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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

v.

VINCENT FRANKLIN,

Appellee

Appellant

IN THE SUPERIOR COURT

OF

PENNSYLVANIA

No. 130 EDA 2019

Appeal from the PCRA Order Entered November 29, 2018

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0000743-2004

BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED JULY 15, 2019

Appellant, Vincent Franklin, appeals from the post -conviction court's

November 29, 2018 order denying, as untimely, his petition filed under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

The facts of Appellant's underlying convictions are not pertinent to our

disposition of his appeal. The PCRA court summarized the procedural history

of his case, as follows:

On March 18, 2005, a jury found [Appellant] ... guilty of one

count each of [r]ape, [i]nvoluntary [d]eviate [s]exual

[i]ntercourse, [a]ggravated [i]ndecent [a]ssault, and [i]ndecent

[a]ssault. On July 8, 2005, Judge William F. Moran sentenced

[Appellant] to a term of imprisonment of twenty-five (25) to fifty

(50) years in the aggregate.

On November 14, 2005, the trial court denied [Appellant's]

[p]ost[-s]entence [m]otions. On September 7, 2006, the

Superior Court of Pennsylvania affirmed [Appellant's] judgment of
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sentence. [Commonwealth v. Franklin, 911 A.2d 179 (Pa.

Super. 2006) (unpublished memorandum).]

In his [p]ost-sentence [m]otions and his subsequent appeal

to the Superior Court, [Appellant] attacked the conviction arguing

that the trial court erred in not acquitting [Appellant] because the

Commonwealth could not fix "... the date of the crimes with

sufficient particularity and that the charges were impossible to

defend." See Statement of Matters Complained of on Appeal[

1/24/06, at] ¶ 3.... Additionally, [Appellant] complained that the

trial court's jury instructions were defective and violated due

process as ... [the court] fail[ed] to properly instruct the jury that

the Commonwealth must fix the date of the offenses. See [id.]....

On February 22, 2007, the Supreme Court of Pennsylvania

denied [Appellant's] [p]etition for [a]llowance of [a]ppeal, which

... [made final Appellant's] 2005 [judgment of sentence].

[Commonwealth v. Franklin, 917 A.2d 313 (Pa. 2007).]

On December 4, 2007, [Appellant] timely filed his first

[PCRA] ... petition. The [petition] raised numerous issues

including[] ineffective assistance of trial counsel, lack of specificity

of the indictment, and attacks regarding defects in the jury

instruction for not requiring the Commonwealth to fix a date

certain for the offenses. After an evidentiary hearing on March

19, 2008, the PCRA court denied [Appellant's] [p]etition on June

13, 2008. The Superior Court affirmed on February 10, 2009[,

and] [o]n June 12, 2009, the Supreme Court of Pennsylvania

denied [Appellant's] [p]etition for [a]llowance of [a]ppeal.

[Commonwealth v. Franklin, 970 A.2d 467 (Pa. Super. 2009)

(unpublished memorandum), appeal denied, 973 A.2d 1005 (Pa.

2009).] [Appellant] filed two subsequent PCRA petitions [o]n July

11, 2011, and August 16, 2013, raising similar claims regarding

the inability of the Commonwealth to fix a date certain for

[Appellant's] crimes. The second and third PCRA [p]etitions

[were] dismissed as untimely after the circulation of proper

notices pursuant to Pa.R.Crim.[P]. 907. Both dismissals were

appealed and affirmed by the Superior Court. [Commonwealth

v. Franklin, 2732 EDA 2013, unpublished memorandum (Pa.

Super. filed May 9, 2014) (not reported in A.3d);

Commonwealth v. Franklin, 62 A.3d 459 (Pa. Super. 2012)

(unpublished memorandum).]

[Appellant] filed a [petition for writ of] habeas [corpus] ... in

[f]ederal [c]ourt on August 6, 2009. ... [Appellant] sought to

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pursue the same claims attacking his conviction as he raised

before the Commonwealth Courts. In the Third Supplemental

Report and Recommendation of U.S. Magistrate Judge Timothy R.

Rice, [the judge] opined that [Appellant's] sentence for ... [r]ape

was illegal [because it exceeded the statutory maximum in effect

at the time of his offense]. On October 9, 2013, Judge Shapiro of

the Eastern District of Pennsylvania approved and adopted the

Third Supplemental Report and Recommendation[,] granting

[Appellant's] [p]etition for [w]rit of [h]abeas [c]orpus, vacat[ing]

[Appellant's] sentence for [r]ape, and remand[ing] this matter ... for resentencing. However, we note that [Appellant's] 2005

conviction[s] remained undisturbed.

On May 23, 2014, we resentenced [Appellant], recognizing

Judge Moran's (now retired) original sentencing scheme, to the

same aggregate sentence as originally imposed by Judge Moran.

[Appellant] appealed our 2014 sentence. It was affirmed by the

Superior Court on December 18, 2015[, and] [o]n September 23,

2016, the Supreme Court of Pennsylvania denied [Appellant's]

Petition for Allowance of Appeal. [Commonwealth v. Franklin,

135 A.3d 662 (Pa. Super. 2015) (unpublished memorandum),

appeal denied, 145 A.3d 723 (Pa. 2016).]

PCRA Court Opinion (PCO), 11/29/18, at 1-3.

On July 27, 2017, Appellant filed the PCRA petition underlying the

present appeal. Counsel was appointed and an evidentiary hearing was

conducted. On November 29, 2018, the PCRA court dismissed Appellant's

petition as being untimely filed, and it also noted that, in any event, his claims

had been previously litigated. Appellant filed a timely notice of appeal, and

he also timely complied with the court's order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. The court filed its

opinion on November 29, 2018.

Herein, Appellant presents three questions for our review:

1. Whether trial counsel and appellate counsel were ineffective for

failing to raise in post[ -]sentencing motions or [on] appeal the

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constitutionality of Pennsylvania law that permits the vague time

of fixing the time of offenses in the information denying Appellant

a fair trial and denying Appellant's 14th Amendment rights to due

process?

2. Whether trial counsel and appellate counsel were ineffective for

failing to raise in post[ -]sentencing motion[s] or [on] appeal the

failure of trial counsel to object to the jury instruction of the trial

judge that[,] "You need not figure out the date as long as it

occurred within the period of January 1, 2001 and January 30,

2004[,"] ... which instruction denied Appellant's due process rights

guaranteed by the U.S. Constitution and in violation of suggested

Pennsylvania Standard Jury Instruction 3.19[,] which applies only

to a single act as stated by subcommittee comment 3.19(E) and

denying Appellant's 14th Amendment rights to due process?

3. Whether trial counsel and appellate counsel were ineffective for

failing to raise the constitutionality of Pennsylvania law that

permits the inadequacy of notice of the date of the criminal

charges in the information/criminal complaint and denying ... Appellant's 14th Amendment rights to due process?

Appellant's Brief at 3 (unnecessary capitalization omitted).

This Court's standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant's petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007). Under the PCRA, any petition for post -conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

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(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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, at the time Appellant's petition

was filed, section 9545(b)(2) required that any petition attempting to invoke

one of these exceptions "be filed within sixty days of the date the claim could

have been presented." 42 Pa.C.S. § 9545(b)(2).1

Here, Appellant's initial judgment of sentence became final on May 23,

2007, at the expiration of the 90 -day time -period for filing a petition for writ

of certiorari with the United States Supreme Court from the Pennsylvania

Supreme Court's February 22, 2007 denial of his petition for allowance of

appeal from that judgment of sentence. As discussed supra, Appellant was

1 A recent amendment to section 9545(b)(2), which became effective on

December 24, 2018, changed the language to require that a petition "be filed

within one year of the date the claim could have been presented." 42 Pa.C.S.

§ 9545(b)(2).

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resentenced on May 23, 2014, after the federal court vacated his sentence for

rape, concluding that it exceeded the statutory maximum applicable to that

offense. See Franklin v. Klopotoski, 2013 WL 5468228 (E.D. Pa. 2013)

(not reported in F.Supp.2d).2 However, the Commonwealth contends that

Appellant's resentencing only 'reset' the clock for PCRA claims "related to his

resentencing hearing." Commonwealth's Brief at 7. Because "Appellant's

issues in this matter ... relate to the criminal information and jury instructions,

[they] do not relate to his [new] sentence and[,] therefore[, they] are

untimely." Id. In support of this position, the Commonwealth relies on

Commonwealth v. McKeever, 947 A.2d 782 (Pa. Super. 2008). There, we

held that "a successful first PCRA petition does not 'reset the clock' for the

calculation of the finality of the judgment of sentence for purposes of the PCRA

where the relief granted in the first petition neither restored a petitioner's

direct appeal rights nor disturbed his conviction, but, rather, affected his

sentence only." Id. at 785; see also Commonwealth v. DeHart, 730 A.2d

991 (Pa. Super. 1999) (same).

We agree with the Commonwealth's argument. Appellant's habeas

petition affected only his sentence and, therefore, under McKeever and

DeHart, it did not 'reset the clock' for post -conviction claims pertaining to his

2 We observe that Appellant was resentenced for all of his convictions, despite

that the federal court's order only vacated his sentence for his rape offense.

Appellant challenged the legality of his resentencing on direct appeal, and we

concluded that it was legal. See Commonwealth v. Franklin, No. 209 EDA

2015, unpublished memorandum at 5-8 (Pa. Super. filed Dec. 8, 2015).

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underlying convictions that became final in 2007. See also Commonwealth

v. Lesko, 15 A.3d 345, 366 (Pa. 2011) ("In light of the nature of PCRA review,

the limited effect of federal proceedings on a final state criminal judgment,

and the nature of federal habeas relief, we conclude that Lesko's 'right' to first

petition PCRA review is necessarily confined to that part of the final

Pennsylvania judgment that was disturbed by the federal habeas

proceedings[, i.e., Lesko's penalty phase proceeding]. All other aspects of the

original judgment remain as before - final.") (emphasis in original). Thus,

Appellant's petition is patently untimely, and he must plead and prove the

applicability of a timeliness exception to trigger our jurisdiction to review the

merits of those claims. Appellant fails to meet this burden, as he does not

argue that any timeliness exception applies. Consequently, the court properly

denied his petition.

Order affirmed.

Judgment Entered.

seph D. Seletyn,

Prothonotary

Date: 7/15/19

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