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*Retired Senior Judge assigned to the Superior Court. NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 COMMONWEALTH OF PENNSYLVANIA,

Appellee v. DELBERT MAURICE FRANKLIN,

Appellant : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 879 EDA 2014 Appeal from the PCRA Order entered February 27, 201 4, in the Court of Common Pleas of Chester County, Criminal Division, at No: CP- 15

- CR -003189-1997 BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.* MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 23, 2014 Delbert Maurice Franklin (Appellant) appeals from th e February 27, 2014 order which denied his petition for relief file d pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-954 6. We affirm. On December 10, 1997, Appellant was convicted by a ju ry of 44 offenses arising from a series of assaults and robberies committed while Appellant was a member of a gang. He was sentenced to an aggregate term of 30 to 60 years’ incarceration followed by 11 years o f probation. Appellant did not file a direct appeal. On December 10, 1998, Appellant filed a PCRA petiti on. The PCRA court granted Appellant a new trial. The Commonweal th appealed, and on review, a panel of this Court reversed the order gran ting a new trial and remanded the case to permit Appellant to appeal his j udgment of sentence nunc pro tunc

. Commonwealth v. Franklin , 759 A.2d 19 (Pa. Super.J-S59033- 14

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2000). Appellant filed his direct appeal, and this C ourt affirmed Appellant’s judgment of sentence. Commonwealth v. Franklin , 777 A.2d 501 (Pa. Super. 2001), appeal denied , 788 A.2d 373 (Pa. 2001). In April of 2002, Appellant filed another PCRA pet ition. Counsel was appointed, and was subsequently permitted to withdraw pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ). The PCRA court denied relief; Appellant appealed pro se ; and, a panel of this

Court affirmed the order of the PCRA court. Commonwealth v. Franklin , 788 A.2d 373 (Pa. Super. 2006). On July 29, 2013, Appellant, represented by counsel, filed the PCRA petition at issue in this appeal. An amended petition was filed on September 11, 2013. The Commonwealth filed a response and moti on to dismiss. On February 27, 2014, the PCRA court issued an order and opinion denying Appellant relief. Appellant timely filed a notice o f appeal. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

We set forth our well-settled standard of review. On appeal from the denial of PCRA relief, our standa rd of review calls for us to determine whether the ruling of the P CRA court is supported by the record and free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. The PCRA co urt's factual determinations are entitled to deference, but its leg al determinations are subject to our plenary review.J-S59033- 14

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Commonwealth v. Nero , 58 A.3d 802, 805 (Pa. Super. 2012) (quotations and citations omitted). The timeliness of a post-conviction petition is jurisdict ional.

Commonwealth v. Robinson , 12 A.3d 477, 479 (Pa. Super. 2011). Generally, a petition for relief under the PCRA, in cluding a second or subsequent petition, must be filed within one year of the date the judgment of sentence became final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition is met. 42 Pa.C.S. § 9545. Applying this law to the case at hand, Appellant’s pe tition is facially untimely. Instantly, Appellant’s judgment of sentence became final in January 2002, when the 90 day period expired in whi ch Appellant had to file a writ of certiorari to the United States Supreme Cou rt after our Supreme Court denied his petition for allowance of appeal. T hus, Appellant had one year from that date, until January 2003, to file ti mely a PCRA petition. This petition was filed in July 2013, over 11 years late. Appellant argues that his claim of actual innocence is rip e for review in light of the United States Supreme Court’s decision i n McQuiggin v.

Perkins , 133 S.Ct. 1924 (2013). Appellant’s Brief at 20; PC RA Petition, 7/29/2013, at ¶ 6. Appellant contends that this case mee ts the requirements under the timeliness exception set forth in 42 Pa.C.S. § 9545(b)(1)(iii)J-S59033- 14

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(“[T]he right assert ed is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Co urt of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.”). 1

In McQuiggin , the Supreme Court of the United States held that a claim of actual innocence, if proved, can serve as a gate way through which a petitioner may pass the one-year time-bar for filing an otherwise untimely

first federal habeas corpus petition when the claim of actual innocence is supported by newly-discovered evidence. See McQuiggin , supra . This ruling concerns time limitations of federal habeas corpus petitions and is inapplicable to Appellant’s instant state PCRA petitio n. Further, the Supreme Court of the United States did not expressly pronounce that McQuiggin applies retroactively. 2 Finally, McQuiggin involved a claim of actual

1 The PCRA also requires that “[a]ny petition invoking a n exception provided in paragraph (1) shall be filed within 60 days of th e date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). McQuiggin was filed on May 28, 2013, and the instant PCRA petition was file d on the final day of the 60 -day period, on July 29, 2013.

2 Our Supreme Court has set forth the requirements for subsection (iii). Subsection (iii) of Section 9545 [(b)(1)] has two requi rements. First, it provides that the right asserted is a constit utional right that was recognized by the Supreme Court of the Unite d States or this court after the time provided in this section. S econd, it provides that the right “has been held” by “that court” to apply retroactively. Thus, a petitioner must prove that ther e is a “new” constitutional right and that the right “has been held” by thatJ-S59033- 14

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innocence based on newly-discovered evidence. Here, Appe llant does not predicate his innocence claim on new evidence; rather, he argues that his conviction under the Pennsylvania Corrupt Organization s Act (PACOA), 18 Pa.C.S. § 911 et seq ., was unconstitutional pursuant to Commonwealth v.

Besch , 674 A.2d 655 (Pa. 1996). 3 For the foregoing reasons, Appellant has failed to sat isfy the exception set forth is subsection 9545(b)(1)(iii), and we affirm the order of the PCRA court denying relief.

Order affirmed.

court to apply retroactively. The language “has been held” is in the past tense. These words mean that the action has al ready occurred, i.e., “that court” has already held the new constitutional right to be retroactive to cases on collat eral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was al ready recognized at the time the petition was filed. Commonwealth v. Copenhefer , 941 A.2d 646, 649-50 (Pa. 2007)(citing Commonwealth v. Abdul – Salaam , 812 A.2d 497, 501 (Pa. 2002)).

3 The PACOA has a tortured history with respect to wheth er it applied to wholly illegitimate enterprises, such as gang activity. See Commonwealth v. Shaffer , 734 A.2d 840 (Pa. 1999). However, we need not ad dress this issue further, because it clearly does not fall under a c laim of new evidence of actual innocence as required by McQuiggin

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/23/2014