Com. v. Colon, R. (memorandum)

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J-S12044-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. RAFAEL COLON Appellant No. 2374 EDA 2013 Appeal from the Order July 29, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0219741-1987 BEFORE: FORD ELLIOT, DONOHUE, and JENKINS, JJ. MEMORANDUM BY JENKINS, J. FILED MAY 09, 2014 Rafael Colon appeals pro se from the Order dismissing his third 9541-9546. Colon argues his sentence should be vacated pursuant to Lafler v. Cooper, 566 U.S. , 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, 566 U.S. , 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). After careful consideration, and for the reasons set forth below, we affirm. On January 24, 1987, Colon shot and killed Ro shooting. On March 16, 1988, following a bench trial before the Honorable Theodore A. McKee, the trial court found Colon guilty of first degree murder, J-S12044-14 1 voluntary The trial court sentenced Colon to life imprisonment for his first-degree murder conviction,2 and a concurrent prison term of one to two years for the PIC conviction. On February 6, 1990, this Court affirmed the judgments of sentence. Commonwealth v. Colon, 573 A.2d 1157 (Pa.Super.1990) (unpublished memorandum). On July 25, 1990, our Supreme Court denied Commonwealth v. Colon, 581 A.2d 568 (Pa. 1990). On July 24, 2000, Colon filed his first pro se PCRA petition, which the PCRA court denied following the appointment of counsel. On appeal, this Court affirmed. Commonwealth v. Colon, 809 A.2d 954 (Pa.Super.2002) (unpublished decision). Colon did not seek further review with the Pennsylvania Supreme Court. On February 26, 2003, Colon filed his second pro se PCRA petition. On July 28, 2003, the PCRA court dismissed the petition as untimely. On July 30, 2003, Colon appealed to this Court, which affirmed on August 26, 2004. ____________________________________________ 1 18 Pa.C.S.A. §§ 2502, 2503, 907. 2 merged with first degree murder the more serious offense for which Colon was convicted. See sentencing purposes, the court may sentence the defendant only on the -2- J-S12044-14 Colon did not file a petition for allowance of appeal with the Pennsylvania Supreme Court. On July 9, 2012, Colon filed the instant pro se PCRA petition, his third, claiming counsel ineffectiveness for (1) advising him to reject a guilty plea offer of 9 to 20 years of imprisonment; (2) presenting an intoxication defense; (3) employing an expert witness to develop his intoxication defense; (4) mailing and discussing the guilty plea with Colon in English Colon claims that the United States Supreme Court decisions relating to the Sixth Amendment right to counsel in Lafler v. Cooper, 566 U.S. , 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, 566 U.S. , 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012),3 provided newly recognized constitutional rights as contemplated by section 9545(b)(1)(iii) of the PCRA, 4 which al ____________________________________________ 3 In Lafler, the Supreme Court of the United States held that a defendant must receive post-conviction relief "when inadequate assistance of counsel caused nonacceptance of a plea offer and further proceedings led to a less favorable outcome," and where the defendant has shown that "the outcome of the plea process would have been different with competent advice." Lafler, 132 S. Ct. at 1382-85, 1390-91. In Frye, the Supreme Court of the United States held that "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." Frye, 132 S. Ct. at 1408. 4 ] makes a general claim that government officials obstructed the timely presentation of his claims, but as that (July 29, 2013 Opinion, Woods-Skipper, J., at 2 n. 2). Colon also fails to brief this (Footnote Continued Next Page) -3- J-S12044-14 On July 1, 2013, the PCRA court informed Colon of its intent to dismiss the instant PCRA petition as untimely without an evidentiary hearing pursuant to Pa.R.Crim.P. 907. On July 29, 2013, the court properly dismissed the petition.5 On August 20, 2013, Colon filed a timely appeal.6 Before we may consider the issues presented, we must first determine whether the instant PCRA Petition was timely filed. Pursuant to Pennsylvania law, no court has jurisdiction to hear an untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010) (citing Commonwealth v. Robinson, 575 Pa. 500, 508, 837 A.2d 1157, 1161 subsequent petition, shall be filed within one year of the date the judgment accord Monaco, 996 A.2d at 1079; Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). Effective January 16, 1996, the PCRA was amended to require that any PCRA (Footnote Continued) _______________________ argument on appeal. Accordingly, he has waived any claim of obstruction by government officials in the timely presentation of his claims. See Pa.R.A.P. 2119; Commonwealth v. Renchenski, 988 A.2d 699, 703 (Pa.Super.2010); accord Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.Super.2007) (providing that this Court will not develop an argument for an appellant and that the failure to adequately develop an argument in an appellate brief may result in waiver of the claim under Pa.R.A.P. 2119). 5 See Pa.R.Crim.P. 907 (prescribing twenty-day notice period). 6 See Pa.R.A.P. 903 (providing that a petitioner must file an appeal within -4- J-S12044-14 petition, including second and subsequent petitions, be filed within one year of the date the judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). 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 sentence became final on or before the effective date of the amendment, a grace period allowed first PCRA petitions to be filed by January 16, 1997. See Commonwealth v. Alcorn, 703 A.2d 1054 (Pa.Super.1997). 1990, when the 90-day period for seeking review of in the United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup. Ct. R. 13. Colon did not file the instant petition until July 9, 2012, more than twenty-one years after sentence became final prior to the effective date of the PCRA amendments, the instant PCRA petition does not qualify for the grace period, as it was PCRA petition, nor was it filed before January 16, 1997.7 Accordingly, the instant PCRA petition is untimely on its face. ____________________________________________ 7 For a more comprehensive discussion of the application of the 1996 see Commonwealth v. Colon, No. 2431 EDA 2003, Memorandum at 2-3 (Pa.Super. Aug. 26, 2004). -5- J-S12044-14 exceptions allow for very limited circumstances under which a court may excuse the late filing of a PCRA petition. Monaco, 996 A.2d at 1079. 42 Pa.C.S.A. § 9545(b)(1); The late filing of a petition will be excused if a petitioner alleges and proves: (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. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii); Commonwealth v. Marshall, 947 A.2d 714, 720 (2008) (providing that petitioner bears the burden to allege and prove that one of the timeliness exceptions applies). ineffectiv If invoking an -year limitation period. It does not. Our Supreme Court has consistently held that an ineffective assistance of counsel claim does not constitute an exception to the jurisdictional time-bar. -6- J-S12044-14 Commonwealth v. Crews, 863 A.2d 498, 50 belief that he has uncovered a colorable claim of ineffectiveness by prior (internal citation omitted); Commonwealth v. Howard, 788 A.2d 351, 355 (Pa. 2 thus effectively be eviscerated by any petitioner who was willing to file serial PCRA petitions alleging ineffective assistance of counsel"). Colon asserts his petition is timely pursuant to the after-recognized constitutional right timeliness exception set forth in section 9545(b)(1)(iii). -4, 11, 12. We find no merit to this claim. The afterrecognized constitutional right exception only applies when our Supreme Court or the United States Supreme Court recognizes a new constitutional right and declares the right applies retroactively. This Court has repeatedly held that Lafler and Frye do not recognize a new constitutional right.8 ____________________________________________ 8 We note that Colon, in his second PCRA petition, asserted that our S Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), also provided a constitutional right to have his claims of ineffective assistance of trial counsel heard in a PCRA proceeding. See Commonwealth v. Colon, No. 2431 EDA 2003, Memorandum at 4 (Pa.Super. Aug. 26, 2004). Unlike Grant, which expressly declared a rule of Lafler and Frye clarified the long-standing constitutional right to effective assistance of counsel in criminal proceedings. Grant, and Lafler and Frye, are the same; the courts did not recognize a new constitutional right such that the PCRA timeliness exception set forth in section 9545(b)(1)(iii) applies to his circumstances. -7- J-S12044-14 Commonwealth v. Hernandez, 79 A.3d 649, 654 (Pa.Super.2013) (citing Commonwealth v. Feliciano, 69 A.3d 1270, 1276-77 (Pa.Super.2013)). As we have explained: Commonwealth v. Lewis, 2013 PA Super 62, 63 A.3d 1274, 1280 (Pa.Super.2013) (citing Hill v. Lockhart, [supra]; Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 entitled to the effective *** 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 test for demonstrating counsel's ineffectiveness, to the particular circumstances at hand ... Id. (footnote omitted). Further, even if Frye and Lafler recognized a new constitutional right file his petition within sixty days of those United States Supreme Court decisions.9 ____________________________________________ 9 The United States Supreme Court issued the Frye and Lafler holdings on March 21, 2012. Therefore, Colon needed to file his PCRA petition on or before May 20, 2012 to be timely. See 42 Pa.C.S.A. § 9545(b)(2) (providing that a petitioner must raise the after-recognized constitutional right exception within sixty days of when the claim could have been presented); Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.Super.2007) (explaining the sixty-day period begins to run upon the date on which the Court issued the underlying decision) (citing (Footnote Continued Next Page) -8- J-S12044-14 court lacked jurisdiction and properly dismissed the petition without a hearing. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/9/2014 (Footnote Continued) _______________________ Commonwealth v. Lark, 560 Pa. 487, 494, 746 A.2d 585, 588 (2000) (a petitioner must plead and prove specific facts that demonstrate his claim was raised within the sixty-day time frame)); accord Commonwealth v. Baldwin, 789 A.2d 728 (Pa.Super.2001). Colon did not file the instant petition until July 9, 2012, which is fifty days after the timeliness window for Frye and Lafler had lapsed. -9-

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