Appeal from the PCRA Order July 5, 2012 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0003314-2003
The opinion of the court was delivered by: Lazarus, J.
BEFORE: BENDER, J., LAZARUS, J., and COLVILLE, J.*fn1
Gregory R. Saunders appeals from the order, entered in the Court of Common Pleas of Delaware County, dismissing as untimely his second petition brought pursuant to the Post Conviction Relief Act ("PCRA").*fn2 We affirm.
On August 17, 2004, a jury convicted Saunders of robbery, burglary, firearms not to be carried without a license, and criminal conspiracy based on his participation in a home invasion robbery in Chester. The trial court sentenced him to 19 to 38 years' incarceration on November 23, 2004. Saunders filed a timely notice of appeal on December 21, 2004, and following several intermediate steps irrelevant to the matter before us, this Court affirmed Saunders' judgment of sentence on June 20, 2008. Commonwealth v. Saunders, 959 A.2d 468 (Pa. Super. 2008) (unpublished memorandum). Saunders did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.
Saunders filed a pro se PCRA petition on September 9, 2008, and counsel was appointed on October 20, 2008. On March 9, 2009, counsel filed a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). On March 12, 2009, the court issued a Pa.R.Crim.P. 907 notice of intent to dismiss without a hearing. Saunders did not respond, and the court dismissed the petition on June 17, 2009. Saunders filed an appeal, which this Court dismissed on March 17, 2010, due to Saunders' failure to file a brief.
On May 23, 2012, Saunders filed a second pro se PCRA petition alleging that his direct appeal counsel was ineffective for failing to raise the ineffectiveness of his trial counsel, and that his first PCRA counsel was ineffective for failing to raise his direct appeal counsel's ineffectiveness. The trial court determined that the petition was untimely, and on June 6, 2012, it issued a Rule 907 notice of intent to dismiss without a hearing. Saunders filed a response on June 29, 2012, and on July 5, 2012, the trial court dismissed the petition.
Saunders filed a timely notice of appeal, and on October 4, 2012, the trial court filed its opinion pursuant to Pa.R.A.P. 1925(a). On appeal, Saunders raises the following issue for our review:
Whether Martinez v. Ryan, [132 S.Ct. 1309 (2012)] should supply an exception to 42 Pa.C.S. § 9545 to the extent of allowing state defendants to raise PCRA counsel's ineffectiveness from the initial PCRA proceedings for waiving claims that could have been raised in that first initial phase?
Brief of Appellant, at 5.
The PCRA requires that all petitions be filed within one year of the date the judgment of sentence became final unless the petitioner alleges and proves that the failure to raise a timely claim: (1) was the result of interference by government officials; (2) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by reasonable diligence; or (3) the right asserted is a constitutional right that has been recognized by the United States Supreme Court or the Supreme Court of Pennsylvania after the one-year time period, and has been held to apply retroactively. 42 Pa.C.S. § 9545(b)(1).
Saunders' sentence became final on July 20, 2008. Therefore, he had until July 20, 2009 to file a timely PCRA petition. However, he did not file the instant petition until May 23, 2012.
Saunders argues that the recent United States Supreme Court decision, Martinez v. Ryan, 132 S.Ct. 1309 (2012), supports his claim that a petitioner is permitted to file a second PCRA petition within sixty days of discovering the ineffectiveness of his PCRA counsel.
In light of the importance of Martinez to Saunders' argument, we set forth the relevant facts and procedural history of that case. An Arizona court sentenced Martinez to two consecutive terms of life imprisonment following his convictions on two counts of sexual conduct with a minor. The state appointed counsel to represent him on direct appeal. Arizona does not permit an appellant to raise claims of ineffective assistance of trial counsel on direct appeal. While the direct appeal was pending, Martinez's counsel began state collateral proceedings by filing a ...