J-S57036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

WINSTON MCPHERSON

                         Appellant                 No. 1102 EDA 2015


              Appeal from the PCRA Order entered April 1, 2015
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0409911-1995


BEFORE: MUNDY, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                    FILED NOVEMBER 04, 2015

     Appellant, Winston McPherson, appeals pro se from the April 1, 2015

order entered in the Court of Common Pleas of Philadelphia County, denying

as untimely his second petition for collateral relief pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46.     Following review,

we affirm.

     The PCRA court provided the following procedural history:

           Following a jury trial on January 12, 1996, [Appellant] was
     convicted of first degree murder and possessing an instrument of
     crime.      [Appellant] was thereafter sentenced to life
     imprisonment on the murder conviction. Following a direct
     appeal, the Superior Court affirmed the judgment of sentence on
     August 15, 1997. [Appellant] did not seek allocatur.

           On May 27, 1998, [Appellant] filed a pro se PCRA petition
     and counsel was appointed. On September 17, 1998, the PCRA
     court dismissed the petition. The Superior Court affirmed the
     lower court’s dismissal of [Appellant’s] petition on February 9,
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      2000. The Pennsylvania Supreme Court denied [Appellant’s]
      petition for allowance of appeal on July 19, 2000.

             On July 10, 2014, [Appellant] filed the instant pro se PCRA
      petition. On February 17, 2015, the PCRA court issued its notice
      of intent to dismiss pursuant to Pennsylvania Rule of Criminal
      Procedure 907. On April 1, 2015, the PCRA court dismissed
      [Appellant’s] petition as untimely. On April 9, 2015, the instant
      notice of appeal was filed to the Superior Court.

PCRA Court Opinion, 4/21/15, at 1-2 (footnotes omitted).

      Although Appellant provides a Statement of the Case that is essentially

a verbatim restatement of the PCRA court’s procedural history, he does offer

additional factual background from his perspective within the Argument

section of his Brief as follows:

           The record in this matter clearly shows that [A]ppellant
      was offered a plea bargain of 8 to 20 years[’] incarceration in
      exchange for a guilty plea to the crimes of third degree murder
      and related offenses.      [A]ppellant, however, rejected the
      Commonwealth’s offer to plead guilty to the aforementioned
      crimes based upon the faulty advice of trial counsel.

            [A]ppellant’s Affidavit attests to the fact that trial counsel
      advised him that he believed that the Commonwealth did not
      have the evidence to convict him and that he could “win” the
      case.   Trial counsel provided [A]ppellant with incorrect or
      inaccurate advice with regard to the law on identification
      evidence.

             Trial counsel failed to advise [A]ppellant of the strong
      likelihood that he would be convicted of murder and failed to
      explain to him the pros and cons of going to trial or pleading
      guilty. Had the trial counsel explained the law and the pros and
      cons of going to trial, [A]ppellant would have entered a guilty
      plea in exchange for a guaranteed sentence.

             Clearly, [A]ppellant rejected the plea offer as a result of
      trial counsel’s failure to properly advise him and/or discuss with
      him the chances for a successful result at trial based on the

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         Commonwealth identification evidence.     Had trial counsel
         properly advised him, he would have taken the plea offer, the
         judge would have approved it and the deal would have been
         [more] favorable than the case’s outcome.

Appellant’s Brief at 11-12.

         Appellant presents one issue for our consideration:

         Is [A]ppellant entitled to post-conviction relief in the form of a
         new trial, the opportunity to enter a guilty plea or a remand for
         an evidentiary hearing since trial counsel was ineffective when
         he failed to properly and fully advise [A]ppellant with regard to a
         plea offer made by the prosecutor?

Appellant’s Brief at 4.

         This Court has explained that “[o]ur standard of review of an order

denying PCRA relief is whether the record supports the PCRA court’s

determination, and whether the PCRA court's determination is free of legal

error.    The PCRA court's findings will not be disturbed unless there is no

support for the findings in the certified record.”          Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013) (citations omitted).

         Any PCRA petition, including a second or subsequent petition, must be

filed within one year of the date the underlying judgment becomes final

unless the petitioner proves an exception. 42 Pa.C.S.A. § 9545(b)(1). “[A]

judgment becomes final at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.”     42 Pa.C.S.A. § 9545(b)(3).       Further, any petition claiming an

exception under § 9545(b)(1) must be filed within 60 days of the date the

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claim could have been presented.         42 Pa.C.S.A. § 9545 (b)(2).     “[T]he

PCRA’s timeliness requirements are jurisdictional in nature and, accordingly,

a PCRA court cannot hear untimely PCRA petitions.”         Commonwealth v.

Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (quoting Commonwealth v.

Rienzi, 827 A.2d 369, 371 (Pa. 2003)).

      Appellant’s judgment of sentence became final on September 15,

1997, thirty days after this Court affirmed his judgment of sentence.

Therefore, absent an exception, his petition filed on July 10, 2014 is facially

untimely.

      Appellant contends his petition is saved from the PCRA’s time bar

because “the right asserted is a constitutional right that was recognized by

the Supreme Court of the United States . . . after the time period provided in

[§ 9545(b)(1)] and has been held by that court to apply retroactively.” 42

Pa.C.S.A. § 9545(b)(1)(iii).      Specifically, Appellant argues his petition is

timely in light of the United States Supreme Court’s decisions in Lafler v.

Cooper, 132 S.Ct. 1376 (2012) and Missouri v. Frye, 132 S.Ct. 1399

(2012), both of which were decided on March 21, 2012.

      Even assuming      Lafler or     Frye provided a constitutional right

exception under § 9545(b)(1), Appellant’s July 10, 2014 petition would still

be untimely because it was not filed on or before May 21, 2012, 60 days

after those decisions were announced.           Therefore, this Court has no

jurisdiction over his petition.    Further, Appellant would not be entitled to


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relief even if a timeliness exception saved his petition. In Commonwealth

v. Feliciano, 69 A.3d 1270 (Pa. Super. 2013), this Court concluded that:

       It is apparent neither Lafler nor Frye created a new
       constitutional right. Instead these decisions simply applied the
       Sixth Amendment right to counsel, and the Strickland[1] test for
       demonstrating counsel's ineffectiveness, to the particular
       circumstances at hand, i.e. where counsel’s conduct resulted in a
       plea offer lapsing or being rejected to the defendant's detriment.
       Accordingly, Appellant’s reliance on Frye and Lafler in an
       attempt to satisfy the timeliness exception of section
       9545(b)(1)(iii) is unavailing.

Id. at 1277.

       Appellant’s PCRA petition is untimely on its face and is not saved from

the PCRA time bar by any exception under § 9545(b)(1).           Therefore, this

Court, as well as the PCRA court, lacks jurisdiction to consider it.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/4/2015




____________________________________________


1
    Strickland v. Washington, 466 U.S. 668 (1984).



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