J-S59026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EARL GALE

                            Appellant                 No. 3418 EDA 2013


                Appeal from the PCRA Order November 6, 2013
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006569-1992


BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED SEPTEMBER 30, 2014

         Earl Gale appeals, pro se,1 from the order dismissing, as untimely, his

third petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. § 9541-9546.2                               is untimely and he fails to
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 After PCRA counsel filed a Turner/Finley    -
                                        See Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988).
2
  The standard of review applied by appellate courts to an order denying
PCRA relief is well-settled. The appellate court must determine whether the

                                                                        ror.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). Moreover,
the question of whether a PCRA petition is timely raises a question of law.
Commonwealth v. Fahy, 959 A.2d 312 (Pa. 2008). Where a petitioner
raises a question of law, the standard of review is de novo and the scope of
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J-S59026-14



plead and prove any recognized exception to the timeliness provisions of the

PCRA, we affirm.

        In 1993, Gale was convicted by a jury of first-degree murder and

related offenses and subsequently sentenced to life imprisonment.              The

convictions stemmed from a drive-by shooting that took place in Delaware

County; Gale was the front-seat passenger in the car from which the deadly



appeal in April 1995 and

petition for allowance of appeal in November 1995. On November 26, 1997,

Gale filed his first PCRA petition.         After an evidentiary hearing, the court

denied the petition. Following an unsuccessful collateral appeal and petition

for allowance of appeal, Gale filed a second PCRA petition on August 25,

2000.   The trial court denied this second petition as untimely.         Our Court



his third, PCRA petition claiming that he is entitled to relief based upon the

recent United States Supreme Court decisions, Missouri v. Frye, 132 S.Ct.

1399 (2012), and Lafler v. Cooper, 132 S.Ct. 1376 (2012).                The PCRA

court dismissed the petition as untimely. He now appeals.


                       _______________________
(Footnote Continued)

review is plenary.       Commonwealth v. Taylor, 65 A.3d 462 (Pa. Super.
2013).




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1996, ninety days after the Pennsylvania Supreme Court denied his petition

for allowance of appeal and the time expired to seek certiorari in the United

States Supreme Court. See 42 P.C.S. § 9545(b)(1) (PCRA petition shall be

filed within one year of date judgment becomes final unless recognized



2012, therefore, was filed more than 15 years late under the PCRA.

Moreover, the argument Gale makes to overcome the untimeliness of his

petition, that Frye3 and Lafler announce a new, retroactively applied

constitutional right under the PCRA, has been rejected by this Court. See

Commonwealth v Feliciano, 69 A.3d 1270 (Pa. Super. 2013) (Frye and

Lafler do not set forth new rules of constitutional law and are not applicable

retroactively to satisfy section 9545(b)(1)(iii) timeliness exception for PCRA

petitioners); see also Commonwealth v. Hernandez, 79 A.3d 649 (Pa.

Super. 2013) (further explaining holding of Feliciano).4

____________________________________________


3
   In Frye
right to counsel is violated when counsel allows a plea offer extended by the
prosecution to expire without advising the defendant of the offer or allowing
him to consider it. 132 S.Ct. at 1408. Lafler reiterated         holding.
4
  Gale argues that because Feliciano and Hernandez had not yet been
decided at the time he filed his petition in May 2012, the trial court
improperly determined that his petition did not meet the timeliness
exception under section 9545(b)(1)(iii).    What Gale fails to recognize,
however, is the fact that both Feliciano and Hernandez were decided prior
t
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J-S59026-14


       Because the timeliness requirements for filing a PCRA petition are

jurisdictional in nature, the lack of a timely filed petition deprives the court

of jurisdiction to       even entertain the issues raised by a petitioner.

Commonwealth v. Breakiron, 781 A.2d 94 (Pa. 2001).              Therefore, the



considering its merits. Id.; Johnson, supra.

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/2014




                       _______________________
(Footnote Continued)

properly applied the relevant law as it stood at the time of his decision when




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