J-S74013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PAUL PARKER                                :
                                               :
                       Appellant               :   No. 1105 EDA 2019

              Appeal from the PCRA Order Entered March 11, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0410451-1994


BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED FEBRUARY 14, 2020

        Appellant, Paul Parker, appeals from the order dismissing his untimely

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

9541-9546. As Appellant has failed to successfully prove the applicability of

an exception to the PCRA’s timeliness requirements, we are compelled to

affirm.

        On February 6, 1995, Appellant entered a guilty plea to first-degree

murder, robbery, burglary, and possessing an instrument of crime (PIC). The

trial court sentenced him that same day to a mandatory term of life

imprisonment without the possibility of parole for first-degree murder, and to

consecutive terms of 5-10 and 2½-5 years’ incarceration for robbery and PIC,




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*   Former Justice specially assigned to the Superior Court.
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respectively.   Appellant did not file a direct appeal from his judgment of

sentence.

      Appellant subsequently filed four PCRA petitions, not including the at-

issue petition, on December 8, 2005 (First Petition), January 3, 2007 (Second

Petition), June 5, 2012 (Third Petition), and March 22, 2016 (Fourth Petition).

The PCRA court denied the First Petition as untimely on September 13, 2006,

and Appellant did not file an appeal from that decision. The Second Petition

successfully sought to reinstate his appellate rights from the denial of the First

Petition; however, Appellant discontinued his subsequently filed nunc pro tunc

appeal on May 16, 2007. The PCRA court denied the Third Petition as untimely

on July 23, 2013. This Court affirmed that order, and our Supreme Court

denied further review. Commonwealth v. Parker, 105 A.3d 36 (Pa. Super.

2014) (unpublished memorandum), appeal denied, 105 A.3d 736 (Pa. 2014).

The PCRA court denied the Fourth Petition on August 17, 2017, and Appellant

did not appeal. All of these prior PCRA petitions were filed pro se by Appellant.

      On July 9, 2018, Appellant filed the petition currently under review, his

fifth petition overall (albeit his first counseled PCRA petition to date).     On

February 22, 2019, the PCRA court entered an order pursuant to Pa.R.Crim.P.

907, indicating its intent to dismiss the petition without a hearing. Appellant

filed a reply thereto on March 6, 2019. On March 11, 2019, the PCRA court

dismissed the petition. Appellant filed a timely appeal from that decision. The

PCRA court did not order Appellant to file a statement pursuant to Pa.R.A.P.

1925(b). The court issued its Rule 1925(a) opinion on July 10, 2019.

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      Appellant now presents the following questions for review:

       I.   Whether the [PCRA] court deprived Appellant of his right to
            due process when it issued a notice pursuant to
            Pa.R.Cr[im].P. 907 stating that his PCRA petition was
            without merit but then issued a [Rule] 1925[(a)] opinion for
            the appeal concluding that the petition was untimely?

      II.   Whether Appellant’s fifth PCRA petition was timely?

     III.   Whether the PCRA court denied procedural due process
            when [it] refused to hold an evidentiary hearing to take
            testimony from … Appellant and defense counsel?

      IV.   Whether Appellant’s 6th Amendment right to effective
            assistance of counsel was violated when counsel misadvised
            Appellant about the life sentence and interfered in the right
            to make choices reserved to … Appellant?

       V.   Whether Appellant was denied due process of law and equal
            protection guaranteed by the 14th Amendment?

Appellant’s Brief at 2-3 (unnecessary capitalization omitted).

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

petition is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error. Commonwealth v. Ragan, 923

A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the timeliness of

Appellant’s petition, because the PCRA’s time limitations implicate our

jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:


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       (b) Time for filing petition.--

          (1) Any petition under this subchapter, including a second
          or subsequent petition, shall be filed within one year of the
          date the judgment becomes final, unless the petition alleges
          and the petitioner proves that:

              (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 one of

these exceptions “shall be filed within one year of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).1

       Appellant argues that his petition satisfies two exceptions to the PCRA’s

timeliness requirements.        First, he asserts that the facts upon which his

ineffectiveness-of-plea-counsel claim is based were previously unknown to

him, thereby invoking Section 9545(b)(1)(ii). Second, he claims that he is




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1 When Appellant’s current PCRA petition was filed, Section 9545(b)(2)
required PCRA petitions invoking a timeliness exception to be filed within 60
days of the date the claim could have been first presented. Therefore,
Appellant’s petition is subject to the 60-day limitation under the pre-amended
version of the statute.

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entitled to the retroactive application of a newly-recognized constitutional

right pursuant to Section 9545(b)(1)(iii).

                               Section 9545(b)(1)(ii)

       Appellant claims that the newly-discovered fact at issue is the United

States Supreme Court’s decision in McCoy v. Louisiana, 138 S.Ct. 1500

(2018), which was decided on May 14, 2018. See Appellant’s Brief at 21. As

Appellant’s PCRA petition was filed 56 days later, on July 9, 2018, his claim is

in compliance with the 60-day rule set forth in the prior version of Section

9545(b)(2).     Nevertheless, our Supreme Court has held that “subsequent

decisional law does not amount to a new ‘fact’ under Section 9545(b)(1)(ii) of

the PCRA.”      Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011).

Accordingly, Section 9545(b)(1)(ii) cannot excuse the untimeliness of

Appellant’s petition.2

                              Section 9545(b)(1)(iii)



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2 Moreover, it is clear from the record and Appellant’s admissions that the
facts pertaining to plea counsel’s alleged ineffectiveness were not newly
discovered. As noted by Appellant, “[w]ithin a few days” of his judgment of
sentence, “Appellant asked to withdraw his plea and [subsequently] filed three
PCRA petitions claiming that his attorney misled him as to the sentencing
consequences of his plea.” Appellant’s Brief at 24. Simply put, there are no
previously unknown facts at issue in this case and, therefore, Appellant cannot
successfully avail himself of the exception set forth in Section 9545(b)(1)(ii).
Further, as noted by the PCRA court, Appellant raised an identical
ineffectiveness claim in his Third PCRA petition. See PCRA Court Opinion
(PCO), 7/10/19, at 6.




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        Appellant also attempts to invoke the newly-created-constitutional-right

exception to the PCRA’s timeliness requirements, Section 9545(b)(1)(iii), by

citing McCoy.3        In McCoy, the High Court held that, under the 6th

Amendment, a defendant has the right to insist that his counsel refrain from

conceding guilt during the guilt phase of a capital trial, even when his attorney

reasonably believes the concession is essential to a strategy of avoiding the

death penalty.      See McCoy, 138 S.Ct. at 1509.       The McCoy Court also

determined that allowing McCoy’s attorney to proceed with that strategy over

his client’s objections was a structural error on the part of the trial court that

entitled McCoy to a new trial and did not necessitate a finding of prejudice.

Id. at 1511.

        Instantly, the PCRA court determined that Section 9545(b)(1)(iii) does

not apply to Appellant’s petition because 1) McCoy is not applicable to the

facts of this case and, 2) the McCoy decision has not been held by the United

States Supreme Court to apply retroactively. See PCO at 7-8. The PCRA

court rejected the applicability of McCoy because, unlike McCoy, Appellant did

not have a trial (he pled guilty), and he was not facing the possibility of the

death penalty.      See id.      Moreover, the court stated, “[a]t no point did

[Appellant]’s counsel admit guilt to a jury or judge over [Appellant]’s

objection. Therefore, McCoy is factually inapplicable to the case at bar.” Id.

at 8.

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3   As noted above, this claim satisfies Section 9545(b)(2)’s 60-day rule.

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      Appellant states the holding in McCoy in far more general terms,

arguing that the decision stands for the proposition that “a criminal defendant

has the right to make his own decision about whether to concede guilt or not.”

Appellant’s Brief at 30. However, that general principle is not at all unique to

McCoy. Indeed, the McCoy decision is merely a more specific application of

a principle already recognized decades earlier. See, e.g., Jones v. Barnes,

463 U.S. 745 (1983) (“It is also recognized that the accused has the ultimate

authority to make certain fundamental decisions regarding the case, as to

whether to plead guilty, waive a jury, testify in his or her own behalf, or take

an appeal.”). Thus, nothing in McCoy has changed the landscape of case law

applicable to Appellant’s guilty plea, and the decision itself did not even involve

circumstances analogous to the instant case.      Thus, we agree with the PCRA

court that Appellant cannot invoke McCoy to satisfy the untimeliness

exception set forth in Section 9545(b)(1)(iii).

      In any event, even if McCoy was applicable to the case at hand, Section

9545(b)(1)(iii) would still be inapplicable. Our Supreme Court has held that:

      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 this court
      after the time provided in this section. Second, it provides that
      the right “has been held” by “that court” to apply retroactively.
      Thus, a petitioner must prove that there is a “new” constitutional
      right and that the right “has been held” by that court to apply
      retroactively. The language “has been held” is in 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.



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Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002).

       Here, Appellant has failed to establish that McCoy “has been held” by

the United States Supreme Court to apply retroactively on collateral review.

Nothing in the McCoy decision itself suggests the United States Supreme

Court’s intent to have it apply retroactively on collateral review, and Appellant

fails to cite any subsequent decisions applying it retroactively, or otherwise

declaring McCoy to have such retroactive effect. Thus, for this reason as well,

Appellant cannot successfully avail himself of the timeliness exception set

forth in Section 9545(b)(1)(iii).4

       For the preceding reasons, Appellant’s untimely petition cannot satisfy

any of the PCRA’s timeliness exceptions and, therefore, the court did not err

or abuse its discretion in dismissing it. Furthermore, to the extent that the

PCRA court dismissed Appellant’s petition as lacking merit, rather than as

untimely, we note that we are not bound by that court’s rationale as this Court

can affirm an order denying a PCRA petition on any legal basis.             See

Commonwealth v. Doty, 48 A.3d 451, 456 (Pa. Super. 2012). Moreover,

regarding Appellant’s claim that the PCRA court erred by not holding an

evidentiary hearing, he has failed to assert any genuine issue of material fact




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4  We also find persuasive this Court’s recent memorandum in
Commonwealth v. Hoffman, 2020 WL 200838, at *2 (Pa. Super. January
13, 2020), in which this Court determined that McCoy does not create or
otherwise recognize a new constitutional right for purposes of Section
9545(b)(1)(iii).

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that could be resolved in his favor in such a manner that would prove the

applicability of an exception to the PCRA’s timeliness requirements.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/20




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