J-S28020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 MAURICE CHAMBERS,                          :
                                            :
                   Appellant                :    No. 87 MDA 2018


              Appeal from the PCRA Order, December 6, 2017,
              in the Court of Common Pleas of Luzerne County,
            Criminal Division at No(s): CP-40-CR-0000910-1997.


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                             FILED JULY 13, 2018

Maurice Chambers appeals pro se from the order denying as untimely his sixth

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

      The   pertinent   facts   and   partial   procedural   history   have   been

summarized as follows:

            On October 27, 1997, a jury found [Chambers] guilty of
         Second-Degree Murder, Robbery, and two counts of
         Criminal Conspiracy in connection with his shooting Paul
         Rubin Garman, Jr., in the back of his head during a drug
         transaction in Wilkes-Barre. The court sentenced [him] on
         December 5, 1997, to, inter alia, life imprisonment. This
         Court affirmed the Judgment of Sentence, and the
         Pennsylvania Supreme Court denied [Chambers’] Petition
         for Allowance of Appeal. Commonwealth v. Chambers,
         742     A.2d 201 (Pa.       Super.    1999) (unpublished
         memorandum), appeal denied, 749 A.2d 466 (Pa. 2000).
         The United States Supreme Court denied his Petition for
         Certiorari on October 2, 2000.             Chambers v.
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         Pennsylvania, 531 U.S. 853 (2000). His Judgment of
         Sentence, thus, became final [on that date]. See 42 Pa.C.S.
         § 9545(b)(3) (judgment of sentence becomes 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.”)

            [Chambers] filed his first pro se PCRA Petition timely,
         which the PCRA court denied on June 12, 2003, and this
         Court affirmed. Commonwealth v. Chambers, 852 A.2d
         1197 (Pa. Super. 2004), affirmed, 871 A.2d 188 (Pa. 2005).
         [Chambers] filed three additional PCRA Petitions, each of
         which the PCRA court dismissed.

Commonwealth v. Chambers, 160 A.3d 244 (Pa. Super. 2017), unpublished

memorandum at 1-2.

      Chambers filed a fifth PCRA petition on September 1, 2015, which the

PCRA court dismissed, and we affirmed because the serial petition was

untimely, and Chambers failed to plead and prove an exception to the PCRA’s

time bar. See id.

      Chambers filed the PCRA petition at issue, his sixth, on January 30,

2017, and an amended petition on February 4, 2017. The PCRA court ordered

that this petition be held in abeyance while Chambers’ appeal from the denial

of his fifth petition was still pending before this Court. On or about September

29, 2017, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to

dismiss Chambers’ latest filing without a hearing. Chambers filed a response.

By order entered December 6, 2017, the PCRA court dismissed the petition as

untimely. This appeal follows. The PCRA court did not require Pa.R.A.P. 1925

compliance.


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        Before addressing the issues Chambers raises on appeal, we must first

determine whether the PCRA court correctly determined that his serial petition

for post-conviction relief was untimely filed. This Court’s standard of review

regarding an order dismissing a petition under the PCRA is to ascertain

whether “the determination of the PCRA court is supported by the evidence of

record and is free of legal error. The PCRA court’s findings will not be disturbed

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

Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)

(citations omitted).

        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

is final unless the petition alleges, and the petitioner proves, that an exception

to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.1 42 Pa.C.S.A. § 9545. A PCRA petition

____________________________________________


1   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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



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invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.” See Hernandez, 79 A.3d

651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2). Asserted

exceptions to the time restrictions for a PCRA petition must be included in the

petition, and may not be raised for the first time on appeal. Commonwealth

v. Furgess, 149 A.3d 90 (Pa. Super. 2016).

       Here, Chambers’ judgment of sentence became final on October 2,

2000, when the United States Supreme Court denied his petition for certiorari.

Thus, for purposes of the PCRA’s time bar, Chambers had to file his latest

petition by October 2, 2001. As he filed his sixth petition in 2017, it is patently

untimely, unless Chambers has satisfied his burden of pleading and proving

that one of the enumerated exceptions applies. See Hernandez, supra.

       Chambers has failed to prove any exception to the PCRA’s time bar.

Within his PCRA petition, Chambers relied upon our Supreme Court’s recent

decision in Commonwealth v. Rosado, 150 A.3d 425 (Pa. 2016), as

establishing a “new constitutional right” pursuant to 42 Pa.C.S.A. § 9545

(b)(1)(iii).   The PCRA court concluded that Chambers could not rely on

Rosado because “[u]nder §9545(b)(2), this Court is without jurisdiction to

____________________________________________


       of Pennsylvania after the time period provided in this section and
       has been held by that court to apply retroactively.

42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).




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entertain the instant Petition because it was not filed within sixty days of the

Rosado opinion.” PCRA Court Opinion, 12/6/17, at 2.2 We disagree.

       This Court has recently summarized:

          In Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585
          (2000), our Supreme Court held that “a subsequent PCRA
          petition cannot be filed until the resolution of review of the
          pending PCRA petition by the highest state court in which
          review is sought, or upon the expiration of the time for
          seeking such review.” Id. at 588. Our Supreme Court
          reasoned that “[a] second appeal cannot be taken when
          another proceeding of the same type is already pending.”
          Id. (citation omitted). Where a petitioner attempts to raise
          a subsequent, independent claim for relief during the
          pendency of an earlier PCRA petition, his or her “only option
          is to raise it within a second PCRA petition within [60] days
          of the date of the order that finally resolves the [pending]
          PCRA petition[.]” Commonwealth v. Steele, 599 Pa. 341,
          961 A.2d 786, 908-809 (2008).

Commonwealth v. Montgomery, 181 A.3d 359, 363 (Pa. Super. 2018) (en

banc).3

       Our review of the record reveals that Chambers filed his sixth PCRA

petition within sixty days of this Court’s affirming the denial of his fifth petition.

____________________________________________


2 The Commonwealth makes the same argument in its brief.                         See
Commonwealth Brief at 6.

3 In Montgomery, this Court addressed the issue of a PCRA court’s ability to
address a subsequent PCRA petition even though a prior PCRA petition was
still pending before that Court. We answered this question in the affirmative:
“a PCRA court may not entertain a new PCRA petition when a prior petition is
still under appellate review and, thus, is not final, however, nothing bars a
PCRA court from considering a subsequent PCRA petition, even if a prior
petition is pending, so long as the prior petition is not under appellate review.”
Id. at 364-65.


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Thus, Chambers could properly raise a Rosado claim in his sixth PCRA

petition.    However, this does not end our inquiry.         On appeal in PCRA

proceedings, the Superior Court may affirm a PCRA court’s decision in any

grounds if the record supports it. Commonwealth v. Benner, 147 A.3d 915,

919 (Pa. Super. 2016) (citation omitted).

      Subsection 9545(b)(1)(iii) applies only when “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.A. § 9545(b)(1)(iii). This Court has reiterated:

            Subsection (iii) of section 9545 has two requirements. First,
            it provides that the right asserted is a constitutional right
            that was recognized by the Supreme Court of the United
            States or th[e Pennsylvania] Supreme Court after the time
            period provided in this section. Second, it provides that the
            right “has been held” by that court to apply retroactively.
            The language “has been held” is the past tense. These
            words mean that the action has already occurred, i.e., “that
            court” has already held the new constitutional right to be
            retroactive to cases on collateral review. By employing the
            past tense in writing this provision, the legislature clearly
            intended that the right was already recognized at the time
            the petition was filed.

Commonwealth v. Garcia, 23 A.3d 1059, 1063 (Pa. Super. 2011) (citations

omitted).

      Here, Chambers can establish neither requirement. In Rosado, supra,

our Supreme Court addressed an ineffective assistance of counsel claim, which

was raised in a timely filed PCRA petition, and held that counsel’s “filing of an


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appellate brief which abandons all preserved issues in favor of unpreserved

one constitutes ineffectiveness per se.” Rosado, 150 A.3d at 440. In doing

so, the high court did no more than apply existing state and federal case

precedent to the facts of that case. Id. at 429-435. Our Supreme Court did

not announce a new constitutional right and, therefore, did not address

retroactivity.

      In sum, because Chambers has not established an exception to the

PCRA’s time bar, the PCRA court correctly determined that it lacked

jurisdiction to consider the merits of the petition. We therefore affirm its order

denying post-conviction relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/18




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