J-S33026-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                     Appellee              :
                                           :
             v.                            :
                                           :
CHARLES CRENSHAW,                          :
                                           :
                     Appellant             : No. 1924 EDA 2014

                     Appeal from the PCRA Order May 27, 2014,
                    Court of Common Pleas, Philadelphia County,
                  Criminal Division at No. CP-51-CR-0332121-1985

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.

MEMORANDUM BY DONOHUE, J.:                             FILED JUNE 23, 2015

       Charles Crenshaw (“Crenshaw”) appeals pro se from the order entered

on May 27, 2014 by the Philadelphia County Court of Common Pleas,

Criminal Division, dismissing his petition filed pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46, as untimely. For

the reasons that follow, we affirm.

       Because we resolve this case on procedural grounds, a recitation of

the facts underlying Crenshaw’s criminal convictions is unnecessary.    We

summarize the relevant procedural history as follows. On October 23, 1985,

a jury found Crenshaw guilty of first-degree murder and possessing an

instrument of crime.1 On March 3, 1986, the trial court sentenced Crenshaw

to an aggregate term of life imprisonment. This Court affirmed Crenshaw’s



1
    18 Pa.C.S.A. §§ 2502(a), 907(a).
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judgment of sentence on March 31, 1987. Crenshaw did not file a petition

for allowance of appeal to the Supreme Court of Pennsylvania.

     On September 10, 1987, Crenshaw filed his first PCRA petition, which

the PCRA court denied on May 26, 1988. On January 19, 1990, this Court

affirmed the PCRA court’s decision. Crenshaw proceeded to file four more

PCRA petitions, on January 24, 1992, March 28, 1996, June 28, 1996, and

November 21, 2005, each of which were denied by the PCRA court and

either affirmed on appeal or not appealed.

     On April 23, 2012, Crenshaw filed the instant PCRA petition, his sixth.

On March 19, 2014, the PCRA court filed a notice of intent to dismiss

Crenshaw’s PCRA petition pursuant to Rule 907 of the Pennsylvania Rules of

Criminal Procedure.   On April 11, 2014, Crenshaw filed a response to the

trial court’s Rule 907 notice.   On May 27, 2014, the PCRA court formally

dismissed Crenshaw’s PCRA petition as untimely.        On June 19, 2014,

Crenshaw filed a notice of appeal.2

     On appeal, Crenshaw makes two ineffective assistance of counsel

claims. First, Crenshaw asserts that his trial counsel failed to communicate

the Commonwealth’s formal plea offer to him. See Crenshaw’s Brief at 15.



2
   Crenshaw’s notice of appeal is time stamped June 30, 2014. However,
“[u]nder the prisoner mailbox rule, we deem a pro se document filed on the
date it is placed in the hands of prison authorities for mailing.”
Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011).
Crenshaw’s notice of appeal indicates that he complied with the prisoner
mailbox rule on June 19, 2014.


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Second, Crenshaw claims that had trial counsel not misinformed him

regarding trial counsel’s defense strategy and the likelihood of a favorable

outcome, Crenshaw would have accepted the Commonwealth’s plea offer,

had he known about it. See id. at 19-20.

     Prior to determining the merits of Crenshaw’s claims, we must

determine whether we have jurisdiction to decide his appeal. “Pennsylvania

law makes clear no court has jurisdiction to hear an untimely PCRA petition.”

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010)

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

A petitioner must file a PCRA petition within one year of the date on which

the petitioner’s judgment became final, unless one of the three statutory

exceptions apply:

           (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). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been



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presented.” 42 Pa.C.S.A. § 9545(b)(2).     If a petition is untimely, and the

petitioner has not pled and proven any exception, “‘neither this Court nor

the trial court has jurisdiction over the petition.   Without jurisdiction, we

simply do not have the legal authority to address the substantive claims.’”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      Crenshaw’s instant PCRA petition is facially untimely and he does not

contest this determination.    Accordingly, we are without jurisdiction to

decide Crenshaw’s appeal unless he pled and proved one of the three

timeliness exceptions of Section 9545(b)(1). See id. Here, Crenshaw has

attempted to plead the timeliness exception of Section 9545(b)(1)(iii).

PCRA Petition, 4/23/12, at 2; Crenshaw’s Brief at 24-35.          Specifically,

Crenshaw contends that the United States Supreme Court decisions in

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

1376 (2012) recognized a new constitutional right, namely, extending the

right to effective assistance of counsel throughout the consideration of plea

offers and intended for this right to apply retroactively.   See Crenshaw’s

Brief at 24-35.

      We conclude that Crenshaw has failed to plead and prove the

timeliness exception of Section 9545(b)(1)(iii).      In Commonwealth v.

Feliciano, 69 A.3d 1270, 1276-77 (Pa. Super. 2013), this Court provided:




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          [W]e disagree with Appellant that Frye and Lafler
          created a new constitutional right. “The right to
          effective assistance of counsel during the plea
          bargaining process has been recognized for
          decades.”     Commonwealth v. Lewis, 63 A.3d
          1274, 1280 (Pa. Super. 2013) (citing Hill v.
          Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88 L.Ed.2d
          203 (1985) (holding that “the two-part Strickland,
          466 U.S. 668 [104 S. Ct. 2052, 80 L.Ed.2d 674], test
          applies to challenges to guilty pleas based on the
          ineffective assistance of counsel”); Padilla v.
          Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176
          L.Ed.2d 284 (2010) (“Before deciding whether to
          plead guilty, a defendant is entitled to the effective
          assistance of competent counsel.”)). In Frye, the
          United State Supreme Court merely clarified that this
          well-established right “extends to the negotiation
          and consideration of plea offers that lapse or are
          rejected.”    Frye, 132 S. Ct. at 1404 (emphasis
          added). In other words, the Frye Court held “that,
          as a general rule, defense counsel has the duty to
          communicate formal offers from the prosecution to
          accept a plea on terms and conditions that may be
          favorable to the accused.”       Id. at 1408.       In
          determining whether counsel has satisfied this
          obligation, the two-part test set forth in Strickland
          applies. See id. at 1409. In Lafler, the Court
          explained that to meet the prejudice prong of the
          Strickland test where the alleged ineffectiveness of
          counsel involves the defendant’s rejection of a plea
          offer, the defendant must show,

               that but for the ineffective advice of
               counsel there is a reasonable probability
               that the plea offer would have been
               presented to the court (i.e., that the
               defendant would have accepted the plea
               and the prosecution would not have
               withdrawn it in light of intervening
               circumstances), that the court would
               have accepted its terms, and that the
               conviction or sentence, or both, under
               the offer’s terms would have been less



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                     severe than under the judgment and
                     sentence that in fact were imposed.

             Lafler, 132 S.Ct. at 1385.

             It is apparent that neither Frye nor Lafler created a
             new constitutional right. Instead, these decisions
             simply applied the Sixth Amendment right to
             counsel, and the Strickland 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.

Feliciano, 69 A.3d at 1276-77.

        Therefore,   because    neither     Frye   nor    Lafler   created     a   new

constitutional right, Crenshaw has failed to satisfy the new constitutional

right   exception    to   the   PCRA’s    timeliness     requirements.       See   id.;

42 Pa.C.S.A. § 9545(b)(1)(iii).     Accordingly, Crenshaw failed to plead and

prove     an exception under      section    9545(b)(1), and       we    are   without

jurisdiction to address the merits of his appeal. See Derrickson, 923 A.2d

at 468.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/23/2015


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