J-S90033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

REGINALD BRYANT

                            Appellant               No. 2455 EDA 2015


                    Appeal from the PCRA Order July 10, 2015
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1206841-1997
                                          CP-51-CR-1206851-1997


BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED DECEMBER 02, 2016

       Appellant Reginald Bryant appeals from the order of the Philadelphia

County Court of Common Pleas dismissing as untimely his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et

seq. After careful review, we affirm.

       On March 30, 2001, a jury convicted Appellant of first-degree murder,

third-degree murder, arson, aggravated assault, conspiracy, and possession

of an instrument of crime following a horrific 1997 home invasion in which

Appellant and an accomplice shot Madeline Carter, poured gasoline on her

body, and set fire to her and her house.1 On April 4, 2001, the trial court
____________________________________________


1
  For a full recitation of the facts of the underlying matter, see
Commonwealth v. Bryant, 1151 EDA 2001 (unpublished memorandum),
pp. 1-4.
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sentenced Appellant to life imprisonment for first-degree murder and an

aggregate term of 17½ to 35 years’ imprisonment on the remaining

convictions.

       Appellant appealed. This Court affirmed his convictions on September

13, 2002, and the Supreme Court of Pennsylvania denied allocatur on

August 19, 2003.

       On August 11, 2008, Appellant filed a pro se PCRA petition,2 and the

PCRA court appointed counsel who filed an amended petition on November

2, 2010. Ultimately, on July 10, 2015, the PCRA court dismissed Appellant’s

PCRA petition as untimely. Appellant timely appealed.3

       Appellant raises the following two issues for our review:

       [1.] Whether the General Assembly intended 42 Pa.C.S. §
       9545(b)’s one year filing deadline to be jurisdictional and,
       therefore, not subject to equitable tolling[?]

       [2.] If [PCRA section] 9545(b)’s one year filing deadline is
       jurisdictional, whether its application in [Appellant’s] case
       violated [Appellant’s] state and federal due process rights[?]

Appellant’s Brief, p. 6.




____________________________________________


2
  In the interim, Appellant filed a federal habeas corpus petition, which the
district court denied on April 14, 2005.
3
  The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) concise
statement of matters of on appeal, and Appellant did not file such a
statement. The trial court filed its Pa.R.A.P. 1925(a) opinion on March 14,
2016.



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      Our well-settled standard of review for orders denying PCRA relief is

“to determine 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, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).

      We must first consider the timeliness of the petition, as a petition’s

timeliness implicates the jurisdiction of both this Court and the PCRA court.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal

denied, 50 A.3d 121 (Pa.2012) (“Pennsylvania law makes clear that no court

has jurisdiction to hear an untimely PCRA petition”). “It is undisputed that a

PCRA petition must be filed within one year of the date that the judgment of

sentence becomes final.”    Commonwealth v. Hernandez, 79 A.3d 649,

651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1). “This time requirement is

mandatory and jurisdictional in nature, and the court may not ignore it in

order to reach the merits of a petition.” Hernandez, 79 A.3d at 651 (citing

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.2000)). A 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.”   42 Pa.C.S. § 9545(b)(3).    However, a facially untimely petition

may be received where any of the PCRA’s three limited exceptions to the




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time for filing the petition are met. Hernandez, 79 A.3d at 651 (footnote

omitted). These exceptions include:

     (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).   As our Supreme Court has repeatedly

stated, the petitioner maintains the burden of pleading and proving that one

of these exceptions applies.    Commonwealth v. Abu-Jamal, 941 A.2d

1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008). Further,

     [a] petition invoking one of these exceptions must be filed within
     sixty days of the date the claim could first have been presented.
     42 Pa.C.S. § 9545(b)(2).        In order to be entitled to the
     exceptions to the PCRA’s one-year filing deadline, the petitioner
     must plead and prove specific facts that demonstrate his claim
     was raised within the sixty-day time frame under section
     9545(b)(2).

Hernandez, 79 A.3d at 651-652 (internal quotations omitted). Further, in

the absence of one of the enumerated exceptions, a PCRA court lacks

authority to extend the PCRA’s filing period. Commonwealth v. Fahy, 737

A.2d 214, 222 (Pa.1999); see also Commonwealth v. Watts, 23 A.3d

980, 983 (Pa.2011) (“[To] accord finality to the collateral review process[,]”


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the PCRA “confers no authority upon [appellate courts] to fashion ad hoc

equitable exceptions to the PCRA timebar”).

      Here, Appellant was sentenced on April 4, 2001. Appellant litigated his

direct appeal through our Supreme Court’s denial of his petition for allocatur

on August 19, 2003.     Appellant’s judgment of sentence therefore became

final 90 days later, on November 17, 2003, when his time for seeking

certiorari in the Supreme Court of the United States expired.         See 42

Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.Rule 13.1 (allowing 90 days for the filing

of a writ of certiorari in the Supreme Court of the United States).

Accordingly, Appellant had until November 17, 2004 to timely file a PCRA

petition.

      Appellant filed the instant PCRA petition on August 11, 2008, over

three and a half years after the expiration of his PCRA limitations period.

Accordingly, Appellant’s petition is facially untimely.   Thus, he must plead

and prove that his petition falls under one of the Section 9545(b) exceptions

set forth in the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

      Appellant acknowledges the untimeliness of his petition.            See

Appellant’s Brief, p. 8. To overcome the PCRA’s time bar, Appellant states

the following:

      [Appellant] can overcome the untimeliness for two reasons; both
      being directly connected to [prior appellate counsel’s] egregious
      and unethical representation of [Appellant] during his initial-
      review PCRA proceedings: (1) based on [prior counsel’s]
      representation, [Appellant] was entitled to have the PCRA’s one
      year filing deadline equitably tolled until he filed his pro se
      petition on August 11, 2008; and (2) based on [prior counsel’s]

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      representation, the application of the PCRA’s one year filing
      deadline violated [Appellant’s] state and federal due process
      rights.

Appellant’s Brief, p. 8.

      Appellant’s attempts to overcome the time bar fail. “It is well settled

that allegations of ineffective assistance of counsel will not overcome the

jurisdictional timeliness requirements of the PCRA.”         Commonwealth v.

Wharton,     886    A.2d   1120,    1127     (Pa.2005)    (petitioner’s   claim   of

ineffectiveness of prior counsel did not toll PCRA time bar); see also

Commonwealth v. Pursell, 749 A.2d 911, 915-16 (Pa.2000) (petitioner’s

claim in a second PCRA petition, that all prior counsel rendered ineffective

assistance, did not invoke timeliness exception); Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 785-86 (Pa.2000) (prior PCRA counsel’s

failure to develop issue of trial counsel’s ineffectiveness not exception to

time-bar); Commonwealth v. Lark, 746 A.2d 585, 589 (Pa.2000)

(allegation of counsel ineffectiveness not sufficient justification to overcome

otherwise untimely PCRA claims).

      Additionally, our Supreme Court has held that, because “the PCRA’s

time restrictions are jurisdictional, . . . the period for filing a PCRA petition is

not subject to the doctrine of equitable tolling, save to the extent the

doctrine is embraced by § 9545(b)(1)(i)–(iii).”       Commonwealth v. Fahy,

737 A.2d 214, 222 (Pa.1999). Further, the Supreme Court has noted that

the PCRA “confers no authority upon this Court to fashion ad hoc equitable

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


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delineated in the Act.” Watts, 23 A.3d at 983 (quoting Commonwealth v.

Robinson, 837 A.2d 1157, 1161 (Pa.2003)).           Because Appellant did not

plead any of the enumerated section 9545(b) timeliness exceptions, he is

not entitled to any form of tolling.

       Appellant’s claim that the PCRA’s timeliness limitations violated his due

process rights because it forfeited an entire legal proceeding also fails. Our

Supreme Court has expressly stated that the PCRA’s time limitations are

constitutional. Peterkin, 722 A.2d at 643 n.5. The PCRA’s time limitations

did not cause the forfeiture of entire legal proceedings in this matter,

Appellant caused the forfeiture by failing to comply with the time

limitations.4

       Because Appellant filed the instant PCRA petition over three and a half

years after the expiration of the PCRA limitations period and cannot avail

himself of any time-bar exception, the PCRA court did not err in dismissing

this petition as untimely.

       Order affirmed.

____________________________________________


4
  We acknowledge that Appellant claims to have requested that his prior
appellate counsel file a PCRA in lieu of a federal habeas corpus petition.
However, even if this claim were true and counsel ignored Appellant’s
request, Appellant had, at worst, 60 days from the receipt of counsel’s
October 27, 2005 letter explaining his actions and the result of the habeas
petition to assert his rights. Appellant did not assert any claim of rights
related to the discovery of prior appellate counsel’s actions at that time.
Instead, he waited nearly three years from the date of counsel’s letter to
attempt to challenge counsel’s actions.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2016




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