J-S48042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    WILLIAM R. HOSKINS                         :
                                               :
                       Appellant               :     No. 3078 EDA 2017


                  Appeal from the PCRA Order January 24, 2017
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-1127531-1975


BEFORE:      DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                             FILED OCTOBER 18, 2018

       Appellant, William R. Hoskins, (also known as Muhammad Waliyud-Din),

appeals pro se from the order entered January 24, 2017, dismissing his fourth

petition, filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546, as untimely with no exception to the statutory time-bar

pleaded and proven. We affirm.

       On April 4, 1985, a jury convicted Appellant of murder of the first degree

and criminal conspiracy.1        Appellant acknowledges that at the time of the

murder he was twenty-three years of age.            (See Appellant’s Brief, at 9;

Statement of Errors, 10/16/17, at 3; see also PCRA Court Opinion, 11/14/17,



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1 The PCRA Court also relates that Appellant endeavored to kill an eyewitness
to the murder. (See PCRA Ct. Op., 11/14/17, at 4 n.3)
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S48042-18


at 5). The trial court sentenced Appellant to life imprisonment for his murder

conviction, and to a term of not less than five nor more than ten years of

imprisonment, concurrent, for his conspiracy conviction. This Court affirmed

Appellant’s judgment of sentence on January 19, 1988.          He did not seek

allowance of appeal. Accordingly, his sentence became final on February 18,

1988.

        Appellant filed multiple unsuccessful post-conviction petitions. He filed

the instant fourth petition under the PCRA, on August 29, 2012. Appointed

counsel filed a Turner/Finley “no merit” letter.2 Appellant filed an objection.

The PCRA court, after independent review of the record, dismissed Appellant’s

petition and permitted counsel to withdraw. This appeal followed.3

     Appellant presents one question for our review, which we reproduce
verbatim:



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2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

3 We note at the outset that Appellant readily concedes his notice of appeal
was late, but maintains that he did not receive notice of the January 24, 2017
dismissal order until September 5, 2017. (See Notice to File Late Appeal,
9/29/17). He blames a “mix-up” in delivery at the federal correctional
institution in New Jersey where he was incarcerated, and where the notice
was sent. (Id.). He provides copies of documentation suggesting that the
notice was immediately (and inexplicably) “returned to sender.” (Id.). While
the explanation is not entirely definitive, and does not totally exclude other
causes, for which he might be more culpable, we conclude Appellant has made
a reasonable, good faith effort to explain the delay. Accordingly, we give
Appellant the benefit of the doubt, and deem his notice of appeal timely filed
nunc pro tunc.


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             Is Petitioner/Appellant entitled to post-conviction review
      since (P.C.R.A.) counsel acted as a Friend of the Court instead of
      acting    as     a   (sic)  active    advocate   on   behalf    of
      petitioner/appellant[?]

(Appellant’s Brief, at 4).

      Our standard and scope of review for the denial of a PCRA petition is

well-settled.

      [A]n appellate court reviews the PCRA court’s findings of fact to
      determine whether they are supported by the record, and reviews
      its conclusions of law to determine whether they are free from
      legal error. The scope of review is limited to the findings of the
      PCRA court and the evidence of record, viewed in the light most
      favorable to the prevailing party at the trial level.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations and

internal quotation marks omitted).

      We must begin by addressing the timeliness of Appellant’s petition, as

the PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded     in   order   to   address   the   merits   of   his   claims.   See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for relief, including second and subsequent petitions, must

be filed within one year of the date on which the judgment of sentence

becomes final. See id. To avoid the PCRA time-bar, Appellant has the burden

to plead and prove by a preponderance of the evidence one of the three

statutory exceptions:

             (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;

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              (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).         Furthermore, any petition attempting to

invoke these exceptions “shall be filed within 60 days of the date the claim

could    have    been     presented.”          42   Pa.C.S.A.   §   9545(b)(2);   see

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

        Here, Appellant claims the benefit of Miller v. Alabama, 567 U.S. 460

(2012), which held, in pertinent part, that mandatory life-without-parole

sentences for juveniles under the age of eighteen violate the Eighth

Amendment. (See Appellant’s Brief, at 8); see also Miller, supra at 470,

479).4 However, Appellant candidly concedes that he was twenty-three years

of age when he committed the murder. Accordingly, he has failed to plead

and prove an applicable exception to the PCRA time-bar.               The PCRA court

properly dismissed his petition as untimely.

        Moreover, Appellant’s related arguments do not constitute an exception

to the PCRA time-bar and in any event would not merit relief. Appellant raises


____________________________________________


4In Montgomery v. Louisiana, 136 S. Ct. 718, 732 (2016), as revised (Jan.
27, 2016), the United States Supreme Court decided that Miller announced a
substantive rule that is retroactive in cases on collateral review.


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several overlapping issues for review. He claims PCRA counsel was not “an

active advocate”.   (Appellant’s Brief, at 4).    Specifically, Appellant asserts

counsel should have argued for an expansive interpretation of Miller,

extending its application to him as a twenty-three year old at the time of the

murder. (See id. at 9-10). We construe this claim liberally as a claim of

ineffective assistance of counsel. Notably, a claim of ineffective assistance

must still establish one of the statutory exceptions to the PCRA time-bar.

      As a prefatory matter, although this Court is willing to construe
      liberally materials filed by a pro se litigant, pro se status generally
      confers no special benefit upon an appellant. Accordingly, a pro
      se litigant must comply with the procedural rules set forth in the
      Pennsylvania Rules of the Court. This Court may quash or dismiss
      an appeal if an appellant fails to conform with the requirements
      set forth in the Pennsylvania Rules of Appellate Procedure.
      Pa.R.A.P. 2101.

Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003), appeal

denied, 879 A.2d 782 (Pa. 2005) (case citation omitted).

      Here, Appellant’s issue fails to present a cognizable claim for PCRA relief.

It is not enough to claim generally that counsel acted as a friend of the court

and should have been a more zealous advocate. Appellant had the burden to

prove “[i]neffective assistance of counsel which, in the circumstances of the

particular case, so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.”          42 Pa.C.S.A.

§ 9543(a)(2)(ii).

            Our standard of review in ineffectiveness cases is well-
      settled. Counsel is presumed effective, and the appellant has the
      burden    of  proving    otherwise.       Appellant   establishes

                                       -5-
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       ineffectiveness of counsel with a demonstration that: (1) the
       underlying claim is of arguable merit; (2) counsel’s action or
       inaction was not grounded on any reasonable basis designed to
       effectuate Appellant’s interest; and (3) there is a reasonable
       probability that the act or omission prejudiced Appellant in such a
       way that the outcome of the proceeding would have been
       different. If the issue underlying the charge of ineffectiveness is
       not of arguable merit, counsel will not be deemed ineffective for
       failing to pursue a meritless issue. Also, if the prejudice prong of
       the ineffectiveness standard is not met, the claim may be
       dismissed on that basis alone and [there is no] need [to]
       determine whether the [arguable merit] and [client’s interests]
       prongs have been met.

Commonwealth v. D'Collanfield, 805 A.2d 1244, 1246–47 (Pa. Super.

2002) (citations and quotation marks omitted).

       Here, Appellant’s underlying claim, that he was eligible for the special

treatment afforded to juveniles by Miller, supra, is unsupported by

controlling authority and lacks arguable merit.5            This Court cannot deem

counsel    ineffective    for   failing   to   assert   a   meritless   claim.   See

Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008).

“Counsel’s assistance is deemed constitutionally effective once this Court

determines that the defendant has not established any one of the prongs of

the ineffectiveness test.” Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa.

Super. 2008) (citation omitted) (emphasis in original).




____________________________________________


5 See Roper v. Simmons, 543 U.S. 551, 574 (2005) for a discussion of why
the age of eighteen is “is the point where society draws the line for many
purposes between childhood and adulthood.”

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      Appellant’s petition is untimely, and he has not satisfied a timeliness

exception to the requirements of the PCRA.      The PCRA court was without

jurisdiction to review the merits of Appellant’s claim, and properly dismissed

his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/18




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