J-S64002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARK ANTHONY LOVE                          :
                                               :
                       Appellant               :   No. 620 WDA 2018

                 Appeal from the Order Entered March 22, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0001676-2006


BEFORE:      BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.:                            FILED DECEMBER 12, 2019

        Mark Anthony Love appeals from the March 22, 2018 order1 dismissing

his PCRA petition as lacking in merit. We affirm based on the untimeliness of

the petition.

        In January 2008, a jury convicted Appellant of second-degree murder,

robbery, criminal trespass, and carrying a firearm without a license, and he

was sentenced to life imprisonment.            The convictions stemmed from the

January 19, 2006 shooting death of Eric Martin in the playground area of a

housing complex in West Mifflin. Information supplied by two brothers who

were perpetrating an armed robbery at the other end of the playground led

police to Appellant. Appellant told police that he intended to rob the victim,
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*   Retired Senior Judge assigned to the Superior Court.

1The order is dated March 20, 2018, but was entered on the docket on March
22, 2018.
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but the victim ran when he drew a .9 mm firearm.           Wanting to scare the

victim, Appellant fired the weapon in the victim’s direction, and the victim fell.

Ballistics confirmed that the cartridge case found at the scene was fired from

the .9 mm handgun found in Appellant’s apartment.

      After several reinstatements of Appellant’s direct appeal rights, this

Court affirmed the convictions, finding that the evidence was sufficient to

sustain the verdict and that the verdict was not contrary to the weight of the

evidence.      Commonwealth v. Love, 40 A.3d 189 (Pa.Super. 2011)

(unpublished memorandum). Appellant’s petition for allowance of appeal was

denied by the Pennsylvania Supreme Court on November 8, 2012.

Commonwealth v. Love, 56 A.3d 397 (Pa. 2012). He did not petition for a

writ of certiorari to the United States Supreme Court.

      On November 13, 2013, Appellant filed a timely pro se PCRA petition,

counsel was appointed, and counsel filed an amended petition asserting that

trial counsel was ineffective for failing to request a ‘corrupt source’ jury charge

regarding the Meggett brothers. Following an evidentiary hearing, the court

denied   the   petition.    Appellant   appealed,    and   this   Court   affirmed.

Commonwealth v. Love, 159 A.3d 603 (Pa.Super. 2016) (unpublished

memorandum). Appellant did not seek allowance of appeal.

      The petition that is the subject of the instant appeal was filed on October

3, 2017. The PCRA court issued notice of its intent to dismiss the petition as

untimely, to which Appellant did not respond. The court dismissed the petition




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on March 22, 2018, Appellant timely appealed, and complied with Pa.R.A.P.

1925(b).2 Appellant presents two issues for our review:

       [I]. Whether the PCRA Court erred in dismissing Appellant’s PCRA
       petition where his appellate counsel abandoned him and he was
       just seeking to have his appellate rights reinstated.

       [II] Whether Appellant[’s] counsel abandoned Appellant after
       counsel stated that she would file his appeal but failed to do so.

Appellant’s brief at 4.

       In reviewing the denial of PCRA relief, “this Court is limited to

ascertaining whether the evidence supports the determination of the PCRA

court and whether the ruling is free of legal error.”      Commonwealth v.

Andrews, 158 A.3d 1260, 1263 (Pa.Super. 2017). The PCRA court ruled that

the within petition lacked merit. The Commonwealth contends, however, that

the petition was untimely filed, and urges us to affirm on that basis. Since

the timeliness of the petition implicates our jurisdiction to reach the merits of

Appellant’s claim, we must address that threshold issue first.              See

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa.Super. 2013).

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2 In its Rule 1925(a) opinion, the PCRA court determined that it was “unclear
whether [counsel] had notified [Appellant] in a timely fashion of the decision
of the Superior Court at No. 929 WDA 2015 denying relief.” PCRA Court
Opinion, 5/1/19, at unnumbered 2. Since the court had not conducted an
evidentiary hearing to address the issue, the court recommended that this
Court remand for such a hearing, or in the alternative, reinstate Appellant’s
appellate rights to the Supreme Court. Id. We conclude that Appellant’s
petition was untimely filed, and hence, the PCRA court lacked jurisdiction to
address the merits of the petition or afford relief, and affirm on this alternate
basis.


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      The law is well settled that a PCRA petition, including a second or

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

of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). Judgment of sentence

becomes final at the conclusion of direct review, or at the expiration of the

time for seeking the review. Herein, Appellant’s judgment of sentence became

final on February 6, 2013, when the ninety-day period expired to seek

certiorari from the United States Supreme Court. Thus, Appellant had one

year from that date, until February 6, 2014, to file a timely PCRA petition. The

instant petition filed on October 3, 2017, is facially time-barred.

      There are three exceptions to the jurisdictional time-bar set forth in 42

Pa.C.S. §9545(b)(1)(i-iii). In order to invoke an exception, a petitioner must

plead and prove one of the following:

      (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.

42 Pa.C.S. § 9545(b)(1).




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       Appellant invoked the timeliness exception for newly-discovered facts in

his PCRA petition. He contends that appointed appellate counsel on his prior

PCRA petition abandoned him. Appellant maintains that he would have sought

allowance of appeal to the Pennsylvania Supreme Court, but that counsel only

informed him on July 7, 2017, well beyond the sixty-day period for seeking

allowance of appeal, that this Court had denied relief on his appeal on

November 30, 2016.3 Appellant’s brief at 13. He cites Commonwealth v.

Touw, 781 A.2d 1250 (Pa.Super. 2001), for the proposition that he could

demonstrate that “but for counsel’s failure to consult[,] he would have timely

appealed.” Appellant’s brief at 17. Appellant also avers that he “was firm

with [counsel] that he wanted her to appeal this case to the Supreme Court

for their review.” Id. at 16.

       The PCRA statute currently 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 42 Pa.C.S. § 9545(b)(2), as amended October 24,

2017, eff. in sixty days (expanding the period from sixty days to one year).

However, the amendment only applies the longer one-year period to claims

that arose after December 24, 2017. By his own admission, Appellant knew


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3 The Commonwealth characterizes Appellant’s newly-discovered fact as
Appellant’s knowledge that counsel failed to file a requested appeal, in effect
abandoning him. See Commonwealth v. Bennett, 930 A.2d 1264 (Pa.
2007).



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on July 7, 2017,4 that his Superior Court appeal had been denied, that counsel

had not apprised him of that fact, and that counsel had not filed a petition for

allowance of appeal, in effect abandoning him.      Thus, the pre-amendment

sixty-day period was applicable, and Appellant had until September 7, 2017,

to file a timely petition alleging that newly-discovered fact.     The instant

petition was filed on October 3, 2017, eighty-eight days after the claim could

have been presented.

         The law is well settled that, prior to the amendment, a petitioner

invoking the newly-discovered fact exception to the PCRA one-year time bar

was required to present the claim within sixty days of discovering the new

fact. Commonwealth v. Geer, 936 A.2d 1075, 1078-79 (Pa.Super. 2007).

Appellant failed to do so, and thus, he cannot avail himself of the newly-

discovered fact timeliness exception. Since we lack jurisdiction to reach the

merits of Appellant’s claims, we affirm the dismissal of the petition on that

basis.

         Order affirmed.




____________________________________________


4 Appellant may have known prior to July 7, 2017, that his appeal had been
denied. In his petition, Appellant averred that he had written to the Superior
Court to ascertain the status of his appeal, and was advised by letter dated
June 1, 2017, that it had been disposed of seven months earlier. PCRA
Petition, 10/3/17, at 4.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2019




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