J-S75026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

LARRY PHILLIPS

                        Appellant                  No. 850 EDA 2014


              Appeal from the PCRA Order February 21, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0200101-2001


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.:                    FILED DECEMBER 29, 2014

     Larry Phillips appeals from the order of the Court of Common Pleas of

Philadelphia County dismissing, as untimely, his second petition under the

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

     On March 6, 2001, Phillips entered an open guilty plea to one count

each of aggravated assault, criminal conspiracy, possessing an instrument of

crime and carrying a firearm without a license. Phillips was sentenced to an

aggregate term of 13½ to 27 years’ imprisonment on May 8, 2001.         This

Court affirmed his judgment of sentence on October 4, 2002, and Phillips did

not seek allowance of appeal.

     Phillips filed a PCRA petition on October 28, 2002, which was

dismissed on December 3, 2003 after counsel filed a Turner/Finley “no
J-S75026-14



merit” letter. Phillips was permitted to appeal the order denying his PCRA

petition, nunc pro tunc, and this Court affirmed that order on June 2, 2005.

        On April 30, 2012, Phillips filed the instant pro se PCRA petition, in

which he alleged he received ineffective assistance of counsel during his plea

negotiations and sought relief based upon the decisions of the U.S. Supreme

Court in Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376 (2012), Missouri v.

Frye, __ U.S. __, 132 S.Ct. 1399 (2012),1 and Martinez v. Ryan, __ U.S.

__, 132 S.Ct 1309 (2012)2.            The PCRA court dismissed the petition as

untimely, without a hearing, by order dated February 21, 2014.

____________________________________________


1
  In Lafler, the U.S. Supreme Court held that relief is due where ineffective
assistance of counsel caused non-acceptance of a plea offer and further
proceedings led to a less-favorable outcome and where the defendant
demonstrates that the outcome of the plea-bargaining process would have
been different had counsel rendered constitutionally effective advice. In
Frye, the Court held that defense counsel has the duty to communicate
formal prosecution offers to accept a plea on terms and conditions that may
be favorable to the accused where the defendant can demonstrate a
reasonable probability both that he would have accepted the plea offer had
counsel provided effective assistance and that the plea would have been
entered without the prosecution’s canceling it or the trial court’s refusing to
accept it.
2
    In Martinez, the Supreme Court held that:

        [w]here, 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.

Martinez, 132 S.Ct at 1321.



                                           -2-
J-S75026-14



      This timely appeal followed, in which Phillips raises the following

issues, verbatim, for our review:

      1. Did PCRA judge [commit reversible] error [by] dismissing
         [appellant’s] PCRA petition [on] February 21, 2014 as
         untimely?

      2. Was the [appellant] denied his constitutional right to a fair
         trial under the due process clause, the effective assistance of
         counsel clause of the 6th Amendment and the equal protection
         of the law clause of the Fourteenth Amendment, as a direct
         result of both trial and appellate counsel’s ineffectiveness?

      3. [Whether] the conviction and imposition of sentence upon the
         petitioner resulted from a violation of the constitution of the
         Commonwealth of Pennsylvania or laws of the United States
         [? And if so, whether] this violation of the petitioner’s rights
         under the circumstances of this case so undermine the truth-
         determining process that no reliable adjudication of guilt or
         innocence could have taken place?

Brief of Appellant, at ix.

      We begin by noting that:

         This Court’s standard of review regarding an order
         dismissing a petition under the PCRA is whether the
         determination of the PCRA court is supported by evidence
         of record and is free of legal error. In evaluating a PCRA
         court’s decision, our 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. Weatherill, 24 A.3d 435, 438 (Pa. Super. 2011).

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

filed within one year of the date the underlying judgment of sentence

becomes final. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth

v. Bretz, 830 A.2d 1273, 1275 (Pa. Super. 2003). A judgment is deemed

                                     -3-
J-S75026-14


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 review.” 42 Pa.C.S.A. § 9545(b)(3);

see also Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super.

2006). Here, Phillips’ judgment of sentence became final on November 4,

2002, upon the expiration of time for seeking allowance of appeal to the

Pennsylvania Supreme Court.       See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P.

1113(a). Thus, Phillips had one year from that date, or until November 4,

2003, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b). Phillips

did not file the instant petition, his second, until April 30, 2012, more than

nine years after his judgment of sentence became final.         Accordingly, the

PCRA court had no jurisdiction to entertain Phillips’ petition unless he

pleaded and proved one of the three statutory exceptions to the time bar.

See 42 Pa.C.S.A. § 9545(b)(1). A petition invoking one of the exceptions

must be filed within sixty days of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).

      In his PCRA petition, Phillips attempts to circumvent the time bar by

asserting   the   “new   constitutional   right”   exception   under   subsection

9545(b)(1)(iii) of the PCRA.      Phillips claims that the Lafler and Frye

decisions announced new constitutional rights that the Supreme Court

applied retroactively. However, this Court has concluded that neither case




                                      -4-
J-S75026-14


created a new constitutional right. In Commonwealth v. Feliciano, 69

A.3d 1270 (Pa. Super. 2013), we stated the following:


      The right to effective assistance of counsel during the plea
      bargaining process has been recognized for decades.
      Commonwealth v. Lewis, 2013 PA Super 62, 63 A.3d 1274,
      1280 (Pa. Super. 2013) (citing Hill v. Lockhart, [474 U.S. 52
      (1985)]; 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.”)).

                                    ***

      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[.]

Id. at 1277 (footnote omitted).     Accordingly, Phillips’ claims based upon

Frye and Lafler provide no basis for circumventing the PCRA time bar.

      Similarly, Phillips asserts the PCRA court possessed subject matter

jurisdiction to entertain his claim because the U.S. Supreme Court’s decision

in Martinez, supra, created a new constitutional right, also triggering the

exception to the time bar under section 9545(b)(1)(iii). However, Martinez

also garners Phillips no relief. First, the case was decided in the context of

federal habeas corpus jurisprudence, not Pennsylvania post-conviction

jurisprudence.    As such, “[w]hile     Martinez   represents a    significant

development in federal habeas corpus law, it is of no moment with respect

to the way Pennsylvania courts apply the plain language of the time bar set

forth in section 9545(b)(1) of the PCRA.”    Commonwealth v. Saunders,

                                    -5-
J-S75026-14


60 A.3d 162, 165 (Pa. Super. 2013).       Moreover, the Martinez decision

neither recognized a new constitutional right, see Martinez, 132 S.Ct. at

1315, 1318, nor was held to apply retroactively. As such, it does not satisfy

the requirements under section 9545(b)(1)(iii) and does not provide Phillips

with an exception to the PCRA time bar.

      As Phillips has not established one of the exceptions to the PCRA time

bar, the PCRA court properly concluded it lacked jurisdiction and dismissed

his petition as untimely.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2014




                                    -6-
