J-S56011-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA


                        v.

DARELL REESE

                              Appellant                       No. 3278 EDA 2016


                Appeal from the PCRA Order September 22, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0100571-1998


BEFORE: BOWES, STABILE, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                                    FILED OCTOBER 18, 2017

       Darell Reese appeals from the September 22, 2016 order dismissing

as untimely his fifth petition for post-conviction relief. We affirm.

       On September 23, 1999, a jury convicted Appellant of first-degree

murder for his participation in the shooting death of Rasheed Davis and the

non-fatal    shooting    of    Lennell    Billington   on   November   22,   1997,   in

Philadelphia.1     He was sentenced to life in prison without possibility of

parole.     This Court affirmed judgment of sentence, Commonwealth v.

Reese, 782 A.2d 1058 (Pa.Super. 2001) (unpublished memorandum), and
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1   Appellant was previously convicted of aggravated assault, criminal
conspiracy and possession of an instrument of crime. At the first trial, the
jury could not reach a verdict on the first-degree murder charge, resulting in
a second trial on that charge alone.



* Retired Senior Judge specially assigned to the Superior Court.
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the Supreme Court denied allowance of appeal on December 14, 2001.

Commonwealth v. Reese, 793 A.2d 907 (Pa. 2001).

      Appellant filed a timely first PCRA petition and counsel was appointed.

Counsel filed a Turner/Finley no-merit letter, and the PCRA court granted

counsel leave to withdraw, issued Rule 907 notice, and later dismissed the

petition as meritless. That decision was affirmed on appeal to this Court and

allowance of appeal was denied. Commonwealth v. Reese, 885 A.2d 581

(Pa.Super. 2005). Appellant subsequently filed an unsuccessful petition for

writ of habeas corpus in the federal court, and three PCRA petitions that

were dismissed as untimely, with the dismissals affirmed by this Court on

appeal.

      Appellant’s latest PCRA petition, filed on March 21, 2016, and

amended on June 27, 2016, was dismissed as untimely on September 22,

2016, following issuance of Rule 907 notice. Appellant asserted therein that

his   petition   was   timely   under   the   exception   for   newly-recognized

constitutional rights held to apply retroactively.          See 42 Pa.C.S. §

9545(b)(1)(iii). He maintained that Lafler v. Cooper, 566 U.S. 156 (2012)

and Missouri v. Frye, 566 U.S. 133 (2012), recognized a new constitutional

right to effective representation of counsel during the plea negotiation

process, and that the decisions were entitled to retroactive effect under

Montgomery v. Louisiana, 136 S.Ct. 718 (2016).




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      In his amended pro se petition filed on June 27, 2016, Appellant

claimed that his sentence of life imprisonment without parole was illegal and

unauthorized by statute since he was under twenty-five years of age when

the crimes were committed, citing Miller v. Alabama, 567 U.S. 460 (2012)

(holding mandatory life sentences without possibility of parole for those

under age eighteen violative of eighth amendment prohibition against cruel

and unusual punishment) and Montgomery, supra (holding Miller is a new

rule retroactive to cases on collateral review).

      The PCRA court entered an order dismissing the petition as untimely

on September 22, 2016. Appellant timely appealed and the court issued its

opinion. Appellant presents four questions for our review:

      1. Whether the court erred as a matter of law, when it dismissed
         petitioner’s PCRA for lack of jurisdiction/untimely[?]

      2. Whether the legislature (sic) intent the PCRA’s Time Limits to
         affect the PCRA Courts’ jurisdiction?

      3. Whether the Time Limits in 42 Pa.C.S.A. § 9545 are
         jurisdictional?

      [4.] Whether counsel was ineffective when he failed to inform
        petitioner of the Commonwealth’s plea offer?

Appellant’s brief at v.

      We review the “denial of PCRA relief to determine whether the findings

of the PCRA court are supported by the record and free of legal error.”

Commonwealth v. Roane, 142 A.3d 79, 86 (Pa.Super. 2016) (quoting

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)).               It is well

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settled law that all PCRA petitions must be filed within one year of the date a

defendant’s judgment becomes final unless an exception to the one-year

time bar applies. 42 Pa.C.S. § 9545(b)(1). If a PCRA petition is untimely,

“neither this Court nor the trial court has jurisdiction over the petition.”

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citation

omitted); see also Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.

2006).

       Appellant’s petition, filed almost fifteen years after his judgment of

sentence became final, is facially untimely.         Nor did he plead and prove

applicable exceptions to the time bar.           We adopt the thorough and well-

reasoned opinion of the Honorable Leon W. Tucker, in affirming the order

dismissing the instant petition as untimely.2

       In addition to the claims addressed by the PCRA court, Appellant

challenges for the first time on appeal the constitutionality of the PCRA’s

one-year time limitation and its jurisdictional effect.     We find these claims

waived as Appellant could have raised them in prior post-conviction

proceedings. Commonwealth v. Mason, 130 A.3d 601 (Pa. 2015). Were
____________________________________________


2  Even if the PCRA petition had been timely filed, no relief was due. The
PCRA court correctly found Appellant’s claim that the court failed to instruct
him of his right to seek modification of his sentence waived and his
ineffective assistance of counsel claims previously litigated. Finally, the
court properly rejected Appellant’s claim that his sentence of life in prison
without possibility of parole was illegal, and additionally reiterated that
legality of sentence challenges are subject to the PCRA’s time limitation.



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they not waived, we would reject them as meritless. The constitutionality of

the PCRA time bar was upheld by this Court in Commonwealth v. Burton,

936 A.2d 521 (Pa.Super. 2007), and our Supreme Court affirmed the

jurisdictional effect of the time limitation in Commonwealth v. Peterkin,

722 A.2d 638 (Pa. 1998) and Commonwealth v. Fahy, 737 A.2d 214 (Pa.

1999).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/17




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