J

- S23034

- 15

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

Appellee v. RICHARD D. FLOOD,

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

PENNSYLVANIA

No . 1832 EDA 2014 Appeal from the PCRA Order entered May 27, 2014, in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos: CP

- 51

- CR

- 0426351

- 1989 BEFORE: DONOHUE, SHOGAN, and STRASSBURGER,* JJ. MEMORANDUM BY STRASSBURGER, J.: FILED MAY 28, 2015 Rich ard D. Flood (Appellant) appeals pro se from the order which dismissed his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541

- 9546. We affirm. On December 7, 1990, Appellant was sentenced to life imprisonment without pos sibility of parole following his guilty plea to first

- degree murder. This Court affirmed Appellant’s judgment of sentence, and our Supreme Court denied allowance of appeal. Commonwealth v. Flood , 627 A.2d 1193 (Pa. Super. 1993), appeal denied, 641 A.2d 5 83 (Pa. 1994). Appellant’s first four PCRA petitions resulted in no relief. On May 16, 2012, Appellant filed his fifth PCRA petition, which is the subject of this appeal. The PCRA court served on Appellant pursuant to Pa.R.Crim.P. 907 a notice of inten t to dismiss the petition, and dismissed the petition by order of May 27, 2014.J

- S23034

- 15

- 2

-

Appellant timely filed a notice of appeal. The PCRA court did not order Appellant to file a statement of errors complained of on appeal, and none was filed. On appeal, Appel lant presents to this Court six issues related to the alleged ineffectiveness of trial/plea counsel. Appellant’s Brief at 3. Before we consider the merits of Appellant’s claims, we must address whether his petition was timely filed, for the timeliness o f a post

- conviction petition is jurisdictional. Commonwealth v. Lewis , 63 A.3d 1274, 1281 (Pa. Super. 2013) (“[I]f a PCRA petition is untimely, neither this Court nor the [PCRA] court has jurisdiction over the petition. Without jurisdiction, we simply d o not have the legal authority to address the substantive claims.” (quoting Commonwealth v. Chester , 895 A.2d 520, 522 (Pa. 2006)). Generally, a petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment of sentence is 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. It is clear that Appellant’s petition is facially untimely: his judgme nt of sentence became final in 1994. However, Appellant alleges that his petition, filed within 60 days of the Supreme Court’s decisions in Lafler v. Cooper , 132 S.Ct. 1376 (U.S. 2012), and Missouri v. Frye , 132 S.Ct. 1399 (U.S. 2012), satisfies the follo wing timeliness exception: “the right asserted is aJ

- S23034

- 15

- 3

-

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 ap ply retroactively.” 42 Pa.C.S. § 9545(b)(iii). This Court has rejected Appellant’s claim: 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 [] test for demonstrating counsel’s ineffectiveness, to the particular circumstances at hand, i.e. where counsel’s conduct resulted in a plea offer lapsing or being rejected to the defendant’s detriment. Accordingly, Appellant’s reliance on Frye and La fler in an attempt to satisfy the timeliness exception of section 9545(b)(1)(iii) is unavailing. Commonwealth v. Feliciano , 69 A.3d 1270, 1277 (Pa. Super. 2013) (footnote omitted). Appellant also attempted to avoid the PCRA’s time restrictions by styling his filing as a “Petition for Writ of Habeas Corpus Relief ... and for
Post

- Conviction Relief...” (hereafter Appellant’s Petition). Appellant argues that the time restrictions should not apply “to the egregious circumstances here” or, in the alternative, tha t the time limitations “unconstitutionally suspend the state constitutional right to habeas corpus relief....” Appellant’s
Petition at 5 n.1. Our Supreme Court has rejected both of these arguments. See Commonwealth v. Watts , 23 A.3d 980, 983 (Pa. 2011) ( “[T]he statuteJ

- S23034

- 15

- 4

-

confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time

- bar in addition to those exceptions expressly delineated in the Act.”) (internal quotation marks omitted); Commonwealth v. Peterkin , 722 A.2d 638, 6 43 (Pa. 1998) (“[W]e have no difficulty in concluding that the PCRA’s time limitation upon the filing of PCRA petitions does not unreasonably or unconstitutionally limit [a petitioner’s] constitutional right to habeas corpus relief.”). “Issues that are c ognizable under the PCRA must be raised in a timely PCRA petition and cannot be raised in a habeas corpus petition.” Commonwealth v. Taylor , 65 A.3d 462, 466 (Pa. Super. 2013). Because Appellant’s claims of ineffective assistance of counsel are cognizabl e under the PCRA, see 42 Pa.C.S. § 9543(a)(2) (providing that PCRA relief is available, inter alia , for convictions resulting from ineffective assistance of counsel), the PCRA court properly addressed Appellant’s filing as a PCRA petition and correctly dis missed it as untimely filed. Order affirmed.J

- S23034

- 15

- 5

-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/28/2015