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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MAURICE STYLES,

                            Appellant                No. 2741 EDA 2015


                   Appeal from the PCRA Order August 4, 2015
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos.: CP-51-CR-0900261-1999
                             CP-51-CR-0900351-1999
                             CP-51-CR-1103661-1999


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

MEMORANDUM BY PLATT, J.:                                   FILED May 11, 2016

        Appellant, Maurice Styles, appeals pro se from the denial of his second

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546, as untimely. We affirm.

        We take the following factual and procedural background from the trial

court’s September 21, 2015 opinion and our independent review of the

certified record. On January 3, 2000, Appellant entered open guilty pleas to

rape and related charges arising from his sexual crimes against, and

stabbing of, two women in Philadelphia.        On March 23, 2000, the court


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*
    Retired Senior Judge assigned to the Superior Court.
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sentenced Appellant to an aggregate term of not less than fifty-six nor more

than 112 years’ incarceration.

        On appeal, this Court vacated the judgments of sentence and

remanded for resentencing because the trial court did not reference the

sentencing guidelines when explaining its reasons for the sentence imposed.

(See Commonwealth v. Styles, 812 A.2d 1277 (Pa. Super. 2002)).           On

March 25, 2003, the trial court resentenced Appellant to the same aggregate

term of not less than fifty-six nor more than 112 years’ incarceration. On

June 29, 2006, this Court affirmed the judgment of sentence and, on

February 14, 2007, the Pennsylvania Supreme Court denied his petition for

allowance of appeal. (See Commonwealth v. Styles, 905 A.2d 1049 (Pa.

Super. 2006) (unpublished memorandum), appeal denied, 917 A.2d 314

(Pa. 2007)).

        On June 15, 2007, Appellant filed a first PCRA petition pro se.

Appointed counsel filed a Turner/Finley1 “no-merit” letter, and the PCRA

court provided notice of its intent to dismiss the petition on December 15,

2008 pursuant to Rule 907.2 The court dismissed the petition on January 9,

2009. Appellant did not appeal.


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1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2
    Pa.R.Crim.P. 907(1).



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       On May 15, 2012, Appellant filed his second pro se PCRA petition. On

July 15, 2012, the court sent Rule 907 notice to Appellant of its intent to

dismiss the petition.       On August 4, 2015, the PCRA court dismissed the

petition as untimely. Appellant timely appealed.3

       Appellant raises three issues for this Court’s review:

       [1.] Did the [PCRA] court abuse its discretion by dismissing
       [the] PCRA petition as untimely?

       [2.] Whether the decision of the United States Supreme Court
       in Missouri v. Frye[, 132 S.Ct. 1399 (2012),] create[d] a new
       constitutional right?

       [3.] Also did this newly created right conceive a substantive
       rule change in criminal procedure?

(Appellant’s Brief, at 2).

              This Court examines PCRA appeals in the light most
       favorable to the prevailing party at the PCRA level. Our review
       is limited to the findings of the PCRA court and the evidence of
       record[.] Additionally, [w]e grant great deference to the factual
       findings of the PCRA court and will not disturb those findings
       unless they have no support in the record. In this respect, we
       will not disturb a PCRA court’s ruling if it is supported by
       evidence of record and is free of legal error. However, we afford
       no deference to its legal conclusions. [W]here the petitioner
       raises questions of law, our standard of review is de novo and
       our scope of review is plenary.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014), appeal

denied, 101 A.3d 785 (Pa. 2014) (citations and quotation marks omitted).


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3
  The PCRA court did not order Appellant to file a Rule 1925(b) statement;
the court filed an opinion on September 21, 2015. See Pa.R.A.P. 1925.



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      Here, the PCRA court found that Appellant’s petition was untimely and

that he failed to plead and prove any exception to the PCRA time-bar. (See

PCRA Court Opinion, 9/21/15, at 2). We agree.

      It is well-settled that:

      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 this
      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).

      In the case sub judice, Appellant’s judgment of sentence became final

on May 15, 2007, at the expiration of the time for him to file a writ of

certiorari with the United States Supreme Court. See U.S. Sup. Ct. R. 13;

see also 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had one year from that

date to file a petition for collateral relief unless he pleaded and proved that a

timeliness exception applied.      See 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii).

Hence, Appellant’s current petition, filed on May 15, 2012, is untimely on its

face, and we lack jurisdiction to consider its merits, unless he pleads and

proves one of the statutory exceptions to the time-bar.

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      Section 9545 of the PCRA provides only three exceptions that allow for

review of an untimely PCRA petition: (1) the petitioner’s inability to raise a

claim because of governmental interference; (2) the discovery of previously

unknown facts that would have supported a claim; and (3) a newly-

recognized constitutional right. See id. When a petition is filed outside the

one-year time limit, petitioners must plead and prove the applicability of one

of   the   three   exceptions     to   the   PCRA   timing   requirements.   See

Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012) (“If

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

and proven, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition.”) (citation omitted).    Also, 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.A. § 9545(b)(2).

      Here, Appellant is attempting to claim the applicability of the newly

recognized constitutional right exception.      (See Appellant’s Brief, at 4-8);

see also 42 Pa.C.S.A. § 9545(b)(1)(iii).       Specifically, he argues that plea

counsel was ineffective when he advised Appellant to enter an open guilty

plea rather than to take the Commonwealth’s negotiated plea offer, and that

the United States Supreme Court, in Frye, supra, created a new

constitutional right applicable to ineffective assistance of counsel claims that

should be applied to his case. (See Appellant’s Brief, at 5-8). However, this


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issue is unavailing because Appellant has failed to plead and prove the

applicability of Section 9545(b)(1)(iii).

      It is well-settled that:

             Subsection (iii) of Section 9545(b)(1) has two
      requirements. First, it provides that the right asserted is a
      constitutional right that was recognized by the Supreme Court of
      the United States or th[e Pennsylvania Supreme C]ourt after the
      time provided in this section. Second, it provides that the right
      “has been held” by “that court” to apply retroactively. Thus, a
      petitioner must prove that there is a “new” constitutional right
      and that the right “has been held” by that court to apply
      retroactively . . . to cases on collateral review.

Commonwealth v. Leggett, 16 A.3d 1144, 1147 (Pa. Super. 2011)

(citation and emphasis omitted).

      Appellant’s claim, that Frye created a new constitutional right that

satisfies the newly created constitutional right exception to the PCRA’s

timeliness requirement, has already been rejected by this Court.          In

Commonwealth v. Feliciano, 69 A.3d 1270 (Pa. Super. 2013), we stated:

      “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) (citing Hill v. Lockhart, 474 U.S. 52, 106 S. Ct. 366, 88
      L. Ed.2d 203 (1985) (holding that “the two-part Strickland, 466
      U.S. 668 [104 S. Ct. 2052, 80 L. Ed.2d 674], test applies to
      challenges to guilty pleas based on the ineffective assistance of
      counsel”); Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473,
      176 L. Ed.2d 284 (2010) (“Before deciding whether to plead
      guilty, a defendant is entitled to the effective assistance of
      competent counsel.”)). In Frye, the United State Supreme
      Court merely clarified that this well-established right “extends
      to the negotiation and consideration of plea offers that lapse or
      are rejected.” Frye, 132 S.Ct. at 1404 (emphasis added). In
      other words, the Frye Court held “that, as a general rule,
      defense counsel has the duty to communicate formal offers from

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      the prosecution to accept a plea on terms and conditions that
      may be favorable to the accused.” Id. at 1408. In determining
      whether counsel has satisfied this obligation, the two-part test
      set forth in Strickland applies. See id. at 1409. . . .

                                  *    *    *

            It is apparent that . . . Frye [did not] create[] a new
      constitutional right. Instead, the[] decision[] simply applied the
      Sixth Amendment right to counsel, and the Strickland test for
      demonstrating counsel’s ineffectiveness, to the particular
      circumstances at hand, i.e. where counsel’s conduct resulted in a
      plea offer lapsing or being rejected to the defendant’s detriment.
      Accordingly, Appellant’s reliance on Frye . . . in an attempt
      to    satisfy    the    timeliness     exception     of   section
      9545(b)(1)(iii) is unavailing.

Feliciano, supra at 1276-77 (footnotes omitted) (emphasis added).

      Likewise, here, for the reasons enunciated by this Court in Feliciano,

Appellant’s reliance on Frye is fatal to his claim.        See id. at 1277.

Accordingly, because Appellant failed to plead and prove the applicability of

a PCRA timeliness exception, we conclude that the PCRA court properly

found that it lacked jurisdiction to consider Appellant’s claims, and dismissed

his untimely petition without a hearing.        See Henkel, supra at 20;

Johnston, supra at 1126.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2016




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