J-S27030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 LUTHER S. RYALS, JR.                      :
                                           :
                    Appellant              :   No. 441 EDA 2018

                Appeal from the PCRA Order January 9, 2018
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0001198-2009


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

JUDGMENT ORDER BY LAZARUS, J.:                           FILED MAY 17, 2018

      Luther S. Ryals, Jr., appeals pro se from the trial court’s order dismissing

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

42 Pa.C.S.A. §§ 9451-46. Because Ryals’ petition is patently untimely and he

does not prove an exception to the PCRA time bar, we affirm.

      On July 30, 2010, Ryals was convicted by a jury of various drug offenses

and sentenced to an aggregate term of imprisonment of 8½ to 20 years. Ryals

filed post-sentence motions that were denied on December 16, 2010.             On

August 31, 2011, our Court affirmed his judgment of sentence.                See

Commonwealth v. Ryals, 315 EDA 2011 (Pa. Super. filed Aug. 31, 2011)

(unpublished memorandum).         Ryals filed a timely first PCRA petition on

September 2, 2011.     Counsel filed a no-merit letter and was permitted to

withdraw; on January 5, 2012, the court dismissed his petition without a

hearing. Our Court affirmed that dismissal on May 28, 2015.
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        On May 28, 2015, Ryals filed another pro se petition and filed an

amended petition on June 9, 2015. Counsel filed a no-merit letter; the court

dismissed Ryals’ petition on April 4, 2016. Ryals filed the instant pro se PCRA

petition, his third, on October 30, 2017.         On January 9, 2018, the court

dismissed his petition as untimely. This timely appeal follows.1

        We first note that the timeliness of a post-conviction petition is

jurisdictional.    Commonwealth v. Lewis, 63 A.3d 1274, 1280–81 (Pa.

Super. 2013). Generally, a PCRA petition, 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 under section 9545(b)(1)(i-iii), and

that the claim was raised within 60 days of the date on which it became

available. 42 Pa.C.S.A. § 9545(b) and (c). Here, Ryals’ judgment of sentence

became final on September 30, 2011, when the time for filing a petition for


____________________________________________


1   Ryals raises the following issues in his brief:

        (1)    Did the trial court err in failing to grant relief to the
               Appellant’s Post-Conviction Relief Act Petition when one or
               more of the Exceptions was met, which the one year filing
               period is then tolled?

        (2)    Did the trial court err in failing to grant relief to the
               Appellant’s Post-Conviction Relief Act Petition when the
               Court failed to review and apply the Recidivism Risk
               Reduction Incentive [RRRI] to Appellant’s sentence?

Appellant’s Brief, at 3.



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allowance of appeal to the Pennsylvania Supreme Court expired.          See 42

Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113(a). Thus, Ryals had until September

30, 2012, to file a timely PCRA petition. Ryals’ instant petition was filed on

October 30, 2017 petition – more than 5 years later. Thus, the petition is

patently untimely. Unless Ryals has pled and proven one of the timeliness

exceptions under 42 Pa.C.S.A. § 9545(b)(1), the PCRA court was without

jurisdiction to consider the merits of the petition. Lewis, supra.

        Ryals claims that his attorneys “erred” in failing to submit his request

and willingness to participate in the RRRI2 program and that they “clearly

interfered with proper and effective assistance of counsel.” Appellant’s Pro Se

Brief, at 7. Ryals asserts that this claim falls within the “newly-discovered

facts” exception, set forth in 42 Pa.C.S.A. § 9545(b)(1)(ii).3 Our Supreme

Court, however, has held that an allegation of counsel’s ineffectiveness could

not be invoked as a newly-discovered “fact’" for purposes of proving this

exception under the PCRA. See Commonwealth v. Gamboa-Taylor, 753

A.2d 780, 785 (Pa. 2000); see generally Commonwealth v. Lark, 746 A.2d

585, 589-90 (Pa. 2000) (holding that couching argument in terms of

ineffectiveness cannot save PCRA petition that does not fall into exception to
____________________________________________


2   See 61 Pa.C.S. §§ 4501-4512 (RRRI Act).

3   The PCRA sets forth the newly discovered facts exception as follows:

        (ii) [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)(i)-(iii).
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jurisdictional time bar); Commonwealth v. Fahy, 737 A.2d 214, 223

(reiterating that “a claim of ineffectiveness assistance of counsel does not save

an otherwise untimely petition for review on the merits.”).

      Because Ryals has failed to prove an exception to the PCRA time bar,

the court properly dismissed his otherwise untimely petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/18




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