Com. v. Eiland, L.

• Court: Superior Court of Pennsylvania
• Decided: June 19, 2017
• Docket: Com. v. Eiland, L. No. 2077 MDA 2016
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 _____________________________

*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

____________________________________________

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

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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