J-S75021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

JOSEPH D. REAVES

                            Appellant                      No. 433 EDA 2014


                  Appeal from the PCRA Order January 17, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1219021-1987


BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.:                             FILED DECEMBER 23, 2014

        Joseph D. Reaves (Reaves) appeals, pro se, from the order of the

Court of Common Pleas of Philadelphia County dismissing his petition

brought pursuant to the Post-Conviction Relief Act (PCRA).1               Upon careful

review, we affirm.

        The underlying facts of the case are as follows.             After luring an

insurance adjuster inside his home under false pretenses, Reaves brutally

and repeatedly beat and raped the victim overnight before driving her to

another county and dumping her in a secluded area.                On April 4, 1988,

Reaves     pled   guilty    to   rape,   involuntary   deviate   sexual   intercourse,

aggravated assault, simple assault, kidnapping, and robbery. The Honorable

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
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Jane Cutler Greenspan sentenced Reaves to an aggregate prison term of

22½ to 90 years. Reaves did not file a petition to withdraw his guilty plea

nor did he file a direct appeal from his judgment of sentence.

      On September 10, 1991, Reaves filed his first PCRA petition, which

was dismissed on July 12, 1993 after his appointed counsel filed a

Finley/Turner “no merit” letter.       Our Court affirmed the dismissal on

August 11, 1994. No further appeal was taken.

      Reaves filed the current pro se petition on November 29, 2010.          On

January 17, 2014, the PCRA court dismissed the petition as untimely and

noted that the court did not have jurisdiction to consider the petition.

Reaves filed a timely notice of appeal on January 30, 2014. Upon receipt of

a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, the PCRA

court filed its Rule 1925(a) opinion on April 29, 2014.

      The PCRA requires that all petitions for relief be filed within one year of

conclusion of direct review, unless the petitioner demonstrates that his

untimely filing is excused by one or more of three statutorily enumerated

exceptions.   42 Pa.C.S. § 9545(b)(1).      Compliance with the timely filing

requirement is excused only where: (i) the failure to raise the claim 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 laws

of the United States; (ii) the facts forming the basis of the claim were

unknown to the petitioner and could not have been ascertained by the

exercise of due diligence (newly-discovered evidence); (iii) the right

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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 and has been held by that court to apply retroactively. 42

Pa.C.S. § 9545(b)(1)(i)-(iii).2

       A petition invoking one or more of these claimed exceptions must be

filed within sixty days of the date that the claim could first have been

presented.     Id.    Absent such an exception, the courts lack authority to

entertain an untimely petition because the PCRA’s time-bar provisions are

jurisdictional in nature. See Commonwealth v. Johnson, 841 A.2d 136,

140 (Pa. Super. 2003); Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999).

The petitioner bears the burden to demonstrate that the exception to the

time bar applies, Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa.

1999), and that his petition was “filed within sixty days of the date the claim

could have been presented.” 42 Pa.C.S. § 9545(b)(2).

       Here, Reaves’ judgment of sentence became final on August 29, 1988,

because Reaves failed to seek review within the thirty-day period available

for filing an appeal. See Pa.R.A.P. 903(a). Reaves sought PCRA collateral

relief in 1991, which was dismissed as untimely.           Reaves waited an
____________________________________________


2
 Pursuant to the 1995 Amendments to the PCRA, if a judgment of sentence
became final before January 16, 1996, the petitioner had until January 16,
1997 to file his petition. Reaves exhausted this option when he filed his first
untimely PCRA petition in 1991. Additionally, because this case involves
Reaves’ second petition, which he filed in 2010, the grace period has long
expired.



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additional nineteen years before filing the instant PCRA petition in 2010.

Thus, for PCRA relief to be granted, Reaves is required to prove an exception

to the time-bar.

      Reaves argues that the “PCRA erred by rejecting newly discovered

evidence of military induced Post-Traumatic Stress Disorder (PTSD), the

same diagnosis available in 1988, yet the Court rush [sic] to sentence

Appellant.” Brief for Appellant, at 7.

      To satisfy the criteria for newly-discovered evidence, a petitioner must

show that the evidence: (1) has been discovered after the trial and could not

have been obtained prior to the conclusion of trial; (2) is not merely

corroborative or cumulative; (3) will not be used for impeachment purposes;

and (4) is of such a nature and character that a different verdict will likely

result if a new trial is granted. Commonwealth v. Henry, 706 A.2d 313,

321 (Pa. 1997).

      Here, Reaves’ diagnosis of PTSD cannot be deemed newly discovered

because the diagnosis was available in 1988 at the time of sentencing. See

Henry, supra.      Additionally, at sentencing, counsel brought to the court’s

attention Reaves’ emotional problems while in the Army.       N.T. Sentencing

Hearing, 7/28/88, at 8-9. Accordingly, Reaves fails to establish the newly

discovered evidence exception.

      Reaves further claims that the PCRA Court erred by not granting a

hearing based on a change in the law or an alleged failure of trial counsel to

communicate a plea offer made by the prosecution.          Reaves bases his

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argument on Missouri v. Frye, 132 S.Ct. 1399 (2012) and Lafler v.

Cooper, 132 S.Ct. 1376 (2012), where the United States Supreme Court

found counsel’s failure to present a plea offer to a defendant constituted

ineffective assistance of counsel in violation of the Sixth Amendment. This

Court    has   concluded   that   neither   Frye   nor   Lafler   created   a   new

constitutional right.   Commonwealth v. Hernandez, 79 A.3d 649 (Pa.

Super. 2013). “The right to effective assistance of counsel during the plea

bargaining process has been recognized for decades,” Commonwealth v.

Lewis, 63 A.3d 1274, 1280 (Pa. Super. 2013) and cannot, therefore, be a

newly recognized constitutional right. Accordingly, Frye and Lafler do not

apply retroactively, and do not provide an exception to the time-bar set

forth in 42 Pa.C.S. § 9545(b)(1). Id.

        Reaves also alleges that his sentence was illegal and constitutes an

exception to PCRA’s jurisdictional time-bar. This claim is also without merit.

Issues concerning legality of sentence are cognizable under the PCRA.

Commonwealth v. Hockenberry, 689 A.2d 283 (Pa. Super. 1997).

However, even where petitioner alleges an illegal sentence, an untimely

PCRA petition is unreviewable.       Commonwealth v. Beck, 848 A.2d 987

(Pa. Super. 2004). Because Reaves’ petition is time-barred, his allegations

of an illegal sentence cannot be reviewed.

        Finally, Reaves argues that he is entitled to relief because the trial

court abused its discretion when sentencing him.          Claims challenging the

discretionary aspect of sentencing are not cognizable under the PCRA, which

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only permits challenges to the legality of a sentence.   42 Pa.C.S. §

9543(a)(2)(vii). Accordingly, no relief is due.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2014




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