J-S06028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    SCOT A. REINERT                            :
                                               :
                      Appellant                :   No. 1836 EDA 2016

                    Appeal from the PCRA Order May 10, 2016
                 in the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0001128-1991


BEFORE:      MOULTON, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY RANSOM, J.:                                  FILED MAY 16, 2017

        Appellant, Scot A. Reinert, pro se appeals from the order entered May

10, 2016, denying as untimely his serial petition for collateral relief filed

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We

affirm.

        In January 1992, a jury found Appellant guilty of first degree murder,

and Appellant was sentenced to life imprisonment.1          Appellant timely filed

post-trial motions, which were denied in November 1994.                Thereafter,

Appellant filed a direct appeal.         In January 1996, this Court affirmed his

judgment of sentence.         See Commonwealth v. Reinert, 677 A.2d 1267


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a).
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(Pa. Super. 1996) (unpublished memorandum).               In September 1996, the

Supreme       Court     of    Pennsylvania       denied   allowance   of   appeal.

Commonwealth v. Reinert, 682 A.2d 309 (Pa. 1996).                Appellant filed a

petition for writ of certiorari, which was denied in October 1997. Reinert v.

Pennsylvania, 118 S.Ct. (1997).

       In May 2012, Appellant pro se filed his first PCRA petition, asserting

trial counsel was ineffective by failing to convey a plea offer to Appellant.2

Court-appointed counsel filed an amended PCRA incorporating Appellant’s

argument and asserted that the Supreme Court of the United States

recognized new constitutional rights in Lafler v. Cooper, 132 S.Ct. 1376

(2012) (recognizing that a defendant has the right to effective assistance of

counsel in considering whether to accept a plea bargain, and if, as a result of

the deficient performance of counsel, loss of a plea bargain led to a

conviction on more serious charges or a more severe sentence imposed,

prejudice can be shown), and Missouri v. Frye, 132 S.Ct. 1399 (2012)

(recognizing that, “as a general rule, defense counsel has the duty to

communicate formal offers from the prosecution to accept a plea on terms

and conditions that may be favorable to the accused.”).           The PCRA court

denied Appellant’s petition as untimely in January 2013. This Court affirmed


____________________________________________


2
  In trial counsel’s affidavit dated August 21, 2012, counsel recalled that she
received a plea offer on Appellant’s behalf, but did not convey the plea offer
to Appellant. See Motion to Compel Discovery, 9/13/2013, Exhibit A.



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that decision in February 2014. Commonwealth v. Reinert, 97 A.3d 804

(Pa. Super. 2014) (unpublished memorandum).

      In March 2016, Appellant pro se filed the instant petition, effectively

seeking reconsideration of his first PCRA. According to Appellant, the U.S.

Supreme Court decision in Montgomery v. Louisiana, 136 S. Ct. 718

(2016), allowed the PCRA court to apply the principles recognized in Lafler

and Frye retroactively.     Memorandum of Law in Support of the PCRA

Petition, 3/15/2016, at 1-7. The court issued a notice of intent to dismiss

pursuant to Pa.R.Crim.P. 907, to which Appellant timely objected, asserting

both PCRA counsel and trial counsel rendered ineffective assistance. In May

2016, the PCRA court dismissed Appellant’s petition as untimely. Appellant

timely appealed, and the PCRA court did not order a 1925(b) statement of

errors complained of on appeal and did not issue an opinion.

      Appellant raises the following issues for our review:

      1. Did the lower court err in the petitioner’s original Post
         [Conviction] Relief Act proceeding by not liberally
         [construing] trial attorney’s affidavit/statement as newly
         discovered facts?

      2. Was [Appellant’s] Post [Conviction] Relief Act attorney
         ineffective for not submitting newly discovered facts?

      3. Did petitioner fashion and [submit] a          proper   layered
         ineffective assistance of counsel(s) claim?

Appellant’s Brief at 4.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

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by the evidence of record and is free of legal error. See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007).          We afford the court’s factual

findings deference unless there is no support for them in the certified record.

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

      Initially, we address the timeliness of Appellant’s petition, as it

implicates our jurisdiction and may not be altered or disregarded in order to

address the merits of his claim.     See Commonwealth v. Bennett, 930

A.2d 1264, 1267 (Pa. 2007).         Under the PCRA, any petition for relief,

including second and subsequent petitions, must be filed within one year of

the date on which the judgment of sentence becomes final. Id. There are

three statutory exceptions:

      (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).    Any petition attempting to invoke these

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




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been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

       Appellant’s petition is untimely.3 Accordingly, Appellant must establish

jurisdiction by pleading and proving an exception to the timeliness

requirement. See Bennett, 930 A.2d at 1267. However, Appellant neither

pleads nor proves an exception to the time bar.       Rather, Appellant seeks

reconsideration of the claims in his first untimely PCRA, filed in 2012.

Appellant is precluded from re-litigating the Lafler and Frye claims as “a

PCRA petitioner cannot obtain additional review of previously litigated claims

by presenting new theories of relief ....” Commonwealth v. Sneed, 45

A.3d 1096, 1112 (Pa. 2012) (citation omitted); see also 42 Pa.C.S. §

9544(a)(3).4

____________________________________________


3
  Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on October 6, 1997, when the Supreme Court of the United
States denied his petition for writ of certiorari. See 42 Pa.C.S. § 9545(b)(3)
(a judgment of sentence becomes final at the conclusion of direct review or
the expiration of the time for seeking the review). Appellant’s current
petition, filed March 15, 2016, was filed over eighteen years late. See
Bennett, 930 A.2d at 1267.
4
  Appellant also claims that PCRA counsel from his first PCRA was ineffective.
Appellant’s Brief at 9-10. Appellant clearly failed to raise the issue of
counsel’s ineffectiveness at the first possible opportunity, in his instant
petition, and accordingly, it is waived. PCRA Petition, 3/15/2016; see
Commonwealth v. Ford, 44 A.3d 1190, 1200 (Pa. Super. 2012) (“issues of
PCRA counsel effectiveness must be raised in a serial PCRA petition or in
response to a notice of dismissal before the PCRA court.”). Moreover, claims
of counsel’s ineffectiveness must meet the timeliness requirements of the
PCRA, and as Appellant does not plead or prove an exception to the time
(Footnote Continued Next Page)


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      To the extent that Appellant relied on Montgomery in his petition, his

reliance is misplaced, as that case recognized the retroactive applicability of

Miller v. Alabama, 132 S. Ct. 2455 (2012) (finding mandatory life

sentences for juvenile offenders to violate the Eighth Amendment), and

Appellant was not a juvenile at the time he committed the offense herein.

However, Appellant appears to abandon any reliance on Montgomery, as

there is no mention of that case in his brief.

      Appellant’s petition is untimely, and he has failed to establish an

exception to the timeliness requirements of the PCRA.       Consequently, the

PCRA court was without jurisdiction to review the merits of Appellant’s

claims and properly dismissed his petition. See Ragan, 932 A.2d at 1170.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/2017
                       _______________________
(Footnote Continued)

bar, this claim is waived as untimely. Commonwealth v. Wharton, 886
A.2d 1120, 1127 (Pa. 2005) (“It is well settled that allegations of ineffective
assistance of counsel will not overcome the jurisdictional timeliness
requirements of the PCRA.”); see also Gamboa-Taylor, 753 A.2d at 785-
86. In light of our disposition of this argument, Appellant’s assertion that he
submitted a proper layered ineffective assistance of counsel claim must also
fail. See Appellant’s Brief at 10-15.



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