Com. v. Cook, J.

J-S72019-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JONATHAN COOK, :

:

Appellant : No. 46 EDA 2017

Appeal from the PCRA Order November 18, 2016

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0511911-1999

BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 29, 2017

Jonathan Cook (“Cook”), pro se, appeals from the Order denying his

third Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On April 22, 2002, a jury found Cook guilty of one count of third-

degree murder, five counts of robbery, and four counts each of aggravated

assault, conspiracy, possessing an instrument of crime and recklessly

endangering another person. See 18 Pa.C.S.A. §§ 2502, 3701, 2702, 903,

907, 2705. The trial court sentenced Cook to a mandatory term of life in

prison for his conviction of third-degree murder. See 42 Pa.C.S.A. § 9715.

The trial court imposed various prison terms for his remaining convictions.

On appeal, this Court affirmed Cook’s judgment of sentence. See

Commonwealth v. Cook, 829 A.2d 355 (Pa. Super. 2003) (unpublished

____________________________________

* Former Justice specially assigned to the Superior Court.

J-S72019-17

memorandum). Cook did not seek allowance of appeal to the Pennsylvania

Supreme Court.

On October 14, 2015, Cook filed the instant PCRA Petition, his third.

On November 18, 2017, following appropriate Notice pursuant to

Pa.R.Crim.P. 907, the PCRA court dismissed Cook’s Petition without a

hearing. Thereafter, Cook filed the instant appeal, followed by a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal.

Cook presents the following claims for our review:

1. Did the PCRA court err in dismissing [Cook’s] PCRA Petition

in which he alleged that his due process rights under the Fifth

and Fourteenth Amendments of the U.S. Constitution were

violated when the trial court allowed him to be tried [and]

sentenced while he was incompetent[?]

2. Did the PCRA court err in dismissing [Cook’s] PCRA Petition in

which he alleged that his Sixth Amendment right to the

effective assistance of counsel was violated when trial counsel

allowed him to be tried [and] sentenced while he was

incompetent[?]

3. Did the PCRA court err [in] dismissing [Cook’s] PCRA Petition

when [Cook] was represented at trial by counsel who failed to

effectively object to the introduction at trial of evidence that

was not disclosed during discovery[?]

Brief for Appellant at 4 (some capitalization omitted).

“Our standard of review in PCRA appeals is limited to determining

whether the findings of the PCRA court are supported by the record and free

from legal error.” Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.

2009) (citation omitted).

-2-

J-S72019-17

Before addressing Cook’s claims, we first must determine whether he

timely filed his PCRA Petition. A PCRA petition must be filed within one year

of the date the petitioner’s judgment of sentence became final. 42 Pa.C.S.A.

§ 9545(b)(3). The one-year time limitation is jurisdictional, and a trial court

has no power to address the substantive merits of an untimely petition.

Commonwealth v. Abu-Jamal, 833 A.2d 719, 723-24 (Pa. 2003);

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). The

three exceptions to the one-year filing requirement are for after-discovered

facts, interference by a government official, and a newly-recognized

constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition

asserting one of these exceptions must also establish that the exception was

raised within sixty days of the date the claim could have been first

presented. 42 Pa.C.S.A. § 9545(b)(2).

As such, when a PCRA petition is not filed within one year of the

expiration of direct review, or not eligible for one of the three

limited exceptions, or entitled to one of the exceptions, but not

filed within 60 days of the date that the claim could have been

first brought, the trial court has no power to address the

substantive merits of a petitioner’s PCRA claims.

Gamboa-Taylor, 753 A.2d at 783.

Cook’s judgment of sentence became final on June 26, 2003, after the

expiration of the thirty-day period for seeking allowance of appeal with our

Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113. Thus,

Cook’s Petition is facially untimely.

-3-

J-S72019-17

Cook asserts the newly discovered facts exception to the PCRA’s

timeliness requirement. Brief for Appellant at 8. Specifically, Cook asserts

that he was incompetent, and only became competent on or around October

1, 2015, two weeks before filing the instant PCRA Petition. Id. Cook asserts

that this Court’s decision in Commonwealth v. Cruz, 852 A.2d 287 (Pa.

2004), and its progeny, do not require a PCRA petitioner “to prove [his]

incompetence and a timely filing prior to receiving an evidentiary hearing to

prove incompetence [and] a timely filing.” Brief for Appellant at 8 (emphasis

and some capitalization omitted). Cook contends that it is unfair to require

him to use the “few lines” provided in PCRA Petition forms to convince the

PCRA court that he was incompetent and complied with the timeliness

requirements. Id. Cook additionally argues that his Petition raised a

material issue of fact, requiring an evidentiary hearing. Id. at 9.

A PCRA petitioner bears the burden of proving, by a preponderance of

the evidence, that “he was mentally incompetent during the period in which

to raise and preserve claims in his first PCRA petition.” Commonwealth v.

Ali, 86 A.3d 173, 178 (Pa. 2014). Mental incompetence at relevant times

may, if proven, satisfy the requirements of Section 9545(b)(1)(ii), “in which

case, the claims defaulted by operation of the incompetence may be

entertained.” Id. at 177-78.

In its Opinion, the PCRA court considered and rejected Cook’s claim of

newly discovered facts, establishing an exception to the PCRA’s timeliness

-4-

J-S72019-17

requirement. PCRA Court Opinion, 5/25/17, at 6-11. We agree with the

sound reasoning of the PCRA court, as set forth in its Opinion, and affirm on

this basis with regard to the claims raised by Cook. See id.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/29/2017

-5-

0021_Opinion

Circulated 12/07/2017 02:05 PM

PHILADELPHIA COURT OF COMMON PLEAS

CRIMINAL TRIAL DIVISION

COMMONWEALTH

CP-51-CR-0511911-1999

v.

CP-51-CR-0511911-1999 Comm. v. Cook. Jonathan

Opinion

Superior Court Docket

JONATHAN COOK No.: 46 EDA 2017 �"'

Sarmina,J. 1111111111111111 I II Ill Ill FILED

May 25, 2017 7952100241

MAY 25. 2017

OPINION

Office of Judicial Records

PROCEDURAL HISTORY: Appea\s/POst Trial

On January 15, 2002, following a jury trial' before this Court, Jon a than Cook (hereinafter,

petitioner) was found guilty of third-degree murder (H-3), five counts of robbery (F-1), four counts

of aggravated assault (F-1), and one count each of criminal conspiracy (F-1), possessing instruments

of crime (PIC) (M-1), and recklessly endangering another person (REAP) (M-2). Sentencing was

deferred until April 11, 2002, at which time petitioner was sentenced to the mandatory term of life

imprisonment in accordance with 42 Pa.C.S. § 9715.2 On May 13, 2002, defendant filed a direct

appeal' and, on May 27, 2003, Superior Court dismissed petitioner's appeal without prejudice

pursuant to appellate counsel's Anders" brief.5

1 ,-\t trial, petitioner was represented by Tariq Karim El-Shabazz, Esquire.

2 § 9715 provides that "any person convicted of murder of the third degree in this Commonwealth who has previously

been convicted at any time of murder or voluntary manslaughter. .. shall be sentenced to life imprisonment." On January

7, 1985, petitioner was convicted of voluntary manslaughter and possessing instruments of crime, CP-51-CR-0201881-

1984.

3 Petitioner was represented by Larry Feinstein, Esquire, on direct appeal.

4Anders v. California, 386 U.S. 738, 744 (1981) (describing the procedure for counsel appointed for handling state

appellate proceedings for indigent defendants to advise court that appellate claims are meritless and request permission

to withdraw as counsel).

5 On direct appeal, petitioner raised one claim of ineffective assistance of counsel on the grounds that trial counsel failed

to preserve a weight of the evidence claim regarding flaws in petitioner's identification as the perpetrator of the crimes.

Superior Court rejected this claim pursuant to Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), which held that claims

Petitioner filed a Post-Conviction Relief Act (PCRA/ petition,pro se, on December 1, 2004,

beyond the one year filing requirement stated in 42 Pa.CS. § 9545.7 Counsel was appointed for

defendant on July 28, 2005,8 and filed a Finley9 letter on November 15, 2005, explaining that she had

not filed an amended petition because petitioner had not forwarded any facts which could be used

to bring his petition under any of the timeliness exceptions to the PCRA's filing requirements. On

November 23, 2005, because petitioner had not established that any of the enumerated exceptions

to the filing requirement applied, this Court sent petitioner notice of its intent to deny and dismiss

his PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907 (907 Notice). On December 16,

2005, this Court dismissed petitioner's PCRA petition consistent with its 907 Notice. On January 7,

2006, petitioner filed an appeal and, on August 16, 2006, Superior Court affirmed the trial court's

dismissal of petitioner's petition as untimely."

Petitioner filed his second PCRA petition on June 12, 2009. Petitioner contended that his

claims qualified as after-discovered evidence because he had filed his petition within 60 days of

recovery from mental incompetence which rendered him unable to timely discover the factual bases

for his collateral claims. On February 17, 2010, this Court sent petitioner a letter informing him of

the requisite proof in order to determine whether a limited evidentiary hearing would be appropriate

[FN contd.}

of ineffective assistance of trial counsel should be addressed on collateral review rather than on direct appeal. Petitioner

subsequently renewed this claim in his first petition for collateral relief.

r, 42 Pa.CS.§§ 9541-9546.

7Petitioner's first prose PCR.A petition raised blanket assertions of ineffective assistance of all prior counsel as well as

prosecutorial misconduct.

3Sondra R. Rodriguez, Esquire was appointed to represent petitioner on collateral attack pursuant to Pa.R.Crim.P

904(() and Commonwealth v. Perez, 799 .A.2d 848 (Pa.Super. 2002) (holding that indigent petitioner is entitled to

appointment of counsel on a first PCR.i\ petition, even where petition is untimely on its face).

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

1 ° Commonwealth v. Cook, No. 133 ED:\ 2006, slip. op. (Pa.Super. 2006) (memorandum opinion).

2

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on the issue of his alleged mental incompetency. On March 5, 2010, a jailhouse paralegal" sent this

Court a letter asking for an extension of time for petitioner's response, asserting that petitioner was

still suffering from mental illness and was unable to respond in a timely manner. On March 31,

2010, this Court received an amended PCRA petition signed by petitioner, with an attached letter

from the jailhouse paralegal indicating that the paralegal had prepared the amended petition on

behalf of petitioner.12 This Court scheduled a hearing, which was held on June 11, 2010, so that

petitioner could be evaluated by a mental health expert. James G. Jones, M.D. examined petitioner

on June 11, 2010, and found him mentally incompetent to represent himself or to assist any

appointed counsel in his own defense, but opined that thirty days of treatment was reasonably

certain to provide him with capacity. On June 24, 2010, this Court issued an Order committing

petitioner for thirty days of mental health treatment. After petitioner's thirty day mental health

treatment was completed, petitioner's incompetence was found to continue and, therefore, on

September 17, 2010, this Court Ordered commitment of petitioner for sixty addition.al days of

mental health treatment. On November 15, 2010, in preparation for petitioner's next PCRA

hearing, petitioner was examined by Miles C. Ladenheim, M.D., J.D., a forensic psychiatrist. Dr.

Ladenheim submitted a report on November 15, 2010, indicating that petitioner remained

incompetent. On November 18, 2010, this Court Ordered petitioner committed for a new sixty day

period of mental health treatment. On January 20, 2011, due to petitioner's continuing

incompetency, this Court continued petitioner's PCRA hearing until further notice.

11 The self-identified

jailhouse paralegal identified himself as Eric X. Rambert, an inmate at SCI-Coal Township (Inmate

Number AI\·f-9223).

12 For the sake of clarity, any reference to this filing shall refer to it as the "jailhouse petition." As the jailhouse petition

claimed that petitioner was in a state of sustained mental incompetence, and as subsequent prose filings by petitioner

made no representations that petitioner had adopted the claims raised in the jailhouse petition, this Court did not

address the jailhouse petition. This Court found that, even putting aside the fact that petitioner was represented to be

incompetent at the time that the jailhouse petition was filed, the jailhouse petition was unhelpful to petitioner's claims

and inconsistent with the claims raised in petitioner's second and third pro se petitions.

3

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On October 14, 2015, asserting that he had regained mental competency two weeks prior,

petitioner filed the instant petition prose, his third PCRA petition. On February 12, 2016, this Court

continued the matter for petitioner to have a competency evaluation. Petitioner's competency

evaluation was completed on April 15, 2016, and he was found competent by Robert W. Stanton,

M.D_. who submitted a report, dated April 19, 2016, to that effect. This Court thus determined that

it could proceed with petitioner's PCRA petition, and evaluated the claims outstanding from both

petitioner's second and third PCRA petitions." After evaluating the filings petitioner had submitted,

this Court determined that petitioner failed to satisfy his burden of proof in showing that his claims

satisfied any one of the timeliness exceptions articulated in § 9 545(b)(1) and, on October 17, 2016,

sent petitioner a 907 Notice. On November 18, 2016, this Court dismissed petitioner's PCRA

petition as untimely, consistent with its 907 Notice. This timely appeal followed.

LEGAL ANALYSIS:

Petitioner raises two claims on appeal: 14

1. This Court violated petitioner's constitutional rights when it permitted petitioner to be tried

and sentenced while petitioner was incompetent to stand trial or to be sentenced.

2. Trial counsel was ineffective where he failed to effectively object to the introduction of

evidence at trial that was not disclosed during pretrial discovery.

13

Petitioner's third prose petition claimed: 1) that trial counsel was ineffective for proceeding when he knew or should

have known that petitioner was mentally incompetent at sentencing; 2) that petitioner was tried in spite of a Brady

violation which occurred prior to the start of his trial; and 3) that trial counsel failed to impeach the credibility of a key

Commonwealth witness who was a former police officer who left the police force under questionable circumstances.

Additionally, petitioner had the following ineffective assistance of counsel claims outstanding from his second prose

petition: 1) that trial counsel failed to raise the claim that the Court lacked subject matter jurisdiction over petitioner

because the original criminal complaint was defective on its face; 2) that trial counsel failed to file post-sentence motions

to vacate based on the claim that petitioner's conviction and imposition of sentence violated state procedural rules; 3)

that trial counsel failed to file post-sentence motions to vacate the judgment against petitioner based on insufficiency of

the evidence; 4) that appellate counsel failed to raise the claim that the trial court abused its discretion by issuing curative

instructions rather than declaring a mistrial after the Commonwealth referenced petitioner's incarceration during trial; 5)

that PCR.A counsel was ineffective based on failure to raise each of the previous four ineffectiveness of counsel claims;

6) that PCRA counsel was ineffective for failure to argue that petitioner's claims qualified under the after-discovered

evidence exceptions to the PCR.A's timeliness requirements because petitioner suffered from mental incompetence

which prevented him from timely discovering the factual bases for his collateral claims.

14

This Court has rephrased and consolidated petitioner's claims for ease of disposition.

4

Initially, this Court notes that petitioner's second issue was not clearly raised in either petitioner's

second or third PCRA petition. While petitioner's third PCRA petition, filed on October 14, 2015,

contained a claim that petitioner was tried in spite of a Brady15 violation which occurred prior to the

start of trial, petitioner's PCRA petition provided no explanation or elaboration of any facts which

would support this claim, or even give context to permit the Court's understanding of exactly what

petitioner alleged had occurred. As petitioner does not state his second issue on appeal as a Brady

claim, this Court is unable to determine whether petitioner refers to the unsupported Brady claim

raised in his PCRA petition, or to a new claim raised for the first time on appeal."

"Pa.R.A.P. 1925 is intended to aid trial judges in identifying and focusing upon those issues

which the parties plan to raise on appeal." Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa.Super,

2002). "When the trial court has to guess what issues an appellant is appealing, that is not enough

for meaningful review." Id., dting Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.Super. 2001).

Moreover, "[w]hen an appellant fails adequately to identify in a concise manner the issues sought to

be pursued on appeal, the trial court is impeded in its preparation of a legal analysis which is

pertinent to those issues." Id. (citations omitted). Finally, Superior Court has stated that "a Concise

Statement which is too vague to allow the court to identify the issues raised on appeal is the

functional equivalent of no Concise Statement at all." Id. (citations omitted). "Even if the trial

court correctly guesses the issues [the a]ppellant raises on appeal and writes an opinion pursuant to

that supposition, the issue is still waived." Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa.Super.

2002), citing Lemon, 804 A.2d at 36-37. Inasmuch as petitioner's second claim is too vague to

15

Brady v. Maryland, 373 U.S. 83 (1963).

16

This Court notes that, even if petitioner's second issue refers to the Brady claim from his October 14, 2015 petition,

the absence of any facts to support the claim or determine whether the claim complied with any of the timeliness

exceptions indicated that petitioner had failed to meet his burden to prove his claim. See Commonwealth v. Blackwell,

936 .A.2d 497, 500 (Pa.Super, 2007) ("It is the petitioner's burden to plead and prove an exception to the PCRJ\.-

timeliness rule .... [F]ailure to allege a timeliness exception in the PCRA petition itself precludes the petitioner from

raising it on appeal."). Therefore, this Court was without jurisdiction to consider petitioner's claim.

5

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permit meaningful review, this Court will not speculate as to the specific issue, or issues, which

petitioner proposes to raise on appeal with respect to this matter. Therefore, this claim will not be

addressed any further. A discussion of petitioner's remaining claim follows.

1. This Court violated petitioner's constitutional rights when it permitted petitioner to be

tried and sentenced while petitioner was incompetent to stand trial or be sentenced.

Among the several claims petitioner raised in his untimely filings, petitioner claimed that trial

counsel was ineffective for proceeding when he knew or should have known that petitioner was

mentally incompetent at sentencing.17 However, petitioner claimed that this Court could reach the

merits of all of his claims raised in both his second and third pro se petitions, asserting that his claims

qualified under the timeliness exception for newly-discovered facts in 42 Pa.C.S. § 9545(b)(1)(ii),

because he was and remained mentally incompetent throughout the period during which his right to

file a PCRA petition on these matters lapsed, and because his third petition was filed within 60 days

of his becoming competent. Because petitioner failed to advance sufficient proof to pvercome the

presumption of competence supported by the trial record, and because of his first PCRA petition,

petitioner's claim of incompetence at sentencing (and incompetence at trial) failed. Petitioner's first

PCRA petition, though untimely, was cogent and petitioner neither claimed any mental

incompetency nor did it appear to the Court at trial or sentencing that mental incompetency might

be an issue. Therefore, because petitioner failed to establish the point in time at which he passed

from competence to incompetence and then back to competence, and that his petition was filed

within the time period required by the statute after passing back to competence, petitioner's claims

17

On November 23, 2016, five days after this Court's November 18, 2016 Order dismissing petitioner's petition as

untimely, petitioner filed a response to this Court's October 17, 2016 907 Notice, claiming that, in addition to having

been incompetent to be sentenced, he was incompetent to stand trial. In light of the fact that this Court looked to the

trial record as a whole in its evaluation of petitioner's competency claim, and as claims of incompetency are not subject

to the waiver provisions of the PCR.A, this Court will treat petitioner's competency claim as if it concerned both trial and

sentencing. See Commonwealth v. Brown, 872 A.2d 1139, 1154 (Pa. 2005)010lding that claims of incompetency are not

subject to waiver, and this is so whether the claim is raised on direct appeal or collateral attack, as such a result would be

absurd).

6

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raised in his second and third pro se petitions did not qualify as newly-discovered facts and this Court

lacked jurisdiction to entertain the merits of those claims.

Pennsylvania law provides that "[w]henever a person who has been charged with a crime is

found to be substantially unable to understand the nature or object of the proceedings against him

or to participate and assist in his defense, he shall be deemed incompetent to be tried, convicted, or

sentenced so long as such incapacity continues." 50 Pa.S. § 7402. A defendant is presumed to be

competent to stand trial, and the burden is on the defendant to prove, by a preponderance of the

evidence, that he was incompetent during the proceedings. 50 Pa.S. § 7403 ("[r]he individual

making an application to the court for an order directing an incompetency examination shall have

the burden of establishing incompetency to proceed by a preponderance of the evidence.");

Commonwealth v. Smith, 17 A.3d 873, 899-900 (Pa. 2011), citing Commonwealth v. Rainey, 928

A.2d 215, 236 (Pa. 2007). To obtain a hearing on such a claim, a petitioner must proffer evidence to

meet this burden.18 Id. Appellate courts extend great deference to a trial court's determination of an

accused's competency because the trial court had the opportunity to observe a defendant's behavior

directly. Commonwealth v. Pruitt, 951 A.2d 307, 322 (Pa. 2008).

A PCRA petition not filed within one year of the date that a petitioner's judgment of

sentence became "final" must allege, and the petitioner must prove, one of the exceptions

enumerated in 42 Pa.CS.§ 9545(b)(1), as well as the "due diligence" provision of§ 9545(b)(2):

(1)(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;

(l)(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

18

� Commonwealth v. Santiago, 855 A.2d 682, 692-94 (Pa. 2004) (holding that a PCRA court may hold a hearing to

retrospectively determine a petitioner's competency at trial where the issue is first raised in a PCR.!\ petition and where

the petition raises a material issue of fact concerning petitioner's competency at the time of trial and where adequate

evidence exists to evaluate the claim).

7

(1)(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.

(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.CS.§§ 9545(b)(1)(i)-(iii), (b)(2).

Petitioner's petitions were facially untimely, as his second petition was filed nearly six years

after the expiration of his time to seek allocatur following Superior Court's dismissal of his direct

appeal. This Court could only consider the merits of the petition if petitioner proved one of the

timeliness exceptions in§ 9545(b)(1) and the "due diligence" requirement in§ 9545(b)(2). Petitioner

claimed that the circumstances and timing of his mental incompetence permitted him to advance all

of his claims under the timeliness exception for after-discovered facts.

As a general rule, mental illness or psychological condition, absent more, willnot serve as an

exception to the PCRA's jurisdictional time requirements. Commonwealth v. Hoffman, 780 A.2d

700, 702 (Pa.Super. 2001) (holding that the PCRA's timeliness requirements are both mandatory and

jurisdictional in nature, and no court may alter or disregard them to reach the merits of a claim in a

petition that is filed in an untimely manner). In very limited circumstances, forms of mental illness

or incompetence may excuse an otherwise untimely PCRA petition. Commonwealth v. Monaco,

996 A.2d 1076, 1080-81 (Pa.Super. 2010), citing Commonwealth v. Cruz, 852 A.2d 287, 294-97 (Pa.

2004). Claims that were defaulted due to a PCRA petitioner's mental incompetence may qualify

under the statutory newly-discovered facts exception on the basis that the incompetence rendered

the petitioner unable to timely discover the factual bases for the collateral claims. Cruz, 852 A.2d at

293. In order for this Court to proceed to the merits of petitioner's claims alleged to be defaulted

due to incompetence, petitioner was required to prove that: (1) he was and remained incompetent

throughout the period during which his right to file a PCRA petition lapsed; and (2) that his current

petition was timely filed within 60 days of his becoming sufficiently competent to ascertain the facts

8

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upon which his underlying claims were predicated. Id. at 288. If petitioner failed to prove both

points, this Court was obligated to dismiss the petition as untimely.

Here, petitioner asserted that he was mentally incompetent at the time of trial and sentencing

and that his trial counsel was ineffective for proceeding to trial and sentencing when his counsel

knew, or should have known, of petitioner's incompetence. Because petitioner did not submit proof

sufficient to overcome the evidence in the trial record supporting the presumption of competence

by a preponderance of the evidence, petitioner failed to meet his burden with respect to this claim.

During petitioner's trial, at which petitioner now claims he was incompetent, this Court

colloquied petitioner with respect to whether he understood his rights and advised him that certain

decisions at trial were his alone to make. At each point, petitioner's responses indicated his

understanding of the nature of the proceedings against him and his ability to participate in his own

defense." During petitioner's sentencing, at which petitioner now claims he was incompetent, this

Court informed petitioner of his right of allocution:

The Court: Mr. Cook, is there anything, sir, that you would like to say before

sentence is imposed in these matters? You have the right to address

the Court. You're not required to.

Mr. Cook: Yes. Well, Your Honor, I stand before you as an innocent man. The

only thing I'm guilty of is walking on the streets.

The Court: All right. Well, the jury found otherwise, and so we are bound by

that decision, Mr. Cook.

Mr. Cook: Your Honor, when I first came here, I-you know, I proceeded with

everything that counsel wanted to do. I didn't deny counsel anything

because I wanted to find out what happened, too, you know. And I

wanted the DNA tested and everything. Everything that the

counselor asked for I gave. And the DNA came back unconclusive

[sic]. It was-it was some conflicts about-you know what I

mean?-about-about-about this mysterious mass from the

19 �, Notes of

Testimony (N.T.) 1/9/02 at 4-6 (where petitioner asked the Court to explain the difference

between a trial by the Court alone and a trial by jury, and then confirmed under oath his choice to be tried by a jury);

N.T. 1 /11/02 at 526-531 (where petitioner, under oath, informed the Court that he had chosen not to testify. \'v'hile

petitioner told the Court during this colloquy that he had been diagnosed with a mental illness, petitioner stated the

diagnosis was "[a) long time back" and that he did not suffer from the effects of that illness at trial. The Court

confirmed, based upon petitioner's answers, that petitioner had voluntarily and freely chosen against testifying.); N .T.

1/14/02 at 713 (where trial counsel, immediately after conferring with petitioner, informed the Court that counsel had

read to petitioner the proposed jury instructions submitted by the Commonwealth, and had explained the potential

implications to him).

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beginning. I feel like it wasn't-you know, I didn't have a fair shake

with that. Only thing I'm guilty of, Your Honor, is just walking in

the street. Because they do DNA every day on TV. And the DNA

was unconclusive[sic], Your Honor.

N.T. 4/11/02, 16-17.

Following this exchange, the Court read petitioner his sentence, noting that the Court had

considered petitioner's mental health history as elaborated in the presentence investigation." Id.

When asked, petitioner stated to the Court that he understood his sentences and that he had no

questions. Id. at 19. Petitioner's conduct during the trial and sentencing proceedings was clear and

coherent, and at no time did trial counsel or the Court find it necessary to raise an issue as to

petitioner's competence.

To meet the limited exception provided for in Cruz, petitioner was required to establish that

he entered a state of sustained incompetence at some point before the lapse of the deadline to file a

PCRA petition on August 25, 2004, and remained in this state until at least August 17, 2015.21 Save

for unsupported allegations, petitioner failed to offer proof to overcome the record evidence

supporting the presumption that he understood the nature of the proceedings against him and that

he was able to participate in his own defense. Petitioner further failed to produce evidence to

establish the crucial point in time where he passed from incompetence to competence, which was

also necessary to determine whether petitioner met the Cruz exception. It is of note that, in

petitioner's first untimely PCRA petition, he made no claim of, or reference to, incompetence, and

in his second petition, filed in 2009, he stated coherent claims of ineffective assistance of counsel in

2oThe presentence investigation report noted that petitioner "continues to have mental health problems for which he is

receiving medication. He described hearing voices, having difficulty sleeping, having sweating hands and being scared a

lot. The Defendant said that the medications seem to help somewhat." Presentence Report of Investigator Sheila

Bedford at 3. The evaluative summary noted that, at the time of sentencing, petitioner "may be experiencing current

mental health difficulties" and did not have "the insight nor tools to deter future recidivism." Id. at 4.

21 It was necessary that petitioner establish that he regained competence no earlier than 60 days before the filing of the

thirdPCRi\ petition to preserve the claims from both his second petition and the third petition. If petitioner was

competent for a period of 60 days during which he filed his second petition on June 12, 2009, the Cruz exception could

not apply to his third petition and the claims therein would have to be dismissed as untimely.

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addition to his claim that he was incompetent at the time of sentencing. Because petitioner failed to

proffer evidence sufficient to meet his burden to establish incompetency during the relevant period

by a preponderance of the evidence, an evidentiary hearing on the issue of petitioner's competency

was not warranted. As petitioner failed to meet the pleading requirements established in the PCRA,

and because he failed to establish that the after-discovered facts exception provided by Cruz applies,

this Court did not have jurisdiction to entertain the merits of his petitions.

For the foregoing reasons, petitioner was not entitled to relief under the PCRA and the

Court did not err in dismissing the petition as untimely. Accordingly, the Court's dismissal of the

petition should be affirmed.

BY THE COURT:

N,�J.

M. TERESA SARMINA

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