J-S51036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    RALPH J. SUNY                              :
                                               :
                      Appellant                :   No. 1192 EDA 2017

                   Appeal from the PCRA Order March 7, 2017
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006915-2003


BEFORE:      BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED AUGUST 17, 2017

        Appellant Ralph J. Suny appeals from the order of the Court of

Common Pleas of Delaware County dismissing Appellant’s petition pursuant

to the Post Conviction Relief Act (“PCRA”)1 as untimely filed.    We affirm.

        On May 29, 2004, a jury convicted Appellant of Driving Under the

Influence of a Controlled Substance (DUI).           On September 13, 2004, the

trial court sentenced Appellant to six to twenty-four months imprisonment.2

This Court affirmed the judgment of sentence on June 27, 2005, and the

Supreme Court of Pennsylvania denied allowance of appeal on July 6, 2007.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
2
 Appellant’s sentence in this case was set to run consecutively to sentences
on other dockets.
J-S51036-17



      On October 29, 2007, Appellant filed his first PCRA petition, which was

dismissed on October 7, 2008.     On May 19, 2011, Appellant filed his second

PCRA petition, which was dismissed on June 23, 2011. On August 22, 2016,

Appellant filed the instant PCRA petition.        The PCRA court appointed

Appellant counsel, who filed an application to withdraw and a “no-merit”

letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). On February

13, 2017, the PCRA court filed an order issuing notice of its intent to dismiss

the petition without a hearing and expressing agreement with appointed

counsel’s determination that this PCRA petition was untimely filed. Appellant

did not respond to this notice.       On March 17, 2017, the PCRA court

dismissed Appellant’s petition. This timely appeal followed.

      When reviewing the denial of a PCRA petition, our standard of review

is limited to examining whether the PCRA court's determination is supported

by evidence of record and whether it is free of legal error. Commonwealth

v. Smallwood, 155 A.3d 1054, 1059 (Pa.Super. 2017) (citations omitted).

As an initial matter, we must determine whether Appellant’s PCRA petition

was timely filed.      It is well-established that “the PCRA's timeliness

requirements are jurisdictional in nature and must be strictly construed;

courts may not address the merits of the issues raised in a petition if it is not

timely filed.” Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super.

2011) (citations omitted).




                                      -2-
J-S51036-17



      Generally, a PCRA petition must be filed within one year of the date

the judgment of sentence becomes final unless the petitioner meets his

burden to plead and prove one of the exceptions enumerated in 42 Pa.C.S.A.

§ 9545(b)(1)(i)-(iii), which include: (1) the petitioner’s inability to raise a

claim as a result of governmental interference; (2) the discovery of

previously unknown facts or evidence that would have supported a claim; or

(3) a newly-recognized constitutional right.   42 Pa.C.S.A. § 9545(b)(1)(i)-

(iii). However, the PCRA limits the reach of the exceptions by providing that

a petition invoking any of the exceptions must be filed within 60 days of the

date the claim first could have been presented. Leggett, 16 A.3d at 1146

(citing 42 Pa.C.S.A. § 9545(b)(2)).

      As noted above, the trial court sentenced Appellant on September 13,

2004, this Court affirmed the judgment of sentence on June 27, 2005, the

Supreme Court denied allowance of appeal on July 6, 2007. Appellant did

not seek review in the Supreme Court of the United States.             Section

9545(b)(3) of the PCRA provides that a judgment of sentence becomes final

at the conclusion of direct review or the expiration of the time for seeking

the review. 42 Pa.C.S.A. § 9543(b)(3). Appellant’s judgment of sentence

became final on October 4, 2007, after the expiration of the ninety-day

period in which he was allowed to seek review in the U.S. Supreme Court.

See U.S. Sup.Ct. R. 13(1) (stating “a petition for a writ of certiorari to

review a judgment in any case ... is timely when it is filed with the Clerk of

this Court within 90 days after entry of the judgment”). As such, Appellant

                                      -3-
J-S51036-17



needed to file his PCRA petition by October 4, 2008.       Appellant filed the

instant petition on August 22, 2016, nearly eight years past the deadline.

      Appellant claims that he is entitled to the application of the newly

recognized constitutional right timeliness exception in Section 9545(b)(1)(iii)

based on the recent decision of the United States Supreme Court in

Birchfield v. North Dakota, ---U.S.---, 136 S.Ct. 2160 (2016).                In

Birchfield, the High Court concluded that the search-incident-to-arrest

exception to the warrant requirement did not justify warrantless blood

testing of individuals arrested on DUI charges. In addition, the High Court

emphasized that “motorists cannot be deemed to have consented to a blood

test on pain of committing a criminal offense.” Id. at 2185-86.

      Appellant claims he was subjected to an unreasonable search in

violation of the Fourth Amendment and the holding in Birchfield when he

was forced to submit to a warrantless blood test incident to his lawful arrest

for DUI charges.   However, Appellant cannot rely on Birchfield to invoke

the newly recognized constitutional right timeliness exception, which only

applies if “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)(iii).     Our

Supreme Court has noted that the statutory phrase “has been held” is in the

past tense and thus provided the following:




                                     -4-
J-S51036-17


      These words mean that the action has already occurred, i.e.,
      “that court” has already held the new constitutional right to be
      retroactive to cases on collateral review. By employing the past
      tense in writing this provision, the legislature clearly intended
      that the right was already recognized at the time the petition
      was filed.

Commonwealth v. Abdul-Salaam, 571 Pa. 219, 226, 812 A.2d 497, 501

(2002).

      Even assuming arguendo that Birchfield did announce a new

constitutional right, neither our Supreme Court nor the United States

Supreme Court has held that Birchfield is to be applied retroactively to

cases in which the judgment of sentence had become final. This is fatal to

Appellant's argument regarding the PCRA time-bar.           Accordingly, as

Appellant failed to prove an applicable exception to the PCRA timeliness

requirements, we conclude       that the PCRA court correctly dismissed

Appellant’s PCRA petition as untimely filed.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2017




                                     -5-
J-S51036-17




              -6-
