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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CODY OSLER,
Appellant No. 2035 EDA 2015
Appeal from the PCRA Order June 22, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005602-2011
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 12, 2016
Appellant Cody Osler appeals from the order entered on June 22,
2015, by the Honorable Rose Marie Defino-Nastasi in the Court of Common
Pleas of Philadelphia County denying his petition filed pursuant to the Post-
Conviction Relief Act (“PCRA”)1 as untimely. We affirm.
On August 2, 2012, Appellant entered into a negotiated guilty plea in
four separate matters to the following crimes: one count each of third
degree murder, possession of an instrument of crime, robbery, and
terroristic threats; two counts of burglary; and three counts of theft. 2 That
same day, Appellant received an aggregate sentence of twenty-five to fifty
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1
42 Pa.C.S.A. §§ 9541-46.
2
18 Pa.C.S.A. §§ 2502(c), 907(b), 3701, 2706, 3502, and 3921(c),
respectively.
*Former Justice specially assigned to the Superior Court.
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years in prison in accordance with the plea agreement. Appellant did not file
a post sentence motion or a direct appeal.
On November 26, 2013, Appellant filed his first PCRA petition pro se
wherein he claimed trial counsel had been ineffective and that his plea had
been unlawfully induced. On April 9, 2014, Appellant filed a memorandum
of law in support of his PCRA petition. Counsel was appointed on May 22,
2014, and on August 21, 2014, he filed a Turner/Finely “no-merit” letter
along with a motion to withdraw as counsel.3 Counsel was permitted to
withdraw, and on October 6, 2014, current counsel was appointed to
represent Appellant. Counsel filed an amended PCRA petition raising claims
of trial counsel’s ineffectiveness and averring that Appellant’s guilty plea was
not made intelligently, knowingly, or voluntarily due to his alleged mental
illness. The Commonwealth filed an answer, and on May 21, 2015, the PCRA
court held an evidentiary hearing. Following the hearing, the PCRA court
found the PCRA petition was untimely and that Appellant had failed to plead
and prove any of the exceptions to the time-bar. Appellant’s PCRA petition
was formally dismissed on June 22, 2015. On June 25, 2015, Appellant filed
an appeal with this Court.
On appeal, Appellant presents the following questions for our review:
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3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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I. Whether the Trial Court erred in not granting Appellant’s
PCRA Petition because Appellant’s Guilty Plea was not made
intelligently, knowingly or voluntarily because of his severe
mental illness.
II. Whether the Trial Court erred in not granting Appellant’s
PCRA Petition because Appellant’s Counsel was ineffective for
failing to litigate a motion to suppress.
III. Whether the Trial Court erred in not granting Appellant’s
PCRA Petition because Appellant’s Counsel was ineffective for
failing to call expert testimony as to his mental illness.
IV. Whether the Trial Court erred in not granting Appellant’s
PCRA Petition because Appellant was not competent and not
sane at the time of the alleged crime and therefore it would be
impossible for him to be guilty, and thus impossible for him to
plead guilty.
V. Whether the Trial Court erred in not granting Appellant’s
PCRA Petition because Appellant was not competent at the time
of his guilty plea and therefore it would be impossible for him to
plead guilty.
Brief for Appellant at 4.
Preliminarily, we must determine whether Appellant’s PCRA petition
was timely filed, for it is well-settled that a trial court lacks jurisdiction to
entertain an untimely petition. Commonwealth v. Robinson, 837 A.2d
1157 (Pa. 2003). Our standard of review of the denial of PCRA relief is
whether the PCRA court’s order is supported by the record and without legal
error. Commonwealth v. Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super.
2008).
The most recent amendments to the PCRA, effective January 19, 1996,
provide that a PCRA petition, including a second or subsequent one, shall be
filed within one year of the date the underlying judgment becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment is deemed to be final “at the conclusion
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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
the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of
interference by government officials with the
presentation of the claim in violation of the Constitution
or the law of this Commonwealth or the Constitution or
law 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 Pennsylvania after
the time period provide in this section and has been
held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
“We emphasize that it is the petitioner who bears the burden to allege
and prove that one of the timeliness exceptions applies.” Commonwealth
v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (citations omitted).
Instantly, Appellant was sentenced on August 2, 2012, and failed to
file a direct appeal. Therefore, Appellant’s judgment of sentence became
final thirty days thereafter on September 2, 2012. See 42 Pa.C.S.A. §
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9545(b)(3) (providing “a judgment becomes final at the conclusion of direct
review. . . or at the expiration of time for seeking the review”); Pa.R.A.P.
903(a) (“Except as otherwise prescribed by this rule, the notice of appeal. . .
shall be filed within 30 days after the entry of the order from which the
appeal is taken). Accordingly, Appellant had until September 2, 2013, to file
a timely PCRA petition unless he could plead and prove the application of
one of the listed exceptions. See id. § 9545(b)(1).
Although in his brief Appellant maintains he timely filed the instant
PCRA petition on November 26, 2013, in light of the foregoing, his petition is
patently untimely. As such, it became incumbent upon him to specifically
plead and prove the applicability of one or more of the enumerated
exceptions to the timeliness requirements of the PCRA in order to invoke the
jurisdiction of the PCRA court. Commonwealth v. Cristina, 114 A.3d 419,
421 (Pa.Super. 2015). However, Appellant did not do so and instead
asserted a number of claims to the effect that his guilty plea was not
voluntary and knowing due to his history of mental illness. “[T]he 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).
Therefore, we agree with the PCRA court that his petition is untimely and
that the PCRA court and this Court are without jurisdiction to address
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Appellant’s claims. Accordingly, we affirm the PCRA court’s June 22, 2015,
order dismissing Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2016
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