J-S79024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

ROBERT J. ROYSTER

                         Appellant                   No. 397 EDA 2014


                 Appeal from the PCRA Order January 6, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-1113931-1973


BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED DECEMBER 23, 2014

      Appellant, Robert J. Royster, appeals from the order entered on

January 6, 2014, dismissing as untimely his eighth petition pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review,

we affirm.

      We briefly summarize the facts and procedural history of this case as

follows. On June 4, 1974, a jury convicted Appellant of first-degree murder

after shooting a woman in the neck following an argument in a Philadelphia

bar. Appellant was sentenced to life imprisonment. On April 28, 1977, this

Court affirmed Appellant’s judgment of sentence. Since then, Appellant has

filed, inter alia, six federal habeas corpus petitions, seven state petitions,

and various motions seeking collateral review of his conviction. All requests

for relief have been denied.    On May 11, 2012, Appellant filed a pro se

*Retired Senior Judge assigned to the Superior Court.
J-S79024-14


petition for collateral relief; he filed a pro se amended PCRA petition in

October, 2012.      Counsel entered an appearance on Appellant’s behalf and

filed an amended PCRA petition on November 22, 2013.             On January 6,

2014, the PCRA court dismissed Appellant’s PCRA petition as untimely, not

subject to exception. This timely appeal followed.1

       On appeal, Appellant presents one issue for our review:

         I.     Did the PCRA court err when the court dismissed
                Appellant’s amended petition for post-conviction relief
                as untimely when Appellant demonstrated that he met
                an exception to the time bar?

Appellant’s Brief at 2.

       Appellant claims that the PCRA court erroneously dismissed his PCRA

petition as untimely, because he asserted a new constitutional right within

60 days of the United States Supreme Court decision in Lafler v. Cooper,

132 S. Ct. 1376 (2012).2 Id. at 7-8. Pointing to testimony from a collateral

____________________________________________


1
   Appellant filed a notice of appeal on January 23, 2014. On March 21,
2014, the PCRA court issued an order pursuant to Pa.R.A.P. 1925(b)
directing Appellant to file a concise statement of errors complained of on
appeal. Appellant complied timely on April 7, 2014. The PCRA court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on April 30, 2014.
2
   Before the PCRA court, Appellant also relied upon the United States
Supreme Court decision in Missouri v. Frye, 132 S. Ct. 1399 (2012) as
establishing a new constitutional right. In his appellate brief, aside from
bald citations to Frye, Appellant has not offered any legal authority to
support his prior argument and has waived this aspect of his claim on
appeal. See Commonwealth v. Owens, 750 A.2d 872, 877 (Pa. Super.
2000) (appellate claim waived due to the failure to cite case law or other
legal authority in support, as required by Pa.R.A.P. 2119).



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hearing in 1980, in conjunction with the Lafler decision, Appellant claims

that trial counsel was ineffective for failing to “explain [a plea] offer to

Appellant and the pros and cons of accepting the offer.” Id. at 9. Appellant

further claims:

        [he] would have accepted the [plea] offer had he received
        effective counsel regarding the offer.        Under Lafler,
        Appellant is clearly owed relief. However, at the time of his
        first post-conviction case Lafler was [not] yet decided and
        the [post-conviction] court rejected this claim. The court
        did not give any weight to Appellant’s testimony that he
        would have accepted the offer with proper counsel. Today,
        that testimony would be at the heart of a court’s analysis.
        This contrast demonstrates that there has in fact been a
        change in the constitutional standard for effective plea
        counsel and this change is significant enough to amount to
        a new constitutional right. In light of the proof offered by
        Appellant’s own case history, Appellant asks [our] Court to
        distinguish [our previous] decision in [Commonwealth v.
        Feliciano, 69 A.3d 1270 (Pa. Super. 2013)] and find that
        Lafler created a new narrow constitutional right.

Id. at 9-10.      Moreover, Appellant claims that “[a]lthough no court in

Pennsylvania has found Lafler […] to apply retroactively, Appellant asks this

[] Court to carve out an exception to the retroactive requirement” because,

in this case, “Appellant did make his ineffective assistance of counsel claim

in a timely petition, but Pennsylvania didn’t recognize it at the time.” Id. at

10. Appellant argues that “[u]nder these circumstances Appellant should be

permitted to seek PCRA relief regardless of whether Lafler [has] been

applied retroactively in other cases.” Id.

      “Our standard of review of the denial of a PCRA petition is limited to

examining whether the court's rulings are supported by the evidence of

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record and free of legal error.”      Commonwealth v. Feliciano, 69 A.3d

1270, 1274-1275 (Pa. Super. 2013) (citation omitted).        “This Court treats

the findings of the PCRA court with deference if the record supports those

findings.” Id. “It is an appellant's burden to persuade this Court that the

PCRA court erred and that relief is due.” Id.

      The PCRA time limitations, and exceptions thereto, are set forth in 42

Pa.C.S.A. § 9545(b)(1)(i)-(iii). That section states:

        (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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      “To invoke one of these exceptions, the petitioner must plead it and

satisfy the burden of proof.” Feliciano, 69 A.3d at 1275. Additionally, any

exception must be raised within sixty days of the date that the claim could

have been presented. Id., citing 42 Pa.C.S.A. § 9545(b)(2). Our Supreme

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Court “has repeatedly stated that the PCRA timeliness requirements are

jurisdictional in nature and, accordingly, a PCRA court cannot hear untimely

PCRA petitions.” Commonwealth v. Ligons, 971 A.2d 1125, 1164 (Pa.

2009).

       In this case, Appellant's conviction became final on July 27, 1977,

ninety days after the Pennsylvania Supreme Court affirmed his judgment of

sentence.     See 42 Pa.C.S. § 9545(b)(3) (judgment of sentence becomes

final at the conclusion of direct review or the expiration of the time for

seeking the review); U.S. Sup. Ct. Rule 13 (appellant has 90 days to file a

petition for certiorari in the United States Supreme Court after the

Pennsylvania Supreme Court issues a decision).                  Therefore, Appellant's

current PCRA petition filed in 2012, outside the PCRA’s one-year filing

requirement, is patently untimely.

       Appellant    claims    that   he   is   entitled   to   relief   under   the   new

constitutional right exception to the PCRA time-bar. We conclude that, while

Appellant filed his May 11, 20123 pro se PCRA petition timely within 60 days

of Lafler, he is not entitled to relief. This Court has specifically determined
____________________________________________


3
   The PCRA court erroneously states that the “instant petition was filed on
November 22, 2013.” PCRA Court Opinion, 4/30/2014, at 4, 6-7. Our
review of the certified record confirms that Appellant filed his amended PCRA
petition on that date. Our Supreme Court has determined that an amended,
counseled PCRA petition is merely an extension of an existing pro se petition
rather than a new and distinct petition. Commonwealth v. Tedford, 781
A.2d 1167, 1171 (Pa. 2001). Thus, Appellant filed his PCRA petition on May
11, 2012.



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that Lafler did not create a new constitutional right. Feliciano, 69 A.3d at

1277.    In addition, Appellant concedes that “no court in Pennsylvania has

found Lafler” to “apply retroactively.”       Appellant’s Brief at 10.    Thus,

Appellant has failed to plead and prove the new constitutional right

exception to the PCRA’s time bar. Moreover, it is well established that the

fact that a petitioner's claims are couched in terms of ineffectiveness will not

save an otherwise untimely petition from the application of the time

restrictions of the PCRA. Commonwealth v. Edmiston, 65 A.3d 339, 349

(Pa. 2013). Finally, we must reject Appellant’s suggestion that we carve out

an exception to the PCRA’s timing requirement for him. “The PCRA confers

no authority upon this Court to fashion ad hoc equitable exceptions to the

PCRA time-bar in addition to those exceptions expressly delineated in the

Act.” Commonwealth v. Harris, 972 A.2d 1196, 1200 (Pa. Super. 2009).

For all of the foregoing reasons, the PCRA court did not err by dismissing

Appellant’s PCRA petition for lack of jurisdiction.

        Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2014



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