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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
LESTER EILAND,                             :          No. 286 MDA 2020
                                           :
                          Appellant        :


             Appeal from the PCRA Order Entered January 15, 2020,
                in the Court of Common Pleas of Dauphin County
               Criminal Division at No. CP-22-CR-0002630-2000


BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED AUGUST 25, 2020

        Lester Eiland appeals pro se from the January 15, 2020 order, entered

in the Court of Common Pleas of Dauphin County, dismissing his most recent

petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        This court has set forth the procedural history of this case as follows:

              On August 10, 2001, a jury convicted [a]ppellant of
              second-degree murder, robbery, and conspiracy. The
              trial court sentenced [a]ppellant on September 20,
              2001, to life imprisonment for the murder conviction
              and consecutive terms of imprisonment for the other
              offenses.    On September 22, 2003, this [c]ourt
              affirmed the convictions but vacated and remanded
              for resentencing because the court improperly
              imposed a sentence for robbery, which was the
              predicate offense for the felony murder conviction.
              Appellant subsequently filed a petition for allowance
              of appeal, which the Supreme Court denied on
              June 29, 2004. See Commonwealth v. Eiland, 839

1   42 Pa.C.S.A. §§ 9541-9546.
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            A.2d 1152 (Pa.Super. 2003), appeal denied, 578 Pa.
            705, 853 A.2d 359 (2004). On August 5, 2004, the
            trial   court   resentenced    [a]ppellant     to    life
            imprisonment for the murder conviction with a
            consecutive sentence for conspiracy. The robbery
            conviction merged with felony murder for sentencing
            purposes.     Appellant did not seek further direct
            review. Since then, [a]ppellant has filed multiple prior
            petitions for collateral relief, all of which were
            ultimately unsuccessful.

            On November 23, 2015, [a]ppellant filed . . . [a] serial
            pro se PCRA petition. . . . The court dismissed
            [a]ppellant’s PCRA petition as          untimely on
            November 29, 2016. Appellant timely filed a pro se
            notice of appeal on December 12, 2016.              On
            December 14, 2016, the court ordered [a]ppellant to
            file a concise statement per Pa.R.A.P. 1925(b).
            Appellant timely filed his statement on December 30,
            2016.

Commonwealth v. Eiland, 2017 WL 2628241 at *1 (Pa.Super. filed June 19,

2017) (unpublished judgment order) (dismissing appellant’s 2015 PCRA

petition as untimely).

      Appellant’s current PCRA petition was filed on December 27, 2019, and

dismissed by the PCRA court on January 15, 2020.2              Appellant timely




2 Here, the record does not contain an order issuing the appropriate notice,
pursuant to Pa.R.Crim.P. 907, before the court denied PCRA relief. This court
previously addressed this matter in Eiland, supra, wherein we noted:

            Appellant has not raised this issue on appeal, so he
            waived any defect in notice. See Commonwealth
            Taylor, 65 A.3d 462[, 468] (Pa.Super. 2013)
            (explaining failure to challenge lack of Rule 907 notice
            results in waiver of claim on appeal)[, affirmed, 131
            A.3d 102 (Pa.Super. 2015)]. Moreover, the court’s
            oversight regarding Rule 907 notice is not


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appealed. The PCRA court ordered appellant to file a concise statement of

errors complained of on appeal and appellant timely complied. Thereafter,

the PCRA court issued a Rule 1925(a)(1) opinion.3

      Appellant raises the following issues on appeal.

            1.     Did the PCRA court err as a matter of law when
                   the court dismissed the PCRA petition as
                   untimely?

            2.     Is prejudice presumed where appellant privately
                   retained counsel for the sole purpose of filing a
                   timely PCRA petition and said counsel’s petition
                   was quashed for failure to conform to the
                   Pennsylvania Rules of Criminal Procedure?

            3.     Should appellant’s PCRA rights be reinstated
                   where his state and federal collateral appeal
                   rights were deemed time barred based [on]
                   privately retained counsel’s failure to conform to
                   the Pennsylvania Rules of Criminal Procedure?

Appellant’s brief at 4 (full capitalization omitted).

      Appellant’s issues address the timeliness of his current PCRA petition,

and the ineffective assistance of counsel on his first PCRA petition, which

resulted in dismissal of the petition. (See appellant’s brief at 8-11.)




            [automatically] reversible error, where the PCRA
            petition is untimely.

Id. at *2 n.2.

3 The PCRA court stated it would not be filing an “additional opinion” because
the issues raised by appellant were adequately addressed in its order
dismissing the instant PCRA petition. (See PCRA court Rule 1925(a) opinion,
2/27/20.)


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      The PCRA requires that petitions “shall be filed within one year of the

date the judgment becomes final[.]” 42 Pa.C.S.A. § 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.A. § 9545(b)(3). Our supreme court has held that the PCRA’s time

restriction is constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287,

292 (Pa. 2004).    In addition, our supreme court has instructed that the

timeliness of a PCRA petition is jurisdictional. Commonwealth v. Ziegler,

148 A.3d 849 (Pa.Super. 2016). If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

121 (Pa.Super. 2014).

      Instantly, appellant was resentenced on August 5, 2004. The judgment

of sentence became final 30 days later, on September 4, 2004, upon the

expiration of the time for filing a direct appeal with this court.         See

Pa.R.A.P. 903 (providing 30 days to file notice of appeal from judgment of

sentence with this court).     Appellant filed the current PCRA petition on

December 27, 2019, which is patently untimely.             See 42 Pa.C.S.A.

§ 9545(b)(1).   As a result, the PCRA court lacked jurisdiction to review

appellant’s petition, unless appellant alleged and proved one of the statutory

exceptions to the time-bar, as set forth in 42 Pa.C.S.A. § 9545(b)(1).




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      Those three narrow exceptions to the one-year time-bar are: when the

government has interfered with the appellant’s ability to present the claim,

when the appellant has newly discovered facts upon which his PCRA claim is

predicated, or when either our supreme court or the Supreme Court of the

United States has recognized a new constitutional right and made that right

retroactive. 42 Pa.C.S.A. § 9545(b)(1)(i-iii); Commonwealth v. Brandon,

51 A.3d 231, 233-234 (Pa.Super. 2012). The appellant bears the burden of

pleading and proving the applicability of any exception.            42 Pa.C.S.A.

§ 9545(b)(1).    If an appellant fails to invoke a valid exception to the

PCRA time-bar, this court may not review the petition.          See 42 Pa.C.S.A.

§ 9545(b)(1)(i-iii).

      Here, appellant has failed to allege facts which would prove the

applicability of any of the time-bar exceptions. Accordingly, we do not have

jurisdiction to consider the merits of appellant’s petition.4


4Further, we note the issues raised by appellant were previously raised and
addressed in this court’s decision in Eiland, supra, as follows:

            Appellant now attempts to invoke the “new
            constitutional right” exception to the statutory
            time-bar per Section 9545(b)(1)(iii), citing Martinez
            v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272
            (2012) (holding inadequate assistance of counsel at
            initial-review collateral proceedings may establish
            cause for prisoner’s procedural default of claim of
            ineffective assistance of trial counsel, for purposes of
            federal habeas corpus relief). Specifically, Appellant
            claims prior privately-retained PCRA counsel was
            ineffective in litigating Appellant’s first PCRA petition.
            Nevertheless, Martinez affords Appellant no relief.


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     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 08/25/2020




           See Commonwealth v. Saunders, 60 A.3d 162
           (Pa.Super. 2013), appeal denied, 621 Pa. 657, 72
           A.3d 603 (2013), cert. denied,         U.S.      , 134
           S.Ct. 944, 187 L.Ed.2d 811 (2014) (explaining that
           Martinez represents significant development in federal
           habeas corpus law, but it is of no moment with
           respect to PCRA time-bar). Thus, the [PCRA] court
           properly dismissed the petition.

Eiland, 2017 WL 7628241 at *2. Therefore, appellant’s issues are not
cognizable for further collateral review. See 42 Pa.C.S.A. § 9544(a)(3).


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