J-S42007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEFFREY L. BLAND,

                            Appellant                 No. 1304 EDA 2014


                   Appeal from the PCRA Order April 14, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0305581-1984


BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED AUGUST 07, 2015

       Appellant, Jeffrey L. Bland, appeals pro se from the order denying his

sixth petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

       The PCRA court summarized the factual and procedural history of this

case as follows:

             On October 18, 1984, a jury found [Appellant] guilty of
       second degree murder, robbery, criminal conspiracy, and
       possessing an instrument of crime. Thereafter, [Appellant] was
       sentenced to life in prison for the murder conviction2 and two
       consecutive, [sic] terms [of] 2.5 to 5 years for the remaining
       convictions.    Post sentence motions were filed and denied.
       [Appellant] filed an appeal to the Superior Court which affirmed
       the judgment of sentence on March 23, 1987, the Supreme


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*
    Former Justice specially assigned to the Superior Court.
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     Court of Pennsylvania denied [Appellant’s petition for allowance
     of appeal] on November 17, 1987.
            2
             For sentences [sic] purposes the robbery conviction
            merged with the murder conviction.

PCRA Court Opinion, 4/14/14, at 1.

     On June 18, 2013, Appellant filed the instant PCRA petition, his sixth.

On February 7, 2014, the PCRA court issued a dismissal notice pursuant to

Pa.R.Crim.P. 907. Appellant filed a response, and the PCRA court dismissed

Appellant’s PCRA petition by order entered April 14, 2014. Appellant timely

appealed.

     Appellant presents the following issues for our review, which we

reproduce verbatim:

     A.    Should not this case be remanded for a hearing on the
     allegation of trial, appellate and post conviction counsel
     ineffectiveness.

     1.    Was not trial counsel ineffective for failing to object to the
     erroneous and improper jury instruction in that the trial court
     committed error, instruction in that the trial court committed
     error when giving and expounding on the law to sustain a felony
     murder, there was a complete lack of instruction on the issue of
     proof of corpus delicti before a jury can consider an accused and
     or an accomplice confession.

     2.     Petitioner was further denied due process of law and
     effective representation in that prior trial counsel failed to
     request these points of charge that were imperative to the case
     at hand, furthermore Petitioner suffered layered ineffectiveness
     of counsels given none of these attorneys that this court
     appointed conducted any factual review of the record or lower
     courts (i.e. trial and jury instruction) and file an amended
     petition citing prior trial counsels of ineffectiveness as cited
     herein.


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Appellant’ Brief at 3 (unnumbered) (full capitalization omitted). 1

       Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).              The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

       We must first address whether Appellant satisfied the timeliness

requirements of the PCRA.              The timeliness of a PCRA petition is a

jurisdictional threshold and may not be disregarded in order to reach the

merits    of   the   claims   raised    in     a   PCRA   petition   that   is   untimely.

Commonwealth v. Taylor, 933 A.2d 1035, 1038 (Pa. Super. 2007) (citing

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)).                           Effective

January 16, 1996, the PCRA was amended to require a petitioner to file any

PCRA petition within one year of the date the judgment of sentence becomes

final. 42 Pa.C.S. § 9545(b)(1). A judgment of sentence “becomes final at

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1
  We note with disapproval that despite the Commonwealth’s request for an
extension of time within which to file its brief, and our entry of an order
granting the Commonwealth an extension of time until April 20, 2015, to file
a brief, (Order, 3/9/15), the Commonwealth has failed to submit a brief in
this matter.



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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.”               42 Pa.C.S.

§ 9545(b)(3). Where a petitioner’s judgment of sentence became final on or

before the effective date of the amendment, a special grace proviso allowed

first PCRA petitions to be filed by January 16, 1997. See Commonwealth

v. Alcorn, 703 A.2d 1054, 1056-1057 (Pa. Super. 1997) (explaining

application of PCRA timeliness proviso).

        However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.2 A petition invoking one of these exceptions must be filed


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2
    The exceptions to the timeliness requirement are:

        (i)    the failure to raise the claim previously 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.

(Footnote Continued Next Page)


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within sixty days of the date the claim could first have been presented.

42 Pa.C.S. § 9545(b)(2).         In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

      Our review of the record reflects that Appellant’s judgment of sentence

became final on January 18, 1988,3 sixty days after the Pennsylvania

Supreme Court denied Appellant’s appeal and the time for filing a petition for

review with the United States Supreme Court expired.                 See 42 Pa.C.S.

§ 9545(b)(3); U.S.Sup.Ct.R. 20.1.4               Accordingly, Appellant’s judgment of

sentence became final prior to the effective date of the PCRA amendments.

Appellant’s instant PCRA petition, filed on June 18, 2013, does not qualify for

the grace proviso as it was neither Appellant’s first PCRA petition, nor was it

filed before January 16, 1997. Thus, the instant PCRA petition is patently

untimely.
                       _______________________
(Footnote Continued)

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
3
  We note that because January 16, 1988 fell on a Saturday, Appellant had
until January 18, 1988, to file his petition for review. See 1 Pa.C.S. § 1908
(stating that, for computations of time, whenever the last day of any such
period shall fall on Saturday or Sunday, or a legal holiday, such day shall be
omitted from the computation.); see also Commonwealth v. Green, 862
A.2d 613, 618 (Pa. Super. 2004).
4
  We observe that the Rules of the United States Supreme Court pertaining
to the filing of a petition for writ of certiorari have been renumbered and the
time-period altered several times since the applicable Rule in this case.



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      As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. §

9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted.

42 Pa.C.S. § 9545(b)(2).

      Our review of the record reflects that Appellant has attempted to

invoke the third exception to the PCRA timeliness requirements, i.e., “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. § 9544(b)(1)(iii). Appellant relies upon the United

States Supreme Court’s decision in Martinez v. Ryan, 132 S.Ct. 1309

(2012).    However, Appellant’s reliance upon Martinez is misplaced and

entitles him to no relief.

      In Martinez, the Supreme Court of the United States recognized, for

purposes of federal habeas corpus relief, that “[i]nadequate assistance of

counsel at initial-review collateral proceedings may establish cause for a

prisoner’s procedural default of a claim of ineffective assistance at trial.”

Martinez, 132 S.Ct. at 1315.      Moreover, the Martinez Court specifically

cast its holding as “equitable” rather than “constitutional,” stating “[t]his is

not the case … to resolve whether that exception exists as a constitutional


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matter.”   Martinez, 132 S.Ct. at 1315.        Therefore, Martinez does not

provide a basis for Appellant to assert the section 9545(b)(1)(iii) exception

to the PCRA’s jurisdictional timeliness requirements. See Commonwealth

v. Saunders, 60 A.3d 162, 165 (Pa. Super. 2013) (holding that “[w]hile

Martinez represents a significant development in federal habeas corpus law,

it is of no moment with respect to the way Pennsylvania courts apply the

plain language of the time bar set forth in section 9545(b)(1) of the PCRA”).

Accordingly, the ruling in Martinez fails to provide Appellant an exception to

the time bar of the PCRA.      Thus, the PCRA court did not err in denying

Appellant’s untimely sixth PCRA petition.

      Consequently, because the PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief.    See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

hear untimely petition).    Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition.              See

Commonwealth        v.   Bennett,    930    A.2d   1264,   1267    (Pa.   2007)

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2015




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