Com. v. O'Neill, J.

Opinion

J-S70016-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JASON O’NEILL

Appellant No. 597 EDA 2014

Appeal from the PCRA Order August 19, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0903901-1996

BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.: FILED DECEMBER 05, 2014

Appellant, Jason O’Neill, appeals pro se from the August 19, 2013

order, dismissing his second petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful

review, we affirm.

On October 3, 2001, a jury found Appellant guilty of two counts of

first-degree murder, aggravated assault, and recklessly endangering another

person, as well as one count each of arson and criminal mischief. 1 On

October 5, 2001, the trial court imposed an aggregate sentence of life

imprisonment. This Court affirmed Appellant’s judgment of sentence on

____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 2502(a), 2702, 2705, 3301, and 3304, respectively. J-S70016-14

June 9, 2003, and our Supreme Court denied his petition for allowance of

appeal on February 27, 2004. Commonwealth v. O’Neill, 830 A.2d 1050

(Pa. Super. 2003) (unpublished memorandum), appeal denied, 845 A.2d

817 (Pa. 2004). Appellant did not file a petition for a writ of certiorari with

the United States Supreme Court. As a result, his judgment of sentence

became final on May 27, 2004, when the filing period for such a petition

expired. See generally 42 Pa.C.S.A. § 9545(b)(3); U.S. S. Ct. R. 13(1).

Thereafter, Appellant filed an unsuccessful PCRA petition in 2004. On June

21, 2010, Appellant filed the instant PCRA petition. On August 19, 2013, the

PCRA court dismissed the petition as untimely. On September 11, 2013,

Appellant filed a timely notice of appeal.

As noted above, Appellant did not file the instant PCRA petition until

June 21, 2010. Therefore, it was patently untimely because it was not filed

within one year of his judgment of sentence becoming final. See 42

Pa.C.S.A. § 9545(b)(1). Furthermore, Appellant’s brief does not allege that

any of the three exceptions to the PCRA time-bar applies. See

Commonwealth v. Taylor, 933 A.2d 1035, 1039 (Pa. Super. 2007)

(stating, “[t]he PCRA specifically provides that a petitioner raising one of the

statutory exceptions to the timeliness requirements must affirmatively plead

and prove the exception[]”) (citation omitted), appeal denied, 951 A.2d

1163 (Pa. 2008). We note Appellant’s brief cites to the United States

Supreme Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012).

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Appellant’s Brief at 2, 7. To the extent this could be construed as seeking a

time-bar exception, this Court has held that Martinez does not create such

an exception. Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa. Super.

2013), appeal denied, 72 A.3d 603 (Pa. 2013), cert. denied, Saunders v.

Pennsylvania, 134 S. Ct. 944 (2014).

Based on the foregoing, we conclude the PCRA court correctly

dismissed Appellant’s third PCRA petition as untimely. Accordingly, the

PCRA court’s August 19, 2013 order is affirmed.

Order affirmed.

Judge Lazarus joins the memorandum.

Judge Strassburger files a concurring statement.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/5/2014

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