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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUAN SMITH
Appellant No. 1684 EDA 2014
Appeal from the PCRA Order April 30, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0600141-1995
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED APRIL 08, 2015
Appellant Juan Smith appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed his fourth
petition seeking relief pursuant to the Post Conviction Relief Act (“PCRA”). 1
We affirm.
The trial court sets forth the relevant facts and procedural history of
this appeal as follows:
[Appellant] entered a guilty plea to first degree murder,
robbery, and burglary before [the Honorable] Jane Cutler
Greenspan on October 25, 1995. On the same day,
[Appellant] was sentenced by Judge Greenspan to serve a
life sentence and to consecutive sentences of incarceration
on the other offenses, which in the aggregate totaled
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*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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fifteen to thirty years. [Appellant] did not file a direct
appeal.
[Appellant] filed his first [PCRA] petition on January 10,
1997. The petition was dismissed on August 21, 1997,
after counsel filed a Finley/Turner1 no-merit letter.
[Appellant’s] appeal to the Superior Court was withdrawn
on December 17, 1997.
1
Commonwealth v. Turner, 54 A.2d 927 (Pa.1983);
Commonwealth v. Finley, 550 A.2d 213
(Pa.Super.1988).
[Appellant] filed his second [PCRA] petition on April 19,
2004. After counsel was appointed, the petition was
dismissed on March 16, 2005. The Superior Court affirmed
the dismissal on March 28, 2006, and the Pennsylvania
Supreme Court denied allocatur on August 29, 2006.
[Appellant] filed his third petition on December 26, 2006.
It was dismissed on June 16, 2008. The Superior Court
affirmed the dismissal on August 11, 2009, and the
Supreme Court denied allocatur on February 12, 2010.
[Appellant] filed [his fourth PCRA] petition that is the
subject of the instant appeal on May 18, 2012. After
conducting an extensive and exhaustive review of the
record and applicable case law, this court determined that
it did not have jurisdiction to consider [Appellant’s] PCRA
petition because [Appellant’s] petition for [PCRA] relief was
untimely filed.
PCRA Court Opinion, filed September 3, 2014, pp. 1-2.
On January 28, 2014, the PCRA court issued a Rule 907 notice, to
which Appellant responded on February 19, 2014. On April 30, 2014, the
PCRA court dismissed Appellant’s petition for relief. On May 19, 2014,
Appellant timely filed a notice of appeal. The court did not order Appellant
to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal, and he did not file one.
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Appellant raises the following issue for our review:
WHETHER THE PCRA COURT ERRED DISMISSING
APPELLANT’S POST-CONVICTION RELIEF PETITION AS
UNTIMELY IN LIGHT OF THE EXCEPTION THAT WAS
INVOKED PURSUANT TO 42 PA.C.S. 9545(B)(1)(III)[?]
Appellant’s Brief at 4.
In his sole issue on appeal, Appellant argues he has invoked the
constitutional right exception to the PCRA time bar. Specifically, he
contends that the United States Supreme Court decision in Martinez v.
Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), recognized the constitutional
right of the effective assistance of counsel in a collateral proceeding.
Appellant claims his PCRA counsel was ineffective by failing to properly raise
trial counsel’s ineffectiveness. Further, Appellant suggests Martinez should
apply retroactively because of this Court’s decision in Commonwealth v.
Lofton, 57 A.3d 1270 (Pa.Super.2012). Appellant is incorrect.
The timeliness of a PCRA petition 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.” Id. To “accord finality to the collateral review process[,]” the
PCRA “confers no authority upon [appellate courts] to fashion ad hoc
equitable exceptions to the PCRA timebar[.]” Commonwealth v. Watts,
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23 A.3d 980, 983 (Pa.2011). With respect to jurisdiction under the PCRA,
this Court has further explained:
The most recent amendments to the PCRA...provide a
PCRA petition, including a second or subsequent petition,
shall be filed within one year of the date the underlying
judgment becomes final. A judgment is deemed 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.
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)
(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);
see also 42 Pa.C.S. § 9545. This Court may review a PCRA petition filed
more than one year after the judgment of sentence becomes final only if the
claim falls within one of the following three statutory exceptions, which the
petitioner must plead and prove:
(i) the failure to raise the claim 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). Further, if a petition pleads one of these
exceptions, the petition will not be considered unless it is “filed within 60
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days of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
Additionally, a heightened standard applies to a second or subsequent
PCRA petition to avoid “serial requests for post-conviction relief.”
Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011). A second or
subsequent PCRA petition “will not be entertained unless a strong prima
facie showing is offered to demonstrate that a miscarriage of justice may
have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248, 1251
(Pa.2006). Further, in a second or subsequent post-conviction proceeding,
“all issues are waived except those which implicate a defendant’s innocence
or which raise the possibility that the proceedings resulting in conviction
were so unfair that a miscarriage of justice which no civilized society can
tolerate occurred.” Commonwealth v. Williams, 660 A.2d 614, 618
(Pa.Super.1995).
Here, Appellant’s judgment of sentence became final on or about
November 27, 1995, when the time period for filing a direct appeal to this
Court expired. See 42 Pa.C.S. § 9545(b)(3). As the instant PCRA petition
was not filed until May 18, 2012, it is patently untimely unless Appellant has
pleaded and proved one of the statutory exceptions to the PCRA time bar.
Appellant purports to invoke the 42 Pa.C.S. § 9545(b)(1)(iii)
constitutional right exception. To qualify for this exception, a petitioner
must plead and prove that he is entitled to the benefit of a new
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constitutional right recognized by the Supreme Court of the United States or
the Supreme Court of Pennsylvania after the provided time period, and that
the right has been held by that court to apply retroactively. In Martinez,
the Supreme Court of the United States held:
Where, under state law, claims of ineffective assistance of
trial counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.
Martinez, supra. at 1320. The Court explained:
The holding here ought not to put a significant strain on
state resources. When faced with the question whether
there is cause for an apparent default, a State may answer
that the ineffective-assistance-of-trial-counsel claim is
insubstantial, i.e., it does not have any merit or that it is
wholly without factual support, or that the attorney in the
initial-review collateral proceeding did not perform below
constitutional standards.
This is but one of the differences between a constitutional
ruling and the equitable ruling of this case. A
constitutional ruling would provide defendants a
freestanding constitutional claim to raise; it would require
the appointment of counsel in initial-review collateral
proceedings; it would impose the same system of
appointing counsel in every State; and it would require a
reversal in all state collateral cases on direct review from
state courts if the States’ system of appointing counsel did
not conform to the constitutional rule. An equitable ruling,
by contrast, permits States a variety of systems for
appointing counsel in initial-review collateral proceedings.
And it permits a State to elect between appointing counsel
in initial-review collateral proceedings or not asserting a
procedural default and raising a defense on the merits in
federal habeas proceedings. In addition, state collateral
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cases on direct review from state courts are unaffected by
the ruling in this case.
Id. at 1319-20.
Appellant incorrectly relies on this Court’s decision in Lofton for the
proposition that Martinez has been held to apply retroactively. The Lofton
Court stated:
The legislature failed to contemplate that it is longstanding
precedent that persons are generally entitled to the
retroactive applicability of decisions when they are
pursuing an identical issue on direct appeal.
Commonwealth v. Cabeza, 469 A.2d 146, 148
([Pa.]1983) (“we hold that where an appellate decision
overrules prior law and announces a new principle, unless
the decision specifically declares the ruling to be
prospective only, the new rule is to be applied retroactively
to cases where the issue in question is properly preserved
at all stages of adjudication up to and including any direct
appeal.”); Commonwealth v. McCormick, 519 A.2d 442
([Pa.Super.]1986) (discussing various retroactivity
approaches utilized in Pennsylvania); cf. Griffith v.
Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649
(1987) (holding new federal constitutional rules apply
retroactively to cases on direct appeal).
Lofton, supra. at 1276.
Unfortunately for Appellant, Lofton does not hold that all
constitutional decisions apply retroactively to collateral proceedings, but
speaks specifically to direct appeals. As Appellant is seeking collateral relief,
this Court’s decision in Lofton does not affect him.2
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2
Further, Lofton was decided by this Court, not the Supreme Court of
Pennsylvania or the Supreme Court of the United States.
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Because neither the United States Supreme Court nor the
Pennsylvania Supreme Court has held that Martinez applies retroactively,
we need not determine whether Martinez governs the present appeal.
Appellant has failed to plead and prove the constitutional exception to the
PCRA time bar. Thus, Appellant’s petition remains time-barred, and the
PCRA court properly denied it. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/2015
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