J-S65043-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : DAVID SHEPPARD, : : Appellant : No. 851 EDA 2016
Appeal from the PCRA Order February 19, 2016 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0104702-1993
BEFORE: OLSON, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 16, 2017
David Sheppard (“Sheppard”) appeals from the Order dismissing his
third Petition filed pursuant to the Post Conviction Relief Act (“PCRA”). See
42 Pa.C.S.A. §§ 9541-9546. Additionally, Earl G. Kauffman, Esquire
(“Attorney Kauffman”), has filed an Application to Withdraw as counsel, and
an accompanying brief.1 We grant Attorney Kauffman’s Application to
Withdraw and affirm the PCRA court’s Order.
1 Attorney Kauffman’s appellate brief appears to be in the nature of a brief filed pursuant to Anders v. California, 386 U.S. 738 (1967), which applies when counsel seeks to withdraw from representation on direct appeal. When, as in this case, counsel seeks to withdraw from representation on collateral appeal, the dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), are applicable. However, because an Anders brief provides greater protection to a defendant, this Court may accept an Anders brief in lieu of a Turner/Finley “no-merit” letter. See Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014). J-S65043-17
The PCRA court aptly summarized the relevant factual and procedural
history, which we adopt for the purpose of this appeal. See PCRA Court
Opinion, 12/13/16, at 1-3.
On May 9, 2017, Attorney Kauffman filed an Application to Withdraw as
counsel.
Before addressing Sheppard’s claims, we must determine whether
Attorney Kauffman complied with the requirements of Turner/Finley in
petitioning to withdraw as counsel. Pursuant to Turner/Finley, independent
review of the record by competent counsel is required before withdrawal on
collateral appeal is permitted. See Commonwealth v. Pitts, 981 A.2d 875,
876 n.1 (Pa. 2009). Such independent review requires proof of
1) A “no-merit” letter by PCRA counsel detailing the nature and extent of his review;
2) The “no-merit” letter by PCRA counsel listing each issue the petitioner wished to have reviewed;
3) The PCRA counsel’s “explanation”, in the “no-merit” letter, of why the petitioner’s issues were meritless;
4) The [] court conducting its own independent review of the record; and
5) The [] court agreeing with counsel that the petition was meritless.
Id. (citation and brackets omitted).
Here, Attorney Kauffman indicated that he had reviewed the record,
identified the issues that Sheppard seeks to raise, and explained why the
issues lack merit. In addition, Attorney Kauffman sent Sheppard copies of the
-2- J-S65043-17
Turner/Finley brief and Application to Withdraw, and advised him of his
rights to retain alternate counsel or to proceed pro se in the event that the
court granted Attorney Kauffman permission to withdraw. See
Commonwealth v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). Thus, we
conclude that Attorney Kauffman has substantially complied with the
procedural requirements necessary to withdraw as counsel. See
Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003)
(holding that substantial compliance with the procedural requirements to
withdraw as counsel will satisfy the Turner/Finley criteria).
We now independently review Sheppard’s claims to ascertain whether
they entitle him to relief.
In the Turner/Finley brief, Attorney Kauffman raises the following
issues for our review:
1. Whether trial counsel was ineffective for failing to communicate [the] Commonwealth’s offer to [Sheppard], and then telling the prosecutor that [Sheppard] declined the offer[?]
2. Whether [Sheppard’s] mandatory minimum sentence for murder of the second degree is unconstitutional[,] and therefore[,] his sentence of life without the possibility of parole is illegal[?]
Turner/Finley Brief at 4 (some capitalization omitted).2
We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the
2 Sheppard did not file a separate pro se brief, nor did he retain alternate counsel.
-3- J-S65043-17
evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
As an initial matter, we observe that the PCRA court set forth the
relevant law regarding the PCRA’s timeliness requirements, which we
incorporate as though fully set forth herein, and properly determined that
Sheppard’s third Petition is patently untimely. See PCRA Court Opinion,
12/13/16, at 3-6.
In his first claim, Sheppard attempts to invoke the newly-recognized
constitutional right exception based on the United States Supreme Court’s
decisions in Lafler v. Cooper, 566 U.S. 156 (2012), and Missouri v. Frye,
566 U.S. 134 (2012), and asserts that his trial counsel was ineffective for
failing to communicate the Commonwealth’s offer for a plea deal before
declining the offer. Turner/Finley Brief at 4, 8.
In its Opinion, the PCRA court set forth the relevant law, considered
Sheppard’s first claim, and concluded that Sheppard failed to plead and prove
the newly-recognized constitutional right exception to the PCRA’s timeliness
requirement. See PCRA Court Opinion, 12/13/16, at 6-10. We agree with
the PCRA court’s conclusion that Sheppard is not entitled to relief, and affirm
on this basis as to Sheppard’s first claim. See id.
In his second claim, Sheppard attempts to invoke the newly-recognized
constitutional right exception based on the United States Supreme Court’s
-4- J-S65043-17
decision in Alleyne v. United States, 133 S. Ct. 2151 (2013),3 and argues
that his sentence is illegal because he was subject to a mandatory minimum
sentence for his second-degree murder conviction. Turner/Finley Brief at 4,
8.4
Initially, Alleyne is not applicable to the instant case. Sheppard
received a mandatory sentence pursuant to 18 Pa.C.S.A. § 1102(b), which
provides that “a person who has been convicted of murder of the second
degree … shall be sentenced to a term of life imprisonment.” Thus, the “fact”
3 In Alleyne, the Supreme Court held that any fact that increases the sentence for a given crime must be submitted to the jury and found beyond a reasonable doubt. Alleyne, 133 S. Ct. 2155. The Supreme Court reasoned that a Sixth Amendment violation occurs where these sentence-determinative facts are not submitted to a jury. Id. at 2156.
4 We observe that Sheppard filed the instant pro se Petition in 2012, before the date of the Alleyne decision (June 17, 2013), and the counseled Amended Petition, which was filed in 2015, did not contain an Alleyne claim. Sheppard, pro se, responded to the PCRA court’s Pa.R.Crim.P. 907 Notice of its intention to dismiss Sheppard’s Petition with two additional filings, in which he challenged the legality of his sentence pursuant to Alleyne. The PCRA court observed that “petitioners may not automatically ‘amend’ their PCRA petitions via responsive pleadings.” PCRA Court Opinion, 12/13/16, at 10 n.8 (quoting Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014)). Additionally, on November 28, 2016, approximately nine months after filing a direct appeal from the dismissal his third Petition, Sheppard, pro se, filed a fourth PCRA Petition, again arguing that his sentence is illegal pursuant to Alleyne. “[W]hen an appellant’s PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review.” Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000). However, because Attorney Kauffman raised the Alleyne claim in the Turner/Finley brief, we will consider Sheppard’s second claim.
-5- J-S65043-17
that led to Sheppard’s life sentence was his jury conviction of second-degree
murder, and the trial court engaged in no fact-finding at sentencing.
Moreover, the rule established in Alleyne does not apply retroactively
where, as here, the judgment of sentence is final. See Commonwealth v.
Washington, 142 A.3d 810, 820 (Pa. 2016) (holding that “Alleyne does not
apply retroactively to cases pending on collateral review”); see also
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (stating that
while Alleyne claims go to the legality of the sentence, a court cannot review
a legality claim where it does not have jurisdiction). Thus, Sheppard is not
entitled to relief on his second claim.
Finally, our independent review of the record has revealed no
meritorious claims that Sheppard could have raised on appeal, and we agree
with Attorney Kauffman that this appeal lacks merit. Accordingly, we grant
Attorney Kauffman’s Application to Withdraw and affirm the PCRA court’s
Order denying Sheppard’s third PCRA Petition.
Application to Withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/16/2017
-6- Circulated 10/17/2017 02:33 PM
IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CRIMINAL SECTION
COMMONWEALTH OF CP-51-CR-0104702-1993 PENNSYLVANIA
vs.
SUPERIOR COURT DAVID SHEPPARD 851 EDA 2016
CP-51-CR-0104702-1993 C Opini~m. v Sheppard, David OPINION
Ill/IIIll7876465221 IIIllIllIIII IIll GEROFF,J. Flt.FD DECEMBER 13, 2016 DEC 1 3 2016
R~f~~~1~µ61~ii11: g;~A 1
Petitioner, David Sheppard, has filed an appeal of this court's order denying his amended
petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq ..
I. PROCEDURAL HISTORY
On May 12, 1994, after a jury trial before Judge Eugene H. Clarke, Jr., Petitioner was
found guilty of murder of the second degree, two (2) counts of robbery, two (2) counts of
criminal conspiracy, simple and aggravated assault, possessing an instrument of crime, carrying firearms on public streets or public property, and recklessly endangering another person.1 On
January 5, 1995, Petitioner received a mandatory sentence of life imprisonment without parole
on the charge of murder of the second degree and concurrent sentences on all other charges
except for one count of criminal conspiracy for which no further penalty was imposed. At trial,
Petitioner was represented by Leon Martelli, Esquire.
Petitioner filed a Notice of Appeal with the Pennsylvania Superior Court.2 On June 22,
2000, the Pennsylvania Superior Court affirmed his judgments of sentence. On March 13, 2001,
Petitioner's petition for allowance of appeal was denied by the Pennsylvania Supreme Court.
On September 17, 2001, Petitioner timely filed his first pro se PCRA petition.3 Petitioner
subsequently received court-appointed counsel who filed a No-Merit Letter pursuant to
Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213 (1988) (en bane) (establishing the
procedure for withdrawal of court-appointed counsel from representing a petitioner on collateral
review). After conducting a review of the record, the PCRA court denied Petitioner's Petition as
meritless and permitted counsel to withdraw representation.
Petitioner filed a Notice of Appeal; on September 29, 2003, the Pennsylvania Superior
Court affirmed the PCRA court's decision. On May 24, 2004, the Pennsylvania Supreme Court
denied Petitioner's Petition for Allowance of Appeal.
On June 9, 2008, Petitioner filed his second PCRA petition, which the PCRA court
I Petitioner participated in the robbery of a drug store; during the commission of the crime, one of Petitioner's co-conspirators shot and killed the pharmacist. 2 Petitioner's direct appeal to the Superior Court was dismissed on two occasions because of his appellate
counsel's failure to file a brief. Petitioner's appellate rights were subsequently reinstated nune pro tune, and his direct appeal was perfected. 3 Petitioner's petition was treated as his first PCRA petition as his earlier PCRA petitions resulted in the nunc pro tune reinstatement of his direct appellate rights. See, e.g., Commonwealth v. Vega, 2000 PA Super 174, 754 A.2d 714, 716 (2000) ("If a first PCRA petition has resulted in reinstatement of appellate rights nune pro tune, this court has the authority to treat a subsequently filed PCRA petition as a 'first petition."' (citations omitted).
2 denied as untimely on July 27, 2010. On August 19, 2010, Petitioner filed a Notice of Appeal;
on October 18, 2010, Petitioner's appeal was denied by the Pennsylvania Superior Court for
failure to comply with Pa.R.A.P. 3517.
On April 12, 2012, Petitioner filed his third PCRA petition. Thereafter, Earl Kaufmann,
Esquire, was appointed to represent Petitioner. On May 28, 2015, Petitioner's counsel filed a
Finley - No Merit Letter, which he subsequently withdrew. On July 22, 2015, counsel filed an
Amended PCRA Petition on Petitioner's behalf in which he argued that Petitioner's trial counsel
rendered ineffective assistance for failing to inform Petitioner about the Commonwealth's pre-
trial offer. On December 21, 2015, the Commonwealth filed a Motion to Dismiss.
On December 23, 2015, this court filed a Notice Pursuant to Pennsylvania Rule of
Criminal Procedure 907 informing Petitioner of the forthcoming dismissal of his PCRA petition
as untimely. On January 15, 2016, Petitioner filed an Answer to PCRA Court's Notice to
Dismiss, and on February 16, 2016, Petitioner filed a Petition for Extraordinary Relief.
On February 19, 2016, following a review of the record and the applicable law, this court
dismissed Petitioner's PCRA Petition as untimely.4 On March 18, 2016, Petitioner filed a
Notice of Appeal.
II. STANDARD OF REVIEW
Under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §9545(b), all PCRA petitions
must be filed within one year of the date on which the judgment became final, unless one of the
three statutory exceptions set forth in 42 Pa.C.S. §9545(b)(l) applies.
4The dismissal occurred more than twenty days after Petitioner was served with notice of the forthcoming dismissal of his PCRA petition. Pa. R. Crim. P. 907.
3 Section 9545 (b)(l) provides in pertinent part:
(b) Time for filing petition.-
(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:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States; (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or (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.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
(3) For purposes of this subchapter, a judgment becomes 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. §9545(b).
The Pennsylvania Supreme Court has ruled that Pennsylvania courts have no jurisdiction
to hear untimely Post Conviction Relief Act petitions. Commonwealth v. Robinson, 575 Pa. 500,
508, 837 A.2d 1157, 1161 (2003); Commonwealth v. Hall, 565 Pa. 92, 95, 771 A.2d 1232, 1234
(2001). See also Commonwealth v. Yarris, 731 A.2d 581, 587 (Pa. 1999) (stating that all PCRA
petitions, "including second and subsequent ones, must be filed within one year of the date on
which the judgment became final, unless one of the three statutory exceptions . . . applies");
Commonwealth v. Perrin, 2008 PA Super 91, 13, 947 A.2d 1284, 1285 (2008) ("If the petition is
determined to be untimely, and no exception has been pled and proven, the petition must be
4 dismissed without a hearing because Pennsylvania courts are without jurisdiction to consider the
merits of the petition.").
Claims of PCRA counsel's ineffectiveness do not save an otherwise untimely PCRA
petition for review on the merits. Commonwealth v. Morris, 573 Pa. 157, 822 A.2d 684, 694-95
(2003); Commonwealth v. Fahy, 558 Pa. 313, 330, 737 A.2d 214, 223 (1999). See also
Commonwealth v. Breakiron, 566 Pa. 323, 334, 781 A.2d 94, 100 (2001) ("[O]ur Court has
expressly rejected attempts to utilize ineffective assistance of counsel claims as a means of
escaping the jurisdictional time requirements for filing a PCRA Petition."); Commonwealth v.
Fowler, 2007 PA Super 219, ,r 8, 930 A.2d 586, 591 (2007) ("[A]llegations of ineffective
assistance of counsel will not overcome the jurisdictional timeliness requirements of the
PCRA.") (citation omitted).
111. DISCUSSION
As a preliminary matter, Petitioner's PCRA Petition is patently untimely. Here, the
Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal on March 13,
2001. Petitioner's judgments of sentence became final ninety days thereafter, on June 12, 2001,
upon expiration of the time for seeking discretionary review in the U.S. Supreme Court. See
U.S.Sup.Ct.R. 13.1 (allowing 90 days for the filing of a petition for a writ of certiorari in the
U.S. Supreme Court). Petitioner had until June 12, 2002, to file a PCRA petition in a timely
manner. Accordingly, Petitioner's third PCRA Petition, filed on April 12, 2012, almost ten years
after his judgments of sentence became final, is time-barred unless one of the exceptions set forth
in 42 Pa.C.S. §9545(b)(l) is satisfied.
Upon review of the record and the applicable law, this court concludes that Petitioner's
Petition is untimely and that, therefore, it has no jurisdiction to consider the merits of Petitioner's
5 untimely Petition. No relief is due.
In his Amended PCRA Petition, Petitioner neither acknowledges his petition's
untimeliness nor unequivocally invokes any of the enumerated exceptions to the PCRA time-bar.
Petitioner argues that his trial counsel was ineffective for failing to inform him "that there was an
offer from the Commonwealth which could save him from sentences of life without parole for
felony murder." Memorandum of Law in Support of Amended PCRA Petition for Non-Capital
Homicide by Petitioner David Sheppard, 07/22/2015, p. 2.
Petitioner indicates that the trial court discussed the issue of an offer at a pre-trial motions
hearing on April 11, 1994 and that, according to the ADA, the offer was communicated to
Petitioner's counsel, Leon Martelli,5 who turned it down. Memorandum of Law, 07/22/2015, p.
3.6 Additionally, Petitioner points out that the offer, which the Commonwealth subsequently
withdrew, "was not put on the record at the motions hearing or at trial" and that the trial judge
did not conduct a colloquy with Petitioner about the offer. Memorandum of Law, 07/22/2015, p.
3.
Petitioner notes, "Offers made by the Commonwealth must be communicated to the
5 On March 26, 2002, Attorney Martelli was disbarred by the Disciplinary Board of the Supreme Court of Pennsylvania on a matter unrelated to Petitioner's case. 6 The following discussion occurred in the courtroom with regard to the Commonwealth's offer on April 11, 1994:
MR. KING ... I will state for the record that initially and leading up to the start of this case there was [sic] some discussions about a possible plea on the part of one or two of the defendants; namely, Mr. Sheppard and Mr. Lilly. I have been told by detectives and counsel that our offer was rejected and for that purpose, the Commonwealth is withdrawing any offer heretofore made to those two people .... THE COURT: Were the offers or the discussions about the offers made with counsel? MR. KING: There were made with counsels' approval and ... THE COURT: Were they made with the defendants or with counsel? MR. KING: I believe one of them was made with counsel and the defendant. I believe the second one was made only to counsel and counsel relayed the responses to them.
N.T., 04/11/1994, pp. 9-10.
6 client in every case, regardless of the attorney's opinion about the advantages or disadvantages
of an offer. It is unprofessional for an attorney not to communicate an Offer to a client. ... "
Memorandum of Law in Support of Amended PCRA Petition for Non-Capital Homicide by
Petitioner David Sheppard, 07/22/2015, pp. 4-5. Petitioner argues that there was no reasonable
basis for trial counsel to turn down that offer. He avers that there was reasonable probability that
if the offer had been accepted, the court would have agreed to its terms. He suggests that the
offer's terms would have been less severe than a sentence oflife without parole which was meted
to him for second-degree murder. Memorandum of Law, 07/22/2015, p. 4. Petitioner posits that
his trial counsel's omission "robbed [Petitioner] of the choice to accept an Offer," thereby
causing him undue prejudice. Memorandum of Law, 07/22/2015, p. 4.
Under the law, Petitioner's claim of ineffective assistance of counsel does not constitute
an exception to the time-bar. This court agrees with the Commonwealth that to the extent
Petitioner implies that the U.S. Supreme Court's decisions in Lafler v. Cooper, 132 S. Ct. 1376,
182 L. Ed. 2d 398 (2012), and its companion case, Missouri v. Frye, 132 S. Ct. 1399, 182 L. Ed.
2d 379 (2012) allow him to meet the newly-recognized-constitutional-right exception under 42
Pa.C.S. § 9545(b)(l)(iii), that implication is misguided. See Commonwealth's Motion to
Dismiss, 12/21/2015, p. 10.
The U.S. Supreme Court's decisions in Lafler and Frye "raise relatively straightforward
questions about the scope of the right to effective assistance of counsel." Lafler, 132 S.Ct. at
1392 (Scalia, J., with whom Justice Thomas joins, and with whom The Chief Justice joins as to
all but Part IV, dissenting) ( emphasis added).
Specifically, the Lafler Court addressed the question on "how to apply Strickland's
prejudice test where ineffective assistance results in a rejection of the plea offer and the
7 defendant is convicted at the ensuing trial"? and held that defendants' Sixth Amendment right to
counsel "extends to the plea-bargaining process." Id. at 1384 (citations omitted). The Lafler
Court noted, inter alia:
The Sixth Amendment requires effective assistance of counsel at critical stages of a criminalproceeding. Its protections are not designed simply to protect the trial, even though "counsel's absence [in these stages] may derogate from the accused's right to a fair trial." United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The constitutional guaranteeapplies to pretrialcritical stages that are part of the whole course of a criminal proceeding, a proceeding in which defendants cannot be presumed to make critical decisions without counsel's advice.
132 S.Ct. at 1385 (emphasis added).
In Frye, the Court provided the following guidance with regard to guilty plea offers:
This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. . . . When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.
132 S. Ct. at 1408.
As our Superior Court emphasized in Commonwealth v. Feliciano, 2013 PA Super 163,
69 A.3d 1270, 1277 (2013), "neither Frye nor Lafler created a new constitutional right." Id. The
Court clarified that "these decisions simply applied the Sixth Amendment right to counsel,
and the Strickland test for demonstrating counsel's ineffectiveness, to the particular
7 The Lafler Court explained that in order to meet the prejudice prong of the Strickland test in the context where the alleged ineffectiveness of counsel involves the defendant's rejection of a plea offer, the defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.
132 S. Ct. at 1385.
8 circumstances at hand, i.e. where counsel's conduct resulted in a plea offer lapsing or being
rejected to the defendant's detriment." Id. at 1277 (emphasis added). See also Commonwealth v.
Lewis, 2013 PA Super 62, 63 A.3d 1274, 1280 (2013) ("The right to effective assistance of
counsel during the plea bargaining process has been recognized for decades."); Commonwealth
v. Hernandez, 2013 PA Super 243, 79 A.3d 649, 654 (2013) (neither Lafler nor Frye set forth a
constitutional right recognized by the U.S. Supreme Court that would provide appellant with an
exception to the PCRA timelines requirements).
Moreover, under § 9545(b)(l)(iii), the new right asserted must be a constitutional right
recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania and
"held by that court to apply retroactively." 42 Pa.C.S. § 9545(b)(l)(iii). See also
Commonwealth v. Wojtaszek, 2008 PA Super 119, 951 A.2d 1169, 1171 (2008) ("[A] petitioner
must prove that there is a "new" constitutional right and that the right "has been held" by that
court to apply retroactively.") (citation omitted); Commonwealth v. Copenhefer, 596 Pa. 104,
110, 941 A.2d 646, 649-50 (2007) ("By employing the past tense in writing this provision, the
legislature clearly intended that the right was already recognized at the time the petition was
filed.") (citation and quotation omitted); Commonwealth v. Abdul-Salaam, 571 Pa. 219, 227, 812
A.2d 497, 502 (2002) ("[A] new rule of constitutional law is not made retroactive to cases on
collateral review unless the Supreme Court has held it to be retroactive") (citation and quotation
This court concludes, therefore, that the U.S. Supreme Court's decisions in Lafler and
Fry (which decisions did not announce a new constitutional right or applied it retroactively to
cases on collateral review) do not establish a basis for Petitioner to escape the PCRA's
jurisdictional time-bar.
9 Petitioner failed to comply with the timeliness requirements of the PCRA as his
ineffective-assistance-of-counsel claim does not place his PCRA Petition within any of the
enumerated exceptions to the PCRA time-bar. Accordingly, this court lacks jurisdiction to
consider Petitioner's untimely petition. No relief is due. 8
8 Additionally, upon review of the applicable law and Petitioner's responsive pleadings, "Answer to PCRA Court's Notice to Dismiss Pro Se Petition for Habeas Corpus Relief Pursuant to Article I, Section 14 of the Pennsylvania Constitution and for Post-Conviction Relief Pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9542 et seq.," 01/15/2016, p. 2 (raising an after-discovered evidence exception under 42 Pa.C.S. § 9545(b)(l)(ii))), and "Motion for Extraordinary Relief Pursuant to 42 Pa.C.S § 5504-5505 and Article I, Section 14 of the Pennsylvania Constitution and for Post-Conviction Relief Pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9542," 02/16/2016 (asserting a newly-recognized-constitutional-right exception under the authority of Alleyne v. United States, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), Commonwealth v. Newman, 2014 PA Super 178, 99 A.3d 86 (2014), appeal denied, 121 A.3d 496 (Pa. 2015), Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), and Montgomery v. Louisiana, 136 S. Ct. 718, 733-34, 193 L. Ed. 2d 599 (2016), as revised (Jan. 27, 2016)), this court is satisfied that the supplemental claims Petitioner is raising therein are meritless and do not save Petitioner's third PCRA Petition from the PCRA time-bar. Furthermore, as our Supreme Court emphasized, "petitioners may not automatically "amend" their PCRA petitions via responsive pleadings." Commonwealth v. Baumhammers, 625 Pa. 354, 391, 92 A.3d 708, 730 (2014).
IO IV. CONCLUSION
Petitioner has failed to demonstrate any basis for relief. In the absence of any meritorious
challenge which can be found in the reviewable record, Petitioner has failed to articulate his
allegations in accordance with the requisites of a claim predicated upon counsel's
ineffectiveness. No relief is due.
For the foregoing reasons, Petitioner's petition for post-conviction collateral relief was
properly dismissed.
BY THE COURT:
s~.