J

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

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

GARY CALHOUN

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1364 WDA 2021 Appeal from the PCRA Order Entered October 20, 2021 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP

- 11

- CR

- 0000449

- 2012

BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: JULY 28, 2022
Appellant, Gary Calhoun , appeals from the order entered in the C ambria
County Court of Common Pleas, which dismissed his serial petition filed under

the Post Conviction Relief Act (“PCRA”) , at 42 Pa.C.S. A. § § 954 1

- 9546. We

affirm.

T h e relevant facts and procedural history of this appeal are as follows

. A jury convicted Appellant of one count of corruption of minors . O n December
17, 201 3 , the court sentenced Appellant to a mandatory minimum term of
twenty

- five (25) years ’ i mprisonment, pursuant to 42 Pa.C.S.A. § 971 8 .2. 1
This Court affirmed the judgment of sentence on November 12, 2014, and

_________________ __________ ______ ____ _______

1 Section 9718.2 imposes a mandatory 25

- year sentence on offenders who have a prior conviction for certain offenses enumerated in 42 Pa.C.S.A. § 9799.14.J

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-

Appellant did not seek further review

. See Commonwealth v. G.C. , 113

A.3d 347 (Pa.Super. 2014) ( unpublished memorandum )

. On January 5, 2015, Appellant timely filed his first PCRA petition. The
court appointed counsel, who file d an amended petition on March 12, 2015

. On April 28, 2015, the court denied PCRA relief. This Court affirmed the order
denying PCRA relief on July 11, 2016, and Appellant did not seek further

review. See Commonwealth v. Calhoun , 154 A.3d 851 (Pa.Super. 2016)
(unpublished memorandum) . Thereafter, Appellant filed several unsuccessful
PCRA petitions.

On September 13, 202 1 , Appellant filed the current p ro s e PCRA
petition , his fifth, and a p ro s e motion for recusal. In the pro se PCRA petition , Appellant attempted to invoke the governmental interference and newly
discovered fact exception s to the timeliness requirements of the PCRA.
Specifically, Appellant claimed that he has suffered from mental illness es ,
in cluding “major depressive and general anxiety disorders,” since 2009.
(PCRA Petition, filed 9/13/21, at 3.1). Appellant asserted t hat he “experienced

a mental health crisis” prior to trial , and he proceeded to jury selection, trial,
and sentencing without proper treatment. ( Id. )
Appellant further argued that the Commonwealth “suppressed, and
continues to suppress” his mental heal th records, which “are favorable to
[Appellant] because they are expert evidence relating to the diagnoses of
mental conditions.” ( Id. ) Appellant insisted that his “ mental conditions haveJ

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-

impaired [his] ability to raise or communicate these claims in court,” and the
newly discovered facts of his menta l illness “could not have been ob tained
earlier because of [his] psychiatric conditions.” 2 ( Id . at 3.2).
On September 20, 2021, the court issued notice of its intent to dismiss
the petition without a hearing, pursuant to Pa.R.Crim.P. 9 0 7. Appellant did
not file a response to the Rule 907 notice. On October 20, 2021, the court
dismissed the current PCRA petition as untimely. In a separate order entered
that same day, the court denied Appellant’s recusal motion.

On November 8 , 2021, Appellant timely filed a p ro s e notice of appeal
from the order denying PCRA relief. On November 22, 2021, the court ordered
Appellant to file a Pa.R.A.P. 1925(b) concise statement of matters complained
of on appeal

. Appellant subsequently complied with the court’s order.
On appeal, appellant now raises five issues for this Court’s review :

Did the PCRA c ou rt err in dismissing [Appellant’s] p etition for [PCRA] r elief without a hearing because a Brady v. Maryland , 373 U.S. 83 (1963) claimant is entitled to presume that the government fulfilled its Brady obligations because the [ p ro secution’s ] duty to disclose is absolute and in no way hinges on efforts by [Appellant]

.
Did the PCRA c ourt err in dismissing [Appellant’s] petition for [PCRA] r elief without a hearing because of insufficient evidence to convict [Appellant] of felony c orruption of

_________________ __________ ______ ____ _______

2 Although Appellant devoted the bulk of hi s petition to arguments related to mental health, Appellant also asserted that the Commonwealth failed to produce certain dependency petitions from a 2005 proceeding. ( See PCRA Petition at 3.3). Appellant posited that these records would have demonstrated that trial witnesses represent ing Cambria County Children and Youth Services “ have shown a bias against [Appellant].” ( Id. at 7).J

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- m inors, 18 Pa.C. S.A. § 6301(a)(1)(ii).

Did the PCRA c ourt err in dismissing [Appellant’s] petition for [PCRA] r elief without a hearing because [Appellant’s] sentence is above the statutory maximum and the trial court had no authority to impose the sentence.

Did the PCRA court err in dismissing [Appellant’s] petition for [PCRA] r elief without a hearing because [Appellant] was designated a sexually violent p redator and the trial court had no statutory authority to so designate [Appellant]

.
Did the PCRA c ourt err in denying [Appellant’s] m otion for d isqualification of j udge. [ 3 ]
(Appellant’s Brief at 7 ) (unnumbered)

.
As a preliminary matter, t he timeliness of a PCRA petition is a
jurisdictional requisite. Commonwealth v. Hackett , 598 Pa. 350, 956 A.2d
978 (2008), cert. denied , 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277
(2009). Pennsylvania law makes clear that no cour t has jurisdiction to hear
an untimely PCRA petition. Commonwealth v. Robinson , 575 Pa. 500, 837
A.2d 1157 (2003). The PCRA requires a petition, including a second or
subsequent petition, to be filed within one year of the date the underlying
judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence
is final “at the conclusion of direct review, includ ing discretionary review in
the Supreme Court of the United States and the Supreme Court of

_________________ __________ ______ ____ _______

3 Appellant ’s statement of questions involved includes a challenge to the denial of the recusal motion, but Appellant omitted this issue from the argument section of his brief. Instead, Appellant fully develops the recusal issue in a related appeal , which this Court docketed at 1363 WDA 2021.J

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Pennsylvania, or at the expiration of time for seeking review.” 42 Pa.C.S.A. §
9545(b)(3).
Generally, to obtain merits review of a PCRA petition filed more than
one year after the judgment of sentence became final, the petitioner must
allege and prove at least one of the three timeliness exceptions :

(i) the failure to raise the claim previously was the result of interference by government officials with the prese ntation 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 t hat court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)

- (iii).
The proper question with respect to S ection 9545(b)(1)(i)’s timeliness
exception is whether the government interfered with the petitioner’s ability to
present his claim and whether the petitioner was duly diligent in seeking the

facts up on which his claims are based. Commonwealth v. Chimenti , 218
A.3d 963 (Pa.Super. 2019), appeal denied , 658 Pa. 538 , 229 A.3d 565 (2020).
In other words, the petitioner “ is required to show that but for the interference
of a government actor he could not have filed his claim earlier.”

Commonwealth v. Staton , 646 Pa. 284, 293, 184 A.3d 949 , 955 (2018)J

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-

(internal quotation marks omitted)

. To meet the “newly discovered facts” timeliness exception set forth in
Section 9545(b)(1)(ii), a petitioner must demonstrate that “he did not know
the facts upon which he based his petition and could not have learned those
facts earlier by the exercise of due diligence.” Commonwealth v. Brown , 111 A.3d 171, 176 ( Pa.Super. 2015) , appeal denied , 633 Pa. 761, 125 A.3d
1197 (2015)

. “The focus of the exception is on [the] newly discovered facts,
not on a newly discovered or newly willing source for previously known facts.”

Commonwealth v. Burton , 638 Pa. 687, 704, 158 A.3d 618, 629 (2017)
(internal quotation marks omitted).

Broad claims of mental illness do not satisfy a statutory exception to the PCRA time

- bar. In Commonwealth v. Cruz , 578 Pa. 325, 852 A.2 d 287 (2004), our Supreme Court carved out a narrow exception to the general rule where a PCRA petitioner ’ s mental incompetence prevented him from filing a timely PCRA petition. The appellant in Cruz shot and killed a number of victims before turning his handgun on himself and attempting to commit suicide. The appellant survived, but he sustained a severe brain injury that left him essentially lobotomized. The appellant entered a plea of nolo contendere to three counts of seco nd

- degree murder, and the court sentenced him to consecutive terms of life imprisonment for each offense. At the time of the plea, the parties informed the court that the appellant was pleading nolo contendere because he was unable to express emotions or discuss the facts of the case in any sensible way due to his brain injury. Almost six years later, the appellant filed a PCRA petition alleging his brain injury had rendered him incompetent and prevented him from participating in his own defense. The app ellant further alleged that his brain injury had been slowly resolving in the months just before he filed his PCRA petition. The Cruz Court recognized that the PCRA does not include an exception for mental incapacity but held “in some circumstances, claim s thatJ

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- were defaulted due to the PCRA petitioner ’ s mental incompetence may qualify under the statutory [newly

discovered fact] exception.”
Thus, the general rule remains that mental illness or psychological condition, absent more, will not serve as an
e xception to the PCRA ’ s jurisdictional time requirements. Consequently, Pennsylvania courts have continued to construe narrowly the limited holding in Cruz

. See, e.g., Commonwealth v. Ali , 624 Pa. 309, 86 A.3d 173 (2014), cert. denied , 574 U.S. 1026, 135 S.Ct. 707, 190 L.Ed.2d 439 (2014) (holding petitioner did not meet newly

- discovered fact exception concerning second PCRA petition because he failed to prove he was mentally incompetent during statutory period allowed; appellant showed temporal awareness i n filing timely first PCRA petition and subsequent amendments after his judgment of sentence became final; that appellant was plainly able to ascertain factual predicates to claims raised in first PCRA petition but unable to ascertain facts necessary for i ssues raised in second PCRA petition is simply incongruous) [.]

Commonwealth v Shaw , 217 A.3d 265, 270

- 71 (Pa.Super. 2019) (some

internal citations and quotation marks omitted).
Instantly, t his Court affirmed Appellant’s judgment of sentence on
November 12, 2014

. Appellant did not seek further review with our Supreme
Court, and his judgment of sentence became final on December 12, 2014

.
See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 111 3( a ). Thus, Appellant had until

December 12 , 201 5 , to file a timely PCRA petition.
Appellant filed the current PCRA petition on September 13, 2021 , which
was untimely on its face. See 42 Pa.C.S.A. § 9545(b)(1). On appeal,
Appellant continues to argue that the Commonwealth s uppressed mental

health and court records that were vital to his defense at trial

. Appellant ,J

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-

however, has failed to prove an exception to the PCRA ’s timeliness
requirements. T he PCRA court considered Appellant’s arguments and noted:

Here, [Appellant] asserts that new facts exist in two categories: (1) facts related to his mental health issues and the related treatment records and (2) records related to a 2005 dependency proceeding involving him and his children. To satisfy the first jurisdictional threshold, [Appellant] must establish that one or both of these facts were unknown to him at the time of trial.
It is readily apparent that [Appellant] would have known the facts surrounding hi s own mental health and mental health treatment. As such those facts were known to him at the time of trial and cannot be said to be newly discovered. [Appellant] baldly argues, without s upporting evidence, that the C ommonwealth suppressed the existence of the records of his mental health diagnosis and treatment. This argument ignore s the fact that [Appellant] knew of his diagnosis, knew of his treatment regimen, and knew his treatment providers. Given this knowledge , [Appellant] could have obtained his own records himself, or through counsel, without the need of the Commonwealth’s assistance and in spite of any alleged effort to conceal the evidence

. Indeed, one of the treatment providers mentioned, Doctor Jeanne Spencer (“Spencer”), testified at trial , and thus could have been questioned on these issues regardless of any alleged effort to conceal the records.

* * *
Similarly, [Appellant] was aware of the records relating to the 2005 dependency action at the time of trial , as the issue of the records came up the day before trial was to begin resulting in a delay to afford trial counsel

... and the Commonwealth an opportunity to review the records. Further, [trial counsel] was offered the oppo r t u nity to continue the trial to a later date if he felt that a Ca m bria. County Children and Youth Service ( “ CCCYS ” ) caseworker

... should be called as a witness to address these issues

.
* * *J

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- [Appellant] does not explain why he could not discover these alleged new facts earlier given his presence and participation in both his mental health treatment and the trial and this failure is fatal. [ Appellant] does not assert that he was unaware of his mental health issues and treatment or that he was unaware of the existence of the CCC YS records. Rather , he baldly asserts that the Commonwealth somehow concealed this evidence. Even if the Commonwealth had been involved in an effort to conceal this evidence , [Appellant] was aware of it and could have made these arguments in his direct a ppeal or a prior PCRA petition

. (PCRA Court Opinion , filed 12/13/21, at 5

- 8 ) (internal citations and footnote
omitted)

. Our review of the record confirms the PCRA court’s conclusion

. W e emphasize that the record demonstrates that Appellant’s mental condition at
the time of trial was not the equivalent of the “essentially lobotomized”
petitioner in Cruz

. See Shaw, supra

. In fact, Appellant provided substantial
and cogent testimony in his own defense at trial. ( See N.T. Trial, 10 / 9 /1 3 , at

14

- 37 )

. Moreover, after Appellant’s judgment of sentence became final, he
possessed enough temporal awareness to file a timely first PCRA petition.
Absent more, there is no indication that Appellant defaulted on any collateral
claims due to mental incompetence. See Shaw, supra

. Thus, the record supports the PCRA court’s conclusion that Appellant did
not exercise due diligence in ascertaining the asserted “newly discovered”
facts surrounding the 2005 dependency act ion and his history of mental

illness. See Chimenti , supra ; Brown, su p ra

. Accordingly, we affirm the
order dismissing Appellant’s current PCRA petition.

Order affirmed.J

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-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/28/2022