J-S65039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

THOMAS BENJAMIN ELLINGTON

                            Appellant                  No. 488 EDA 2015


                  Appeal from the PCRA Order January 7, 2015
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000058-2010
                                          CP-45-CR-0001008-2009


BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED JANUARY 05, 2016

        Appellant Thomas Benjamin Ellington appeals pro se from the order

entered in the Monroe County Court of Common Pleas, which dismissed his

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1

We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On March 15, 2010, a jury convicted Appellant of possession of cocaine2 and

possession with intent to deliver cocaine3 at Docket Number CP-45-CR-

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1
    42 Pa.C.S. §§ 9541-9546.
2
    35 Pa.C.S. § 780-113(a)(16).
3
    35 Pa.C.S. § 780-113(a)(30).
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0001008-2009. On May 4, 2010, Appellant pled guilty to simple assault 4 for

an incident that occurred on November 13, 2009, at docket number CP-45-

CR-0000058-2010.         On May 25, 2010, the trial court imposed consecutive

sentences     of   1-2   years’   incarceration   for   Appellant’s   simple   assault

conviction and 6-12 years’ incarceration for his drug convictions.5 This Court

affirmed his judgment of sentence on February 25, 2011. Appellant did not

file a petition for allowance of appeal with our Supreme Court.

        On February 3, 2012, Appellant filed a pro se PCRA petition and a pro

se amended PCRA petition (collectively, “Appellant’s first PCRA petition”).6

On March 26, 2012, the PCRA court appointed counsel. After conducting an

evidentiary hearing on June 4, 2012, the PCRA court denied Appellant’s first

PCRA petition on October 2, 2012. This Court affirmed the PCRA court order

denying Appellant’s first PCRA petition on November 8, 2013. Our Supreme

Court denied Appellant’s petition for allowance of appeal for his first PCRA

petition on July 8, 2014.7
____________________________________________


4
    Pa.C.S. § 2701(a)(1).
5
  Appellant’s convictions of possession of cocaine and possession with intent
to distribute cocaine merged for sentencing purposes.
6
  The PCRA petition was 75 pages in length and asserted various ineffective
assistance of counsel claims. The amended petition, filed the same day,
incorporated his original petition and additionally asserted a constitutional
challenge to the Motor Vehicle Code.
7
   Our Supreme Court filed an order denying Appellant’s petition for
allowance of appeal on August 5, 2014.



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       On September 8, 2014, Appellant filed his second pro se PCRA

petition, which is the subject of this appeal.         On November 6, 2014, the

PCRA court issued a notice of intent to dismiss Appellant’s petition without a

hearing pursuant to Pa.R.Crim.P. 907.            On November 24, 2014, Appellant

filed a response to the PCRA court’s notice. On January 7, 2015, the PCRA

court dismissed Appellant’s petition.

       On January 26, 2015, Appellant filed a timely notice of appeal.       On

February 10, 2015, the PCRA court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).8

Appellant timely complied on March 9, 2015.9

       Appellant raises the following issues for our review:

           1. WHETHER [APPELLANT’S] SECOND PCRA PETITION WAS
           UNTIMELY DESPITE HIS HAVING PROPERLY INVOKED AN
           EXCEPTION TO THE TIMEBAR WITHIN SIXTY (60) DAYS OF
           THE DATE THE CLAIM COULD HAVE BEEN PRESENTED?

           2. WHETHER THE PCRA COURT ERRED AND MADE AN
           UNREASONABLE APPLICATION OF THE TIMELINESS
           STATUTORY EXCEPTIONS WHEN IT APPLIED A “MERITS
           ANALYSIS” TO [APPELLANT’S] SECOND PCRA PETITION?


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8
  The PCRA court also ordered withdrawal of Appellant’s prior PCRA counsel
as counsel had not yet withdrawn from representing Appellant.
9
    On April 2, 2015, the PCRA court filed an opinion pursuant to Pa.R.A.P.

1925(a).




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         3. WHETHER THE PCRA COURT ERRED AND MADE AN
         UNREASONABLE      FACTUAL     DETERMINATION    BY
         CONCLUDING THAT [APPELLANT] DID NOT PROPERLY
         PLEAD,   PROVE   AND    PRESENT    MR.   SKUTNIK’S
         INEFFECTIVENESS IN CORRELATION TO/IN CONJUNCTION
         WITH MR. LABAR’S INEFFECTIVENESS BY SUGGESTING
         THAT MR. ELLINGTON FAILED TO LAYER HIS CLAIMS?

         4. WHETHER THE PCRA COURT ABUSED ITS DISCRETION
         AND MADE AN UNREASONABLE FACTUAL DETERMINATION
         THAT MR. LABAR’S PERJURY WAS “FULLY EXAMINED?”

         5. DID THE PCRA COURT ERR WHEN IT UNREASONABLY
         APPLIED AND DETERMINED THAT MR. ELLINGTON DID
         NOT PRESENT ANY GENUINE ISSUES OF MATERIAL FACT?

         6. WHETHER THE PCRA COURT UNREASONABLY APPLIED
         THE “FAILURE TO AMEND/BRIEF A PRO SE PCRA” LINE OF
         CASES CONCLUDING THAT SUCH CASES PERTAIN ONLY
         TO PRO SE PCRAS DISMISSED WITHOUT A HEARING?

         7. WHETHER MR. ELLINGTON’S CLAIMS OF TRIAL/PCRA
         COUNSEL’S INEFFECTIVENESS LACKED MERIT AND/OR
         WERE PREVIOUSLY LITIGATED AND THEREBY WAIVED?

         8. WHETHER THE PCRA COURT ERRED IN NOT FINDING
         PCRA COUNSEL INEFFECTIVE FOR FAILING TO RAISE
         OTHERWISE MERITORIOUS ISSUES OR CONSIDERED TO
         HAVE RAISED AN ISSUE AT ALL GIVEN HIS FAILURE TO
         AMEND [APPELLANT’S] PRO SE PCRA PETITION OR BRIEF
         IT?

         9. WHETHER [APPELLANT] IS NOW SERVING AN ILLEGAL,
         MANDATORY MINIMUM SENTENCE IMPOSED UNDER 18
         PA.C.S.A. § 7508 IN LIGHT OF SEVERAL RECENT CASE
         DECISIONS    DECLARING     THE  STATUTE    “FACIALLY
         UNCONSITUTIONAL” BASED UPON THE HOLDINGS OF
         ALLEYNE V. U.S., ___ U.S. ___, 133 S.CT. 2151 (2013)
         AND COMMONWEALTH V. NEWMAN, 99 A.3D 86
         (PA.SUPER.2014) (en banc)?

Appellant’s Brief at 4-5 (verbatim).




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         Additionally, Appellant raised the following issue is his supplemental

brief:

           WHETHER THE UNITED STATES SUPREME COURT’S
           RECENT DECISION IN RODRIGUEZ V. UNITED STATES,
           13-9972 (2015) APPLIES HERE[, WHERE APPELLANT’S]
           CONSTITUTIONAL SHIELD AGAINST UNREASONABLE
           SEARCH AND SEIZURE WAS VIOLATED DURING THE
           ROUTINE TRAFFIC STOP THAT WAS CONTINUED AND
           DELAYED FOR PURPOSES OF BRINGING A DRUG
           INTERDICTION   K-9   TO   THE  SCENE   FOR   AN
           INVESTIGATIVE SEARCH?

Appellant’s Supplemental Brief at 1.

         Before we address the merits of Appellant’s claims, we must determine

whether his PRCA petition was timely.        The timeliness of a PCRA petition

implicates the jurisdiction of both this Court and the PCRA court.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal

denied, 50 A.3d 121 (Pa.2012).         “Pennsylvania law makes clear that no

court has jurisdiction to hear an untimely PCRA petition.”     Id. To “accord

finality to the collateral review process[,]” the PCRA “confers no authority

upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA

timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With

respect to timeliness under the PCRA, this Court has further explained:

           The most recent amendments to the PCRA...provide a
           PCRA petition, including a second or subsequent petition,
           shall be filed within one year of the date the underlying
           judgment becomes final. A judgment is deemed 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.

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

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);

see also 42 Pa.C.S. § 9545.

       Here, Appellant’s judgment of sentence became final on March 28,

2011, when Appellant’s time for seeking review with our Supreme Court

expired.10 See Monaco, supra. Therefore, he had until March 28, 2012 to

timely file a PCRA petition. Thus, his second PCRA petition, filed September

8, 2014, is patently untimely.

       This Court may review a PCRA petition filed more than one year after

the judgment of sentence becomes final only if the claim falls within one of

the following three statutory exceptions, which the petitioner must plead and

prove:

              (i) the failure to raise the claim 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
____________________________________________


10
  This period would have expired on March 27, 2011. However, as March
27, 2011 fell on a Sunday, Appellant had until March 28, 2011 to file a
petition for allowance of appeal to our Supreme Court.



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             provided in this section and has been held by that court
             to apply retroactively.

42 Pa.C.S. § 9545(b)(1).            Further, if a petition pleads one of these

exceptions, the petition will not be considered unless it is “filed within 60

days of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2).11

       Here, Appellant fails to plead and prove any of the exceptions to the

PCRA time bar. Accordingly, we affirm.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2016




____________________________________________


11
   On page 12 of his brief, Appellant contends his petition is properly before
us because he filed his second PCRA petition within sixty days of our
Supreme Court’s denial of his petition of allowance of appeal for the order
denying his first PCRA petition. Filing a timely PCRA petition, however, does
not toll the period for filing a subsequent PCRA petition.                See
Commonwealth v. Rienzi, 827 A.2d 369, 371 (Pa.2003) (“the PCRA
jurisdictional time limitation is not subject to equitable principles such as
tolling.”) (citation omitted).



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