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[U] Commonwealth v. Reinert

Superior Court of Pennsylvania

February 18, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
SCOT A. REINERT, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order January 13, 2013 in the Court of Common Pleas of Lehigh County Criminal Division at No.: CP-39-CR-0001128-1991

BEFORE: SHOGAN, J., OTT, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, Scot A. Reinert, appeals from the order dismissing his petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546, without a hearing, as untimely.[1] We affirm.

A jury convicted Appellant of murder of the first degree on January 31, 1992. The trial court sentenced him to a term of life imprisonment. This Court affirmed judgment of sentence on January 23, 1996. (See Commonwealth v. Reinert, 677 A.2d 1267 (Pa.Super. 1996) (unpublished memorandum)). Our Supreme Court denied allowance of appeal, on September 26, 1996. (See Commonwealth v. Reinert, 682 A.2d 309 (Pa. 1996)). On October 6, 1997, the United States Supreme Court denied his petition for a writ of certiorari. (See Reinert v. Pennsylvania, 522 U.S. 810 (1997)).

On May 9, 2012, over fourteen years later, Appellant filed a pro se PCRA petition, asserting ineffectiveness of counsel for failure to present a plea offer. The PCRA court appointed counsel, who filed an amended petition on September 17, 2012, raising the same issue presented in the original petition. The PCRA court denied the petition on January 9, 2013. This timely appeal followed on February 6, 2013.[2]

On appeal, Appellant raises one question for our review:

Whether the [PCRA] court acted properly in denying [Appellant's] petition for post conviction collateral relief, without hearing or testimony, when [Appellant] alleges an arguable claim for ineffective assistance of counsel based upon recent holdings of [sic] United States Supreme Court?

(Appellant's Brief, at 7).

Appellant concedes that his petition is untimely on its face.[3] (See Appellant's Brief, at 12). However, Appellant claims the benefit of a statutory exception. (See id.). Specifically, he asserts that a newly recognized constitutional right set forth by the United States Supreme Court in Missouri v. Frye, 132 S.Ct. 1399 (2012), and Lafler v. Cooper, 132 S.Ct. 1376 (2012), created an exception to the statutory time bar. We disagree.

Our standard of review of the denial of a PCRA petition is limited to examining whether the court's rulings are supported by the evidence of record and free of legal error. This Court treats the findings of the PCRA court with deference if the record supports those findings. It is an appellant's burden to persuade this Court that the PCRA court erred and that relief is due.

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa.Super. 2012), appeal denied, 63 A.3d 773 (Pa. 2013) (citations omitted).

Appellant here maintains that in Frye, supra, and Lafler, supra, the United States Supreme Court recognized a new constitutional right to effective representation of counsel during the plea negotiation process. (See Appellant's Brief, at 13). He asserts that he filed his petition asserting a violation of this new constitutional right on May 9, 2012, within sixty days of the Frye and Lafler decisions, filed March 21, 2012, and thus satisfied the directives of section 9545(b)(1)(iii) and (b)(2). (See id.).

In pertinent part, subsection 9545(b)(1)(iii) provides:

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(iii) the right asserted is a 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.A. § 9545(b)(1)(iii). However, this Court has previously decided that neither Frye nor Lafler created an exception to the PCRA timeliness requirements:

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 Strickland [v. Washington, 466 U.S. 668, 690 (1984)] 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). "The right to effective assistance of counsel during the plea bargaining process has been recognized for decades." Id. at 1276 (citations omitted). Therefore, here, the PCRA court properly determined that Appellant failed to plead and prove a statutory exception to the PCRA time-bar, and that it had no jurisdiction to review the merits of his petition.

Order affirmed.

Judgment Entered.


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