J-S21019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JUAN SMITH

                            Appellant                No. 1684 EDA 2014


                   Appeal from the PCRA Order April 30, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0600141-1995


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                            FILED APRIL 08, 2015

        Appellant Juan Smith appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed his fourth

petition seeking relief pursuant to the Post Conviction Relief Act (“PCRA”). 1

We affirm.

        The trial court sets forth the relevant facts and procedural history of

this appeal as follows:

           [Appellant] entered a guilty plea to first degree murder,
           robbery, and burglary before [the Honorable] Jane Cutler
           Greenspan on October 25, 1995.        On the same day,
           [Appellant] was sentenced by Judge Greenspan to serve a
           life sentence and to consecutive sentences of incarceration
           on the other offenses, which in the aggregate totaled
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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         fifteen to thirty years.   [Appellant] did not file a direct
         appeal.

         [Appellant] filed his first [PCRA] petition on January 10,
         1997. The petition was dismissed on August 21, 1997,
         after counsel filed a Finley/Turner1 no-merit letter.
         [Appellant’s] appeal to the Superior Court was withdrawn
         on December 17, 1997.
            1
              Commonwealth v. Turner, 54 A.2d 927 (Pa.1983);
            Commonwealth     v.  Finley,   550   A.2d   213
            (Pa.Super.1988).

         [Appellant] filed his second [PCRA] petition on April 19,
         2004.    After counsel was appointed, the petition was
         dismissed on March 16, 2005. The Superior Court affirmed
         the dismissal on March 28, 2006, and the Pennsylvania
         Supreme Court denied allocatur on August 29, 2006.

         [Appellant] filed his third petition on December 26, 2006.
         It was dismissed on June 16, 2008. The Superior Court
         affirmed the dismissal on August 11, 2009, and the
         Supreme Court denied allocatur on February 12, 2010.

         [Appellant] filed [his fourth PCRA] petition that is the
         subject of the instant appeal on May 18, 2012. After
         conducting an extensive and exhaustive review of the
         record and applicable case law, this court determined that
         it did not have jurisdiction to consider [Appellant’s] PCRA
         petition because [Appellant’s] petition for [PCRA] relief was
         untimely filed.

PCRA Court Opinion, filed September 3, 2014, pp. 1-2.

      On January 28, 2014, the PCRA court issued a Rule 907 notice, to

which Appellant responded on February 19, 2014.       On April 30, 2014, the

PCRA court dismissed Appellant’s petition for relief.     On May 19, 2014,

Appellant timely filed a notice of appeal. The court did not order Appellant

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal, and he did not file one.

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      Appellant raises the following issue for our review:

         WHETHER THE PCRA COURT ERRED DISMISSING
         APPELLANT’S POST-CONVICTION RELIEF PETITION AS
         UNTIMELY IN LIGHT OF THE EXCEPTION THAT WAS
         INVOKED PURSUANT TO 42 PA.C.S. 9545(B)(1)(III)[?]

Appellant’s Brief at 4.

      In his sole issue on appeal, Appellant argues he has invoked the

constitutional right exception to the PCRA time bar.           Specifically, he

contends that the United States Supreme Court decision in Martinez v.

Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), recognized the constitutional

right of the effective assistance of counsel in a collateral proceeding.

Appellant claims his PCRA counsel was ineffective by failing to properly raise

trial counsel’s ineffectiveness. Further, Appellant suggests Martinez should

apply retroactively because of this Court’s decision in Commonwealth v.

Lofton, 57 A.3d 1270 (Pa.Super.2012). Appellant is incorrect.

      The timeliness of a PCRA petition implicates the jurisdiction of both

this Court and the PCRA court. Commonwealth v. Williams, 35 A.3d 44,

52 (Pa.Super.2011), appeal denied, 50 A.3d 121 (Pa.2012). “Pennsylvania

law makes clear that no court has jurisdiction to hear an untimely PCRA

petition.”   Id.   To “accord finality to the collateral review process[,]” the

PCRA “confers no authority upon [appellate courts] to fashion ad hoc

equitable exceptions to the PCRA timebar[.]”      Commonwealth v. Watts,




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23 A.3d 980, 983 (Pa.2011). With respect to jurisdiction under the PCRA,

this Court has further explained:

         The most recent amendments to the PCRA...provide a
         PCRA petition, including a second or subsequent petition,
         shall be filed within one year of the date the underlying
         judgment becomes final. A 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.

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);

see also 42 Pa.C.S. § 9545. This Court may review a PCRA petition filed

more than one year after the judgment of sentence becomes final only if the

claim falls within one of the following three statutory exceptions, which the

petitioner must plead and prove:

            (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 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).       Further, if a petition pleads one of these

exceptions, the petition will not be considered unless it is “filed within 60

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days of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2).

       Additionally, a heightened standard applies to a second or subsequent

PCRA    petition   to    avoid    “serial   requests      for   post-conviction   relief.”

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011).                       A second or

subsequent PCRA petition “will not be entertained unless a strong prima

facie showing is offered to demonstrate that a miscarriage of justice may

have occurred.”         Commonwealth v. Hawkins, 953 A.2d 1248, 1251

(Pa.2006). Further, in a second or subsequent post-conviction proceeding,

“all issues are waived except those which implicate a defendant’s innocence

or which raise the possibility that the proceedings resulting in conviction

were so unfair that a miscarriage of justice which no civilized society can

tolerate occurred.”       Commonwealth v. Williams, 660 A.2d 614, 618

(Pa.Super.1995).

       Here, Appellant’s judgment of sentence became final on or about

November 27, 1995, when the time period for filing a direct appeal to this

Court expired. See 42 Pa.C.S. § 9545(b)(3). As the instant PCRA petition

was not filed until May 18, 2012, it is patently untimely unless Appellant has

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

       Appellant   purports      to   invoke   the   42    Pa.C.S.    §   9545(b)(1)(iii)

constitutional right exception.        To qualify for this exception, a petitioner

must plead and prove that he is entitled to the benefit of a new


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constitutional right recognized by the Supreme Court of the United States or

the Supreme Court of Pennsylvania after the provided time period, and that

the right has been held by that court to apply retroactively. In Martinez,

the Supreme Court of the United States held:

        Where, under state law, claims of ineffective assistance of
        trial counsel must be raised in an initial-review collateral
        proceeding, a procedural default will not bar a federal
        habeas court from hearing a substantial claim of ineffective
        assistance at trial if, in the initial-review collateral
        proceeding, there was no counsel or counsel in that
        proceeding was ineffective.

Martinez, supra. at 1320. The Court explained:

        The holding here ought not to put a significant strain on
        state resources. When faced with the question whether
        there is cause for an apparent default, a State may answer
        that the ineffective-assistance-of-trial-counsel claim is
        insubstantial, i.e., it does not have any merit or that it is
        wholly without factual support, or that the attorney in the
        initial-review collateral proceeding did not perform below
        constitutional standards.

        This is but one of the differences between a constitutional
        ruling and the equitable ruling of this case.              A
        constitutional ruling would         provide   defendants   a
        freestanding constitutional claim to raise; it would require
        the appointment of counsel in initial-review collateral
        proceedings; it would impose the same system of
        appointing counsel in every State; and it would require a
        reversal in all state collateral cases on direct review from
        state courts if the States’ system of appointing counsel did
        not conform to the constitutional rule. An equitable ruling,
        by contrast, permits States a variety of systems for
        appointing counsel in initial-review collateral proceedings.
        And it permits a State to elect between appointing counsel
        in initial-review collateral proceedings or not asserting a
        procedural default and raising a defense on the merits in
        federal habeas proceedings. In addition, state collateral



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          cases on direct review from state courts are unaffected by
          the ruling in this case.

Id. at 1319-20.

       Appellant incorrectly relies on this Court’s decision in Lofton for the

proposition that Martinez has been held to apply retroactively. The Lofton

Court stated:

          The legislature failed to contemplate that it is longstanding
          precedent that persons are generally entitled to the
          retroactive applicability of decisions when they are
          pursuing     an    identical  issue   on     direct    appeal.
          Commonwealth v. Cabeza, 469 A.2d 146, 148
          ([Pa.]1983) (“we hold that where an appellate decision
          overrules prior law and announces a new principle, unless
          the decision specifically declares the ruling to be
          prospective only, the new rule is to be applied retroactively
          to cases where the issue in question is properly preserved
          at all stages of adjudication up to and including any direct
          appeal.”); Commonwealth v. McCormick, 519 A.2d 442
          ([Pa.Super.]1986)      (discussing   various      retroactivity
          approaches utilized in Pennsylvania); cf. Griffith v.
          Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649
          (1987) (holding new federal constitutional rules apply
          retroactively to cases on direct appeal).

Lofton, supra. at 1276.

       Unfortunately      for   Appellant,     Lofton   does   not   hold   that   all

constitutional decisions apply retroactively to collateral proceedings, but

speaks specifically to direct appeals. As Appellant is seeking collateral relief,

this Court’s decision in Lofton does not affect him.2

____________________________________________


2
  Further, Lofton was decided by this Court, not the Supreme Court of
Pennsylvania or the Supreme Court of the United States.



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     Because     neither   the   United   States   Supreme   Court   nor   the

Pennsylvania Supreme Court has held that Martinez applies retroactively,

we need not determine whether Martinez governs the present appeal.

Appellant has failed to plead and prove the constitutional exception to the

PCRA time bar.     Thus, Appellant’s petition remains time-barred, and the

PCRA court properly denied it. Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2015




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