Com. v. Mead, B. ( 2022 )

J-A05023-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BEELEY CAKNEAL MEAD :
:
Appellant : No. 646 MDA 2021
Appeal from the PCRA Order Entered April 5, 2021
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0002044-2014
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 01, 2022
Beeley Cakneal Mead appeals pro se from the order denying his first
petition pursuant to the Post Conviction Relief Act (“PCRA”) as untimely filed.
42 Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent facts and procedural history are as follows: On July 17,
2017, Mead pled guilty to one count of criminal solicitation to commit
aggravated indecent assault of a child under thirteen years of age in exchange
for a negotiated sentence of five to twenty years of imprisonment. On January
5, 2018, the trial court sentenced Mead in accordance with the plea
agreement. Mead did not file a post-sentence motion or a direct appeal to
this Court.
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* Former Justice specially assigned to the Superior Court.
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On February 21, 2020, Mead filed the pro se PCRA petition at issue. The
PCRA court appointed counsel, who filed a motion to withdraw and a no-merit
“brief” pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Thereafter, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to
dismiss this petition without a hearing. Mead filed a response. By order
entered April 1, 2021, the PCRA court permitted counsel to withdraw and
denied Mead’s petition. This timely appeal followed.1 Both Mead 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 to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no
genuine issues concerning any material fact, the defendant
is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings.
To obtain a reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he
____________________________________________
1 Although Mead’s notice of appeal appeared to be untimely, after we issued
a rule to show cause order, he submitted proof necessary under the prisoner
mailbox rule. See generally, Commonwealth v. Jones, 700 A.2d 423 (Pa.
1997).
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raised a genuine issue of material fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
In his pro se brief, Mead raises twenty-one issues. See Mead’s Brief at
3-6. Before addressing them, however, we must first determine whether the
PCRA court was correct in its conclusions that his second PCRA petition was
untimely filed, and that he failed to establish a time-bar exception. The
timeliness of a post-conviction petition is jurisdictional. Commonwealth v.
Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). 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 becomes final unless the petition
alleges, and the petitioner proves, that an exception to the time for filing the
petition is met.
The three narrow statutory exceptions to the one-year time bar are as
follows: “(1) interference by government officials in the presentation of the
claim; (2) newly discovered facts; and (3) an after-recognized constitutional
right.” Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)
(citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). A petition invoking one of these
statutory exceptions must be filed within one year of the date the claim could
have been presented. 42 Pa.C.S.A. § 9545(b)(2). In addition, exceptions to
the PCRA’s time bar must be pled in the petition and may not be raised for
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the first time on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.
Super. 2007); see also Pa.R.A.P. 302(a) (providing issues not raised before
the lower court are waived and cannot be raised for the first time on appeal).
Finally, if a PCRA petition is untimely and the petitioner has not pled and
proven an exception “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.” Commonwealth v.
Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).
Here Mead’s judgment of sentence became final on February 5, 2018,
thirty days after he was sentenced and he did not file an appeal to this Court.
See 42 Pa.C.S.A. § 9545(b)(3). Therefore, Mead had until February 5, 2019,
to file a timely petition. Because Mead filed the petition at issue in 2020, it is
untimely unless he has satisfied his burden of pleading and proving that one
of the enumerated exceptions applies. See Hernandez, supra.Mead failed to sufficiently plead and prove an exception to the PCRA’s
time bar. Reviewing Mead’s pro se petition, the PCRA court issued a Rule 907
notice of its intent to dismiss it without a hearing because:
Although [Mead] checked the boxes to attempt to invoke
all three statutory exceptions, he failed to allege sufficient
facts or to include appropriate witness certifications to
establish them.
The basis for all of the exceptions appears to be an
assertion that the court, the district attorney and [Mead’s]
counsel failed to do any competency test on him and he
failed to receive an adjustment to his sentence based on
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either his or his girlfriend’s cooperation against another
individual.
***
There is nothing in the record to suggest that either the
court or the district attorney were aware of any issues with
[Mead’s] competency. [Mead] allegedly asked his attorney
for a competency test, and his attorney allegedly told him
that if he wasn’t suicidal, he didn’t need one. [Mead] also
asserts that if counsel had conducted a medical background
check, it would have shown that he had been diagnosed with
adjustment disorder. The term “government official,”
however, does not include [Mead’s] attorney. 42 Pa.C.S.A.
[§ 9545(b)(4)]. [Mead] has also not submitted a witness
certification from any medical professional to show that [he]
was suffering from an adjustment disorder at the time he
entered his guilty plea or sentence or that an adjustment
disorder would render him unable to understand the
proceedings or assist in his defense. In fact, [Mead] asking
his counsel for a competency test would tend to show that
he had the ability to participate or assist in his own defense.
Furthermore, [Mead] was allegedly diagnosed with his
adjustment disorder in 2011, several years before he was
charged or pleaded guilty. [Mead] has not alleged any facts
to show why he could not have asserted this claim on or
before February 5, 2019.
Similarly, [Mead] should have been aware at the time of
his sentencing hearing that he did not receive an adjustment
to his sentence based on his girlfriend’s cooperation in
another case. Again, [Mead] has not alleged any facts to
show why he could not have asserted this claim on or before
February 5, 2019.
Rule 907 Notice, 11/23/20, at 3-4.
When issuing its Rule 907 Notice, the PCRA court informed Mead that
his response “should focus on when he discovered information about his
medical diagnoses and the lack of adjustment to his sentence” and why he
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could not have discovered that information and filed a timely PCRA petition on
any of his claims on or before February 5, 2019.” Id. at 5.
In his response to the PCRA court’s Rule 907 notice, Mead did not
answer the PCRA court’s questions directly, but rather blamed any delay on
his limited access to the prison law library and the pandemic crisis. Mead’s
Response, 12/28/20, at 1. Moreover, although Mead attached to his response
the definition of a “chronic adjustment disorder,” the medical records which
he refers do not state that he suffers from this psychiatric condition. After
reviewing the records, we agree with the following comments by PCRA counsel
in her Turner/Finley no-merit brief:
[Mead] has provided undersigned counsel with medical
records from 2011 indicating that he had been diagnosed
with an adjustment disorder with depressed mood following
a difficult breakup. The records did not establish a basis for
determining or questioning [Mead’s] competence at the
time of the prosecution.
Turner/Finley Brief, 8/6/20, at 5. Mead does not proffer an expert report
linking his 2011 diagnosis and/or a motor vehicle accident to his competency
to stand trial. Finally, Mead blames his lateness in asserting his lack of a
sentencing adjustment on the ineffectiveness of trial counsel. As noted by the
PCRA court, trial counsel is not a “governmental official” for purposes of the
PCRA’s “governmental interference” time-bar exception. See supra.
In sum, our review of the record supports the PCRA court’s conclusions
that Mead’s pro se PCRA petition is facially untimely, and he has failed to plead
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and prove a time-bar exception. We therefore affirm the PCRA court’s order
denying Mead post-conviction relief.2
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/01/2022
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2 In his nineteenth issue, Mead challenges PCRA counsel’s ineffectiveness.
Recently, in Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021), our
Supreme Court concluded: “[A] PCRA petitioner may, after a PCRA court
denies relief, and after obtaining new counsel or acting pro se, raise claims of
PCRA counsel’s ineffectiveness at the first opportunity to do so, even on
appeal.” Unlike the instant case, Bradley involved a timely first PCRA
petition. We do not, therefore, consider the applicability of Bradley to Mead’s
appeal. See Commonwealth v. Gurdine, 2022 WL 576155 (Pa. Super.
2022), non-precedential decision at *5, n.15.
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