J-S03045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SAMUEL THEODORE ROSS,                      :
                                               :
                       Appellant               :      No. 2816 EDA 2018

           Appeal from the PCRA Order Entered September 12, 2018
             in the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0003055-1996

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 29, 2019

        Samuel Theodore Ross (“Ross”), pro se, appeals from the Order

dismissing his serial Petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”).1       The PCRA court dismissed the Petition, without a

hearing, as untimely filed. We affirm.

        On January 21, 1997, Ross entered an open guilty plea to one count

each of third-degree murder, robbery and burglary, and two counts of criminal

conspiracy.2 On May 19, 1997, the trial court sentenced Ross to an aggregate

prison term of 30 to 60 years.            This Court affirmed Ross’s judgment of

sentence on January 20, 1998. Commonwealth v. Ross, 711 A.2d 1041




____________________________________________


1   See 42 Pa.C.S.A. §§ 9541-9546.

2   See 18 Pa.C.S.A. §§ 2502(c), 3701, 3502, 903.
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(Pa. Super. 1998) (unpublished memorandum). Ross did not file a petition

for allowance of appeal to the Pennsylvania Supreme Court.

      Ross filed a timely, first PCRA Petition, which was denied, without a

hearing, on February 17, 1999.        Thereafter, Ross filed numerous PCRA

Petitions, all of which have been dismissed as untimely filed.

      On April 26, 2018, Ross filed the instant PCRA Petition.             After

appropriate Notice pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed

the Petition as untimely filed. Thereafter, Ross filed the instant timely appeal,

followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

      Ross presents the following claims for our review:

      1. Did the [PCRA court] deny [Ross’s] constitutional rights to due
         process and to a remedy by due course of law where it failed
         to provide recourse to address the ineffective assistance of
         counsel on appeal issue?

      2. Did the [PCRA court] apply section 9545 of the [PCRA], which
         provides original jurisdiction over PCRA proceedings,
         unconstitutional [sic] when it declined jurisdiction to address
         whether the PCRA proceeding, as applied to this case,
         reasonably comported with constitutional rights to due process
         and to a remedy by due course of law?

      3. Whether the [PCRA] court’s application of section 9545(b) of
         the PCRA statute to bar review of an ineffective assistance of
         counsel on appeal issue that already once defeated section
         9545(b) is unreasonable and denies [Ross’s] constitutional
         rights to due process, to a remedy by due course of law and to
         petition the court?

      4. Whether [Ross] is entitled to have his ineffective counsel on
         appeal issue reviewed under section 9544(a)(3), which


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           addresses issues raised and decided in previous collateral
           proceedings?

Brief for Appellant at 3 (capitalization omitted).

         “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and

internal quotation marks omitted).

         As a preliminary matter, we first address whether Ross timely filed the

instant PCRA Petition. “[T]he timeliness of a PCRA petition is a jurisdictional

requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015).

Neither this Court nor the PCRA court has jurisdiction to address the merits of

an untimely-filed petition. Commonwealth v. Leggett, 16 A.3d 1144, 1145

(Pa. Super. 2011).

         A PCRA petition, “including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final[,]” unless the

petitioner pleads and proves one of three statutory exceptions. 42 Pa.C.S.A.

§ 9545(b)(1); Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa.

2000).      The three statutory exceptions are for newly-discovered facts,

interference by a government official, and a newly-recognized constitutional

right.    42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).   “We emphasize that it is the

petitioner who bears the burden to allege and prove that one of the timeliness

exceptions applies.” Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa.

2008) (citation omitted). Any petition asserting one of these exceptions must

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also establish that the exception was raised within one year of the date the

claim could have been first presented. 42 Pa.C.S.A. § 9545(b)(2).3 “As such,

when a PCRA petition is not filed within one year of the expiration of direct

review, or not eligible for one of the three limited exceptions, or entitled to

one of the exceptions, but not filed within [one year] of the date that the claim

could have been first brought, the trial court has no power to address the

substantive merits of a petitioner’s PCRA claims.” Gamboa-Taylor, 753 A.2d

at 783 (footnote added).

       Ross’s sentence became final on February 19, 1998, when the time for

filing a petition for allowance of appeal to the Pennsylvania Supreme Court

expired. See Pa.R.A.P. 1113 (“[A] petition for allowance of appeal shall be

filed with the Prothonotary of the Supreme Court within 30 days after the

entry of the order of the Superior Court[.]”). Therefore, he had until February

19, 1999, to file a timely PCRA petition. The instant Petition was not filed until

April 26, 2018, and therefore, the Petition is facially untimely.        See 42

Pa.C.S.A. § 9545(b)(1).

       In his first claim, Ross attempts to avoid the PCRA’s timeliness

requirement, arguing that his direct appeal counsel abandoned him by not

filing a petition for allowance of appeal to the Pennsylvania Supreme Court.



____________________________________________


3 Prior to Act 146 of 2018, a PCRA petition alleging an exception to the
timeliness requirement was required to be filed within sixty days of the date
the claim could have been presented.

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Brief for Appellant at 13. However, Ross did not raise this claim in his first

PCRA Petition, or within the time prescribed by 42 Pa.C.S.A. § 9545(b)(2).

“[A]llegations of ineffective assistance of counsel will not overcome the

jurisdictional timeliness requirements of the PCRA.”      Commonwealth v.

Wharton, 886 A.2d 1120, 1127 (Pa. 2005); but see Commonwealth v.

Bennett, 930 A.2d 1264, 1274 (Pa. 2007) (stating that the Wharton rule

does not extend to claims alleging the complete abandonment of counsel).

Although Ross claims that his direct appeal counsel abandoned him, he has

not invoked the PCRA’s jurisdiction, as he failed to raise his ineffectiveness

claim within the PCRA’s time limitation.

      Ross additionally asserts that the Remedies Clause of the Pennsylvania

Constitution guarantees a remedy for the deprivation of a constitutional right.

See Pa. Const., art. I, § 11 (“All courts shall be open; and every man for an

injury done him in his lands, goods, person or reputation shall have a remedy

by due course of law….”). Ross interprets this section as requiring the relief

he seeks, i.e., to have his claim of ineffective assistance of counsel heard and

decided by a court of law. Brief for Appellant at 15.

      Similarly, in his remaining claims, Ross attempts to avoid the PCRA’s

timeliness requirements by arguing that the PCRA court was required to

litigate his challenge to the constitutionality of the timeliness requirement,

see Brief for Appellant at 16-17; that the constitutional right to due process

requires that he be given an opportunity to present his ineffectiveness claim,


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see id. at 17; and that the PCRA court is authorized to review the record

beyond the jurisdictional time limit, in order to determine whether a claim was

previously litigated, see id. at 22.

         Contrary to Ross’s assertions, the PCRA afforded Ross a remedy for his

claim of ineffective assistance of direct appeal counsel.    See 42 Pa.C.S.A.

§ 9543(a)(2)(ii) (identifying a claim of ineffective assistance of counsel as

cognizable under the PCRA).       “[P]ursuant to the plain language of Section

9542, where a claim is cognizable under the PCRA, the PCRA is the only

method of obtaining collateral review.” Commonwealth v. Descardes, 136

A.3d 493, 501 (Pa. 2016). Since Ross’s ineffectiveness claim is cognizable

under the PCRA, the PCRA court had no authority to address the claim, except

under the strictures of the PCRA.      See Commonwealth v. Eller, 807 A.2d

838, 843 (Pa. 2002) (recognizing that where a claim is cognizable under the

PCRA, “the trial court had no residual common law or statutory authority to

entertain the claim except under the strictures of the PCRA”).

         Here, Ross’s present Petition was untimely filed, and he has failed to

invoke the PCRA court’s jurisdiction by pleading and proving an exception to

the PCRA’s timeliness requirement.       Consequently, the PCRA court lacked

jurisdiction to entertain his Petition. See Gamboa-Taylor, 753 A.2d at 783.

Discerning no error or abuse of discretion, we affirm the Order of the PCRA

court.

         Order affirmed.


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     President Judge Emeritus Bender joins the memorandum.

     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/19




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