J-S19033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

§COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
RAYNARD GRAVES,                            :
                                           :
                   Appellant               :          No. 2546 EDA 2014

             Appeal from the PCRA Order entered on July 21, 2014
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, No(s): CP-51-CR-0810851-1994;
             CP-51-CR-0810861-1994; CP-51-CR-0810871-1994;
              CP-51-CR-0907261-1994; CP-51-CR-1000861-1994

BEFORE: STABILE, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED APRIL 29, 2015

        Raynard Graves (“Graves”), pro se, appeals from the Order dismissing

his second Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        In 1995, after two separate trials, Graves was convicted of aggravated

assault, recklessly endangering another person, violations of the Uniform

Firearms Act, possessing instruments of crime, and four counts of robbery.1

The trial court sentenced Graves to an aggregate term of 52½ to 105 years

in prison.

        Graves appealed his judgments of sentence, which were consolidated

for review. This Court affirmed the judgments of sentence in 1997, and the



1
    18 Pa.C.S.A. §§ 2702, 2705, 6106, 6108, 907, 3701.
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Pennsylvania   Supreme     Court    denied   allowance     of   appeal.      See

Commonwealth v. Graves, 698 A.2d 1345 (Pa. Super. 1997) (unpublished

memorandum), appeal denied, 723 A.2d 670 (Pa. 1998).

      Graves filed his first PCRA Petition, pro se, on December 27, 2007.

The PCRA court appointed counsel, who determined that Graves’s Petition

was untimely filed and filed a Petition to withdraw from representation

pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

The PCRA court granted counsel’s Petition and dismissed Graves’s Petition as

untimely.   This Court affirmed the dismissal.       See Commonwealth v.

Graves, 984 A.2d 1013 (Pa. Super. 2009) (judgment order).

      Graves filed the instant PCRA Petition in 2012. After issuing a Notice

of Intent to Dismiss, the PCRA court dismissed the Petition as untimely.

Graves filed a timely Notice of Appeal.

      On appeal, Graves raises the following question for our review:

“Whether the trial court improperly denied [Graves’s] PCRA [P]etition as

untimely without a hearing[?]” Brief for Appellant at 3.

             We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).




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      Graves claims that the PCRA court erred in dismissing his Petition

without a hearing.   Brief for Appellant at 7.   Graves argues that his trial

counsel was ineffective for advising him against accepting the plea deal

offered by the Commonwealth. Id.

      Initially, under the PCRA, any PCRA petition “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment

of sentence becomes final “at the conclusion of direct review, including

discretionary review in the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” Id. § 9545(b)(3). The PCRA’s

timeliness requirements are jurisdictional in nature and a court may not

address the merits of the issues raised if the PCRA petition was not timely

filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, Graves’s Petition is facially untimely under the PCRA.    See 42

Pa.C.S.A. § 9545(b).     However, Pennsylvania courts may consider an

untimely petition if the appellant can explicitly plead and prove one of three

exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition

invoking one of these exceptions “shall be filed within 60 days of the date

the claim could have been presented.”     Id. § 9545(b)(2); Albrecht, 994

A.2d at 1094.

      Here, Graves invokes the newly recognized constitutional right

exception at 42 Pa.C.S.A. § 9545(b)(1)(iii). Graves asserts that the United



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States Supreme Court’s decisions in Missouri v. Frye, 132 S. Ct. 1399

(2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), which extended the

Sixth Amendment right to counsel to the plea-bargaining process, recognize

a new constitutional right that can overcome the PCRA’s time bar. Brief for

Appellant at 10-11.

      However, Graves did not meet the 60-day filing requirement set forth

in 42 Pa.C.S.A. § 9545(b)(2). The United States Supreme Court issued the

Frye and Lafler decisions on March 21, 2012.        Graves did not file the

instant Petition until August 21, 2012. Graves argues that he satisfied the

timeliness requirement because he filed the Petition within 60 days of

learning about the Frye and Lafler decisions.     Brief for Appellant at 11.

However, the newly recognized constitutional right exception must be raised

within 60 days of the date of the underlying judicial decision, regardless of

when the defendant learned about the decision.      See Commonwealth v.

Boyd, 923 A.2d 513, 517 (Pa. Super. 2007). Thus, Graves failed to timely

invoke the exception provided by section 9545(b)(1)(iii).

      Furthermore, in order to invoke the newly recognized constitutional

right exception, the petitioner must demonstrate that the United States

Supreme Court or the Pennsylvania Supreme Court recognized a new

constitutional right.   Commonwealth v. Miller, 102 A.3d 988, 994 (Pa.

Super. 2014). This Court has explicitly held that Frye and Lafler did not

create a new constitutional right.   Commonwealth v. Feliciano, 69 A.3d



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1270, 1277 (Pa. Super. 2013); accord Commonwealth v. Hernandez, 79

A.3d 649, 654 (Pa. Super. 2013). Rather, Frye and Lafler merely extended

the existing Sixth Amendment right to the plea-bargaining process.

Feliciano, 69 A.3d at 1277.      Therefore, Graves has failed to plead and

prove the exception provided in 42 Pa.C.S.A. § 9545(b)(1)(iii) to overcome

the untimeliness of his Petition. See id.2

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/29/2015




2
  To the extent Graves claims that the ineffectiveness of his trial counsel
invoked an exception to the timeliness requirement, we affirm “that
allegations of ineffective assistance of counsel will not overcome the
jurisdictional timeliness requirements of the PCRA.” Commonwealth v.
Wharton, 886 A.2d 1120, 1127 (Pa. 2005). Further, Graves’s claim that
the PCRA court erred in dismissing his PCRA Petition without holding an
evidentiary hearing is without merit. “[I]t is well settled that the right to an
evidentiary hearing on a PCRA petition is not absolute, and the PCRA court
may decline to hold a hearing if the petitioner’s claims are patently frivolous
with no support in either the record or other evidence.” Commonwealth v.
Garcia, 23 A.3d 1059, 1066 n.9 (Pa. Super. 2011). In this case, where
Graves filed an untimely PCRA Petition and did not prove and plead an
exception to the timeliness requirement, we conclude that the PCRA court
did not abuse its discretion in declining to hold an evidentiary hearing. See
id.


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