J-S11013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    KENYATTA JAMES WHITE                         :
                                                 :
                       Appellant                 :   No. 2401 EDA 2018

              Appeal from the PCRA Order Entered July 9, 2018
     In the Court of Common Pleas of Chester County Criminal Division at
                       No(s): CP-15-CR-0003507-2008


BEFORE: SHOGAN, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                                   FILED JUNE 07, 2019

       Appellant, Kenyatta James White, appeals from the order denying his

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

§§ 9541–9546. We affirm.

       On May 26, 2009, Appellant entered a negotiated guilty plea to one

count each of robbery, criminal conspiracy, and person not to possess

firearm.1 Pursuant to the plea agreement, the plea court sentenced Appellant

to imprisonment for an aggregate term of eighteen to forty-eight years. N.T.

(Sentencing), 5/26/09, at 14–15.               The facts of the crimes, which were

committed while Appellant was on parole, were summarized at the guilty plea

colloquy as follows:


____________________________________________


1   18 Pa.C.S. §§ 3701, 903, and 6105, respectively.
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           On July 26, 2008, at the M&T Bank, located in Honey Brook,
     Chester County, [Appellant] entered that bank. He was wearing
     a baseball cap low over his face. He walked up to wait in line at
     the teller’s station, initially wrote a note. Video surveillance
     showed him initially going to like a customer service table, writing
     something at the customer service table, then getting in line at
     one of the teller stations. When it was his turn in line, he
     approached the teller station. At that point, [he] slipped the
     victim in this case . . . a note.

                                   * * *

            He slipped her a note. That note just simply had the words
     on it, “Give me the money, no dye pack.” [The teller] did hand
     him the money which was in the teller drawer at that point in time.
     I think that was approximately $30,000 that she handed to him.
     He then is observed leaving the bank. Some of that money was
     dropped in the parking lot on the way out of the bank, at which
     point he apparently got into a car with an unidentified
     coconspirator and left the scene of the bank.         Subsequent
     investigation—as I’ve indicated to the [c]ourt in the past, both
     [the teller] as well as one of the other customers in line behind
     [Appellant] were able to pick him out of a photo lineup. In
     addition, [Appellant’s] fingerprints were found on the note which
     he left with the teller.

N.T., 5/26/09, at 5–6. The Commonwealth further indicated that Appellant

possessed a firearm, later recovered at his residence, which he did not

brandish during the robbery. Id. at 6–7.

     Appellant did not file a post-sentence motion or a direct appeal. On

January 23, 2018, Appellant filed a pro se PCRA petition. The PCRA court

appointed counsel, who subsequently sought to withdraw pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), asserting that the PCRA

petition was untimely and no exceptions applied. On May 14, 2018, the PCRA


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court issued a Pa.R.Crim.P. 907 notice of intent to dismiss the petition. On

June 11, 2018, Appellant, pro se, responded to the notice of intent. On July

9, 2018, the PCRA court dismissed the PCRA petition as untimely and entered

an order permitting PCRA counsel to withdraw. Appellant filed a timely notice

of appeal.2 Concurrently with his notice of appeal, Appellant filed a Pa.R.A.P.

1925(b) statement.

       Appellant raises the following issues in his pro se brief filed in this Court:

       1. Under the Supremacy Clause of the U.S. Constitution, has
       Congress preempted the field of habeas corpus through Title I of
       AEDPA there[b]y forbidding the lower court to give effect to
       conflicting state “prison mailbox rule,” conflicting state
       retroactivity   analysis  and    principles   at   42   Pa.C.S.
       § 9545(b)(1)(iii), and where Appellant’s Fourteenth Amendment
       Due Process and Equal Protection Clause rights violated by the
       lower court applying conflicting state law govern state habeas
       corpus/PCRA proceedings?

       2. Was PCRA counsel ineffective under the Sixth Amendment for
       filing a deficient Finley no-merit letter which failed to address all
       of Appellant’s pro se PCRA petition, and did the lower court
       commit legal error or abuse discretion in its wholesale adoption of
       the deficient Finley-letter?

       3. Where a challenge to trial counsel’s ineffectiveness presents a
       mixed question of law and fact, does the Supremacy Clause’s rule
       of decision and Fourteenth Amendment’s Due Process and Equal
       Protection Clauses require that constitutional errors shown by
       record-based facts not objected to, preserved and/or raised on
       direct appeal constitute newly-discovered facts to satisfy the
____________________________________________


2   While the notice of appeal was received by the Chester County Clerk of
Courts on August 10, 2018, the PCRA court noted that the appeal was
postmarked on August 8, 2018, “which [it] construed as the date of timely
filing pursuant to the ‘prison mailbox rule.’ See, e.g., Commonwealth v. Little,
716 A.2d 1287 (Pa. Super. 1998).” PCRA Court Opinion, 8/21/18, at
unnumbered 1.

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      timeliness exception at 42 Pa.C.S. § 9545(b)(1)(ii), and where the
      record shows a newly-discovered fact of trial counsel’s alleged
      ineffectiveness in the handling of an unconstitutional amendment
      to the bill of information which added an additional and different
      offense did the lower court commit legal error or abuse discretion
      in finding that because [Appellant] was present when the
      information was amended, he “knew” of this fact, regardless of
      not being informed by counsel that the amendment was
      unconstitutional?

      4. Does the rule of decision prescribed the supreme Laws of the
      Land under Teague v. Lane, Montgomery v. Alabama, and Welch
      v. U.S. dictate that Appellant’s Tenth and Fourteenth Amendment
      rights can only be secured by automatic retroactive application of
      the new, substantive and watershed procedural funtioning [sic]
      rule of criminal procedure of Class v. U.S., 138 S.Ct. 798 (2018),
      which established for the first time that Appellant may raise on
      direct review a challenge to the constitutionality of a statute of
      conviction following a guitly [sic] plea?

Appellant’s Brief at 2–3.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).    This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016).   The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).




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        Initially, we must determine whether the PCRA court had jurisdiction to

review the merits of Appellant’s issues. The timeliness of a PCRA petition is a

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

merits of the claims raised in an untimely PCRA petition. Commonwealth v.

Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citing Commonwealth v. Murray,

753 A.2d 201, 203 (Pa. 2000)).

        Appellant was sentenced on May 26, 2009. Because he did not file a

post-sentence motion or a direct appeal, his judgment of sentence became

final on June 25, 2009, thirty days after the time for filing a direct appeal

expired. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). Accordingly, Appellant

had to file a PCRA petition by June 25, 2010, in order for it to be timely.

Appellant filed the instant PCRA petition over seven years later, on January

23, 2018. Hence, the petition is facially untimely.

        An untimely petition nevertheless 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.3 A petition invoking one of these exceptions must be filed within

____________________________________________


3   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;




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one year of the date the claim could first have been presented. 4 42 Pa.C.S.

§ 9545(b)(2).       The PCRA petitioner bears the burden of proving the

applicability of one of the exceptions. Commonwealth v. Whitehawk, 146

A.3d 266, 269–270 (Pa. Super. 2016).

       Appellant has failed to invoke properly any exception to the PCRA’s time

bar with clarity or specificity. In his first issue, Appellant suggests the PCRA

court erred in invoking the “State law ‘prison mailbox rule’” because it

allegedly conflicts with “federal ‘prison mailbox rule.’” Appellant’s Brief at 6.

This claim does not raise an exception to the PCRA time bar. Indeed, Appellant

fails to clarify any effect of such a claim. While the PCRA court ruled that

Appellant’s response to the court’s Pa.R.Crim.P. 907 notice was two days late,


____________________________________________


       (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.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).

4   Until recently, a petition invoking an exception was required to be filed
within sixty days of the date the claim could have been presented. However,
Act 146 of 2018 amended 42 Pa.C.S. § 9545(b)(2), and Section 9545(b)(2)
now provides that a PCRA petition invoking a timeliness exception must be
filed within one year of the date the claim could have been presented. See
2018 Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018, §
2 and § 3 (“[T]he amendment ... shall apply to claims arising on Dec. 24,
2017 or thereafter.”). Although applicable to Appellant’s instant petition, the
change in the law from sixty days to one year does not impact our analysis.

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applying the Pennsylvania prisoner mailbox rule, the PCRA court did not

exclude Appellant’s response on that basis. Order, 7/9/18, at n.1. Instead,

the PCRA court, relying on the Pennsylvania Rules of Criminal Procedure,

determined that Appellant’s argument that the PCRA court did not have

“power” to sua sponte dismiss Appellant’s PCRA petition lacked merit.

According to Pa.R.Crim.P. 907(1):

     (1) the judge shall promptly review the [PCRA] petition, any
     answer by the attorney for the Commonwealth, and other matters
     of record relating to the defendant’s claim(s). If the judge is
     satisfied from this review that there are no genuine issues
     concerning any material fact and that the defendant is not entitled
     to post-conviction collateral relief, and no purpose would be
     served by any further proceedings, the judge shall give notice to
     the parties of the intention to dismiss the petition and shall state
     in the notice the reasons for the dismissal. The defendant may
     respond to the proposed dismissal within 20 days of the date of
     the notice. The judge thereafter shall order the petition
     dismissed, grant leave to file an amended petition, or direct
     that the proceedings continue.

Pa.R.Crim.P. 907(1) (emphasis added). Appellant’s first issue fails to assert

an exception to the PCRA’s one-year time limitation.

     In his second issue, Appellant suggests his PCRA counsel failed to file a

proper Turner/Finley no-merit letter.     Appellant’s Brief at 10.   Appellant

suggests that the Turner/Finley letter was deficient and PCRA counsel

ineffective because the Turner/Finley letter addressed only the timeliness of

the PCRA petition and failed to raise issues Appellant desired to raise. Id.

Following our review of the record, we observe that in Appellant’s “Response

to [Finley] Letter and Withdrawal Motion” filed on March 16, 2018, in the


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PCRA court, Appellant failed to identify specific issues counsel allegedly

forewent. Moreover, we note that a claim of ineffective assistance of counsel

does not save an otherwise untimely petition for review on merits.

Commonwealth v. Perrin, 947 A.2d 1284, 1287 (Pa. Super. 2008).

      Appellant next posits that the amendment of the criminal Information

prior to entry of his guilty plea is a “‘newly-discovered fact’ based on Appellant

being informed that the bill of information was fatally defective and

unconstitutionally amended.” Appellant’s Brief at 10. We reject this claim.

Appellant knew at the time of his guilty plea in 2009 that the Information was

amended. N.T., 5/26/09, at 2. Therefore, a petition invoking the exception

was not filed within one year of the date the claim could first have been

presented.    42 Pa.C.S. § 9545(b)(2).        Moreover, the Information was

amended by agreement. N.T., 5/26/09, at 2. The amendment was part of

the plea agreement, which Appellant accepted. Id. Appellant’s attempt to

incorporate this issue with the rejected claim of ineffectiveness asserted in

issue two, Appellant’s Brief at 16, has no support in the record. This claim

does not raise an exception to the time-bar.

      We rely on the PCRA court’s explanation in addressing Appellant’s final

issue that “pursuant to the rule of decision prescribed by the Supremacy

Clause, that Hurst [v. Florida, 136 S.Ct. 616 (2016)], and Class [v. U.S.,

138 S.Ct. 798 (2018),] are automatically retroactive to cases on collateral

review.” Appellant’s Brief at 19. The PCRA court opined:


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      [Appellant] alleges that the Supremacy Clause invalidates the
      requirement set forth in 42 Pa.C.S. § 9545(b)(1)(iii), namely that
      a new constitutional right must be held to be retroactive by the
      Pennsylvania or U.S. Supreme Court in order for a PCRA claim to
      be raised on that ground. According to [Appellant], a new
      constitutional right need not be held to be retroactive by any court
      in order for it to be considered in a PCRA [petition]. Therefore,
      [Appellant] believes the court must reevaluate his petition in light
      of the recent U.S. Supreme Court decision of Class v. U.S., 138
      S.Ct. 798 (2018). While novel, this argument has no basis in the
      law. The court will not find 42 Pa.C.S. § 9545(b)(1)(iii) to be
      unconstitutional, as it has been analyzed numerous times by the
      appellate courts of this Commonwealth. A new constitutional right
      must be specifically held to be retroactive by an appellate court in
      order for it to be raised in a petition for post-conviction relief. See
      Commonwealth v. Reed, 107 A.3d 137 (Pa. Super. 2014).
      [Appellant] is not entitled to relief upon this claim.

Order, 7/9/18, at n.1.

      In conclusion, because Appellant’s PCRA petition was untimely and no

exceptions apply, the PCRA court correctly determined that it lacked

jurisdiction to address the issues 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: 6/7/19




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