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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
RICHARD D. FLOOD, :
:
Appellant : No. 1832 EDA 2014
Appeal from the PCRA Order entered May 27, 2014,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at Nos: CP-51-CR-0426351-1989
BEFORE: DONOHUE, SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 28, 2015
Richard D. Flood (Appellant) appeals pro se from the order which
dismissed his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. We affirm.
On December 7, 1990, Appellant was sentenced to life imprisonment
without possibility of parole following his guilty plea to first-degree murder.
This Court affirmed Appellant’s judgment of sentence, and our Supreme
Court denied allowance of appeal. Commonwealth v. Flood, 627 A.2d
1193 (Pa. Super. 1993), appeal denied, 641 A.2d 583 (Pa. 1994).
Appellant’s first four PCRA petitions resulted in no relief.
On May 16, 2012, Appellant filed his fifth PCRA petition, which is the
subject of this appeal. The PCRA court served on Appellant pursuant to
Pa.R.Crim.P. 907 a notice of intent to dismiss the petition, and dismissed the
petition by order of May 27, 2014.
*Retired Senior Judge assigned to the Superior Court.
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Appellant timely filed a notice of appeal. The PCRA court did not order
Appellant to file a statement of errors complained of on appeal, and none
was filed. On appeal, Appellant presents to this Court six issues related to
the alleged ineffectiveness of trial/plea counsel. Appellant’s Brief at 3.
Before we consider the merits of Appellant’s claims, we must address
whether his petition was timely filed, for the timeliness of a post-conviction
petition is jurisdictional. Commonwealth v. Lewis, 63 A.3d 1274, 1281
(Pa. Super. 2013) (“[I]f a PCRA petition is untimely, neither this Court nor
the [PCRA] court has jurisdiction over the petition. Without jurisdiction, we
simply do not have the legal authority to address the substantive claims.”
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).
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
of sentence is final unless the petition alleges, and the petitioner proves,
that an exception to the time for filing the petition is met. 42 Pa.C.S.
§ 9545.
It is clear that Appellant’s petition is facially untimely: his judgment of
sentence became final in 1994. However, Appellant alleges that his petition,
filed within 60 days of the Supreme Court’s decisions in Lafler v. Cooper,
132 S.Ct. 1376 (U.S. 2012), and Missouri v. Frye, 132 S.Ct. 1399 (U.S.
2012), satisfies the following timeliness exception: “the right asserted is a
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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)(iii).
This Court has rejected Appellant’s claim:
It is apparent that neither Frye nor Lafler created a new
constitutional right. Instead, these decisions simply applied the
Sixth Amendment right to counsel, and the [] test for
demonstrating counsel’s ineffectiveness, to the particular
circumstances at hand, i.e. where counsel’s conduct resulted in a
plea offer lapsing or being rejected to the defendant’s detriment.
Accordingly, Appellant’s reliance on Frye and Lafler in an
attempt to satisfy the timeliness exception of section
9545(b)(1)(iii) is unavailing.
Commonwealth v. Feliciano, 69 A.3d 1270, 1277 (Pa. Super. 2013)
(footnote omitted).
Appellant also attempted to avoid the PCRA’s time restrictions by
styling his filing as a “Petition for Writ of Habeas Corpus Relief … and for
Post-Conviction Relief…” (hereafter Appellant’s Petition). Appellant argues
that the time restrictions should not apply “to the egregious circumstances
here” or, in the alternative, that the time limitations “unconstitutionally
suspend the state constitutional right to habeas corpus relief….” Appellant’s
Petition at 5 n.1.
Our Supreme Court has rejected both of these arguments. See
Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (“[T]he statute
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confers no authority upon this Court to fashion ad hoc equitable exceptions
to the PCRA time-bar in addition to those exceptions expressly delineated in
the Act.”) (internal quotation marks omitted); Commonwealth v.
Peterkin, 722 A.2d 638, 643 (Pa. 1998) (“[W]e have no difficulty in
concluding that the PCRA’s time limitation upon the filing of PCRA petitions
does not unreasonably or unconstitutionally limit [a petitioner’s]
constitutional right to habeas corpus relief.”).
“Issues that are cognizable under the PCRA must be raised in a timely
PCRA petition and cannot be raised in a habeas corpus petition.”
Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013). Because
Appellant’s claims of ineffective assistance of counsel are cognizable under
the PCRA, see 42 Pa.C.S. § 9543(a)(2) (providing that PCRA relief is
available, inter alia, for convictions resulting from ineffective assistance of
counsel), the PCRA court properly addressed Appellant’s filing as a PCRA
petition and correctly dismissed it as untimely filed.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/28/2015
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