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[U] Commonwealth v. Spears

Superior Court of Pennsylvania

February 18, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MELVIN TODD SPEARS, JR., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order April 19, 2013 in the Court of Common Pleas of Dauphin County Criminal Division at Nos.: CP-22-CR-0000759-2002; CP-22-CR-0000993-2002

BEFORE: PANELLA, J., MUNDY, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

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

On December 9, 2002, Appellant entered guilty pleas, at two dockets, to possession with intent to deliver marijuana (at docket number CP-22-CR-0000759-2002), as well as to criminal homicide, recklessly endangering another person, criminal conspiracy, and firing weapons within city limits (at docket number CP-22-CR-0000993-2002).

The trial court imposed an aggregate sentence of not less than twenty nor more than forty years' incarceration at a state correctional institution. Appellant did not file a direct appeal. Appellant filed a first PCRA petition, pro se, on December 15, 2003. The PCRA court appointed counsel who, on February 23, 2004, filed a motion to withdraw the petition and to withdraw as counsel, which the PCRA court granted on March 17, 2004.

Appellant filed the instant second PCRA petition on or around May 18, 2012. In this second petition Appellant asserted, inter alia, 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), presented an exception to the statutory time bar.[2]

On January 17, 2013, the PCRA court filed a Notice of Intent to Dismiss the second PCRA petition without a hearing.[3] By order dated April 11, 2013, filed April 19, 2013, the PCRA court dismissed the petition without a hearing. This timely appeal followed.[4]

On appeal, Appellant raises two questions for our review:

I. Did the PCRA court err as a matter of law when it dismissed Petitioner's PCRA petition as untimely filed under 42 Pa.C.S. § 9545(b)(1)(iii) and where said petition was filed within sixty days of the date the claim could have been presented?
II. Was trial counsel ineffective for unlawfully inducing Appellant to plead guilty with the expectation of receiving a sentence of ten to twenty years?

(Appellant's Brief, at 4).

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).

In this appeal, Appellant 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 8). Appellant argues that he filed his petition asserting a violation of this novel constitutional right within sixty days of the Frye and Lafler decisions and thus satisfied the directives of section 9545(b)(1)(iii) and (b)(2). (See id.). We disagree.

Preliminarily, we note that Appellant concedes that he entered his guilty pleas on December 9, 2002. (See id. at 5). Therefore, Appellant's conviction became final thirty days later, on January 8, 2003, when the time period to file a notice of appeal with this Court expired. See Pa.R.A.P. 903(a) ("General rule. Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken."); see also 42 Pa.C.S.A. § 9545(b)(3) (judgment of sentence becomes final at conclusion of direct review or expiration of time for seeking review). Accordingly, Appellant had until January 8, 2004, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(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[.]").

Thus, Appellant's petition, filed May 18, 2012, over eight years later, is untimely on its face unless Appellant pleaded and proved one of the three statutory exceptions to the time bar. Here, Appellant claims the benefit of section 9545(b)(1)(iii):

(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).

Accordingly, here, the PCRA court properly determined that Appellant had failed to plead and prove a statutory exception to the PCRA time-bar, and that it had no jurisdiction to review the merits of Appellant's petition.

Order affirmed.

Judgment Entered.


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