J-S43004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CHARLES E. SMITH,

                            Appellant               No. 3018 EDA 2013


              Appeal from the PCRA Order of September 27, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0513651-2000


BEFORE: GANTMAN, P.J., PANELLA AND OLSON, JJ.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 11, 2015

       Appellant, Charles E. Smith, appeals from the order entered on

September 27, 2013, dismissing his second petition filed under the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

       As the PCRA court explained:

         After a one-day bench trial on April 24, 2001, [Appellant]
         was convicted of aggravated assault, burglary, criminal
         trespass, possession of an instrument of a crime, unlawful
         restraint, simple assault, reckless endangerment of another
         person, and false imprisonment.[1] The Commonwealth’s
         case against [Appellant] arose from allegations that he
         attacked his life-long acquaintance and former girlfriend,
         [R.B.]. To briefly summarize the essence of the facts
         supporting [Appellant’s convictions] in the most concise
         form:
____________________________________________


1
  18 Pa.C.S.A. §§ 2702, 3502, 3503, 907, 2902, 2701, 2705, and 2903,
respectively.
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        On June 29, 1997, at approximately 8:00 a.m., [R.B.] was
        in the bathroom of her apartment getting herself ready to
        attend church. While in the bathroom, [R.B.] heard a noise.
        As she walked down the hallway, she saw [Appellant]
        coming towards her. As she cursed at [Appellant], he
        punched her in the face. A brief struggle[] ensued, and
        [Appellant] pushed [R.B.] down onto her bed. While on top
        of her, [Appellant] proceeded to choke [R.B.] with both
        hands.    [R.B.] could not breathe and shortly became
        unconscious. She gained consciousness [and felt Appellant]
        stabbing her repeatedly with a steak knife.

        [Appellant] picked up [R.B.’s] daughter and placed them
        both in her bedroom. [R.B.] was trapped in her bedroom
        with her daughter for approximately four days until a police
        officer arrived, taking [R.B.] and her daughter to the
        district.

PCRA Court Opinion, 6/20/14, at 2 (internal quotations, citations, and

corrections omitted) (some internal capitalization omitted).

      On July 20, 2001, the trial court sentenced Appellant to serve an

aggregate term of 20 ½ to 41 years in prison for his convictions.

      We affirmed Appellant’s judgment of sentence on October 16, 2002

and the Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal on September 17, 2003.        Commonwealth v. Smith,

815 A.2d 1131 (Pa. Super. 2002) (unpublished memorandum) at 1-10,

appeal denied, 833 A.2d 142 (Pa. 2003). Appellant did not thereafter file a

petition for a writ of certiorari with the United States Supreme Court.

      On December 30, 2004, Appellant filed his first PCRA petition.      The

PCRA court dismissed the petition on January 26, 2006, this Court affirmed

the PCRA court’s dismissal order on April 2, 2007, and the Pennsylvania



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Supreme Court denied Appellant’s petition for allowance of appeal on August

29, 2007.     Commonwealth v. Smith, 928 A.2d 1129 (Pa. Super. 2007)

(unpublished memorandum) at 1-6, appeal denied, 931 A.2d 658 (Pa.

2007).

         On May 21, 2012, Appellant filed the current PCRA petition, which

constitutes Appellant’s second petition for post-conviction collateral relief

under the PCRA.         Within the petition, Appellant acknowledged that the

petition was filed more than one year after his judgment of sentence became

final.    However, Appellant claimed that his petition was timely under the

“newly recognized constitutional right” exception to the PCRA’s time-bar.

Specifically, Appellant claimed that that he filed his petition within 60 days of

the United States Supreme Court’s decision in Martinez v. Ryan.             See

Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012); Appellant’s

Second PCRA Petition, 5/21/12, at 7.2            In Martinez, the United States

Supreme Court held:

           Where, under state law, claims of ineffective assistance of
           trial counsel must be raised in an initial-review collateral
           proceeding, a procedural default will not bar a federal
           habeas court from hearing a substantial claim of ineffective
           assistance at trial if, in the initial-review collateral
           proceeding, there was no counsel or counsel in that
           proceeding was ineffective.



____________________________________________


2
    The United States Supreme Court decided Martinez on March 20, 2012.



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Martinez, ___ U.S. at ___, 132 S.Ct. at 1320.           In other words, the

Martinez Court held that, where counsel is ineffective in an initial state

collateral review proceeding, and where the ineffectiveness caused the

petitioner to procedurally default on a “substantial” substantive claim, the

ineffectiveness “may provide cause [to excuse a] procedural default in a

[later] federal habeas proceeding.”       Martinez, ___ U.S. at ___, 132

S.Ct. at 1315 (emphasis added).

      On September 27, 2013, the PCRA court dismissed Appellant’s petition

without a hearing and, on October 16, 2013, Appellant filed a timely notice

of appeal.   We now affirm the dismissal of Appellant’s patently untimely,

serial PCRA petition.

      As our Supreme Court held, we “review an order granting or denying

PCRA relief to determine whether the PCRA court’s decision is supported by

evidence of record and whether its decision is free from legal error.”

Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003).

      The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.   This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b).         Further,



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since the time-bar implicates the subject matter jurisdiction of our courts,

we are required to first determine the timeliness of a petition before we

consider the underlying claims. Commonwealth v. Yarris, 731 A.2d 581,

586 (Pa. 1999). Our Supreme Court explained:

        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions.               See, e.g.,
        Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
        (stating that “given the fact that the PCRA's timeliness
        requirements are mandatory and jurisdictional in nature, no
        court may properly disregard or alter them in order to reach
        the merits of the claims raised in a PCRA petition that is
        filed in an untimely manner”); Commonwealth v. Fahy,
        737 A.2d 214, 220 (Pa. 1999) (holding that where a
        petitioner fails to satisfy the PCRA time requirements, this
        Court has no jurisdiction to entertain the petition). [The
        Pennsylvania Supreme Court has] also held that even where
        the PCRA court does not address the applicability of the
        PCRA timing mandate, th[e court would] consider the issue
        sua sponte, as it is a threshold question implicating our
        subject matter jurisdiction and ability to grant the requested
        relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).

     In the case at bar, Appellant’s judgment of sentence became final in

2003. As Appellant did not file his current petition until May 21, 2012, the

current petition is manifestly untimely and the burden thus fell upon

Appellant to plead and prove that one of the enumerated exceptions to the

one-year time-bar applied to his case.     See 42 Pa.C.S.A. § 9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to

properly invoke a statutory exception to the one-year time-bar, the PCRA




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demands that the petitioner properly plead and prove all required elements

of the relied-upon exception).

      Here, Appellant purports to invoke the “newly recognized constitutional

right” exception to the time-bar. This statutory exception provides:

        (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:

                                      ...

             (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.C.S.A. § 9545(b).

      According to Appellant, in Martinez, the United States Supreme Court

recognized a new constitutional right and, in accordance with this new

constitutional right, Appellant is now entitled to raise claims that his trial

counsel and direct appellate counsel were ineffective. This claim fails.

      The “newly recognized constitutional right” exception to the PCRA’s

time-bar is codified in 42 Pa.C.S.A. § 9545(b)(1)(iii). As our Supreme Court

explained:



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        Subsection (iii) of Section 9545(b)(1) has two requirements.
        First, it provides that 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 provided in this section. Second, it provides that
        the right “has been held” by “that court” to apply
        retroactively. Thus, a petitioner must prove that there is a
        “new” constitutional right and that the right “has been held”
        by that court to apply retroactively. The language “has
        been held” is in the past tense. These words mean that the
        action has already occurred, i.e., “that court” has already
        held the new constitutional right to be retroactive to cases
        on collateral review. By employing the past tense in writing
        this provision, the legislature clearly intended that the right
        was already recognized at the time the petition was filed.

Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007),

quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002)

(internal corrections omitted). Moreover, since the plain statutory language

of section 9545 demands that the PCRA petition “allege” all elements of the

statutory exception, it is clear that – to properly invoke the “newly

recognized constitutional right” exception – the petitioner must plead each of

the above-stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1).

      As stated above, in Martinez, the Supreme Court held that, where

counsel is ineffective in a prior, initial state collateral review proceeding, and

where the ineffectiveness caused the petitioner to procedurally default on a

substantive claim, counsel’s ineffectiveness “may provide cause [to excuse

a] procedural default in a federal habeas proceeding.” Martinez, ___ U.S.

at ___, 132 S.Ct. at 1315. Yet, as the Martinez Court explicitly declared, it

was not handing down a “constitutional ruling” and it was not recognizing a


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new constitutional right.     Martinez, ___ U.S. at ___, 132 S.Ct. at 1319-

1320.     Rather, the Martinez Court based its holding upon an “equitable”

exception to a court-created doctrine that is applicable only in the federal

courts.    Id.; see also Coleman v. Thompson, 501 U.S. 722, 730-731

(1991) (in habeas proceedings, the doctrine of “procedural default” arises

from the “independent and adequate state ground doctrine” – which, in turn,

“is grounded in concerns of comity and federalism”); Martinez, ___ U.S. at

___, 132 S.Ct. at 1315.

        Since   Martinez    did   not   recognize   a   new   constitutional   right,

Appellant’s attempt to invoke the “newly recognized constitutional right”

exception to the PCRA’s one-year time-bar immediately fails. Further, since

Appellant did not attempt to plead any other exception to the time-bar, we

conclude that Appellant’s petition is time-barred and that our “courts are

without jurisdiction to offer [Appellant] any form of relief.” Commonwealth

v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). Therefore, we affirm the

PCRA court’s order dismissing Appellant’s second PCRA petition without a

hearing.

        Order affirmed. Jurisdiction relinquished.




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     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2015




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