J-S65043-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                                           :
              v.                           :
                                           :
    DAVID SHEPPARD,                        :
                                           :
                   Appellant               :           No. 851 EDA 2016

                 Appeal from the PCRA Order February 19, 2016
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, No(s): CP-51-CR-0104702-1993

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED NOVEMBER 16, 2017

        David Sheppard (“Sheppard”) appeals from the Order dismissing his

third Petition filed pursuant to the Post Conviction Relief Act (“PCRA”). See

42 Pa.C.S.A. §§ 9541-9546.          Additionally, Earl G. Kauffman, Esquire

(“Attorney Kauffman”), has filed an Application to Withdraw as counsel, and

an accompanying brief.1        We grant Attorney Kauffman’s Application to

Withdraw and affirm the PCRA court’s Order.




1
   Attorney Kauffman’s appellate brief appears to be in the nature of a brief
filed pursuant to Anders v. California, 386 U.S. 738 (1967), which applies
when counsel seeks to withdraw from representation on direct appeal. When,
as in this case, counsel seeks to withdraw from representation on collateral
appeal, the dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc),
are applicable. However, because an Anders brief provides greater protection
to a defendant, this Court may accept an Anders brief in lieu of a
Turner/Finley “no-merit” letter. See Commonwealth v. Reed, 107 A.3d
137, 139 n.5 (Pa. Super. 2014).
J-S65043-17


      The PCRA court aptly summarized the relevant factual and procedural

history, which we adopt for the purpose of this appeal.     See PCRA Court

Opinion, 12/13/16, at 1-3.

      On May 9, 2017, Attorney Kauffman filed an Application to Withdraw as

counsel.

      Before addressing Sheppard’s claims, we must determine whether

Attorney Kauffman complied with the requirements of Turner/Finley in

petitioning to withdraw as counsel. Pursuant to Turner/Finley, independent

review of the record by competent counsel is required before withdrawal on

collateral appeal is permitted. See Commonwealth v. Pitts, 981 A.2d 875,

876 n.1 (Pa. 2009). Such independent review requires proof of

      1) A “no-merit” letter by PCRA counsel detailing the nature and
      extent of his review;

      2) The “no-merit” letter by PCRA counsel listing each issue the
      petitioner wished to have reviewed;

      3) The PCRA counsel’s “explanation”, in the “no-merit” letter, of
      why the petitioner’s issues were meritless;

      4) The [] court conducting its own independent review of the
      record; and

      5) The [] court agreeing with counsel that the petition was
      meritless.

Id. (citation and brackets omitted).

      Here, Attorney Kauffman indicated that he had reviewed the record,

identified the issues that Sheppard seeks to raise, and explained why the

issues lack merit. In addition, Attorney Kauffman sent Sheppard copies of the


                                 -2-
J-S65043-17


Turner/Finley brief and Application to Withdraw, and advised him of his

rights to retain alternate counsel or to proceed pro se in the event that the

court    granted    Attorney    Kauffman     permission     to        withdraw.   See

Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). Thus, we

conclude that Attorney Kauffman has substantially complied with the

procedural     requirements    necessary    to   withdraw        as    counsel.   See

Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003)

(holding that substantial compliance with the procedural requirements to

withdraw as counsel will satisfy the Turner/Finley criteria).

        We now independently review Sheppard’s claims to ascertain whether

they entitle him to relief.

        In the Turner/Finley brief, Attorney Kauffman raises the following

issues for our review:

        1. Whether trial counsel was ineffective for failing to communicate
        [the] Commonwealth’s offer to [Sheppard], and then telling the
        prosecutor that [Sheppard] declined the offer[?]

        2. Whether [Sheppard’s] mandatory minimum sentence for
        murder of the second degree is unconstitutional[,] and
        therefore[,] his sentence of life without the possibility of parole is
        illegal[?]

Turner/Finley Brief at 4 (some capitalization omitted).2

               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


2
  Sheppard did not file a separate pro se brief, nor did he retain alternate
counsel.


                                     -3-
J-S65043-17


      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).

      As an initial matter, we observe that the PCRA court set forth the

relevant law regarding the PCRA’s timeliness requirements, which we

incorporate as though fully set forth herein, and properly determined that

Sheppard’s third Petition is patently untimely.       See PCRA Court Opinion,

12/13/16, at 3-6.

      In his first claim, Sheppard attempts to invoke the newly-recognized

constitutional right exception based on the United States Supreme Court’s

decisions in Lafler v. Cooper, 566 U.S. 156 (2012), and Missouri v. Frye,

566 U.S. 134 (2012), and asserts that his trial counsel was ineffective for

failing to communicate the Commonwealth’s offer for a plea deal before

declining the offer. Turner/Finley Brief at 4, 8.

      In its Opinion, the PCRA court set forth the relevant law, considered

Sheppard’s first claim, and concluded that Sheppard failed to plead and prove

the newly-recognized constitutional right exception to the PCRA’s timeliness

requirement. See PCRA Court Opinion, 12/13/16, at 6-10. We agree with

the PCRA court’s conclusion that Sheppard is not entitled to relief, and affirm

on this basis as to Sheppard’s first claim. See id.

      In his second claim, Sheppard attempts to invoke the newly-recognized

constitutional right exception based on the United States Supreme Court’s


                                  -4-
J-S65043-17


decision in Alleyne v. United States, 133 S. Ct. 2151 (2013),3 and argues

that his sentence is illegal because he was subject to a mandatory minimum

sentence for his second-degree murder conviction. Turner/Finley Brief at 4,

8.4

      Initially, Alleyne is not applicable to the instant case.     Sheppard

received a mandatory sentence pursuant to 18 Pa.C.S.A. § 1102(b), which

provides that “a person who has been convicted of murder of the second

degree … shall be sentenced to a term of life imprisonment.” Thus, the “fact”




3
  In Alleyne, the Supreme Court held that any fact that increases the sentence
for a given crime must be submitted to the jury and found beyond a
reasonable doubt. Alleyne, 133 S. Ct. 2155. The Supreme Court reasoned
that a Sixth Amendment violation occurs where these sentence-determinative
facts are not submitted to a jury. Id. at 2156.

4
  We observe that Sheppard filed the instant pro se Petition in 2012, before
the date of the Alleyne decision (June 17, 2013), and the counseled Amended
Petition, which was filed in 2015, did not contain an Alleyne claim. Sheppard,
pro se, responded to the PCRA court’s Pa.R.Crim.P. 907 Notice of its intention
to dismiss Sheppard’s Petition with two additional filings, in which he
challenged the legality of his sentence pursuant to Alleyne. The PCRA court
observed that “petitioners may not automatically ‘amend’ their PCRA petitions
via responsive pleadings.” PCRA Court Opinion, 12/13/16, at 10 n.8 (quoting
Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014)).
Additionally, on November 28, 2016, approximately nine months after filing a
direct appeal from the dismissal his third Petition, Sheppard, pro se, filed a
fourth PCRA Petition, again arguing that his sentence is illegal pursuant to
Alleyne. “[W]hen an appellant’s PCRA appeal is pending before a court, a
subsequent PCRA petition cannot be filed until the resolution of review of the
pending PCRA petition by the highest state court in which review is sought, or
upon the expiration of the time for seeking such review.” Commonwealth
v. Lark, 746 A.2d 585, 588 (Pa. 2000). However, because Attorney Kauffman
raised the Alleyne claim in the Turner/Finley brief, we will consider
Sheppard’s second claim.


                                 -5-
J-S65043-17


that led to Sheppard’s life sentence was his jury conviction of second-degree

murder, and the trial court engaged in no fact-finding at sentencing.

      Moreover, the rule established in Alleyne does not apply retroactively

where, as here, the judgment of sentence is final. See Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016) (holding that “Alleyne does not

apply retroactively to cases pending on collateral review”); see also

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (stating that

while Alleyne claims go to the legality of the sentence, a court cannot review

a legality claim where it does not have jurisdiction). Thus, Sheppard is not

entitled to relief on his second claim.

      Finally, our independent review of the record has revealed no

meritorious claims that Sheppard could have raised on appeal, and we agree

with Attorney Kauffman that this appeal lacks merit. Accordingly, we grant

Attorney Kauffman’s Application to Withdraw and affirm the PCRA court’s

Order denying Sheppard’s third PCRA Petition.

      Application to Withdraw granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2017




                                   -6-
                                                                                       Circulated 10/17/2017 02:33 PM




                      IN THE COURT OF COMMON PLEAS
                    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                        TRIAL DIVISION - CRIMINAL SECTION


COMMONWEALTH            OF                                   CP-51-CR-0104702-1993
PENNSYLVANIA



       vs.

                                                             SUPERIOR COURT
DAVID SHEPPARD                                               851 EDA 2016


                                                                      CP-51-CR-0104702-1993 C
                                                                                          Opini~m. v Sheppard, David
                                          OPINION

                                                                         Ill/IIIll7876465221
                                                                                     IIIllIllIIII IIll
GEROFF,J.
                               Flt.FD                        DECEMBER 13, 2016
                                DEC 1 3 2016

                         R~f~~~1~µ61~ii11: g;~A   1




       Petitioner, David Sheppard, has filed an appeal of this court's order denying his amended

petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq ..



I. PROCEDURAL HISTORY

       On May 12, 1994, after a jury trial before Judge Eugene H. Clarke, Jr., Petitioner was

found guilty of murder of the second degree, two (2) counts of robbery, two (2) counts of

criminal conspiracy, simple and aggravated assault, possessing an instrument of crime, carrying
firearms on public streets or public property, and recklessly endangering another person.1                        On

January 5, 1995, Petitioner received a mandatory sentence of life imprisonment without parole

on the charge of murder of the second degree and concurrent sentences on all other charges

except for one count of criminal conspiracy for which no further penalty was imposed. At trial,

Petitioner was represented by Leon Martelli, Esquire.

        Petitioner filed a Notice of Appeal with the Pennsylvania Superior Court.2 On June 22,

2000, the Pennsylvania Superior Court affirmed his judgments of sentence. On March 13, 2001,

Petitioner's petition for allowance of appeal was denied by the Pennsylvania Supreme Court.

        On September 17, 2001, Petitioner timely filed his first pro se PCRA petition.3 Petitioner

subsequently received court-appointed counsel who filed a No-Merit Letter pursuant to

Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213 (1988) (en bane) (establishing the

procedure for withdrawal of court-appointed counsel from representing a petitioner on collateral

review). After conducting a review of the record, the PCRA court denied Petitioner's Petition as

meritless and permitted counsel to withdraw representation.

        Petitioner filed a Notice of Appeal; on September 29, 2003, the Pennsylvania Superior

Court affirmed the PCRA court's decision. On May 24, 2004, the Pennsylvania Supreme Court

denied Petitioner's Petition for Allowance of Appeal.

         On June 9, 2008, Petitioner filed his second PCRA petition, which the PCRA court

         I
           Petitioner participated in the robbery of a drug store; during the commission of the crime, one of
Petitioner's co-conspirators shot and killed the pharmacist.
         2 Petitioner's direct appeal to the Superior Court was dismissed on two occasions because of his appellate

counsel's failure to file a brief. Petitioner's appellate rights were subsequently reinstated nune pro tune, and his
direct appeal was perfected.
         3
            Petitioner's petition was treated as his first PCRA petition as his earlier PCRA petitions resulted in the
nunc pro tune reinstatement of his direct appellate rights. See, e.g., Commonwealth v. Vega, 2000 PA Super 174,
754 A.2d 714, 716 (2000) ("If a first PCRA petition has resulted in reinstatement of appellate rights nune pro tune,
this court has the authority to treat a subsequently filed PCRA petition as a 'first petition."' (citations omitted).




                                                          2
denied as untimely on July 27, 2010. On August 19, 2010, Petitioner filed a Notice of Appeal;

on October 18, 2010, Petitioner's         appeal was denied by the Pennsylvania             Superior Court for

failure to comply with Pa.R.A.P. 3517.

        On April 12, 2012, Petitioner filed his third PCRA petition.              Thereafter, Earl Kaufmann,

Esquire, was appointed to represent Petitioner.             On May 28, 2015, Petitioner's        counsel filed a

Finley - No Merit Letter, which he subsequently withdrew. On July 22, 2015, counsel filed an

Amended PCRA Petition on Petitioner's behalf in which he argued that Petitioner's trial counsel

rendered ineffective assistance for failing to inform Petitioner about the Commonwealth's pre-

trial offer. On December 21, 2015, the Commonwealth filed a Motion to Dismiss.

        On December 23, 2015, this court filed a Notice Pursuant to Pennsylvania Rule of

Criminal Procedure 907 informing Petitioner of the forthcoming dismissal of his PCRA petition

as untimely. On January 15, 2016, Petitioner filed an Answer to PCRA Court's Notice to

Dismiss, and on February 16, 2016, Petitioner filed a Petition for Extraordinary Relief.

        On February 19, 2016, following a review of the record and the applicable law, this court

dismissed Petitioner's PCRA Petition as untimely.4                 On March 18, 2016, Petitioner filed a

Notice of Appeal.



II. STANDARD OF REVIEW

        Under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §9545(b), all PCRA petitions

must be filed within one year of the date on which the judgment became final, unless one of the

three statutory exceptions set forth in 42 Pa.C.S. §9545(b)(l) applies.



        4The
               dismissal occurred more than twenty days after Petitioner was served with notice of the forthcoming
dismissal of his PCRA petition. Pa. R. Crim. P. 907.



                                                        3
       Section 9545 (b)(l) provides in pertinent part:

       (b) Time for filing petition.-

      (1) Any petition under this subchapter, including a second or subsequent
      petition, shall be filed within one year of the date the judgment becomes
      final, unless the petition alleges and the petitioner proves that:

      (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.

       (2) Any petition invoking an exception provided in paragraph (1) shall be
       filed within 60 days of the date the claim could have been presented.

       (3) For purposes of this subchapter, 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 time for seeking the review.

42 Pa.C.S. §9545(b).

       The Pennsylvania Supreme Court has ruled that Pennsylvania courts have no jurisdiction

to hear untimely Post Conviction Relief Act petitions. Commonwealth v. Robinson, 575 Pa. 500,

508, 837 A.2d 1157, 1161 (2003); Commonwealth v. Hall, 565 Pa. 92, 95, 771 A.2d 1232, 1234

(2001). See also Commonwealth v. Yarris, 731 A.2d 581, 587 (Pa. 1999) (stating that all PCRA

petitions, "including second and subsequent ones, must be filed within one year of the date on

which the judgment became final, unless one of the three statutory exceptions . . . applies");

Commonwealth v. Perrin, 2008 PA Super 91, 13, 947 A.2d 1284, 1285 (2008) ("If the petition is

determined to be untimely, and no exception has been pled and proven, the petition must be



                                                 4
dismissed without a hearing because Pennsylvania courts are without jurisdiction to consider the

merits of the petition.").

        Claims of PCRA counsel's        ineffectiveness   do not save an otherwise untimely PCRA

petition for review on the merits. Commonwealth v. Morris, 573 Pa. 157, 822 A.2d 684, 694-95

(2003); Commonwealth v. Fahy, 558 Pa. 313, 330, 737 A.2d 214, 223 (1999).                    See also

Commonwealth v. Breakiron, 566 Pa. 323, 334, 781 A.2d 94, 100 (2001) ("[O]ur Court has

expressly rejected attempts to utilize ineffective assistance of counsel claims as a means of

escaping the jurisdictional time requirements for filing a PCRA Petition."); Commonwealth v.

Fowler, 2007 PA Super 219,       ,r   8, 930 A.2d 586, 591 (2007) ("[A]llegations of ineffective

assistance of counsel will not overcome the jurisdictional timeliness requirements of the

PCRA.") (citation omitted).


111. DISCUSSION

        As a preliminary matter, Petitioner's PCRA Petition is patently untimely. Here, the

Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal on March 13,

2001. Petitioner's judgments of sentence became final ninety days thereafter, on June 12, 2001,

upon expiration of the time for seeking discretionary review in the U.S. Supreme Court.            See

U.S.Sup.Ct.R. 13.1 (allowing 90 days for the filing of a petition for a writ of certiorari in the

U.S. Supreme Court). Petitioner had until June 12, 2002, to file a PCRA petition in a timely

manner. Accordingly, Petitioner's third PCRA Petition, filed on April 12, 2012, almost ten years

after his judgments of sentence became final, is time-barred unless one of the exceptions set forth

in 42 Pa.C.S. §9545(b)(l) is satisfied.

        Upon review of the record and the applicable law, this court concludes that Petitioner's

Petition is untimely and that, therefore, it has no jurisdiction to consider the merits of Petitioner's

                                                    5
untimely Petition. No relief is due.

        In his Amended            PCRA     Petition,   Petitioner    neither    acknowledges          his petition's

untimeliness nor unequivocally invokes any of the enumerated exceptions to the PCRA time-bar.

Petitioner argues that his trial counsel was ineffective for failing to inform him "that there was an

offer from the Commonwealth which could save him from sentences of life without parole for

felony murder."       Memorandum of Law in Support of Amended PCRA Petition for Non-Capital

Homicide by Petitioner David Sheppard, 07/22/2015, p. 2.

        Petitioner indicates that the trial court discussed the issue of an offer at a pre-trial motions

hearing on April 11, 1994 and that, according to the ADA, the offer was communicated to

Petitioner's counsel, Leon Martelli,5 who turned it down. Memorandum of Law, 07/22/2015, p.

3.6 Additionally, Petitioner points out that the offer, which the Commonwealth subsequently

withdrew, "was not put on the record at the motions hearing or at trial" and that the trial judge

did not conduct a colloquy with Petitioner about the offer. Memorandum of Law, 07/22/2015, p.

3.

        Petitioner notes, "Offers made by the Commonwealth must be communicated to the



        5
         On March 26, 2002, Attorney Martelli was disbarred by the Disciplinary Board of the Supreme Court of
Pennsylvania on a matter unrelated to Petitioner's case.
        6
            The following discussion occurred in the courtroom with regard to the Commonwealth's offer on April
11, 1994:

        MR. KING ... I will state for the record that initially and leading up to the start of this
        case there was [sic] some discussions about a possible plea on the part of one or two of
        the defendants; namely, Mr. Sheppard and Mr. Lilly. I have been told by detectives and
        counsel that our offer was rejected and for that purpose, the Commonwealth is
        withdrawing any offer heretofore made to those two people ....
        THE COURT: Were the offers or the discussions about the offers made with counsel?
        MR. KING: There were made with counsels' approval and ...
        THE COURT: Were they made with the defendants or with counsel?
        MR. KING: I believe one of them was made with counsel and the defendant. I believe
        the second one was made only to counsel and counsel relayed the responses to them.

N.T., 04/11/1994, pp. 9-10.

                                                         6
client in every case, regardless of the attorney's opinion about the advantages or disadvantages

of an offer.   It is unprofessional for an attorney not to communicate an Offer to a client. ... "

Memorandum of Law in Support of Amended PCRA Petition for Non-Capital Homicide by

Petitioner David Sheppard, 07/22/2015, pp. 4-5. Petitioner argues that there was no reasonable

basis for trial counsel to turn down that offer. He avers that there was reasonable probability that

if the offer had been accepted, the court would have agreed to its terms. He suggests that the

offer's terms would have been less severe than a sentence oflife without parole which was meted

to him for second-degree murder. Memorandum of Law, 07/22/2015, p. 4. Petitioner posits that

his trial counsel's omission "robbed [Petitioner] of the choice to accept an Offer," thereby

causing him undue prejudice. Memorandum of Law, 07/22/2015, p. 4.

       Under the law, Petitioner's claim of ineffective assistance of counsel does not constitute

an exception to the time-bar. This court agrees with the Commonwealth that to the extent

Petitioner implies that the U.S. Supreme Court's decisions in Lafler v. Cooper, 132 S. Ct. 1376,

182 L. Ed. 2d 398 (2012), and its companion case, Missouri v. Frye, 132 S. Ct. 1399, 182 L. Ed.

2d 379 (2012) allow him to meet the newly-recognized-constitutional-right exception under 42

Pa.C.S. § 9545(b)(l)(iii), that implication is misguided.       See Commonwealth's Motion to

Dismiss, 12/21/2015, p. 10.

        The U.S. Supreme Court's decisions in Lafler and Frye "raise relatively straightforward

questions about the scope of the right to effective assistance of counsel." Lafler, 132 S.Ct. at

1392 (Scalia, J., with whom Justice Thomas joins, and with whom The Chief Justice joins as to

all but Part IV, dissenting) ( emphasis added).

        Specifically, the Lafler Court addressed the question on "how to apply Strickland's

prejudice test where ineffective assistance results in a rejection of the plea offer and the



                                                  7
defendant is convicted at the ensuing trial"? and held that defendants' Sixth Amendment right to

counsel "extends to the plea-bargaining          process."    Id. at 1384 (citations omitted). The Lafler

Court noted, inter alia:

        The Sixth Amendment requires effective assistance of counsel at
        critical stages of a criminalproceeding. Its protections are not designed
        simply to protect the trial, even though "counsel's absence [in these
        stages] may derogate from the accused's right to a fair trial." United States
        v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The
        constitutional guaranteeapplies to pretrialcritical stages that are part
        of the whole course of a criminal proceeding, a proceeding in which
        defendants cannot be presumed to make critical decisions without
        counsel's advice.

132 S.Ct. at 1385 (emphasis added).

        In Frye, the Court provided the following guidance with regard to guilty plea offers:

        This Court now holds that, as a general rule, defense counsel has the duty
        to communicate formal offers from the prosecution to accept a plea on
        terms and conditions that may be favorable to the accused. . . . When
        defense counsel allowed the offer to expire without advising the defendant
        or allowing him to consider it, defense counsel did not render the effective
        assistance the Constitution requires.

132 S. Ct. at 1408.

        As our Superior Court emphasized in Commonwealth v. Feliciano, 2013 PA Super 163,

69 A.3d 1270, 1277 (2013), "neither Frye nor Lafler created a new constitutional right." Id. The

Court clarified that "these decisions simply applied the Sixth Amendment right to counsel,

and the Strickland test for demonstrating counsel's ineffectiveness, to the particular

        7 The Lafler Court explained that in order to meet the prejudice prong of the Strickland test in the context
where the alleged ineffectiveness of counsel involves the defendant's rejection of a plea offer, the defendant must
show
        that but for the ineffective advice of counsel there is a reasonable probability that the plea
        offer would have been presented to the court (i.e., that the defendant would have accepted
        the plea and the prosecution would not have withdrawn it in light of intervening
        circumstances), that the court would have accepted its terms, and that the conviction or
        sentence, or both, under the offer's terms would have been less severe than under the
        judgment and sentence that in fact were imposed.

132 S. Ct. at 1385.

                                                         8
circumstances at hand, i.e. where counsel's conduct resulted in a plea offer lapsing or being

rejected to the defendant's detriment." Id. at 1277 (emphasis added). See also Commonwealth v.

Lewis, 2013 PA Super 62, 63 A.3d 1274, 1280 (2013) ("The right to effective assistance of

counsel during the plea bargaining process has been recognized for decades."); Commonwealth

v. Hernandez, 2013 PA Super 243, 79 A.3d 649, 654 (2013) (neither Lafler nor Frye set forth a

constitutional right recognized by the U.S. Supreme Court that would provide appellant with an

exception to the PCRA timelines requirements).

       Moreover, under § 9545(b)(l)(iii), the new right asserted must be a constitutional right

recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania and

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

Commonwealth v. Wojtaszek, 2008 PA Super 119, 951 A.2d 1169, 1171 (2008) ("[A] petitioner

must prove that there is a "new" constitutional right and that the right "has been held" by that

court to apply retroactively.") (citation omitted); Commonwealth v. Copenhefer, 596 Pa. 104,

110, 941 A.2d 646, 649-50 (2007) ("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.") (citation and quotation omitted); Commonwealth v. Abdul-Salaam, 571 Pa. 219, 227, 812

A.2d 497, 502 (2002) ("[A] new rule of constitutional law is not made retroactive to cases on

collateral review unless the Supreme Court has held it to be retroactive") (citation and quotation

omitted).

       This court concludes, therefore, that the U.S. Supreme Court's decisions in Lafler and

Fry (which decisions did not announce a new constitutional right or applied it retroactively to

cases on collateral review) do not establish a basis for Petitioner to escape the PCRA's

jurisdictional time-bar.



                                                 9
        Petitioner    failed to comply with the timeliness               requirements      of the PCRA as his

ineffective-assistance-of-counsel        claim does not place his PCRA Petition within any of the

enumerated exceptions to the PCRA time-bar.                    Accordingly, this court lacks jurisdiction            to

consider Petitioner's untimely petition. No relief is due. 8




         8
            Additionally, upon review of the applicable law and Petitioner's responsive pleadings, "Answer to PCRA
Court's Notice to Dismiss Pro Se Petition for Habeas Corpus Relief Pursuant to Article I, Section 14 of the
Pennsylvania Constitution and for Post-Conviction Relief Pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §
9542 et seq.," 01/15/2016, p. 2 (raising an after-discovered evidence exception under 42 Pa.C.S. § 9545(b)(l)(ii))),
and "Motion for Extraordinary Relief Pursuant to 42 Pa.C.S § 5504-5505 and Article I, Section 14 of the
Pennsylvania Constitution and for Post-Conviction Relief Pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §
9542," 02/16/2016 (asserting a newly-recognized-constitutional-right exception under the authority of Alleyne v.
United States, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), Commonwealth v. Newman, 2014 PA Super 178, 99 A.3d
86 (2014), appeal denied, 121 A.3d 496 (Pa. 2015), Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), and
Montgomery v. Louisiana, 136 S. Ct. 718, 733-34, 193 L. Ed. 2d 599 (2016), as revised (Jan. 27, 2016)), this court
is satisfied that the supplemental claims Petitioner is raising therein are meritless and do not save Petitioner's third
PCRA Petition from the PCRA time-bar. Furthermore, as our Supreme Court emphasized, "petitioners may not
automatically "amend" their PCRA petitions via responsive pleadings." Commonwealth v. Baumhammers, 625 Pa.
354, 391, 92 A.3d 708, 730 (2014).


                                                          IO
IV. CONCLUSION

        Petitioner has failed to demonstrate any basis for relief. In the absence of any meritorious

challenge which can be found in the reviewable record, Petitioner has failed to articulate his

allegations   in accordance      with   the   requisites   of a claim   predicated   upon   counsel's

ineffectiveness.   No relief is due.

        For the foregoing reasons, Petitioner's petition for post-conviction     collateral relief was

properly dismissed.




                                                           BY THE COURT:




                                                           s~.




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