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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES BRYANT :
:
Appellant : No. 1320 EDA 2023
Appeal from the PCRA Order Entered May 5, 2023
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013822-2011
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 4, 2024
James Bryant appeals pro se from the order denying his untimely-filed
petition for post-conviction relief. The lower court treated this as a serial
petition under the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-
46. For the reasons that follow, we affirm.
The pertinent facts and procedural history are as follows: In 2012, the
trial court convicted Bryant at a bench trial of third-degree murder and related
charges. On October 12, 2012, the trial court sentenced him to an aggregate
term of 19½ to 41 years in prison. Following the denial of post-sentence
motions, Bryant filed a timely appeal to this Court. On May 8, 2014, we
affirmed Bryant’s judgment of sentence. Commonwealth v. Bryant, 104
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* Former Justice specially assigned to the Superior Court.
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A.3d 41 (Pa. Super. 2014) (non-precedential decision). Bryant did not seek
further review.
On September 11, 2014, Bryant filed a timely pro se PCRA petition, and,
on October 4, 2016, a supplemental petition. The PCRA court appointed
counsel. On January 12, 2017, PCRA counsel filed a “no-merit” letter and a
motion to withdraw, pursuant to Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
(en banc), based upon his conclusion that Bryant’s petition was without merit.
On April 3, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent
to dismiss the petition without a hearing. Bryant filed a pro se response. By
order entered May 19, 2017, the PCRA court dismissed Bryant’s petition and
granted PCRA counsel’s motion to withdraw.
Bryant appealed. On October 26, 2018, this Court affirmed the PCRA
court’s order denying Bryant post-conviction relief. Commonwealth v.
Bryant, 200 A.3d 605 (Pa. Super. 2018) (non-precedential decision). In
2019, Bryant filed another pro se petition, which the PCRA court dismissed as
untimely. Bryant did not appeal.
On June 22, 2021, Bryant filed the pro se “Motion for Nunc Pro Tunc
Reinstatement of PCRA Petition Filed 9-11-14” at issue here. The PCRA court
treated Bryant’s 2021 motion as a subsequent PCRA petition. On March 17,
2023, the PCRA court issued a Rule 907 notice of its intent to dismiss the
petition without a hearing because it was untimely-filed, and Bryant failed to
establish an exception to the PCRA’s time bar. Bryant filed a pro se response.
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By order entered May 5, 2023, the PCRA court dismissed Bryant’s petition.
This appeal followed. The PCRA court did not require Pa.R.A.P. 1925
compliance.
Bryant raises the following issue on appeal: “Whether a Court may
Reconsider a final order when the prior order has been procured by fraud?”
Bryant’s Brief at 3.
Before addressing this issue, however, we must address whether the
PCRA court properly considered Bryant’s latest filing for post-conviction relief
as a serial PCRA petition. See 42 Pa.C.S.A. § 9542 (providing that the PCRA
“shall be the sole means of obtaining collateral relief and encompasses all
other common law and statutory remedies for the same purpose . . . including
habeas corpus”); Commonwealth v. Descardes, 136 A.3d 493, 499 (Pa.
2016) (explaining that “claims that could be brought under the PCRA must be
brought under that Act. . . . A claim is cognizable under the PCRA if the . . .
conviction resulted from one of seven enumerated errors set forth in 42
Pa.C.S. § 9543(a)(2)”).
In seeking reversal of the court’s May 5th order denying relief, Bryant
essentially claims that PCRA counsel committed a fraud upon the court by
misrepresenting Bryant’s claims and by filing a Turner/Finley “no-merit”
letter.1 We deem this to be a cognizable claim under the PCRA of counsel’s
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1 Although Bryant does not cite Commonwealth v. Bradley, 261 A.3d 381
(Pa. 2021), its holding is inapplicable to Bryant’s untimely second petition.
(Footnote Continued Next Page)
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ineffectiveness. See Pa.C.S.A. § 9543(a)(2)(ii). Thus, the PCRA court
properly considered Bryant’s motion at issue here as a serial PCRA petition.
Treating Bryant’s latest filing as a PCRA petition, we next determine
whether the PCRA court correctly concluded that it was untimely filed, and
that Bryant failed to establish a time-bar exception. The timeliness of a post-
conviction petition is jurisdictional. Commonwealth v. Hernandez, 79 A.3d
649, 651 (Pa. Super. 2013). 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 becomes final unless the petition alleges, and the petitioner
proves, that an exception to the time for filing the petition is met.
The three narrow statutory exceptions to the one-year time bar are as
follows: “(1) interference by government officials in the presentation of the
claim; (2) newly discovered facts; and (3) an after-recognized constitutional
right.” Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)
(citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). In addition, exceptions to the PCRA’s
time bar must be pled in the petition and may not be raised for the first time
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See Commonwealth v. Stahl, 292 A.3d 1130, 1136 (Pa. Super. 2023)
(clarifying that “our Supreme Court in Bradley unambiguously rejected the
filing of a successive untimely PCRA petition as a permissible method of
vindicating the right to effective representation by PCRA counsel.” Id.
(additional emphasis added).
In addition, we note that, in affirming the order denying Bryant’s first
PCRA petition this Court found no merit to Bryant’s claim that PCRA counsel
was ineffective for filing a Turner/Finley “no-merit” letter rather than an
amended petition. See Bryant, 104 A.3d 41 (Pa. Super. 2014) (non-
precedential decision).
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on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.
2007); see also Pa.R.A.P. 302(a) (providing that issues not raised before the
lower court are waived and cannot be raised for the first time on appeal).
Moreover, a PCRA petitioner must file his petition “within one year of the date
the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
Finally, if a PCRA petition is untimely and the petitioner has not pled and
proven an exception “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.” Commonwealth v.
Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).
Here, Bryant’s judgment of sentence became final on June 9, 2014,
thirty days after he failed to file a petition for allowance of appeal with our
Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3).2 Therefore, Bryant had until
June 9, 2015, to file a timely PCRA petition. As Bryant filed the petition at
issue in 2021, it is patently untimely unless he has satisfied his burden of
pleading and proving that one of the enumerated exceptions applies. See
Hernandez, supra.
Bryant has failed to plead and prove any exception to the PCRA’s time
bar. Indeed, in both his motion and brief, he fails to acknowledge the
statutory time restrictions and proceeds to argue his substantive issue.
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2 Because the thirtieth day fell on a Sunday, Bryant had until the following
Monday to file a timely petition for allowance of appeal. See generally, 1
Pa.C.S.A. § 1908.
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In sum, Bryant’s motion is cognizable under the PCRA, but it is untimely,
and he has failed to establish a time-bar exception. As such, both the PCRA
court and this Court lack jurisdiction to consider his substantive claim.
Derrickson, supra. We therefore affirm the PCRA court’s order denying him
post-conviction relief.
Order affirmed.
Date: 3/4/2024
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