J-S57036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WINSTON MCPHERSON
Appellant No. 1102 EDA 2015
Appeal from the PCRA Order entered April 1, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0409911-1995
BEFORE: MUNDY, OTT, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 04, 2015
Appellant, Winston McPherson, appeals pro se from the April 1, 2015
order entered in the Court of Common Pleas of Philadelphia County, denying
as untimely his second petition for collateral relief pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Following review,
we affirm.
The PCRA court provided the following procedural history:
Following a jury trial on January 12, 1996, [Appellant] was
convicted of first degree murder and possessing an instrument of
crime. [Appellant] was thereafter sentenced to life
imprisonment on the murder conviction. Following a direct
appeal, the Superior Court affirmed the judgment of sentence on
August 15, 1997. [Appellant] did not seek allocatur.
On May 27, 1998, [Appellant] filed a pro se PCRA petition
and counsel was appointed. On September 17, 1998, the PCRA
court dismissed the petition. The Superior Court affirmed the
lower court’s dismissal of [Appellant’s] petition on February 9,
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2000. The Pennsylvania Supreme Court denied [Appellant’s]
petition for allowance of appeal on July 19, 2000.
On July 10, 2014, [Appellant] filed the instant pro se PCRA
petition. On February 17, 2015, the PCRA court issued its notice
of intent to dismiss pursuant to Pennsylvania Rule of Criminal
Procedure 907. On April 1, 2015, the PCRA court dismissed
[Appellant’s] petition as untimely. On April 9, 2015, the instant
notice of appeal was filed to the Superior Court.
PCRA Court Opinion, 4/21/15, at 1-2 (footnotes omitted).
Although Appellant provides a Statement of the Case that is essentially
a verbatim restatement of the PCRA court’s procedural history, he does offer
additional factual background from his perspective within the Argument
section of his Brief as follows:
The record in this matter clearly shows that [A]ppellant
was offered a plea bargain of 8 to 20 years[’] incarceration in
exchange for a guilty plea to the crimes of third degree murder
and related offenses. [A]ppellant, however, rejected the
Commonwealth’s offer to plead guilty to the aforementioned
crimes based upon the faulty advice of trial counsel.
[A]ppellant’s Affidavit attests to the fact that trial counsel
advised him that he believed that the Commonwealth did not
have the evidence to convict him and that he could “win” the
case. Trial counsel provided [A]ppellant with incorrect or
inaccurate advice with regard to the law on identification
evidence.
Trial counsel failed to advise [A]ppellant of the strong
likelihood that he would be convicted of murder and failed to
explain to him the pros and cons of going to trial or pleading
guilty. Had the trial counsel explained the law and the pros and
cons of going to trial, [A]ppellant would have entered a guilty
plea in exchange for a guaranteed sentence.
Clearly, [A]ppellant rejected the plea offer as a result of
trial counsel’s failure to properly advise him and/or discuss with
him the chances for a successful result at trial based on the
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Commonwealth identification evidence. Had trial counsel
properly advised him, he would have taken the plea offer, the
judge would have approved it and the deal would have been
[more] favorable than the case’s outcome.
Appellant’s Brief at 11-12.
Appellant presents one issue for our consideration:
Is [A]ppellant entitled to post-conviction relief in the form of a
new trial, the opportunity to enter a guilty plea or a remand for
an evidentiary hearing since trial counsel was ineffective when
he failed to properly and fully advise [A]ppellant with regard to a
plea offer made by the prosecutor?
Appellant’s Brief at 4.
This Court has explained that “[o]ur standard of review of an order
denying PCRA relief is whether the record supports the PCRA court’s
determination, and whether the PCRA court's determination 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.
Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013) (citations omitted).
Any PCRA petition, including a second or subsequent petition, must be
filed within one year of the date the underlying judgment becomes final
unless the petitioner proves an exception. 42 Pa.C.S.A. § 9545(b)(1). “[A]
judgment 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.A. § 9545(b)(3). Further, any petition claiming an
exception under § 9545(b)(1) must be filed within 60 days of the date the
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claim could have been presented. 42 Pa.C.S.A. § 9545 (b)(2). “[T]he
PCRA’s timeliness requirements are jurisdictional in nature and, accordingly,
a PCRA court cannot hear untimely PCRA petitions.” Commonwealth v.
Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (quoting Commonwealth v.
Rienzi, 827 A.2d 369, 371 (Pa. 2003)).
Appellant’s judgment of sentence became final on September 15,
1997, thirty days after this Court affirmed his judgment of sentence.
Therefore, absent an exception, his petition filed on July 10, 2014 is facially
untimely.
Appellant contends his petition is saved from the PCRA’s time bar
because “the right asserted is a constitutional right that was recognized by
the Supreme Court of the United States . . . after the time period provided in
[§ 9545(b)(1)] and has been held by that court to apply retroactively.” 42
Pa.C.S.A. § 9545(b)(1)(iii). Specifically, Appellant argues his petition is
timely in light of the United States Supreme Court’s decisions in Lafler v.
Cooper, 132 S.Ct. 1376 (2012) and Missouri v. Frye, 132 S.Ct. 1399
(2012), both of which were decided on March 21, 2012.
Even assuming Lafler or Frye provided a constitutional right
exception under § 9545(b)(1), Appellant’s July 10, 2014 petition would still
be untimely because it was not filed on or before May 21, 2012, 60 days
after those decisions were announced. Therefore, this Court has no
jurisdiction over his petition. Further, Appellant would not be entitled to
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relief even if a timeliness exception saved his petition. In Commonwealth
v. Feliciano, 69 A.3d 1270 (Pa. Super. 2013), this Court concluded that:
It is apparent neither Lafler nor Frye created a new
constitutional right. Instead these decisions simply applied the
Sixth Amendment right to counsel, and the Strickland[1] 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.
Id. at 1277.
Appellant’s PCRA petition is untimely on its face and is not saved from
the PCRA time bar by any exception under § 9545(b)(1). Therefore, this
Court, as well as the PCRA court, lacks jurisdiction to consider it.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/4/2015
____________________________________________
1
Strickland v. Washington, 466 U.S. 668 (1984).
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