J-S41040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LESTER EILAND :
:
Appellant : No. 2077 MDA 2016
Appeal from the PCRA Order November 29, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002630-2000
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED JUNE 19, 2017
Appellant, Lester Eiland, appeals pro se from the order entered in the
Dauphin County Court of Common Pleas, which dismissed as untimely his
serial petition filed under the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. On August 10, 2001, a jury convicted Appellant of
second-degree murder, robbery, and conspiracy. The trial court sentenced
Appellant on September 20, 2001, to life imprisonment for the murder
conviction and consecutive terms of imprisonment for the other offenses.
On September 22, 2003, this Court affirmed the convictions but vacated and
remanded for resentencing because the court improperly imposed a
sentence for robbery, which was the predicate offense for the felony murder
conviction. Appellant subsequently filed a petition for allowance of appeal,
which the Supreme Court denied on June 29, 2004. See Commonwealth
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*Retired Senior Judge assigned to the Superior Court.
J-S41040-17
v. Eiland, 839 A.2d 1152 (Pa.Super. 2003), appeal denied, 578 Pa. 705,
853 A.2d 359 (2004). On August 5, 2004, the trial court resentenced
Appellant to life imprisonment for the murder conviction with a consecutive
sentence for conspiracy. The robbery conviction merged with felony murder
for sentencing purposes. Appellant did not seek further direct review. Since
then, Appellant has filed multiple prior petitions for collateral relief, all of
which were ultimately unsuccessful.
On November 23, 2015, Appellant filed the current, serial pro se PCRA
petition. Appellant filed an application for “speedy disposition” on July 20,
2016. The court dismissed Appellant’s PCRA petition as untimely on
November 29, 2016.1 Appellant timely filed a pro se notice of appeal on
December 12, 2016. On December 14, 2016, the court ordered Appellant to
file a concise statement per Pa.R.A.P. 1925(b). Appellant timely filed his
statement on December 30, 2016.
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition, including a second or subsequent petition, shall be filed within
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1
The record does not contain an order issuing appropriate notice per
Pa.R.Crim.P. 907 before the court denied PCRA relief. Appellant has not
raised this issue on appeal, so he waived any defect in notice. See
Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013) (explaining
failure to challenge lack of Rule 907 notice results in waiver of claim on
appeal). Moreover, the court’s oversight regarding Rule 907 notice is not
reversible error, where the PCRA petition is untimely. Id.
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one year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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.” 42 Pa.C.S.A. § 9545(b)(3). The
statutory exceptions to the PCRA time-bar allow for very limited
circumstances under which the late filing of a petition will be excused; a
petitioner asserting a timeliness exception must file a petition within 60 days
of when the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).
Instantly, the court resentenced Appellant on August 5, 2004. The
judgment of sentence became final thirty days later, on September 4, 2004,
upon expiration of the time for filing a direct appeal with the Superior Court.
See Pa.R.A.P. 903 (providing 30 days to file notice of appeal from judgment
of sentence with Superior Court). Appellant filed the current serial PCRA
petition on November 23, 2015, which is patently untimely. See 42
Pa.C.S.A. § 9545(b)(1). Appellant now attempts to invoke the “new
constitutional right” exception to the statutory time-bar per Section
9545(b)(1)(iii), citing Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182
L.Ed.2d 272 (2012) (holding inadequate assistance of counsel at initial-
review collateral proceedings may establish cause for prisoner’s procedural
default of claim of ineffective assistance of trial counsel, for purposes of
federal habeas corpus relief). Specifically, Appellant claims prior privately-
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retained PCRA counsel was ineffective in litigating Appellant’s first PCRA
petition. Nevertheless, Martinez affords Appellant no relief. See
Commonwealth v. Saunders, 60 A.3d 162 (Pa.Super. 2013), appeal
denied, 621 Pa. 657, 72 A.3d 603 (2013), cert. denied, ___ U.S. ___, 134
S.Ct. 944, 187 L.Ed.2d 811 (2014) (explaining that Martinez represents
significant development in federal habeas corpus law, but it is of no moment
with respect to PCRA time-bar). Thus, the court properly dismissed the
petition.2
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/19/2017
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2
Given our decision to affirm, we deny the Commonwealth’s request to
quash the appeal because Appellant did not file a reproduced record.
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Com. v. Eiland, L.
Combined Opinion