J-S60007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JUNIOR THOMPSON,

                         Appellant                    No. 59 EDA 2015


         Appeal from the PCRA Order Entered December 30, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0205831-1991


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 20, 2015

      Appellant, Junior Thompson, appeals from the court's December 30,

2014 order dismissing, as untimely, his petition for relief filed pursuant to

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

appeal, Appellant claims the PCRA court erred when it dismissed his PCRA

petition as untimely, despite Appellant’s reliance on the newly-recognized

constitutional right exception to the PCRA’s one-year filing deadline.

Appellant alleges that the Supreme Court of the United States created a

newly-recognized constitutional right in Lafler v. Cooper, 132 S.Ct. 1376

(2012), that permits Appellant to invoke the timeliness exception to the

PCRA’s time-bar, 42 Pa.C.S. § 9545(b)(1)(iii).      After careful review, we

agree with the PCRA court that Lafler does not afford Appellant relief under

this exception. Accordingly, we affirm the denial of his untimely petition.
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      The PCRA court summarized the pertinent procedural history of

Appellant’s case as follows:

             On November, 4, 1991, [Appellant] was convicted by a
      jury sitting before Judge John J. Poserina of murder of the first
      degree, aggravated assault, simple assault, possessing an
      instrument of crime, and two counts of criminal conspiracy. On
      October 23, 1992, [Appellant] was sentenced to a term of life
      imprisonment [without the possibility of parole] on the murder of
      the first degree conviction. He received consecutive lesser terms
      on the remaining offenses.1
                                     ___
         1
           [Appellant]’s conviction arose from a killing that occurred
         in Philadelphia on December 19, 1990. [Appellant] asserts
         that he was offered a plea bargain of 7½ to 15 years of
         incarceration in exchange for a guilty plea to the crimes of
         third-degree murder and related offenses. He claims that
         he rejected the Commonwealth’s offer because his trial
         counsel advised him against it on the grounds that the
         Commonwealth supposedly lacked the evidence to convict
         him.
                                      ___

            On May 31, 1994, the Superior Court affirmed
      [Appellant]’s judgments of sentence,2 and on March 28, 1996,
      the Pennsylvania Supreme Court denied allowance of appeal.3
      [Appellant] did not seek discretionary review in the U.S.
      Supreme Court within 90 days. His judgments of sentence,
      therefore, became final on June 26, 1996, after the time for
      seeking review at the U.S. Supreme Court had expired.4
                                    ___
         2
           Commonwealth v. Thompson, 436 Pa. Super. 669,
         648 A.2d 1238 (1994).
         3
          Commonwealth v. Thompson, 543 Pa. 634, 674 A.2d
         217 (1996).
         4
           [Appellant] thereby had until June 26, 1997, to file a
         timely first PCRA petition.
                                     ___




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           Thereafter, [Appellant] filed a petition for a writ of habeas
     corpus in the United States District Court for the Eastern District
     of Pennsylvania. On December 24, 1997, the writ was denied by
     the Honorable Jay C. Waldman. On May 26, 1998, the United
     States Court of Appeals for the Third Circuit denied [Appellant]’s
     application for a certificate of appealability.

           On May 4, 1999, [Appellant] filed pro se his first petition
     under the [PCRA].       [Appellant]’s newly-appointed counsel
     determined that his PCRA petition was untimely and that it did
     not fall under any of the exceptions to the PCRA's timeliness
     requirements. Accordingly, [Appellant]’s counsel filed a “no-
     merit” letter pursuant to Commonwealth v. Finley, 379 Pa.
     Super. 390, 550 A.2d 213 (1988). On January 24, 2000, Judge
     Poserina dismissed [Appellant]’s PCRA petition as untimely.

            On August 29, 2000, [Appellant] filed his second PCRA
     petition pro se, seeking nunc pro tunc reinstatement of his right
     to appeal the denial of relief from his first PCRA petition. The
     petition was granted on September 29, 2000. On September 4,
     2002, the Superior Court affirmed the denial of PCRA relief.5 On
     December 17, 2002, the Pennsylvania Supreme Court denied
     [Appellant]’s petition for allowance of appeal.6
                                      ___
        5
          Commonwealth v. Thompson, 813 A.2d 910 (Pa.
        Super. 2002).
        6
         Commonwealth v. Thompson, 572 Pa. 724, 814 A.2d
        677 (2002).
                            ___

            On May 26, 2011, [Appellant] filed pro se his third PCRA
     petition. On September 22, 2011, his petition was dismissed as
     untimely by the Honorable Sheila Woods-Skipper. On April 11,
     2012, the Superior Court affirmed the denial of PCRA relief.7
                                    ___
        7
         Commonwealth v. Thompson, 48 A.3d 474 (Pa. Super.
        2012).
                             ___

            On May 7, 2012, [Appellant] filed pro se his fourth PCRA
     petition. On November 19, 2013, Mitchell Scott Strutin, Esquire,
     was appointed to represent [Appellant]. On May 16, 2014,
     Attorney Strutin filed an Amended Post Conviction Petition with

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J-S60007-15


      Memorandum of Law on [Appellant]’s behalf. On August 6,
      2014, the Commonwealth filed a Motion to Dismiss [Appellant]’s
      Fourth PCRA Petition.

            On November 20, 2014, this court issued a notice of its
      intent to dismiss [Appellant]’s petition without a hearing
      pursuant to Pennsylvania Rule of Criminal Procedure 907. On
      December 31, 2014, after conducting a review of the record, this
      court dismissed [Appellant]’s PCRA petition as untimely.8 On
      January 1, 2015, [Appellant] filed a timely Notice of Appeal.
                                     ___
         8
           This dismissal includes [Appellant]’s              original     PCRA
         petition and the amended PCRA petition.

PCRA Court Opinion (PCO), 3/17/15, at 1-3.

      The PCRA court did not issue an order directing Appellant to file, nor

did Appellant file, a Pa.R.A.P. 1925(b) statement. The trial court issued its

Rule 1925(a) opinion on March 17, 2015.              Appellant now presents the

following question for our review:

      Is … [A]ppellant entitled to post-conviction relief in the form of a
      new trial, the opportunity to enter a guilty plea or a remand for
      an evidentiary hearing since trial counsel was ineffective when
      he failed to properly and fully advise … [A]ppellant with regard
      to a plea offer made by the prosecutor?

Appellant’s Brief at 4.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported    by   the     evidence   of   record   and   is    free   of    legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).        Moreover, a “PCRA court may decline to hold a

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hearing if the petitioner's claim is patently frivolous and is without a trace of

support in either the record or from other evidence.”          Commonwealth v.

Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001).

      We initially examine whether the PCRA court correctly concluded that

Appellant’s serial PCRA petition was untimely.           The timeliness of a PCRA

petition is a jurisdictional requirement. Commonwealth v. Albrecht, 994

A.2d 1091, 1093 (Pa. 2010) (citation omitted). Thus, if a PCRA petition is

untimely, neither an appellate court nor the PCRA court has jurisdiction over

the petition.   Id.    “Without jurisdiction, we simply do not have the legal

authority to address the substantive claims” raised in an untimely petition.

Id.

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S. § 9545(b)(1).                     Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;   or   (3)   a    new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa-Taylor, 753

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A.2d at 783. See also 42 Pa.C.S. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.      Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

        Instantly,   Appellant   maintains   that   Lafler   provides   a   new

constitutional right that satisfied the exception to the PCRA’s timeliness

requirement as set forth in 42 Pa.C.S. § 9545(b)(1)(iii) (“[T]he 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.”). In Lafler, the Supreme Court of the United States held that

a defendant is entitled to the effective assistance of counsel during plea-

bargaining, and that ineffectiveness during plea-bargaining is not cured if

the defendant subsequently receives a fair trial.     See Lafler, 132 S.Ct. at

1388.

        Relying on Lafler, Appellant alleges that his trial counsel ineffectively

advised him to fight first-degree murder charges at trial instead of accepting

a plea agreement that would have had him plead guilty to third-degree

murder and related charges in exchange for a sentence of 7½ to 15 years’

incarceration. Appellant filed his PCRA petition raising this claim for relief on




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May 7, 2012, which was within 60 days of when Lafler was filed, ostensibly

satisfying the requirement set forth in 42 Pa.C.S. § 9545(b)(2).

       However, this Court determined in Commonwealth v. Feliciano, 69

A.3d 1270 (Pa. Super. 2013), that neither Lafler nor its companion case,

Missouri v. Frye, 132 S.Ct. 1399 (2012), created a new constitutional

right. Feliciano, 69 A.3d at 1277. “Instead, these decisions 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.” Id. Thus, we held in Feliciano that

neither Lafler nor Frye could satisfy the exception set forth in 42 Pa.C.S. §

9545(b)(1)(iii). On this basis, the PCRA court rejected Appellant’s reliance

on section 9545(b)(1)(iii) and, consequently, dismissed his PCRA petition as

untimely. PCO, at 8-9.1

       Appellant acknowledges our holding in Feliciano and its applicability

in this case.     Appellant’s Brief at 10-11.    Nevertheless, he argues that




____________________________________________


1
  The PCRA court also found that even if Lafler did create a new
constitutional right, that decision has not been held to apply retroactively.
PCO, at 9 (citing Commonwealth v. Abdul-Salaam, 812 A.2d 497, 502
(Pa. 2002) (holding that a new rule of constitutional law formulated by the
United States Supreme Court does not satisfy section 9545(b)(1)(iii) unless
the Supreme Court has specifically held that right to apply retroactively)).




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Feliciano “was wrongly decided.” Appellant’s Brief at 11.2 However, “[t]his

panel is not empowered to overrule another panel of the Superior Court.”

Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013). As such,

we conclude that Feliciano is binding authority on this Court and that, as

such, we cannot now adjudicate whether Feliciano was wrongly decided.

To challenge the holding in Feliciano, Appellant must petition for en banc

review and/or seek review in our Supreme Court.

       Accordingly, we conclude that the PCRA court’s dismissal of Appellant’s

PCRA petition, as untimely, was free of legal error and supported by the

record. Applying Feliciano, Appellant is precluded from invoking Lafler to

satisfy the exception to the PCRA’s timeliness requirements set forth in 42

Pa.C.S. § 9545(b)(1)(iii).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2015

____________________________________________


2
  Appellant also contends that other decisions by the Superior Court that
applied Feliciano’s reasoning regarding the effect of Lafler and Frye on the
PCRA’s time-bar, such as Commonwealth v. Hernandez, 79 A.3d 649 (Pa.
Super. 2013), should also be reconsidered.



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