J-S75024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT AUSTIN

                            Appellant                 No. 2254 EDA 2015


                    Appeal from the PCRA Order June 16, 2015
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0516941-1993


BEFORE: BOWES, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                         FILED OCTOBER 25, 2016

       Robert Austin appeals from the June 16, 2015 order of the Court of

Common Pleas of Philadelphia County dismissing as untimely his petition

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

9541-9546. We affirm.

       On October 11, 1994, a jury convicted Austin of first-degree murder

and robbery.1 On February 22, 1996, the trial court sentenced Austin to an

aggregate term of life (for first-degree murder) plus 10 to 20 years’

imprisonment (for robbery). Austin filed post-sentence motions on February

29, 1996, which the trial court denied on July 10, 1996. This Court affirmed

the judgment of sentence on February 20, 1998. On January 26, 1999, the

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       1
           18 Pa.C.S. §§ 2502(a) and 3701, respectively.
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Supreme Court of Pennsylvania denied Austin’s petition for allowance of

appeal.    Austin did not a file a petition for a writ of certiorari with the

Supreme Court of the United States within 90 days.

       On January 13, 2000, Austin timely filed his first PCRA petition pro se,

and the PCRA court appointed counsel.            On February 7, 2001, Austin’s

counsel filed a Turner/Finley2 letter. On March 16, 2001, the PCRA court

issued a notice of intent to dismiss the petition. On June 6, 2001, the PCRA

court dismissed the petition and allowed counsel to withdraw. Austin did not

appeal from the PCRA court’s decision.

       On August 6, 2004, Austin filed his second PCRA petition, which the

PCRA court dismissed as untimely. On May 4, 2005, Austin filed a motion

for post-conviction DNA testing, seeking DNA testing of clothing he wore the

night of the murder. On June 29, 2005, the PCRA court denied the motion. 3

       On May 16, 2005, while the motion for DNA testing was pending,

Austin appealed the dismissal of his second PCRA petition.          This Court

affirmed the dismissal of the petition on April 19, 2006.

       On August 23, 2007, Austin filed a third PCRA petition.     On June 5,

2008, the PCRA court dismissed the third petition as untimely. Austin filed a


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       2
     Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
       3
        Austin did not appeal the PCRA court’s denial of his motion for post-
conviction DNA testing.



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notice of appeal on June 23, 2008, and this Court affirmed the PCRA court’s

decision on July 13, 2010.

       On January 10, 2014, Austin filed his fourth PCRA petition, which he

amended on March 10, 2014. On June 16, 2015, the PCRA court dismissed

the petition as untimely.4 On July 16, 2015, Austin filed a timely notice of

appeal with this Court.         Both Austin and the PCRA court complied with

Pennsylvania Rule of Appellate Procedure 1925.

       Austin raises the following issue on appeal:

              Whether the court erred by denying [Austin’s] PCRA
           petition that established clearly the first timely filed PCRA
           petition contained issue [sic] that have merit, and that
           court appointed counsel was constitutionally ineffective
           under Pennsylvania laws by filing a “Finley letter”
           abandoning [Austin], allowing this subsequent PCRA
           petition to be an extension of the timely filed first PCRA


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       4
       The PCRA court did not issue a notice of intent to deny the petition
pursuant to Pennsylvania Rule of Criminal Procedure 907. Although this
Court has previously held that Rule 907 notice is mandatory, Austin has not
objected to its omission and, thus, has waived the issue. See
Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa.Super. 2007).

      Furthermore, our Supreme Court has previously refused to grant relief
to a PCRA petitioner based on a trial court’s failure to provide notice of its
intent to dismiss the PCRA petition, where, after the Court’s independent
review, it found the petitioner failed to plead and prove a time-bar
exception. Commonwealth v. Pursell, 749 A.2d 911, 917 n.7 (Pa. 2000).
Here, Austin’s PCRA petition was untimely filed and he has failed to invoke
any of the time-bar exceptions, so he is not entitled to relief based on the
lack of Rule 907 notice.




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           petitioner [sic], entitling relief to file a [nunc pro tunc]
           direct appeal.

Austin’s Br. at v.

      Before addressing the merits of Austin’s PCRA petition, we must first

determine whether his petition is timely. Under Pennsylvania law, no court

has jurisdiction to hear an untimely PCRA petition.                  Commonwealth v.

Monaco,       996       A.2d   1076,      1079        (Pa.Super.     2010);     see    also

Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa.Super. 2007)

(timeliness requirement of the PCRA is “mandatory and jurisdictional in

nature”)     (quoting    Commonwealth            v.    Carr,   768      A.2d   1164,   1167

(Pa.Super. 2001)).        “[A] PCRA petition, including a second or subsequent

petition, shall be filed within one year of the date the underlying judgment

becomes final.” Monaco, 996 A.2d at 1079; see 42 Pa.C.S. § 9545(b)(1).

A   judgment     is   “final   at   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).

      There are three exceptions to the PCRA’s time-bar, establishing the

limited circumstances under which the late filing of a petition will be

excused. Monaco, 996 A.2d at 1079 (citing 42 Pa.C.S. § 9545(b)(1)). For

one of the exceptions to apply, a petitioner must allege and prove one of the

following:




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           (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)(i)-(iii).        Further, a petition invoking one of these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.” Id. § 9545(b)(2).

       Austin’s judgment of sentence became final on April 26, 1999.5 Austin

had one year from that date, i.e., until April 26, 2000, to file a timely PCRA

petition. Therefore, Austin’s current petition, filed on January 10, 2014, is




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       5
        See U.S. S. Ct. R. 13 (“A petition for a writ of certiorari seeking
review of a judgment of a lower state court that is subject to discretionary
review by the state court of last resort is timely when it is filed with the
Clerk within 90 days after entry of the order denying discretionary review.”);
Commonwealth v. Owens, 718 A.2d 330, 331 (Pa.Super. 1998) (finding
that appellant’s judgment of sentence became final on August 13, 1996, 90
days after Supreme Court of Pennsylvania denied appellant’s petition for
allocatur on May 15, 1996). Here, the Pennsylvania Supreme Court denied
Austin’s petition for allowance of appeal on January 26, 1999. Thus, the
judgment became final 90 days later, on April 26, 1999.




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facially untimely.   Austin’s petition remains untimely unless it alleges and

proves one of the PCRA time-bar exceptions.

      Austin does not allege or prove any of the three exceptions to the one-

year time-bar. Rather, he raises an ineffective assistance of counsel claim.

Austin argues that appointed counsel during his first PCRA petition was

ineffective for failing to argue that his counsel on direct appeal was

ineffective. Austin’s Br. at 1. Austin asks this Court to consider his fourth

PCRA petition as an extension of his first PCRA petition and seeks leave to

file a nunc pro tunc direct appeal. Id. at 5.

      “It is well settled that allegations of ineffective assistance of counsel

will not overcome the jurisdictional timeliness requirements of the PCRA.”

Commonwealth v. Wharton, 886 A.2d 1120, 1126 (Pa. 2005). Because

Austin raises an ineffective assistance counsel claim and does not allege any

of the three exceptions to the one-year PCRA time-bar, the PCRA court

properly dismissed his fourth PCRA petition as untimely.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2016



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