J-A29012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
GARY GREEN,                              :
                                         :
                    Appellant            :   No. 70 EDA 2017

               Appeal from the PCRA Order October 22, 2015
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0209571-1988


BEFORE:    LAZARUS, J., PLATT*, J., and STRASSBURGER*, J.

JUDGMENT ORDER BY LAZARUS, J.:                 FILED NOVEMBER 30, 2017

      Gary Green appeals nunc pro tunc from the order, entered in the Court

of Common Pleas of Philadelphia County on October 22, 2015, dismissing as

untimely his petition filed pursuant to the Post Conviction Relief Act, 42

Pa.C.S. §§ 9541-9546 (“PCRA”). We affirm.

      Green is serving a life sentence for murder. A jury convicted him in

1989, and this Court affirmed his judgment of sentence on August 21, 1990.

The Supreme Court of Pennsylvania denied allocatur on January 23, 1991.

Green did not file a petition for a writ of certiorari to the United States

Supreme Court; thus, his judgment of sentence became final ninety days

later, on April 23, 1991.   42 Pa.C.S. §§ 9545(b)(1), (3); U.S. Sup. Ct. Rule

13.




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A29012-17



        Before us is Green’s fourth PCRA petition, filed on May 14, 2012, which

is patently untimely. The PCRA court appointed counsel,1 and on June 15,

2015,     counsel    filed    an   amended     petition   on   Green’s   behalf.   The

Commonwealth filed a motion to dismiss and the court issued a notice of intent

to dismiss pursuant to Pa.R.Crim.P. 907. Green filed a response on October

7, 2015. In his response, Green avers that the United States Supreme Court’s

decision in Lafler v. Cooper, 132 S.Ct. 1376 (2012), which held that a claim

of ineffective assistance of counsel at the plea stage is viable even where

defendant subsequently received a fair trial, created a newly-recognized

constitutional right.        Green filed his petition within 60 days of the Lafler

decision and claims, therefore, that his petition is timely under the newly-

recognized constitutional right exception to the time bar. See 42 Pa.C.S. §

9545(b)(1)(iii). We disagree.

        In Commonwealth v. Feliciano, 69 A.3d 1270 (Pa. Super. 2013), this

Court held that Lafler did not create a new constitutional right. We stated

that Lafler

        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 . . . Lafler in an
        attempt to satisfy the timeliness exception of section
        9545(b)(1)(iii) is unavailing.


____________________________________________


1See Pa.R.Crim.P. 904(E) (“The judge shall appoint counsel to represent a
defendant whenever the interests of justice require it.”).

                                           -2-
J-A29012-17



Id. at 1277. See also Commonwealth v. Hernandez, 79 A.3d 649, 654

(Pa. Super. 2013) (Lafler did not “enunciate a constitutional right that was

recognized by the Supreme Court of the United States that would provide

Appellant with an exception to the timeliness requirements of the PCRA.”)

(internal quotations omitted).

      Based on the foregoing, we conclude the PCRA court had no jurisdiction

to entertain Green’s petition. Acccordingly, the PCRA court properly dismissed

his petition.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2017




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