J-S01014-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TODD ELLIS CARTER JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 800 WDA 2022

Appeal FROM the PCRA Order Entered June 23, 2022

In the Court of Common Pleas of Clarion County Criminal Division at 

No(s): CP-16-CR-0000383-2016

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED: APRIL 11, 2023

Appellant, Todd Ellis Carter Jr., appeals pro se from the post-conviction 

court’s June 23, 2022 order denying, as untimely, his second petition filed 

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After 

careful review, we affirm.

The facts of Appellant’s underlying convictions are not germane to his 

present appeal. In regard to the procedural history of his case, on December 

19, 2017, a jury convicted Appellant of two counts of delivery of a controlled 

substance, one count of possession of a controlled substance with intent to 

deliver, and two counts of criminal use of a communication facility. On 

February 7, 2018, the court sentenced Appellant to an aggregate term of 9 to 

18 years’ incarceration. The court also imposed “special conditions” of 

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* Retired Senior Judge assigned to the Superior Court.
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Appellant’s sentence, including that he not have contact with any of the 

witnesses in the case, and he complete a drug and alcohol evaluation and 

treatment, if necessary. Appellant filed a direct appeal, and this Court 

affirmed his judgment of sentence on October 28, 2019. See 

Commonwealth v. Carter, 222 A.3d 878 (Pa. Super. 2019) (unpublished 

memorandum). Appellant did not file a petition for allowance of appeal with 

our Supreme Court.

Thereafter, Appellant filed a timely, pro se PCRA petition on August 13, 

2020. The court appointed counsel, who filed an amended petition on 

Appellant’s behalf raising claims of ineffective assistance of trial counsel. A 

hearing was conducted, after which the court denied Appellant’s petition on 

March 5, 2021. He timely appealed and, on February 18, 2022, this Court 

issued a memorandum decision vacating the “special conditions” imposed by 

the trial court as part of Appellant’s sentence, and affirming the PCRA court’s 

order denying his post-conviction petition in all other respects. See 

Commonwealth v. Carter, 455 WDA 2021, unpublished memorandum at *6 

(Pa. Super. filed Feb. 18, 2022). Appellant did not file a petition for allowance 

of appeal with our Supreme Court.

On April 4, 2022, Appellant filed the pro se PCRA petition underlying his 

present appeal. On May 17, 2022, the court issued a Pa.R.Crim.P. 907 notice 

of its intent to dismiss the petition without a hearing on the basis that it was

untimely. Appellant filed a pro se response, but on June 23, 2022, the court 

issued an order dismissing his petition. Appellant filed a timely notice of 
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appeal, and he complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal. The court filed a Rule 

1925(a) opinion on July 22, 2022. Herein, Appellant states four issues for our 

review:

1.) Did the [PCRA] court err in denying Appellant’s second PCRA 

petition as untimely presented ... when Appellant’s PCRA 

[petition] was actually still within the one[-]year deadline 

required by 42 Pa.C.S.§ 9545(b)(1)?

2.) Was initial PCRA counsel ... ineffective for failing to raise trial 

counsel’s refusal to present the Batson [v. Kentucky, 476 

U.S. 79 (1986),] claim during pre-trial [motions] and during 

direct review after Appellant raised a motion for change of 

venue[,] presenting the Batson claim to the court?

3.) Was initial PCRA counsel ineffective for not raising the 

challenge to the legality of sentence arguing merger under 

[the] single criminal act doctrine[,] as well as failing to raise 

ineffectiveness of trial counsel for failure to do the same?

4.) Did the lower court err in its [Rule] 1925(a) opinion relating 

to the fact that the Batson claim is waived, the additional 

narcotics were found in Appellant’s vehicle, and the charges 

should not have merged when these statements are belied 

by the record?

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. See Commonwealth v. Bennett, 930 A.2d 1264, 1267 
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(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:

(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, section 9545(b)(2) requires that 

any petition attempting to invoke one of these exceptions “be filed within one 

year of the date the claim could have been presented.” 42 Pa.C.S. § 

9545(b)(2).

Here, Appellant’s judgment of sentence became final on November 27, 

2019, at the expiration of the time for him to file a petition for allowance of 

appeal with our Supreme Court on direct appeal. See 42 Pa.C.S. § 9545(b)(3) 
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(stating that the judgment of sentence becomes final at the conclusion of 

direct review or the expiration of the time for seeking the review); Pa.R.A.P. 

1113(a) (directing that “a petition for allowance of appeal shall be filed with 

the Prothonotary of the Supreme Court within 30 days of the entry of the order 

of the Superior Court sought to be reviewed”). Thus, under the plain language 

of section 9545(b)(1), Appellant had until November 27, 2020, to file a timely 

petition. 

Appellant disagrees. He contends that the time during which his first 

PCRA petition was being litigated must be excluded from the calculation of the 

one-year time-period under section 9545(b)(1). In other words, Appellant 

asserts that his filing of his first, timely PCRA petition on August 13, 2020, 

“stopp[ed] the judicial clock” through February 18, 2022, when this Court

issued our decision in Appellant’s appeal from the denial of that first PCRA 

petition. Appellant’s Brief at 10. According to Appellant, “the time period 

between Aug[ust] 13, 2022[,] and Feb[ruary] 18, 2022[,] would be judicially 

tolled.” Id. He concludes that, omitting this “tolled” time from the one-year 

period allowed by section 9545(b)(1) shows that his present petition was filed 

within one year of his judgment of sentence becoming final.

Appellant cites no legal authority to support his argument, and we agree 

with the Commonwealth that his “premise is incorrect.” Commonwealth’s 

Brief at 6. As the Commonwealth astutely explains:

The plain language of the PCRA provides that a judgment of 

sentence becomes final at the conclusion of direct review or when 

the time for seeking direct review expires. See 42 Pa.C.S.[]
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§[]9545(b)(3). In fixing the date upon which a judgment of 

sentence becomes final, the PCRA does not refer to the conclusion 

of collateral review or the time for appealing a collateral review 

determination. Thus, the plain language of the PCRA statute 

shows that a judgment of sentence becomes final immediately 

upon expiration of the time for seeking direct review, even if other 

collateral proceedings are still ongoing. Commonwealth v. 

Callahan, 101 A.3d 118, 122 (Pa. Super. 2014). The period for

filing a PCRA petition is not subject to the doctrine of equitable 

tolling; instead, the time for filing a PCRA petition can be extended 

only if the PCRA permits it to be extended, i.e., by operation of 

one of the statutorily enumerated exceptions. Commonwealth 

v. Ali, 86 A.3d 173, 177 (Pa. 2014). Our Supreme Court has

consistently rejected various theories devised to avoid the effects 

of the PCRA’s one-year time limitation. Commonwealth v. 

Robinson, 837 A.2d 1157[, 1157-58] (Pa. 2003) [(]citing 

Commonwealth v. Baroni, 827 A.2d 419, 420 (Pa. 2003); 

Commonwealth v. Rienzi, 827 A.2d 369, 371 (Pa. 2003); 

Commonwealth v. Eller, 807 A.2d 838, 845-[]46 (Pa. 2002); 

Commonwealth v. Hall, 771 A.2d 1232, 1234 (Pa. 2001);

Commonwealth v. Murray, 753 A.2d 201, 202 (Pa. 2000); 

Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999)[)]. Of 

these cases, Rienzi is perhaps the most analogous to the instant 

matter. Rienzi’s judgment of sentence became final upon the 

expiration of the thirty-day period to seek appellate review, which 

was January 15, 1998. Therefore, unless he could demonstrate 

that one of the exceptions outlined in 42 Pa.C.S. § 9545(b)(1) 

applied, Rienzi had until January 15, 1999, to file all PCRA 

petitions for post-conviction relief. Rienzi filed his first PCRA

petition within this one-year period, on July 2, 1998, and, on 

December 28, 1998, that petition was withdrawn without 

prejudice. Approximately eleven months after withdrawing his 

initial petition, well past the one-year time limit mandated by the

PCRA, he filed a second petition. In its analysis, the Pennsylvania 

Supreme Court held that, notwithstanding the time that his 

subsequently withdrawn first PCRA petition had been pending, 

Rienzi still had only until January 15, 1999, to file a timely PCRA 

petition, which he failed to do. Rienzi, 827 A.2d at 371. The time

that his first petition had been pending prior to its withdrawal had 

no effect on Rienzi’s deadline. This analysis contradicts 

[Appellant]’s hypothesis that the PCRA’s deadlines are subject to 

“judicial tolling.”

Id. at 6-8 (footnote omitted). 
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We agree with the Commonwealth. Neither the plain language of the 

PCRA statute, nor any case law interpreting it, supports Appellant’s claim that 

the time period during which his first PCRA petition was being litigated must

be excluded from the one-year calculation under section 9545(b)(1). 

Accordingly, his argument that his present petition was timely filed is 

meritless, and for this Court to have jurisdiction to review the merits of his 

underlying post-conviction claims, he must plead and prove the applicability 

of one of the timeliness exceptions of section 9545(b)(1)(i)-(iii). 

Appellant fails to meet this burden. The only timeliness exception he 

mentions is the ‘new, retroactive right’ exception of section 9545(b)(1)(iii). 

See Appellant’s Brief at 8. Appellant seemingly contends that our Supreme 

Court’s decision in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), 

meets this exception, and affords us jurisdiction to review the merits of his 

allegations of ineffectiveness pertaining to the attorney appointed to represent 

him during the litigation of his first PCRA petition. According to Appellant, that 

attorney should have argued that his trial counsel was ineffective for failing to 

raise a Batson claim. He also avers that his PCRA counsel was ineffective for

not challenging the legality of Appellant’s sentence on the grounds that some 

of his convictions should have merged for sentencing purposes.

Appellant’s reliance on Bradley does not meet the exception of section 

9545(b)(1)(iii). In that case, our Supreme Court held that a PCRA “petitioner 

[may] raise claims of PCRA counsel’s ineffectiveness at the first opportunity 

when represented by new counsel, even if on appeal....” Bradley, 261 A.3d 
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at 401. Nowhere in Bradley did the Court state that its holding constitutes a 

new constitutional right that applies retroactively. Accordingly, Bradley 

cannot satisfy the timeliness exception of section 9545(b)(1)(iii), and we lack 

jurisdiction to review the merits of Appellant’s ineffectiveness claims. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/11/2023