J-S23034-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                :   IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
                   Appellee                  :
          v.                                 :
                                             :
RICHARD D. FLOOD,                            :
                                             :
                   Appellant                 :   No. 1832 EDA 2014

                Appeal from the PCRA Order entered May 27, 2014,
               in the Court of Common Pleas of Philadelphia County,
                Criminal Division, at Nos: CP-51-CR-0426351-1989

BEFORE:        DONOHUE, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                           FILED MAY 28, 2015

      Richard D. Flood (Appellant) appeals pro se from the order which

dismissed his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. We affirm.

      On December 7, 1990, Appellant was sentenced to life imprisonment

without possibility of parole following his guilty plea to first-degree murder.

This Court affirmed Appellant’s judgment of sentence, and our Supreme

Court denied allowance of appeal.         Commonwealth v. Flood, 627 A.2d

1193 (Pa. Super. 1993), appeal denied, 641 A.2d 583 (Pa. 1994).

Appellant’s first four PCRA petitions resulted in no relief.

      On May 16, 2012, Appellant filed his fifth PCRA petition, which is the

subject of this appeal.        The PCRA court served on Appellant pursuant to

Pa.R.Crim.P. 907 a notice of intent to dismiss the petition, and dismissed the

petition by order of May 27, 2014.

*Retired Senior Judge assigned to the Superior Court.
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      Appellant timely filed a notice of appeal. The PCRA court did not order

Appellant to file a statement of errors complained of on appeal, and none

was filed. On appeal, Appellant presents to this Court six issues related to

the alleged ineffectiveness of trial/plea counsel. Appellant’s Brief at 3.

      Before we consider the merits of Appellant’s claims, we must address

whether his petition was timely filed, for the timeliness of a post-conviction

petition is jurisdictional.   Commonwealth v. Lewis, 63 A.3d 1274, 1281

(Pa. Super. 2013) (“[I]f a PCRA petition is untimely, neither this Court nor

the [PCRA] court has jurisdiction over the petition. Without jurisdiction, we

simply do not have the legal authority to address the substantive claims.”

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      Generally, a petition for relief under the PCRA, including a second or

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

of sentence is final unless the petition alleges, and the petitioner proves,

that an exception to the time for filing the petition is met.        42 Pa.C.S.

§ 9545.

      It is clear that Appellant’s petition is facially untimely: his judgment of

sentence became final in 1994. However, Appellant alleges that his petition,

filed within 60 days of the Supreme Court’s decisions in Lafler v. Cooper,

132 S.Ct. 1376 (U.S. 2012), and Missouri v. Frye, 132 S.Ct. 1399 (U.S.

2012), satisfies the following timeliness exception: “the right asserted is a




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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)(iii).

      This Court has rejected Appellant’s claim:

            It is apparent that neither Frye nor Lafler created a new
      constitutional right. Instead, these decisions simply applied the
      Sixth Amendment right to counsel, and the [] test for
      demonstrating counsel’s ineffectiveness, to the particular
      circumstances at hand, i.e. where counsel’s conduct resulted in a
      plea offer lapsing or being rejected to the defendant’s detriment.
      Accordingly, Appellant’s reliance on Frye and Lafler in an
      attempt to satisfy the timeliness exception of section
      9545(b)(1)(iii) is unavailing.

Commonwealth v. Feliciano, 69 A.3d 1270, 1277 (Pa. Super. 2013)

(footnote omitted).

      Appellant also attempted to avoid the PCRA’s time restrictions by

styling his filing as a “Petition for Writ of Habeas Corpus Relief … and for

Post-Conviction Relief…” (hereafter Appellant’s Petition).   Appellant argues

that the time restrictions should not apply “to the egregious circumstances

here” or, in the alternative, that the time limitations “unconstitutionally

suspend the state constitutional right to habeas corpus relief….” Appellant’s

Petition at 5 n.1.

      Our Supreme Court has rejected both of these arguments.              See

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (“[T]he statute




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confers no authority upon this Court to fashion ad hoc equitable exceptions

to the PCRA time-bar in addition to those exceptions expressly delineated in

the    Act.”)   (internal   quotation     marks   omitted);     Commonwealth          v.

Peterkin, 722 A.2d 638, 643 (Pa. 1998) (“[W]e have no difficulty in

concluding that the PCRA’s time limitation upon the filing of PCRA petitions

does    not     unreasonably    or      unconstitutionally    limit   [a   petitioner’s]

constitutional right to habeas corpus relief.”).

       “Issues that are cognizable under the PCRA must be raised in a timely

PCRA petition and cannot be               raised in a    habeas       corpus   petition.”

Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013). Because

Appellant’s claims of ineffective assistance of counsel are cognizable under

the PCRA, see 42 Pa.C.S. § 9543(a)(2) (providing that PCRA relief is

available, inter alia, for convictions resulting from ineffective assistance of

counsel), the PCRA court properly addressed Appellant’s filing as a PCRA

petition and correctly dismissed it as untimely filed.

       Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/28/2015




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