs. : No : MICHAEL SEABURY : ORDER AND NOW, this day of August, 2015, upon consideration of Defendant Michael Seabury s PCRA Petition filed April 22, 2015 and Adam L. Szilagyi, Esquire s Turner/Finley letter, the Court hereby ORDERS and DECREES: (1) The Petition is denied. Defendant is given notice that the Court, pursuant to Pa.R.Crim.P. 907, intends to dismiss Defendant s Petition without an evidentiary hearing unless Defendant shall, within twenty (20) days of the date of this Order and Notice show good cause why the Petition should not be dismissed; and (2) Attorney Adam L. Szilagyi is permitted to withdraw as counsel. BY THE COURT: HOWARD F. KNISELY JUDGE Attest: Copies to: Office of the District Attorney Adam L. Szilagyi, Esq., 40 E. Grant Street, Lancaster, PA Michael Seabury, Inmate ID#EM8806, SCI Graterford, P.O. Box 244, Rt. 29 Graterford, PA,