J-S12022-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WENDELL HILL                               :
                                               :
                       Appellant               :   No. 2663 EDA 2019

             Appeal from the PCRA Order Entered August 27, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0004112-1983


BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY McCAFFERY, J.:                             FILED APRIL 21, 2020

        Wendell Hill (Appellant) appeals, pro se, from the order dismissing his

serial petition for collateral relief filed pursuant to the Post Conviction Relief

Act1 (PCRA). On appeal, he contends (1) the 1995 amendments to the PCRA,

which established the timing requirements, are unconstitutional; (2) the PCRA

court applied an incorrect time-bar to his claims; and (3) the court erred in

denying him relief on his claim of ineffectiveness of counsel. We affirm.

        The relevant factual and procedural history is set forth as follows.

Appellant is currently serving a mandatory sentence of life imprisonment,



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.§§ 9541-9546.
J-S12022-20


following his November 21, 1984, jury conviction of second degree murder

and robbery.2 This Court affirmed the judgment of sentence on March 17,

1987,3 the Pennsylvania Supreme Court denied allocator review on October 5,

1987, and the United States Supreme Court denied a petition for writ of

certiorari on January 11, 1988.          Commonwealth v. Hill, 2182 PHL 1986

(unpub. memo.) (Pa. Super. 1987), appeal denied, 532 A.2d 436 (Pa. 1987),

cert. denied, 484 U.S. 1019 (1988). Thus, Appellant’s judgment of sentence

became final in 1988.

        Since that time, Appellant has filed multiple PCRA petitions — in May of

1996, December of 1999, August of 2012, and May of 2015 — all of which

were denied by the PCRA court, and affirmed or dismissed by this Court on

appeal. See Commonwealth v. Hill, 4179 PHL 1996 (unpub. memo.) (Pa.

Super. 1997) (affirming order denying PCRA petition filed in May, 1996),

appeal denied, 704 A.2d 1380 (Pa. 1997); Commonwealth v. Hill, 959 EDA

2000 (Pa. Super. 2000) (dismissing appeal from order denying December,

1999 PCRA petition for failure to file brief); Commonwealth v. Hill, 1604


____________________________________________


2   18 Pa.C.S. §§ 2502(b), 3701(a)(1)(ii).

3  We note Appellant’s direct appeal was originally dismissed by this Court
because Appellant’s court appointed counsel failed to file a brief. See PCRA
Ct. Op., 7/17/86, at 1. However, Appellant filed a PCRA petition on July 17,
1986, which resulted in the reinstatement of his direct appeal rights nunc pro
tunc. We do not consider that initial petition when reviewing the timeliness of
the instant PCRA petition. See Commonwealth v. Turner, 73 A.3d 1283,
1286 (Pa. Super. 2013).


                                           -2-
J-S12022-20


EDA 2014 (judgment order) (Pa. Super. 2015) (affirming order dismissing

petition filed August, 2012); Commonwealth v. Hill, 1778 EDA 2016 (unpub.

memo.) (Pa. Super. 2017) (affirming order dismissing petition filed May,

2015). Appellant has also filed appeals from the PCRA Court’s denial of (1) a

motion to reinstate the appeal from his December 1999 petition, which was

dismissed for failure to file a brief, and (2) a motion to compel production of

transcripts and documents. See Commonwealth v. Hill, 1202 EDA 2001

(unpub. memo.) (Pa. Super. 2001), appeal denied, 797 A.2d 911 (Pa. 2002);

Commonwealth v. Hill, 746 EDA 2010 (unpub. memo.) (Pa. Super. 2011).

      On June 26, 2019, Appellant filed the instant PCRA petition. On July

23rd, the PCRA court issued its notice of intent to dismiss the petition without

first conducting an evidentiary hearing pursuant to Pa.R.Crim.P. 907. After

receiving no response from Appellant, the PCRA court dismissed the PCRA

petition on August 27, 2019. On September 12th, Appellant filed a timely

notice of appeal. The PCRA court did not order Appellant to file a Rule 1925(b)

statement of errors complained of on appeal.

      Appellant raises the following three issues on appeal:

      1. Do the 1995 amendments to PCRA procedure, being coerced
      and compelled by quid pro quo special rules favorable to a state
      party during federal habeas corpus review, violate the Tenth and
      Fourteenth Amendments, rendering the lower court’s enforcement
      of 42 Pa.C.S. § 9545(b)(1)-(2) null and void under the supreme
      laws of the land governing federalism and anti-commandeering
      principles?

      2. Did the lower court commit legal error or abuse discretion by
      applying a sixty-day jurisdictional bar to second or subsequent

                                     -3-
J-S12022-20


      filing of a PCRA petition when 42 Pa.C.S. § 9545(b)(2) has been
      amended to provide for a one-year jurisdictional timeliness bar for
      second/subsequent PCRA petitions?

      3. Did the lower court commit an error of law or abuse discretion
      by not abiding by the U.S. Constitution’s Article VI, Clause 2
      Supremacy Clause’s rules of decision which mandate the lower
      court to impartially and independently perform the original and
      equitable “function of the rule” retroactivity test of Teague v.
      Lane, 489 U.S. 288 (1989), as restored and reaffirmed in Welch
      v. U.S., 136 S.Ct. 1257 (2016) and constitutionalized under the
      Supremacy Clause in Montgomery v. Louisiana, 136 S.Ct. 718
      (2016); and did the lower court err as a matter of law and/or
      abuse discretion by determining that the timeliness exceptions at
      42 Pa.C.S. §§ 9545(b)(1)(ii)-(iii), and (2), in light of intervening
      changes in controlling substantive-functioning, watershed
      Procedural-functioning, and structural-functioning laws at
      Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018), U.S.
      v. Davis, 139 S.Ct. 2319 (2019), U.S.. v. Haymond, 139 S.Ct.
      2369 (2019), Mccoy v. Louisiana, 138 S.Ct. 1500 (2018), and
      Murphy v. NCAA, 138 S.Ct. 1481 (2018)?

Appellant’s Brief at 2.

      Our standard of review regarding the dismissal of a PCRA petition is as

follows:

      In reviewing the denial of PCRA relief, we examine whether the
      PCRA court’s determinations are supported by the record and are
      free of legal error. The PCRA court’s credibility determinations,
      when supported by the record, are binding on this Court; however,
      we apply a de novo standard of review to the PCRA court’s legal
      conclusions.

Commonwealth v. Goodmond, 190 A.3d 1197, 1200 (Pa. Super. 2018)

(citation omitted).

      “Crucial to the determination of any PCRA appeal is the timeliness of the

underlying petition. Thus, we must first determine whether the instant PCRA




                                     -4-
J-S12022-20


petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766, 768 (Pa.

Super. 2011).

      The PCRA timeliness requirement . . . is mandatory and
      jurisdictional in nature. The court cannot ignore a petition’s
      untimeliness and reach the merits of the petition.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013).

      In order to be considered timely filed, a PCRA petition, including a

second or subsequent petition, must be filed within one year of when a

petitioner’s judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1).

“[A] judgment becomes 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 the time for seeking

the review.” 42 Pa.C.S. § 9545(b)(3). The Supreme Court of Pennsylvania

has held that the PCRA’s time restriction is constitutionally sound.      See

Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa. 2004).

      Here, as this Court concluded in a prior appeal, Appellant’s judgment of

sentence became final in January 1988, when the United States Supreme

Court denied his petition for writ of certiorari. See 42 Pa.C.S. § 9545(b)(3);

Hill, 1778 EDA 2016 (unpub. memo at 4).         Therefore, Appellant’s present

PCRA petition, filed more than 30 years later, is facially untimely.

      Nevertheless, an untimely PCRA petition can overcome the jurisdictional

time-bar if the petitioner pleads and proves one of the three statutory

exceptions set forth in 42 Pa.C.S. § 9545(b)(1):


                                     -5-
J-S12022-20


           (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;

          (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. § 9545(b)(1)(i)-(iii). See Commonwealth v. Brandon, 51 A.3d

231, 233-34 (Pa. Super. 2012) (summarizing three PCRA timing exceptions:

“(1) interference by government officials in the presentation of the claim; (2)

newly discovered facts; and (3) an after-recognized constitutional right”)

(citation omitted). A petition invoking an exception to the time-bar must be

filed within one year of the date that the claim could have been presented. 42

Pa.C.S.A. § 9545(b)(2). If a petitioner fails to invoke a valid exception to the

PCRA time-bar, courts are without jurisdiction to review the petition or provide

relief. See Commonwealth v. Spotz, 171 A.3d 675, 729 (Pa. 2017) (holding

Supreme Court, like PCRA court, had no jurisdiction to consider petitioner’s

claim that state death penalty statute was unconstitutional when petitioner

could not satisfy timing exception).

      None of the three issues raised by Appellant successfully invoke an

exception to the PCRA’s timeliness requirements. In his first claim, Appellant

contends the timing requirements, enacted by the 1995 amendments to the


                                       -6-
J-S12022-20


PCRA, are unconstitutional because they violate the Tenth and Fourteenth

Amendments of the United States Constitution.           Appellant’s Brief at 6.

However, he fails to explain how this argument, made more than 20 years

after the amendments were enacted, satisfies one of the Section 9545(b)(1)

exceptions. To the extent he asserts the High Court’s decision in Murphy v.

National Collegiate Athletic Assoc., 138 S.Ct. 1461 (U.S. 2018), provides

him relief,4 we note that decision was filed on May 14, 2018, more than one

year before Appellant filed the present PCRA petition in June of 2019. See 42

Pa.C.S. § 9545(b)(2) (petition invoking timing exception must be filed within

one year of date claim could have been raised). Accordingly, Appellant’s first

issue does not satisfy a timing exception.

        In his second argument, Appellant avers the PCRA court erred by

improperly applying the “old ‘sixty day’ jurisdictional bar” to his petition when

the statute was amended in 2018 to provide for a one-year filing period.

Appellant’s Brief at 8; see 42 Pa.C.S. § 9545(b)(2). Appellant is correct that

in 2018, Section 9545(b)(2) was amended to extend the time a petitioner has

to invoke a timing exception from within 60 days to “within one year of the

date the claim could have been presented.” See 42 Pa.C.S. § 9545(b)(2);

Section 3 of Act 2018, Oct. 24, P.L. 894, No. 146, effective in 60 days. The

Act amending the statute specified “the amendment of [subsection]


____________________________________________


4   Appellant’s Brief at 7.


                                           -7-
J-S12022-20


(b)(2) .. . . shall apply to claims arising on Dec. 24, 2017 or thereafter.”

Section 3 of Act 2018, Oct. 24, P.L. 894, No. 146, effective in 60 days.

Therefore, to the extent Appellant could establish a timing exception that

arose after December 24, 2017, we agree the PCRA court applied the

incorrect statute. However, the court’s citation to the prior statute, alone,

provides no basis for relief, particularly since we conclude Appellant has not

successfully invoked any of the timing exceptions.

       Third, Appellant argues the Pennsylvania Supreme Court’s decision in

Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018), should be applied

retroactively to provide him with relief based upon the ineffective assistance

of all his prior counsel. Appellant’s Brief at 10. The Peterson decision was

decided on September 21, 2018, and Appellant filed his present petition less

than one year later, on June 26, 2019.5 See 42 Pa.C.S. § 9545(b)(2).

       In   Peterson,      the    Supreme      Court   held   that   PCRA   counsel’s

ineffectiveness may constitute a newly discovered fact for purposes of the

Section 9545(b)(1)(ii) timing exception “where PCRA counsel’s ineffectiveness

per se completely forecloses review of collateral claims.” Peterson, 192 A.3d

at 1130. In that case, the Court concluded PCRA “[c]ounsel's untimely filing

of [the petitioner’s] first PCRA petition[, just one day late,] constituted

____________________________________________


5 Because this potential “claim” arose after December 24, 2017, we conclude
the amended version of Section 9545(b)(2) applies. See Section 3 of Act
2018, Oct. 24, P.L. 894, No. 146, effective in 60 days.



                                           -8-
J-S12022-20


ineffectiveness per se, as it completely foreclosed [him] from obtaining review

of the collateral claims set forth in his first PCRA petition.”6 Id. at 1132.

       Appellant does not argue his prior counsel was ineffective per se;7

rather, he asserts Peterson set forth a “newly recognized constitutional right”

under Section 9545(b)(1)(iii), which must be applied retroactively to his case

based upon the Supreme Court’s prior ruling in Montgomery v. Louisiana,

136 S. Ct. 718 (U.S. 2016). Appellant’s Brief at 10.

       We find Appellant’s argument is misplaced. In Montgomery, the United

States Supreme Court considered whether states could refuse to give

retroactive effect to its prior decision in Miller v. Alabama, 132 S. Ct. 2455

(U.S. 2012), which held “a juvenile convicted of a homicide offense could not

be sentenced to life in prison without parole absent consideration of the

juvenile's special circumstances in light of the principles and purposes of

juvenile sentencing.” Montgomery, 136 S.Ct. at 725. The Montgomery

Court held states could not refuse to apply the Miller decision: “Where state

collateral review proceedings permit prisoners to challenge the lawfulness of

their confinement, States cannot refuse to give retroactive effect to a


____________________________________________


6  We note the PCRA court in Peterson “made factual findings that [the
petitioner] did not know about the untimely filing and could not have
ascertained this fact through the exercise of due diligence[, and that he] filed
his second PCRA petition within sixty days after he learned of the untimely-
filed petition.” Peterson, 192 A.3d at 1130-31.

7 In fact, in his brief, Appellant does not even articulate how prior counsel was
ineffective. Appellant’s Brief at 8-11.

                                           -9-
J-S12022-20


substantive constitutional right that determines the outcome of that

challenge.” Id. at 731-32.

      Here, however, Appellant seeks to apply Peterson – a decision by the

Pennsylvania Supreme Court – retroactively, when the “right” at issue in

that case is not a new substantive constitutional claim, and it has not been

held by that court to apply retroactively. See 42 Pa.C.S. § 9545(b)(1)(iii).

Thus, we conclude neither Peterson nor Montgomery provides Appellant

with a basis for relief.

      Therefore, we agree with the determination of the PCRA court that

Appellant’s petition was not timely filed and he failed to plead and prove any

of the time for filing exceptions. Thus, we affirm the order denying relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/21/2020




                                    - 10 -
