J-S24033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
KEVIN JONES,                               :
                                           :
                   Appellant               :           No. 2982 EDDA 2014

          Appeal from the PCRA Order entered on September 23,2014
            in the Court of Common Pleas of Montgomery County,
                Criminal Division, No. CP-46-CR-0001603-1999

BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED APRIL 29, 2015

        Kevin Jones (“Jones”) appeals from the Order dismissing his second

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        In 1999, following a jury trial, Jones was convicted of murder of the

first degree, possessing instruments of crime, firearms not to be carried

without a license, and unsworn falsification to authorities.1    The trial court

sentenced Jones to life in prison without the possibility of parole.

        Jones filed an untimely Notice of Appeal, which this Court quashed in

2001.    See Commonwealth v. Jones, 779 A.2d 1219 (Pa. Super. 2001)

(unpublished memorandum).        However, the trial court reinstated Jones’s

right to file a direct appeal, nunc pro tunc. This Court affirmed the judgment



1
    18 Pa.C.S.A. §§ 2502(a), 907(a), 6106(a), 4904(a).
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of sentence.    See Commonwealth v. Jones, 816 A.2d 330 (Pa. Super.

2002) (unpublished memorandum).               Jones did not file a petition for

allowance of appeal to the Pennsylvania Supreme Court.

        Jones filed his first timely PCRA Petition, pro se, in 2003. The PCRA

court    appointed   counsel,   who   filed     a   Petition   to   withdraw   from

representation pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc). The PCRA court allowed counsel to withdraw and dismissed Jones’s

Petition. This Court affirmed the dismissal, and the Pennsylvania Supreme

Court denied Jones’s Petition for Allowance of Appeal. See Commonwealth

v. Jones, 873 A.2d 768 (Pa. Super. 2005) (unpublished memorandum),

appeal denied, 889 A.2d 1214 (Pa. 2005).

        Jones filed the instant PCRA Petition, pro se, in 2012. The PCRA court

appointed Jones counsel, who filed an Amended Petition over one year later.

After issuing a Notice of Intent to Dismiss, the PCRA court dismissed the

Petition, without a hearing, as untimely filed. Jones filed a timely Notice of

Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of Matters

Complained of on Appeal.

        On appeal, Jones raises the following question for our review:

“Considering the decision and reasoning of the United States Supreme

Court’s [decision] in Lafler v. Cooper, 132 S. Ct. 1376 (2012), did the




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[PCRA c]ourt err by [dismissing], without a hearing, [Jones’s] request for

PCRA relief?” Brief for Appellant at 2.

             We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Jones claims that the PCRA court erred in dismissing his Petition

without a hearing.   Brief for Appellant at 11.    Jones argues that his trial

counsel was ineffective for advising him against accepting the plea deal

offered by the Commonwealth, which would have allowed him to plead guilty

to third-degree murder. Id. at 8. According to Jones, counsel led him to

believe that he would be successful in obtaining a verdict of voluntary

manslaughter if the case proceeded to trial. Id.

      Initially, under the PCRA, any PCRA petition “including a second or

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

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment

of sentence becomes final “at the conclusion of direct review, including

discretionary review in the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” Id. § 9545(b)(3). The PCRA’s

timeliness requirements are jurisdictional in nature and a court may not




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address the merits of the issues raised if the PCRA petition was not timely

filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, Jones’s Petition is facially untimely under the PCRA.        See 42

Pa.C.S.A. § 9545(b).      However, Pennsylvania courts may consider an

untimely petition if the appellant can explicitly plead and prove one of three

exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA 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); Albrecht, 994

A.2d at 1094.

      Here,   Jones   invokes   the   newly    recognized   constitutional   right

exception, codified at 42 Pa.C.S.A. § 9545(b)(1)(iii). Jones asserts that the

United States Supreme Court’s decision in Lafler, supra, which extended

the Sixth Amendment right to counsel to the plea-bargaining process,

recognizes a new constitutional right that can overcome the PCRA’s time bar.

See Brief for Appellant at 7, 10. Jones argues that if Lafler is applied to his

case, he can now succeed on a claim of ineffective assistance of counsel

because the homicide he committed was such a “textbook example” of a

“coldly and deliberately executed” first-degree murder that no reasonable

counsel would have discouraged him from accepting the plea deal for third-

degree murder. See id. at 8.

      Although Jones properly filed the Petition within 60 days of the date on

which the Supreme Court issued the Lafler decision, his claim is without



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merit.      In order to invoke the newly recognized constitutional right

exception, the petitioner must demonstrate that the United States Supreme

Court or the Pennsylvania Supreme court recognized a new constitutional

right.    Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2014).

This Court has explicitly held that Lafler did not create a new constitutional

right.     Commonwealth v. Feliciano, 69 A.3d 1270, 1277 (Pa. Super.

2013); accord Commonwealth v. Hernandez, 79 A.3d 649, 654 (Pa.

Super.     2013).    Rather,   Lafler   merely   extended   the   existing   Sixth

Amendment right to the plea-bargaining process.         Feliciano, 69 A.3d at

1277. Therefore, Jones has failed to plead and prove the exception provided

in 42 Pa.C.S.A. § 9545(b)(1)(iii) to overcome the untimeliness of his

Petition. See id.2

         Order affirmed.




2
   To the extent Jones claims that the ineffectiveness of his trial counsel
invoked an exception to the timeliness requirement, we affirm “that
allegations of ineffective assistance of counsel will not overcome the
jurisdictional timeliness requirements of the PCRA.” Commonwealth v.
Wharton, 86 A.2d 1120, 1127 (Pa. 2005). Further, Jones’s claim that the
PCRA court erred in dismissing his PCRA Petition, without first holding an
evidentiary hearing, is without merit. “[I]t is well settled that the right to an
evidentiary hearing on a PCRA petition is not absolute, and the PCRA court
may decline to hold a hearing if the petitioner’s claims are patently frivolous
with no support in either the record or other evidence.” Commonwealth v.
Garcia, 23 A.3d 1059, 1066 n.9 (Pa. Super. 2011). In this case, where
Jones filed an untimely PCRA Petition and did not plead and prove an
exception to the timeliness requirement, we conclude that the PCRA court
did not abuse its discretion in declining to hold an evidentiary hearing. See
id.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/29/2015




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