J-S11025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

JAMES FINK

                          Appellant                   No. 2302 EDA 2016


             Appeal from the PCRA Order entered June 16, 2016
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0607321-2003


BEFORE: OTT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                              FILED JUNE 11, 2018

      Appellant, James Fink, appeals pro se from the June 16, 2016 order of

the Court of Common Pleas of Philadelphia County, dismissing his third

petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

      The PCRA court summarized the factual and procedural background as

follows:

      Following a bench trial before the Honorable Leslie Fleisher on
      August 8, 2003, [Appellant] was found guilty of aggravated
      assault, recklessly endangering another person, and criminal
      conspiracy.    [Appellant] was not found guilty of possessing
      instruments of a crime. The Commonwealth presented evidence
      that on the evening of June 18, 2002, [Appellant] severely beat
      the victim, William Cedotal, inside a Philadelphia bar. The victim
      suffered injuries including a broken nose, sprained ribs, and two
      black eyes. On September 19, 2003, [Appellant] was sentenced
      to 25 to 50 years’ imprisonment for aggravated assault under
      Pennsylvania’s “three strikes”[, 42 Pa.C.S.A. § 9714(a)(2)].
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     No sentence was imposed on the remaining charges.            On
     September 27, 2003, [Appellant] filed a post-sentence motion[,]
     which was denied before Judge Fleisher on January 6, 2004.
     [Appellant] then filed a timely notice of appeal to the Superior
     Court on January 20, 2004; however, on February 9, 2005, it was
     discontinued and withdrawn at [Appellant]’s request.

     On March 11, 2005, [Appellant] filed his first pro se PCRA petition.
     Counsel was appointed and filed an amended petition on
     [Appellant]’s behalf on July 21, 2005. An evidentiary hearing was
     held on October 12, 2005. During the evidentiary hearing, both
     [Appellant] and trial counsel [] testified. Judge Fleisher found that
     trial counsel was ineffective and granted [Appellant] a new trial.
     The Commonwealth filed a timely notice of appeal on November
     14, 2005. The Superior Court of Pennsylvania reversed the lower
     court’s order granting a new trial on September 17, 2007. The
     Pennsylvania Supreme Court denied allowance of appeal on
     November 19, 2008.

     On December 2, 2009, [Appellant] filed his second counseled
     PCRA petition. The PCRA court heard arguments on August 3,
     2010, and formally dismissed the petition on October 12, 2010.
     [Appellant] filed an appeal to the Pennsylvania [Superior] Court
     on November 2, 2010. On December 6, 2010, [Appellant] filed a
     petition to remove counsel and proceed pro se. On February 28,
     2011, the PCRA court held a hearing to determine if [Appellant]
     was waiving “his right to counsel” knowingly and intelligently
     pursuant to Commonwealth v Grazier, 713 A.2d 81 (Pa. 1998).
     The PCRA court permitted [Appellant] to continue his appeal pro
     se but ordered the Defender Association of Philadelphia to serve
     as “back-up” counsel. On December 31, 2012, the Superior Court
     of Pennsylvania affirmed the dismissal.

     Based on claims of an illegal sentence, newly discovered evidence,
     and ineffective assistance of counsel, [Appellant] filed the instant
     PCRA petition, his third, on August 19, 2013. After conducting an
     extensive and exhaustive review of the record and applicable case
     law, this court found the petition to be untimely without exception.
     On April 11, 2016, pursuant to Pennsylvania Rule of Criminal
     Procedure 907, [Appellant] was served with notice of the court’s
     intention to dismiss his PCRA petition. On April 29, 2016,
     [Appellant] filed a response to the [Rule] 907 notice of intent to
     dismiss. Thereafter, the court formally dismissed [Appellant]’s
     PCRA petition as untimely by order dated June 16, 2016. The

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       instant appeal was timely filed to the Superior Court on July 12,
       2016.

PCRA Court Opinion, 12/9/16, at 1-3 (footnotes omitted)

       On appeal, Appellant raises several claims for our review, offering

several explanations in support of their timeliness. For the reasons explained

below, Appellant is entitled to no relief.

       “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). All PCRA petitions,

“including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final” unless an exception to timeliness

applies.    42 Pa.C.S.A. § 9545(b)(1).1          “The PCRA’s time restrictions are

jurisdictional in nature. Thus, “[i]f a PCRA petition is untimely, 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

____________________________________________


1 Appellant’s judgment of sentence became final on February 9, 2005, the date
he withdrew his direct appeal. See Commonwealth v. McKeever, 947 A.2d
782, 785 (Pa. Super. 2008) (stating that the judgment of sentence becomes
final for PCRA purposes when direct appeal is discontinued voluntarily, citing
Commonwealth v. Conway, 706 A.2d 1243 (Pa. Super 1997)). Appellant
had one year from that date to file a timely PCRA petition. The instant petition
was filed on August 19, 2013, more than eight years after Appellant’s
judgment of sentence became final. Accordingly, the instant petition is
untimely unless he pleads and proves that it fell within one of the exceptions
to the PCRA’s timeliness requirements. As explained infra, Appellant failed to
do so.



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substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.

2006) (first alteration in original) (internal citations and quotation marks

omitted). As timeliness is separate and distinct from the merits of Appellant’s

underlying claims, we first determine whether this PCRA petition is timely

filed.    See Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008)

(consideration of Brady2 claim separate from consideration of its timeliness).

The timeliness requirements of the PCRA petition must be met, even if the

underlying claim is a challenge to the legality of the sentence.             See

Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 2007) (“Although legality

of sentence is always subject to review within the PCRA, claims must still first

satisfy the PCRA’s time limits or one of the exceptions thereto”) (citing

Commonwealth v. Fahy, 737 A.2d 214, 223 (1999)).

         First, Appellant argues he received ineffective assistance from his first

PCRA counsel. Appellant argues that PCRA counsel was ineffective for not

confronting trial counsel regarding a statement trial counsel made at the first

PCRA hearing.3      Appellant argues he timely filed his current petition upon

learning of PCRA counsel’s error.4             “Appellant’s attempt to interweave
____________________________________________


2   Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).

3 Apparently, there was a written statement in the record regarding trial
counsel’s experience in handling “third strikes” cases that was inconsistent
with his testimony at the PCRA hearing.

4 Appellant alleges he learned of the PCRA counsel ineffective assistance on
July 10, 2013, approximately eight years after his judgment of sentence
became final. PCRA Court Opinion, 12/9/16, at 3.


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concepts of ineffective assistance of counsel and after-discovered evidence as

a means of establishing jurisdiction is unconvincing.” Commonwealth v.

Gamboa-Taylor, 754 A.2d 780, 785 (Pa. 2000).            “[W]e have previously

rejected attempts to circumvent the timeliness requirements of the PCRA by

asserting prior counsel’s ineffectiveness for failing timely to raise a claim.”

Commonwealth v. Edmiston, 65 A.3d 339, 349 (Pa. 2013); see also

Gamboa-Taylor, supra (“Fact” that current counsel discovered that prior

PCRA counsel had failed to develop issue of trial counsel’s ineffectiveness was

not after-discovered evidence qualifying for exception to PCRA time

limitations); Commonwealth v. Pursell, 749 A.2d 911, 915 (Pa. 2000)

(holding that claims of PCRA counsel’s ineffectiveness do not escape the PCRA

one-year time limitation merely because they are presented in terms of

current counsel’s discovery of the “fact” that a previous attorney was

ineffective). This claim is therefore untimely. As such, we cannot review it.5

       Appellant next alleges that his sentence was illegal because the “third

strike” enhancement should not have been applied. Appellant is fully aware

that all claims, including claims of illegality, must be timely raised to trigger
____________________________________________


5 Appellant also raises additional claims of ineffective assistance of counsel.
Appellant claims that trial counsel was ineffective because he “never took time
to research the three strike statute prior to the sentencing.” Appellant’s Brief
at 12. In the same vein, Appellant alleges prior PCRA counsel were also
ineffective for several reasons, all related to the alleged failure to challenge
the legality of his sentence. As for the claim of ineffective assistance of
counsel addressed above in the main text, we similarly conclude that couching
the above claims in terms of ineffectiveness would not save an otherwise
untimely petition from the application of the time restrictions of the PCRA.
See, e.g., Edmiston, supra.

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our courts’ jurisdiction. To overcome the facial untimeliness of the instant

PCRA petition, Appellant claims that the instant petition (his third) should be

treated as an “extension” of his first PCRA petition because some of the issues

raised in his first petition had not been decided. To this end, Appellant relies

on the authority of the Supreme Court’s decision in Commonwealth v.

Renchenski, 52 A.3d 251 (Pa. 2012) “citing Com v. Flanagan, 854 A.2d 488,

499 (2004), ‘For the proposition that since the original petition never was

with-drawn or dismissed, amended pcra was not subject to the one-year time

limitation, even though amendment was filed ten (10) years after original

petition.’” Appellant’s Brief at 8.

      A review of the Supreme Court’s decision in Renchenski quickly dispels

any doubt as to the lack of merit of the instant argument. What Appellant

purports to represent as the holding of the Supreme Court in Renchenski is

nothing other than the Supreme Court’s summary of the prior procedural

history of the case, including a reference to our unpublished memorandum

which we relied on in Flanagan.

      In any event, Renchenski is inapposite. In Renchenski our Supreme

Court affirmed the dismissal of an amended PCRA petition filed nineteen years

after the trial. The case involved the application of the delay in filing exception

under Section 9543(b). There is no indication in the record that either the

Commonwealth or the PCRA court relied on that exception for purposes of

disposing of the instant petition.




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       To the extent that Appellant argues his claim—as originally articulated

in his first PCRA—had not been disposed by the PCRA court, we note that

“[s]uch an allegation, however, does not entitle him to equitable tolling of the

PCRA’s jurisdictional time limit.” Commonwealth v. Abu–Jamal, 833 A.2d

724, 727 (Pa. 2003) (relying on Commonwealth v. Fahy, 737 A.2d 214, 222

(Pa. 1999)).6 In light of the foregoing, we conclude that Appellant failed to

prove that his illegality of sentence claim has been timely raised.

       Finally, Appellant claims the instant PCRA petition is timely under 42 Pa.

C.S.A. § 9545(b)(1)(iii), in light of Montgomery v. Louisiana, 136 S.Ct. 718

(2016), and Miller v. Alabama, 132 S.Ct. 2455 (2012).7 We have repeatedly

held that Miller does not apply to defendants who were eighteen or older

when they committed murders. See, e.g., Commonwealth v. Furgess, 149

A.3d 90, 94 (Pa. Super. 2016). It is uncontested that Appellant was an adult

____________________________________________


6 In Abu-Jamal, appellant, inter alia, argued that the PCRA court should have
treated “his second petition as an extension of his timely first one, because
the same allegedly biased judge who presided at trial refused to recuse himself
from hearing the first petition. Thus, appellant argue[d] his claim of judicial
bias has never been examined by an impartial member of the judiciary.” Abu-
Jamal, 833 A.2d at 727. As noted above, our Supreme Court rejected the
argument, noting that “[s]uch an allegation, however, does not entitle him to
equitable tolling of the PCRA's jurisdictional time limit.” Id.

7 In Miller, the U.S. Supreme Court held that “mandatory life without parole
for those under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on ‘cruel and unusual’ punishments.” Miller, 132
S.Ct. at 2460 (emphasis added). In Montgomery, the Unites States Supreme
Court held that Miller was a new substantive rule that, under the United
States Constitution, must be retroactive in cases on state collateral review.
Montgomery, 136 S.Ct. at 736.


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at the time of the underlying crimes.         Additionally, Appellant was not

sentenced to life without parole. Accordingly, Appellant has no claim under

Miller. See Commonwealth v. Montgomery, 181 A.3d 359, 366-67 (Pa.

Super. March 14, 2018) (en banc). Because Appellant has no claim under

Miller, the United States Supreme Court decision in Montgomery does not

affect the timeliness of this matter.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/18




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