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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KENNETH C. HOCKENBERRY
Appellant No. 1047 WDA 2015
Appeal from the PCRA Order June 8, 2015
In the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-CR-0000535-2011
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 6, 2016
Appellant, Kenneth C. Hockenberry, appeals from the June 8, 2015
order dismissing, as untimely, his petition for relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we affirm.
We summarize the relevant procedural history of this case as follows.
On January 5, 2012, Appellant entered a guilty plea to two counts each of
indecent assault and endangering the welfare of a child.1 On May 1, 2012,
the trial court imposed concurrent sentences of one to four years’
imprisonment on each count. Appellant filed a timely post-sentence motion
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1
18 Pa.C.S.A. §§ 3126(a)(7) and 4304(a)(1), respectively.
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on May 10, 2012, which the trial court denied on May 30, 2012. Appellant
did not file a notice of appeal to this Court.
On January 9, 2015, Appellant filed the instant pro se PCRA petition.
The PCRA court appointed counsel and conducted a hearing on June 5, 2015,
limited to the issue of timeliness. On June 8, 2015, the PCRA court entered
an order dismissing Appellant’s PCRA petition as untimely. On July 7, 2015,
Appellant filed a timely notice of appeal.2
On appeal, Appellant raises the following issues for our review.
[I.] Whether the [PCRA c]ourt erred in its
finding/conclusion that the [PCRA p]etition filed
by []Appellant was untimely and the [PCRA
c]ourt was therefore without jurisdiction to
hear the same?
[II.] Whether the [PCRA c]ourt erred in its
finding/conclusion that []Appellant failed to
meet any of the exceptions to any timeliness
requirement that may have been applicable?
Appellant’s Brief at 4.
We begin by noting our well-settled standard of review. “In reviewing
the denial of PCRA relief, we examine whether the PCRA court’s
determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
marks and citation omitted). “The scope of review is limited to the findings
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2
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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of the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled
that a PCRA court’s credibility determinations are binding upon an appellate
court so long as they are supported by the record.” Commonwealth v.
Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
Court reviews the PCRA court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
We address Appellant’s issues together, as they both pertain to the
timeliness of Appellant’s PCRA petition, which implicates the jurisdiction of
this Court and the PCRA court. Commonwealth v. Davis, 86 A.3d 883,
887 (Pa. Super. 2014) (citation omitted). Pennsylvania law makes clear that
when “a PCRA petition is untimely, neither this Court nor the trial court has
jurisdiction over the petition.” Commonwealth v. Seskey, 86 A.3d 237,
241 (Pa. Super. 2014) (citation omitted), appeal denied, 101 A.3d 103 (Pa.
2014). The “period for filing a PCRA petition is not subject to the doctrine of
equitable tolling; instead, the time for filing a PCRA petition can be extended
only if the PCRA permits it to be extended[.]” Commonwealth v. Ali, 86
A.3d 173, 177 (Pa. 2014) (internal quotation marks and citation omitted),
cert. denied, Ali v. Pennsylvania, 135 S. Ct. 707 (2014). This is to “accord
finality to the collateral review process.” Commonwealth v. Watts, 23
A.3d 980, 983 (Pa. 2011) (citation omitted). “However, an untimely petition
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may be received when the petition alleges, and the petitioner proves, that
any of the three limited exceptions to the time for filing the petition, set
forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.”
Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation
omitted). The PCRA provides, in relevant part, as follows.
§ 9545. Jurisdiction and proceedings
…
(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.
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(2) Any petition invoking an exception
provided in paragraph (1) shall be filed within
60 days of the date the claim could have been
presented.
…
42 Pa.C.S.A. § 9545(b).
In the instant case, Appellant was sentenced on May 1, 2012 and filed
a timely post-sentence motion on May 10, 2012, which was denied on May
30, 2012. As a result, Appellant’s judgment of sentence became final on
June 29, 2012, when the filing period for a notice of appeal to this Court
expired. See 42 Pa.C.S.A. § 9545(b)(3) (stating, “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[]”); Pa.R.Crim.P.
720(A)(2)(a) (stating that a notice of appeal shall be filed “within 30 days of
the entry of the order deciding the [post-sentence] motion[]”). Appellant
therefore had until July 1, 2013 to timely file his PCRA petition.3 See 42
Pa.C.S.A. § 9545(b)(1) (stating, “[a]ny petition under this subchapter,
including a second or subsequent petition, shall be filed within one year of
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3
We observe that June 29, 2013 was a Saturday; therefore, as weekends
are excluded from the computation of filing periods, Appellant’s PCRA
petition was due by Monday, July 1, 2013. See generally 1 Pa.C.S.A.
§ 1908.
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the date the judgment becomes final[]”). Appellant filed the instant petition
on January 9, 2015; as a result, it was facially untimely.
However, Appellant avers that the governmental interference
exception applies to his petition.4 Appellant’s Brief at 16. In order to meet
the statutory requirements of the governmental interference exception,
“Appellant was required to plead and prove that his failure to raise the claim
previously was the result of interference by government officials with the
presentation of the claim [or claims] in violation of the Constitution or laws
of this Commonwealth or the Constitution or laws of the United States ….”
Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006) (internal
quotation marks and citation omitted; emphasis in original). A defendant
claiming this exception must also show that “the information could not have
been obtained earlier with the exercise of due diligence.” Commonwealth
v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2006) (citation omitted).
Additionally, as this Court has often explained, all of the time-bar
exceptions are subject to a separate deadline.
The statutory exceptions to the timeliness
requirements of the PCRA are also subject to a
separate time limitation and must be filed within
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4
Appellant acknowledges that this exception was not raised in his PCRA
petition. Appellant’s Brief at 16. However, the PCRA court allowed Appellant
to argue this exception at the June 5, 2015 hearing. N.T., 6/5/15, at 12-29.
As it was properly before the PCRA court, and in light of the jurisdictional
nature of the PCRA time-bar, Appellant’s issue is preserved. See generally
Seskey, supra.
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sixty (60) days of the time the claim could first have
been presented. See 42 Pa.C.S.A. § 9545(b)(2).
The sixty (60) day time limit … runs from the date
the petitioner first learned of the alleged after-
discovered facts. A petitioner must explain when he
first learned of the facts underlying his PCRA claims
and show that he brought his claim within sixty (60)
days thereafter.
Id. (some citations omitted). Our Supreme Court has held that Section
9545(b)(2) also requires a showing of due diligence insofar that a petitioner
must file the petition within 60 days that the claim could have first been
presented. Commonwealth v. Edmiston, 65 A.3d 339, 350 (Pa. 2013),
cert. denied, Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013).
In this case, Appellant’s governmental interference exception
argument consists of the following.
Based on the underlying facts of this matter,
including, but not necessarily limited to []Appellant’s
underlying medical condition, the absence of
appropriate medical treatment from jail staff while in
the County jail and in advance of his being
incarcerated within the state correctional system,
and particularly, resulting in the untimely occurrence
of his seizure shortly before the entrance of his plea
that left him without glasses, unable to read the
relevant documents, in a state of “confusion” or “fog”
that lasted throughout his plea and sentencing and
until his ultimate receipt of appropriate medical
treatment at the state correctional system, as well as
his limited education, his absence of legal
knowledge, particularly as to how the system works,
and his assertion as to the absence of any response
from the staff at the state correctional facility to his
request for legal assistance to address his claim as to
ineffectiveness of his trial counsel, []Appellant
believes and maintains that at a minimum, such
circumstances are sufficient and warrant the
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invoking of the “governmental interference”
exception to [the] one (1) year time deadline.
Appellant’s Brief at 16.
After careful review of the certified record, we conclude Appellant is
not entitled to relief. This Court has explained that “the 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)
(citation omitted), appeal denied, 20 A.3d 1210 (Pa. 2011). The only part of
Appellant’s argument that arguably alleges interference by governmental
officials is “the absence of appropriate medical treatment from jail staff while
in the County jail and in advance of his being incarcerated within the state
correctional system[.]” Appellant’s Brief at 16. Appellant’s brief does not
explain which government officials denied him medical treatment, what
treatment he needed, and how the absence of said treatment prevented him
from timely filing his PCRA petition.
However, even if Appellant did explain all of the above, he would still
not be entitled to invoke Section 9545(b)(1). During Appellant’s testimony
at the PCRA hearing, Appellant conceded he was aware of the substantive
basis for his petition at the time of the plea and sentencing in 2012;
specifically, that plea counsel rendered ineffective assistance. N.T., 6/5/15,
at 19-20. Furthermore, Appellant testified that he began to receive the
appropriate medication from SCI Somerset “a couple years” before the filing
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of his PCRA petition. Id. at 21-22. Therefore, Appellant’s PCRA petition,
filed on January 9, 2015, was filed beyond 60 days that his claims could
have first been presented. Edmiston, supra. As a result, Appellant has
not carried his burden to show that there was governmental interference in
this case, and even if he could show said interference, Appellant’s petition
did not comply with the 60-day rule at Section 9545(b)(2).
Based on the foregoing, we conclude the PCRA court properly
dismissed Appellant’s petition as untimely. Accordingly, the PCRA court’s
June 8, 2015 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2016
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