J-S41035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                   Appellee            :
                                       :
             v.                        :
                                       :
GEORGE WILLIAM CARSON                  :
                                       :
                   Appellant           :         No. 77 MDA 2017

              Appeal from the PCRA Order December 15, 2016
              In the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-CR-0003201-2008


BEFORE:     GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

JUDGMENT ORDER BY GANTMAN, P.J.:                    FILED JUNE 20, 2017

      Appellant, George William Carson, appeals pro se from the order

entered in the Luzerne County Court of Common Pleas, which dismissed as

untimely his third petition filed under the Post Conviction Relief Act

(“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546.     On March 26, 2009, Appellant

entered an open guilty plea to third-degree murder.       The trial court

sentenced Appellant on May 28, 2009, to 19 to 38 years’ imprisonment. On

March 8, 2011, this Court affirmed the judgment of sentence.     Appellant

sought no further review. Between 2011 and 2016, Appellant unsuccessfully

litigated two PCRA petitions.

      On June 27, 2016, Appellant filed the current pro se PCRA petition.

The PCRA court issued Rule 907 notice on July 7, 2016; Appellant responded

on August 2, 2016. The PCRA court dismissed Appellant’s PCRA petition on
_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S41035-17


December 15, 2016.         On January 3, 2017, Appellant timely filed a pro se

notice of appeal. The PCRA court ordered Appellant, on January 11, 2017,

to file a concise statement of errors complained of on appeal per Pa.R.A.P.

1925(b).1

       Preliminarily, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A

PCRA petition, including a second or subsequent petition, shall be filed within

one year of the date the underlying judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1).          A judgment of sentence is deemed final “at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The

statutory    exceptions     to    the   PCRA     time-bar   allow   for   very   limited

circumstances under which the late filing of a petition will be excused; a

petitioner asserting a timeliness exception must file a petition within 60 days
____________________________________________


1
  “To preserve their claims for appellate review, appellants must comply
whenever the trial court orders them to file a Statement of [Errors]
Complained of on Appeal pursuant to [Rule] 1925. Any issues not raised in
a [Rule] 1925(b) statement will be deemed waived.” Commonwealth v.
Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005). Nevertheless, this
Court may address the merits of a criminal appeal where a defendant files
an untimely Rule 1925(b) statement, if the trial court had adequate
opportunity and chose to prepare an opinion addressing the issue(s) raised
on appeal. Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2008) (en
banc). Here, the docket reflects that Appellant’s pro se Rule 1925(b)
statement was not timely filed, and the court did not address any issues.
Therefore, Appellant’s issues are waived in any event. See Castillo, supra.



                                           -2-
J-S41035-17


of when the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).

When asserting the newly created constitutional right exception under

Section 9545(b)(1)(iii), “a petitioner must prove that there is a ‘new’

constitutional right and that the right ‘has been held’ by that court to apply

retroactively.” Commonwealth v. Chambers, 35 A.3d 34, 41 (Pa.Super.

2011), appeal denied, 616 Pa. 625, 46 A.3d 715 (2012). Under the “new

facts” exception to the PCRA’s timeliness requirements, the petitioner must

plead and prove: “[T]he facts upon which the claim is predicated were

unknown to the petitioner and could not have been ascertained by the

exercise of due diligence[.]” 42 Pa.C.S.A. § 9545(b)(1)(ii).

      Instantly, Appellant’s judgment of sentence became final on April 7,

2011, upon expiration of the time to file a petition for allowance of appeal

with our Supreme Court. See Pa.R.A.P. 1113. Appellant filed the current

serial PCRA petition on June 27, 2016, which is patently untimely. See 42

Pa.C.S.A. § 9545(b)(1).      Appellant now attempts to invoke the “new

constitutional right” exception to the statutory time-bar per Section

9545(b)(1)(iii), citing Foster v. Chatman, ___ U.S. ___, 136 S.Ct. 1737,

195 L.Ed.2d 1 (2016) (reiterating United States Constitution forbids striking

prospective juror for discriminatory purpose; reversing capital murder

conviction because state’s two peremptory strikes of jurors on basis of race

were unconstitutional). Foster, however, does not satisfy an exception to

the PCRA timeliness requirement in this case, because: (1) Appellant


                                    -3-
J-S41035-17


entered an open guilty plea and did not have a jury trial; and (2) the Foster

Court did not announce it had created a new constitutional right that is

retroactively applicable.   See Foster, supra; Chambers, supra.       In his

petition, Appellant also claims prior counsel were ineffective, and the trial

judge was not impartial.    To the extent Appellant attempts to invoke the

“newly discovered facts” exception, Appellant fails to plead new facts he was

previously unaware of or could not have discovered earlier with the exercise

of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Therefore, Appellant’s

third PCRA petition remains time-barred, and the PCRA court lacked

jurisdiction to review it. See Zeigler, supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2017




                                    -4-
