J-S62041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

BILLY RAY ALLEN

                            Appellant                       No. 206 EDA 2014


                 Appeal from the PCRA Order December 18, 2013
              In the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-CR-0000048-1996


BEFORE: ALLEN, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                               FILED NOVEMBER 24, 2014

       Billy Ray Allen brings this appeal pro se from the order entered

December 18, 2013, in the Court of Common Pleas of Montgomery County,

dismissing,    as   untimely,     his   second   petition   filed   pursuant   to   the

Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546.

In this appeal, Allen presents 13 issues, of which the final two address the

timeliness of his PCRA petition.1 Based upon the following, we affirm.



____________________________________________


1
  In the first nine issues raised by Allen, he contends that he is entitled to
relief on the basis of prosecutorial misconduct. In his tenth issue, Allen
contends his trial counsel engaged in unethical acts of professional
misconduct. In the eleventh issue, Allen claims the trial court abused its
discretion and violated his constitutional rights to have his innocence
determined by a jury, when the trial judge denied his pro se motion for a
mistrial and appointment of new counsel. See Allen’s Brief at 4–5.
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        On November 27, 1996, a jury found Allen guilty of murder of the first

degree, robbery, and possession of an instrument of crime (PIC). 2                   On

December 3, 2006, following a penalty hearing, the jury did not impose the

death     penalty.     The    trial   court    thereafter   sentenced   Allen   to   life

imprisonment, a consecutive sentence of 10 to 20 years on the robbery

conviction, and a concurrent sentence of one to five years for the PIC

conviction. On May 14, 1998, this Court affirmed the judgment of sentence,

and on March 29, 1999, the Pennsylvania Supreme Court denied Allen’s

petition for allowance of appeal. Commonwealth v. Allen, 718 A.2d 853

[3996 PHL 1997] (Pa. Super. 1998) (unpublished memorandum), appeal

denied, 737 A.2d 1222 [466 MDA 1996] (Pa. 1999).

        On October 18, 1999, Allen filed his first PCRA petition, which was

unsuccessful.     See Commonwealth v. Allen, 778 A.2d 730 [1556 EDA

2000; 2782 EDA 2000] (Pa. Super. 2001) (unpublished memorandum),

appeal denied, 788 A.2d 731 [455 MAL 2001; 456 MAL 2001] (Pa. 2001).

Presently, we address Allen’s second PCRA petition, filed pro se on July 31,

2013.

        Preliminarilyy, we state the principles that guide our review:

        This Court’s standard of review regarding a PCRA court’s order is
        whether the determination of the PCRA court is supported by the
        evidence of record and is free of legal error. Great deference is
        granted to the findings of the PCRA court, and these findings will
____________________________________________


2
    18 Pa.C.S. §§ 2502(a), 3701, and 907, respectively.



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      not be disturbed unless they have no support in the certified
      record.

Commonwealth v. Turpin, 87 A.3d 384, ___ (Pa. Super. 2013) (citation

omitted). Furthermore,

      [a] PCRA petition, including a second or subsequent one, must
      be filed within one year of the date the petitioner's judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by
      [the Pennsylvania Supreme] Court or the United States Supreme
      Court, or at the expiration of the time for seeking such review.
      42    Pa.C.S.[A.]   §    9545(b)(3).    The    PCRA’s     timeliness
      requirements are jurisdictional; therefore, a court may not
      address the merits of the issues raised if the petition was not
      timely filed. The timeliness requirements apply to all PCRA
      petitions, regardless of the nature of the individual claims raised
      therein. The PCRA squarely places upon the petitioner the
      burden of proving an untimely petition fits within one of the
      three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16–17 (Pa. 2012) (case citations

and footnote omitted).

      Instantly, the Pennsylvania Supreme Court, on March 29, 1999,

denied Allen’s petition for allowance of appeal, filed following direct review of

his judgment of sentence.     As such, Allen’s judgment of sentence became

final on June 27, 1999, upon expiration of the 90-day appeal period for filing

a petition for writ of certiorari in the United States Supreme Court. See 42

Pa.C.S. § 9545(b)(3) (providing 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”); U.S.Sup.Ct. Rule 13 (allowing 90 days to file a



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petition for writ of certiorari). Therefore, Allen had one year from that date

to file a petition for collateral relief. See 42 Pa.C.S. § 9545(b)(1).

        Here, Allen filed the current petition on July 31, 2013, over 13 years

after his judgment of sentence became final. Therefore, Allen’s petition is

untimely on its face, and the PCRA court lacked jurisdiction unless Allen

pleaded and proved one of the statutory exceptions to the time bar. See 42

Pa.C.S. § 9545(b)(1)(i)-(iii).3

         Our review of the record in light of the PCRA timeliness requirements

and relevant case law confirms that the PCRA court correctly determined



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3
    The statutory exceptions that allow for review of an untimely petition are:

        (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). In addition, a PCRA petition invoking one of
these statutory exceptions must “be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).



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Allen’s petition was untimely and that he failed to prove a statutory

exception to the PCRA’s one year time-bar.

        In this appeal, Allen has acknowledged that he mistakenly relied on

the United States Supreme Court decision in McQuiggin v. Perkins, 133 S.

Ct. 1924 (2013), in invoking the PCRA’s exception for an after-recognized

constitutional right, 42 Pa.C.S. § 9545(b)(1)(iii). Allen concedes McQuiggin

does not satisfy this exception. See Allen’s Brief at 34.4 As the PCRA Court

aptly explained in its Pa.R.Crim.P. 907(1) notice:

        McQuiggin holds that, in federal habeas corpus proceedings,
        strict compliance with the one (1) year statute of limitations
        imposed by 28 U.S.C. § 2244(d) will not be required when the
        petitioner advances a convincing claim of actual innocence.
        Nowhere in McQuiggin does the Supreme Court of the United
        States announce that this holding recognizes any new
        constitutional right that is to be accorded retroactive effect.




____________________________________________


4
    Specifically, Allen states in his brief:

        Even though his PCRA Petition wa[s] facially untimely, Defendant
        thought nonetheless, that he was still entitled to proceed under
        the authority of McQuiggin[] vs. Perkins, 133 S. Ct. 1924,
        185 L.Ed.2d 1019 [decided May 28, 2013]. Defendant was
        under the presumption that the aforementioned ruling
        recognized a Constitutional Right that the State could review the
        merits of his claims under the authority of 42 Pa.C.S.A. §
        9545([b])(1)(iii). This Defendant acknowledges that he was
        mistaken.

Allen’s Brief at 34.



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PCRA Court Notice Pursuant to Pa.R.Crim.P. 907(1), 11/15/2013, at 8.

Therefore, the after-recognized constitutional right exception does not allow

review of Allen’s untimely petition.

      Furthermore, Allen did not raise any other statutory exception in his

PCRA petition. Accordingly, we agree with the Commonwealth that Allen has

waived his argument raised in his brief filed with this Court that 42 Pa.C.S. §

9545(b)(1)(i) and (ii) allow review of his claims.      See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”); Commonwealth v. Burton, 936 A.2d 521, 525

(Pa. Super. 2007) (“[E]xceptions to the time bar must be pled in the PCRA

petition, and may not be raised for the first time on appeal.”), appeal

denied, 959 A.2d 957 (Pa. 2008).

      Accordingly, there is no basis upon which to disturb the decision of the

Honorable William T. Nicholas that dismissed Allen’s second PCRA petition as

untimely and satisfying no statutory exception to the time bar.


      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/24/2014



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