J-S75026-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LARRY PHILLIPS

Appellant No. 850 EDA 2014

Appeal from the PCRA Order February 21, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0200101-2001 

BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 29, 2014

Larry Phillips appeals from the order of the Court of Common Pleas of 

Philadelphia County dismissing, as untimely, his second petition under the 

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

On March 6, 2001, Phillips entered an open guilty plea to one count 

each of aggravated assault, criminal conspiracy, possessing an instrument of 

crime and carrying a firearm without a license. Phillips was sentenced to an 

aggregate term of 131⁄2 to 27 years’ imprisonment on May 8, 2001. This 

Court affirmed his judgment of sentence on October 4, 2002, and Phillips did 

not seek allowance of appeal. 

Phillips filed a PCRA petition on October 28, 2002, which was 

dismissed on December 3, 2003 after counsel filed a Turner/Finley “no 
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merit” letter. Phillips was permitted to appeal the order denying his PCRA 

petition, nunc pro tunc, and this Court affirmed that order on June 2, 2005.

On April 30, 2012, Phillips filed the instant pro se PCRA petition, in 

which he alleged he received ineffective assistance of counsel during his plea 

negotiations and sought relief based upon the decisions of the U.S. Supreme 

Court in Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376 (2012), Missouri v. 

Frye, __ U.S. __, 132 S.Ct. 1399 (2012),1and Martinez v. Ryan, __ U.S. 

__, 132 S.Ct 1309 (2012)2. The PCRA court dismissed the petition as 

untimely, without a hearing, by order dated February 21, 2014. 

____________________________________________

1

In Lafler, the U.S. Supreme Court held that relief is due where ineffective 

assistance of counsel caused non-acceptance of a plea offer and further 

proceedings led to a less-favorable outcome and where the defendant 

demonstrates that the outcome of the plea-bargaining process would have 

been different had counsel rendered constitutionally effective advice. In 

Frye, the Court held that defense counsel has the duty to communicate 

formal prosecution offers to accept a plea on terms and conditions that may 

be favorable to the accused where the defendant can demonstrate a 

reasonable probability both that he would have accepted the plea offer had 

counsel provided effective assistance and that the plea would have been 

entered without the prosecution’s canceling it or the trial court’s refusing to 

accept it.

2

In Martinez, the Supreme Court held that:

[w]here, under state law, claims of ineffective assistance of trial 

counsel must be raised in an initial-review collateral proceeding, 

a procedural default will not bar a federal habeas court from 

hearing a substantial claim of ineffective assistance at trial if, in 

the initial-review collateral proceeding, there was no counsel or 

counsel in that proceeding was ineffective. 

Martinez, 132 S.Ct at 1321.
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This timely appeal followed, in which Phillips raises the following 

issues, verbatim, for our review:

1. Did PCRA judge [commit reversible] error [by] dismissing 

[appellant’s] PCRA petition [on] February 21, 2014 as 

untimely?

2. Was the [appellant] denied his constitutional right to a fair 

trial under the due process clause, the effective assistance of 

counsel clause of the 6th Amendment and the equal protection 

of the law clause of the Fourteenth Amendment, as a direct 

result of both trial and appellate counsel’s ineffectiveness?

3. [Whether] the conviction and imposition of sentence upon the 

petitioner resulted from a violation of the constitution of the 

Commonwealth of Pennsylvania or laws of the United States 

[? And if so, whether] this violation of the petitioner’s rights 

under the circumstances of this case so undermine the truthdetermining process that no reliable adjudication of guilt or 

innocence could have taken place?

Brief of Appellant, at ix. 

We begin by noting that:

This Court’s standard of review regarding an order 

dismissing a petition under the PCRA is whether the 

determination of the PCRA court is supported by evidence 

of record and is free of legal error. In evaluating a PCRA 

court’s decision, our scope of review is limited to the 

findings of the PCRA court and the evidence of record, 

viewed in the light most favorable to the prevailing party 

at the trial level.

Commonwealth v. Weatherill, 24 A.3d 435, 438 (Pa. Super. 2011).

A PCRA petition, including a second or subsequent petition, must be 

filed within one year of the date the underlying judgment of sentence 

becomes final. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth 

v. Bretz, 830 A.2d 1273, 1275 (Pa. Super. 2003). A judgment is deemed 
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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 review.” 42 Pa.C.S.A. § 9545(b)(3); 

see also Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 

2006). Here, Phillips’ judgment of sentence became final on November 4, 

2002, upon the expiration of time for seeking allowance of appeal to the 

Pennsylvania Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 

1113(a). Thus, Phillips had one year from that date, or until November 4, 

2003, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b). Phillips 

did not file the instant petition, his second, until April 30, 2012, more than 

nine years after his judgment of sentence became final. Accordingly, the 

PCRA court had no jurisdiction to entertain Phillips’ petition unless he 

pleaded and proved one of the three statutory exceptions to the time bar. 

See 42 Pa.C.S.A. § 9545(b)(1). A petition invoking one of the exceptions 

must be filed within sixty days of the date the claim could have been 

presented. 42 Pa.C.S.A. § 9545(b)(2).

In his PCRA petition, Phillips attempts to circumvent the time bar by 

asserting the “new constitutional right” exception under subsection 

9545(b)(1)(iii) of the PCRA. Phillips claims that the Lafler and Frye

decisions announced new constitutional rights that the Supreme Court 

applied retroactively. However, this Court has concluded that neither case 
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created a new constitutional right. In Commonwealth v. Feliciano, 69 

A.3d 1270 (Pa. Super. 2013), we stated the following:

The right to effective assistance of counsel during the plea 

bargaining process has been recognized for decades. 

Commonwealth v. Lewis, 2013 PA Super 62, 63 A.3d 1274, 

1280 (Pa. Super. 2013) (citing Hill v. Lockhart, [474 U.S. 52 

(1985)]; Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 

176 L.Ed.2d 284 (2010) (“Before deciding whether to plead 

guilty, a defendant is entitled to the effective assistance of 

competent counsel.”)).

* * *

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. at 1277 (footnote omitted). Accordingly, Phillips’ claims based upon 

Frye and Lafler provide no basis for circumventing the PCRA time bar.

Similarly, Phillips asserts the PCRA court possessed subject matter 

jurisdiction to entertain his claim because the U.S. Supreme Court’s decision 

in Martinez, supra, created a new constitutional right, also triggering the 

exception to the time bar under section 9545(b)(1)(iii). However, Martinez

also garners Phillips no relief. First, the case was decided in the context of 

federal habeas corpus jurisprudence, not Pennsylvania post-conviction 

jurisprudence. As such, “[w]hile Martinez represents a significant 

development in federal habeas corpus law, it is of no moment with respect 

to the way Pennsylvania courts apply the plain language of the time bar set 

forth in section 9545(b)(1) of the PCRA.” Commonwealth v. Saunders, 
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60 A.3d 162, 165 (Pa. Super. 2013). Moreover, the Martinez decision 

neither recognized a new constitutional right, see Martinez, 132 S.Ct. at 

1315, 1318, nor was held to apply retroactively. As such, it does not satisfy 

the requirements under section 9545(b)(1)(iii) and does not provide Phillips 

with an exception to the PCRA time bar. 

As Phillips has not established one of the exceptions to the PCRA time 

bar, the PCRA court properly concluded it lacked jurisdiction and dismissed 

his petition as untimely. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/29/2014