J-S59026-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EARL GALE
Appellant No. 3418 EDA 2013
Appeal from the PCRA Order November 6, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006569-1992
BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 30, 2014
Earl Gale appeals, pro se,1 from the order dismissing, as untimely, his
third petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. § 9541-9546.2 is untimely and he fails to
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
After PCRA counsel filed a Turner/Finley -
See Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988).
2
The standard of review applied by appellate courts to an order denying
PCRA relief is well-settled. The appellate court must determine whether the
ror.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). Moreover,
the question of whether a PCRA petition is timely raises a question of law.
Commonwealth v. Fahy, 959 A.2d 312 (Pa. 2008). Where a petitioner
raises a question of law, the standard of review is de novo and the scope of
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plead and prove any recognized exception to the timeliness provisions of the
PCRA, we affirm.
In 1993, Gale was convicted by a jury of first-degree murder and
related offenses and subsequently sentenced to life imprisonment. The
convictions stemmed from a drive-by shooting that took place in Delaware
County; Gale was the front-seat passenger in the car from which the deadly
appeal in April 1995 and
petition for allowance of appeal in November 1995. On November 26, 1997,
Gale filed his first PCRA petition. After an evidentiary hearing, the court
denied the petition. Following an unsuccessful collateral appeal and petition
for allowance of appeal, Gale filed a second PCRA petition on August 25,
2000. The trial court denied this second petition as untimely. Our Court
his third, PCRA petition claiming that he is entitled to relief based upon the
recent United States Supreme Court decisions, Missouri v. Frye, 132 S.Ct.
1399 (2012), and Lafler v. Cooper, 132 S.Ct. 1376 (2012). The PCRA
court dismissed the petition as untimely. He now appeals.
_______________________
(Footnote Continued)
review is plenary. Commonwealth v. Taylor, 65 A.3d 462 (Pa. Super.
2013).
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1996, ninety days after the Pennsylvania Supreme Court denied his petition
for allowance of appeal and the time expired to seek certiorari in the United
States Supreme Court. See 42 P.C.S. § 9545(b)(1) (PCRA petition shall be
filed within one year of date judgment becomes final unless recognized
2012, therefore, was filed more than 15 years late under the PCRA.
Moreover, the argument Gale makes to overcome the untimeliness of his
petition, that Frye3 and Lafler announce a new, retroactively applied
constitutional right under the PCRA, has been rejected by this Court. See
Commonwealth v Feliciano, 69 A.3d 1270 (Pa. Super. 2013) (Frye and
Lafler do not set forth new rules of constitutional law and are not applicable
retroactively to satisfy section 9545(b)(1)(iii) timeliness exception for PCRA
petitioners); see also Commonwealth v. Hernandez, 79 A.3d 649 (Pa.
Super. 2013) (further explaining holding of Feliciano).4
____________________________________________
3
In Frye
right to counsel is violated when counsel allows a plea offer extended by the
prosecution to expire without advising the defendant of the offer or allowing
him to consider it. 132 S.Ct. at 1408. Lafler reiterated holding.
4
Gale argues that because Feliciano and Hernandez had not yet been
decided at the time he filed his petition in May 2012, the trial court
improperly determined that his petition did not meet the timeliness
exception under section 9545(b)(1)(iii). What Gale fails to recognize,
however, is the fact that both Feliciano and Hernandez were decided prior
t
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Because the timeliness requirements for filing a PCRA petition are
jurisdictional in nature, the lack of a timely filed petition deprives the court
of jurisdiction to even entertain the issues raised by a petitioner.
Commonwealth v. Breakiron, 781 A.2d 94 (Pa. 2001). Therefore, the
considering its merits. Id.; Johnson, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2014
_______________________
(Footnote Continued)
properly applied the relevant law as it stood at the time of his decision when
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