Com. v. Ramzee, M.

J-A21030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MYLES RAMZEE

Appellant No. 23 EDA 2015

Appeal from the PCRA Order November 26, 2014

In the Court of Common Pleas of Carbon County

Criminal Division at No(s): CP-13-CR-0000047-1998

BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED AUGUST 12, 2015

Appellant, Myles Ramzee, appeals from the November 26, 2014 order

dismissing as untimely his sixth petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful consideration,

we affirm based on the thorough and well-supported opinion of the

Honorable Steven R. Serfass.

The PCRA court has fully and accurately summarized the factual and

procedural history of this case in its February 12, 2015 opinion, which we

adopt and need not restate here in its entirety. Briefly, Appellant was

convicted of first-degree murder and related offenses and sentenced to life

in prison on May 17, 1999. As held by a panel of this Court in an earlier

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*

Former Justice specially assigned to the Superior Court.

J-A21030-15

appeal, “[A]ppellant’s judgment of sentence became final on [] February 12,

2001, which was ninety days after our Supreme Court denied allocatur on

direct appeal and the date upon which the time expired for requesting a writ

of certiorari with the United States Supreme Court.” Commonwealth v.

Ramzee, 890 A.2d 1104 (Pa. Super. 2005) (unpublished memorandum at

2) (citations omitted) (Ramzee III). Appellant filed a pro se “petition for

Writ of Habeas Corpus” on May 21, 2012, which the PCRA court treated as

Appellant’s sixth PCRA petition. The PCRA court appointed counsel to

represent Appellant, and Counsel filed a “First Amended Petition for Post-

Conviction Relief” on August 30, 2012. Following oral argument and briefing

by the parties, the PCRA court, on November 26, 2014, denied Appellant’s

petition as untimely. Appellant filed a timely notice of appeal on December

18, 2014.1

On appeal, Appellant raises the following question for our review.

I. Should the petition for writ of habeas corpus

(pursuant to 42 Pa.C.S. Section 6502-6503) as

previously filed by [Appellant] on May 21, 2012, and

the first amended petition for post-conviction relief

as filed on August 30, 2012, be addressed on their

merits as multiple miscarriages of justice occurred in

this case and recognized exceptions to the otherwise

one (1) year filing deadline set out at 42 Pa.C.S.A.

Section 9545(b) apply here and to not do so would

result in a gross injustice?

Appellant’s Brief at 6.

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1

Appellant and the PCRA court have complied with Pennsylvania Rule of

Appellate Procedure 1925.

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Our standard of review of the denial of a PCRA

petition is limited to examining whether the court’s

rulings are supported by the evidence of record and

free of legal error. This Court treats the findings of

the PCRA court with deference if the record supports

those findings. It is an appellant’s burden to

persuade this Court that the PCRA court erred and

that relief is due.

Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)

(citation omitted).

Instantly, the PCRA court dismissed Appellant’s sixth PCRA petition as

untimely. “[I]t is well-settled that … a question of timeliness implicates the

jurisdiction of our Court.” Commonwealth v. Gandy, 38 A.3d 899,

902 (Pa. Super. 2012) (internal quotation marks and citation omitted),

appeal denied, 49 A.3d 442 (Pa. 2012). “Because these timeliness

requirements are mandatory and jurisdictional in nature, no court may

properly disregard or alter them in order to reach the merits of the claims

raised in a PCRA petition that is filed in an untimely manner.”

Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa. 2012) (internal quotation

marks and citation omitted). The PCRA “confers no authority upon this

Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]”

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted).

This is to “accord finality to the collateral review process.” Id. (citation

omitted). “It is well settled that [a]ny and all PCRA petitions must be filed

[in a timely manner] unless one of three statutory exceptions applies.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061-1062 (Pa. Super. 2011)

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(internal quotation marks and citations omitted), appeal denied, 38 A.3d 823

(Pa. 2012). “We have repeatedly stated it is the appellant’s burden to allege

and prove that one of the timeliness exceptions applies. Whether [the

a]ppellant has carried his burden is a threshold inquiry prior to considering

the merits of any claim.” Commonwealth v. Edmiston, 65 A.3d 339,

346 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania,

134 S. Ct. 639 (2013).

The Act provides for the following possible exceptions to the timeliness

requirement.

§ 9545. Jurisdiction and proceedings

…

(b) Time for filing petition.—

(1) Any petition under this subchapter,

including a second or subsequent petition, shall be

[timely] filed … 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

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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.

(2) Any petition invoking an exception

provided in paragraph (1) shall be filed within 60

days of the date the claim could have been

presented.

…

42 Pa.C.S.A. § 9545(b).

Appellant’s sixth PCRA petition is facially untimely. His sentence, as

noted above, became final on February 12, 2001. Therefore, Appellant had

until February 12, 2002, one year from that date, to file a first or any

subsequent PCRA petition. See generally 42 Pa.C.S.A. § 9545(b)(3). As

noted, it is required that Appellant pleads and proves one of the statutory

exceptions to the PCRA’s time limits to invoke the PCRA or this Court’s

jurisdiction to consider his petition. See Edmiston, supra.

Appellant advances a number of arguments why his PCRA petition

should be deemed timely or reviewable notwithstanding the timeliness

constraints of the PCRA. Appellant’s Brief at 21-48. Appellant avers the

PCRA court “failed to reconcile that case[]law establishes that what might

otherwise be deemed an untimely [PCRA] [p]etition can nevertheless be

characterized as timely for a reason expanding upon the [s]tatutory

exceptions or for a reason outside of any of those exceptions.” Id. at 32.

Appellant’s arguments center on his contention that his counsel, appointed

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by the PCRA court to represent him during his first timely PCRA, was

ineffective and effectively abandoned him during his appeal from the PCRA

court’s denial of that petition. Id. at 24-26; see Commonwealth v.

Ramzee, 847 A.2d 760 (Pa. Super. 2004) (unpublished memorandum). 2 In

particular, Appellant claims his counsel was ineffective before the PCRA court

and this Court by failing to advance various PCRA claims and by

“abandoning” him by withdrawing prior to filing a timely petition for

allowance of appeal with our Supreme Court. Id.

Appellant suggests the “abandonment” of PCRA counsel constitutes an

unknown fact not ascertainable through due diligence, pursuant to Section

9545(b)(1)(ii), and consonant with Commonwealth v. Bennett, 930 A.2d

1264 (Pa. 2007) and Commonwealth v. Smith, 35 A.3d 766 (Pa. Super.

2011), appeal denied, 53 A.3d 757 (Pa. 2012). Id. at 32-33. Alternatively,

Appellant argues that the decisions by this Court in Commonwealth v.

Leasa, 759 A.2d 941 (Pa. Super. 2000), Commonwealth v. Peterson, 756

A.2d 687 (Pa. Super. 2000), and Commonwealth v. Robinson, 781 A.2d

152 (Pa. Super. 2001), reversed, 837 A.2d 1157 (Pa. 2003), treating claims

of PCRA counsel ineffectiveness as extensions of prior timely PCRA petitions

where PCRA counsel has failed to file an appellate brief, should be extended

to his instant PCRA petition. Id. at 37-39. Finally, Appellant argues that

____________________________________________

2

Appellant’s pro se petition for allowance of appeal was denied on December

22, 2004. Supreme Court Order, 153 MAL 2004, 12/22/04, at 1.

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J-A21030-15

based on the United States Supreme Court case of Martinez v. Ryan, 132

S. Ct. 1309 (2012), Appellant should be afforded a merits review of his

ineffectiveness claims against initial PCRA counsel notwithstanding the time

constraints of the PCRA. Id. at 40-42.

After careful review, we conclude that the trial court’s February 12,

2015 Rule 1925(a) memorandum opinion fully sets forth Appellant’s claims,

identifies the proper standards of review, discusses the relevant law, and

explains the bases for its conclusion that Appellant has failed to plead or

prove an exception to the timeliness requirements, statutory or otherwise, of

the PCRA. We have carefully reviewed the entire record and Appellant’s

arguments, and we conclude that the thorough and well-reasoned opinion of

Judge Steven R. Serfass is in concert with our own views.

Specifically, we agree that Appellant’s counsel during his first PCRA did

not abandon Appellant by withdrawing after this Court affirmed the PCRA

court’s denial of Appellant’s first PCRA on the merits and that Bennett and

Smith are inapposite to this case. We also agree that Appellant’s reliance

on the holdings in Leasa, Peterson, and this Court’s decision in Robinson

is misplaced. Our Supreme Court reversed Robinson and therein held “the

Superior Court’s decisions in [] Leasa[], and [] Peterson[] are hereby

expressly disapproved.” Commonwealth v. Robinson, 837 A.2d 1157,

1163 (Pa. 2003). Finally, we agree with the PCRA court that, in light of this

Court’s decision in Commonwealth v. Saunders, 60 A.3d 162 (Pa. Super.

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J-A21030-15

2013), appeal denied, 72 A.3d 603 (Pa. 2013), cert. denied, Saunders v.

Pennsylvania, 134 S. Ct. 944 (2014), Martinez is inapplicable to the

timeliness of Appellant’s sixth PCRA petition and the jurisdiction of the PCRA

court. Furthermore, this Court addressed and rejected Appellant’s

contentions relative to his entitlement to effective assistance of PCRA

counsel, and his alleged inability to raise those issues in a timely fashion, in

our disposition of his appeal from the denial of his second PCRA. See

Ramzee III, supra.

Accordingly, we adopt the February 12, 2015 opinion of the Honorable

Steven R. Serfass as our own for the purposes of our disposition of this

appeal. We conclude the PCRA court committed no error in determining

Appellant’s sixth PCRA petition is untimely. Additionally, concluding the

PCRA court and this Court are without jurisdiction to address the merits of

Appellant’s claims, we affirm the PCRA court’s November 26, 2014 order

dismissing his sixth PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/12/2015

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IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

vs. No. 047 CR 1998

MYLES RAMZEE,

Defendant

Gary F. Dobias, Esquire

Assistant District Attorney Counsel for the Commonwealth

/}'.i

Michael P. Gough, Esquire Counsel for the Defendarftz:.(''.

MEMORANDUM OPINION

Serfass, J. - February 12, 2015

Defendant, Myles Ramzee, (hereinafter "Defendant") , has

taken this appeal from the Order of Court entered on November

26, 2014 denying Defendant's "First Amended Petition for Post-

Conviction Relief." We file the following Memorandum Opinion ~:~,

pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) and tl-

1

recommend that the aforesaid Order of Court be affirmed for the

reasons set forth hereinafter.

FACTUAL AND PROCEDURAL HISTORY (!\

The facts surrounding the murder of Tyrone Hill, a/k/a

Korran Harrington a/k/a Carona, when viewed most favorably to

the Commonwealth as verdict winner, find their genesis in turf

wars between drug dealers.1 Five individuals were charged with

1

Reference to the trial transcripts is to the original first three volumes

filed on April 20, 1999 and the amended remaining volumes, filed on July 26,

~

o

1999. The amendments to Volumes IV through VII were made due to a problem

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the Murder of Carona:

1. Defendant;

2. Kaquwan Milligan a/k/a Footy;

3. Dennis Boney a/k/a Bunny;

4. Cetewayo Frails a/k/a Cease; and

5. Verna Russman.

During 1997, the prosecution's primary witness, Verna

Russman, was a crack cocaine addict, selling drugs for Defendant

and Anthony Cabey a/k/a V.A. N.T., 3/11/99, pp. 136-141. The

drugs were sold primarily in Monroe County, Id., and generated

approximately ten thousand dollars ($10,000.00) per week, which

was shared by Defendant, V.A. and the others involved in the

drug trade, including Footy, Cease and Bunny. Id. at 164. For

her part, Verna received a place to stay and crack cocaine to

support her habit. Id. at 164-165.

In the spring of 1997, Verna began selling drugs for

Terrell Owens a/k/a Lite, whom Defendant had brought into the

drug operation after V.A. 's arrest and incarceration. Id. at

139-140; N.T., 3/17/99, pp. 685-687. In October of 1997, Lite

planned to leave the state and brought in Carona as his

replacement. N.T., 3/11/99, pp. 141-142. Defendant admitted his

involvement in the drug sales, but claimed to have quit the

operation prior to the murder arid, thus, denied knowing or

killing Carona. N.T., 3/17/99, pp. 685-693.

On Saturday October 25, 1997, the day before the murder,

with page numbering and in no way changed the content of these volumes.

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Verna and Footy spent the day selling drugs in Monroe County,

where they eventually met with Cease, Defendant and Bunny. N.T.,

3/11/99, pp. 44, 147-150; N.T., 3/12/99, pp. 332-333. During the

visit, Verna smoked crack cocaine and listened to Defendant,

Cease, Bunny and Footy plan to rob Carona of his money and drugs

in order to cut into his drug territory. Id. at 150-151.

Thereafter, Verna and Footy returned to their apartment in

Palmerton, Carbon County, which they shared with several people,

including Lite and Carona. Id. at 141-142. She and Carona then

bagged drugs he had purchased earlier that day. Id. at 44, 152.

Later, Verna took Carona's vehicle to sell more drugs, while

Footy remained in Palmerton. Id. at 142, 153.

During her trip, Verna was paged to bring Cease, Defendant

and Bunny to the Palmerton apartment to rob Carona as planned.

Id. at 172. The group arrived in two vehicles in the early

morning hours of October 26, 1997. Id. at 154-156, 177. Verna

roused Carona, telling him she needed an eight ball to sell. Id.

at 156. Bunny sat down to play a video game while Cease stood

guard by the door. Id. at 157-158. Defendant greeted Carona and

then exited the room for a few seconds. Id. at 157. Upon

returning, Defendant walked up behind Carona, who was leaning

down to retrieve his clothes, and shot him in the back of the

head. Id. As Carona started to fall, Cease pushed him backward,

causing him to fall face up on the floor. Id. Cease and

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Defendant then rifled through Carona's pockets and stole his

drugs. Id. at 159.

In the meantime, Footy dragged an upset Verna from the

room, while all four men appeared calm. Id. When allowed to

return, Verna saw Carona's body covered with blankets on the

floor. Id. at 160. Defendant then ordered Verna to drive

Carona's car, while Cease, Footy and Bunny followed in another

vehicle. Id. at 160-161. They eventually left Verna at an

apartment in Monroe County. Id. at 162; N.T., 3/12/99, pp. 336-

339.

The crime scene was discovered by the landlord on the

morning of the murder and was consistent with Verna's

description. Id. at 100-106. A subsequent police investigation

and autopsy revealed that Carona died of a gunshot wound to the

back of his head, consistent with the victim being in a bent

over position. Id. at 52, 82-86. Carona's vehicle was eventually

found in Brooklyn, New York, containing microscopic hairs

similar to those of Bunny. N.T., 3/12/99, pp. 393-397; N.T.,

3/16/99, pp. 564-571.

The day following the murder, Verna contacted the police to

tell them about the killing. She was subsequently arrested.

N.T., 3/11/99, p. 164. At the time of trial, Verna had been in

jail for approximately fifteen (15) months, charged with the

same crimes as her co-defendants. Id. at 134, 163. No promises

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had been made in exchange for her testimony. Id. at 163. She

testified because she believed the killing should not have

occurred and the truth needed to be told. Id.

On November 19, 1997, the police arrived at Defendant's

Brooklyn residence to execute a warrant for his arrest. N.T.,

3/17/99, pp. 643-645. After repeatedly knocking on the apartment

door and hearing movement inside, an officer announced that he

was a police officer with a warrant. Id. at 646-647. Defendant

eventually opened the door, but when asked his identity, he gave

the name of McCormick and a false date of birth. Id. at 649-650.

Defendant was then arrested, as the officer was able to surmise

that the individual was actually Defendant based upon the

address, a matching description and Defendant's inability to

spell the alias. Id. at 650-651. On December 2, 1997, Defendant

was transported to Pennsylvania to face the charges of First

Degree Murder, Robbery, Aggravated Assault and Criminal

Conspiracy.

Defendant asserted an alibi defense, indicating that he had

spent the entire weekend of October 25 and 26, 1997 with friends

and family in Brooklyn, New York. N.T., 3/17/99, pp. 664-670,

676; N.T., 3/18/99, pp. 715-716, 725-727, 730-733, 738-744. He

further claimed he had not been in Pennsylvania during the

entire month of October 1997. N.T., 3/17/99, pp. 684-685.

The prosecution presented Verna's testimony placing

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Defendant at the scene of the crime. Additionally, five other

witnesses placed him in Pennsylvania, in an adjacent county, on

the day the conspiracy developed and/or the day of the murder,

including: Rebecca Hoffman, N.T., 3/16/99, pp. 331-339; Anthony

Bennett, Id. at 349-348; Stella Russman, Id. at 375-378; Lykette

Bennett, N.T., 3/16/99, 490-495; and Defendant's friend, Kadias

Murdaugh a/k/a Soup. Id. at 498-507.

On March 19, 1999, following a six-day jury trial,

Defendant was found guilty of First Degree Murder, Robbery,

Aggravated Assault and Criminal Conspiracy. On May 17, 1999,

Defendant was sentenced to life imprisonment on the First Degree

Murder charge and to one-hundred-fifty (150) months minimum and

three-hundred (300) months maximum, consecutive to the life

sentence, on the Robbery and Criminal Conspiracy charges. The

Aggravated Assault charge merged with the Murder charge for

purposes of sentencing. Defendant's direct appeal of his

conviction to the Superior Court of Pennsylvania was denied as

was his Petition for Allowance of Appeal filed with the Supreme

Court of Pennsylvania.

On June 18, 2001, Defendant filed his first Post Conviction

Relief Act (PCRA) Petition, which was amended on June 5, 2002.

On April 14, 2003, the Honorable Richard W. Webb issued an Order

and Opinion denying and dismissing Defendant's PCRA Petition.

The Pennsylvania Superior Court affirmed the denial of

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Defendant's petition on January 12, 2004 and, on December 22,

2004, the Supreme Court of Pennsylvania denied Defendant's

Petition for Allowance of Appeal concerning his first PCRA

Petition.

On February 7, 2005, Defendant filed a second PCRA

Petition, prose. On February 14, 2005, Judge Webb dismissed and

denied Defendant's second petition. Defendant subsequently filed

a timely appeal of Judge Webb's dismissal and denial to the

Superior Court of Pennsylvania. On November 14, 2005, the

Superior Court affirmed the denial of Defendant's second PCRA

Petition. Defendant then filed a Writ of Habeas Corpus in the

United States District Court for the Middle District of

Pennsylvania on May 20, 2005. Defendant's Writ of Habeas Corpus

was denied on December 20, 2006, as was a Certificate of

Appealability. Defendant then filed an appeal with the United

States Court of Appeals for the Third Circuit, which was denied

on July 20, 2007.

On August 3, 2010, Defendant filed his third PCRA Petition,

which was denied by Judge Webb on April 12, 2011. On December 5,

2011, the Superior Court of Pennsylvania affirmed Judge Webb's

denial of Defendant's third PCRA Petition. On May 30, 2012, the

Supreme Court of Pennsylvania denied Defendant's Petition for

Allowance of Appeal Nunc Pro Tune.

On March 19, 2012, while Defendant's Petition for Allowance

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of Appeal Nunc Pro Tune was pending, Defendant filed a "Notice

of Appeal." On March 29, 2012, we entered an Order treating the

Notice of Appeal as Defendant's fourth PCRA Petition. On April

11, 2012, we dismissed the same as premature because of

Defendant's pending matter before the Supreme Court of

Pennsylvania. On April 12, 2012, Defendant filed his fifth PCRA

Petition. On April 19, 2012, we issued a Notice of Intent to

Dismiss Defendant's PCRA Petition. Pursuant to that notice, we

dismissed Defendant's fifth PCRA Petition on May 31, 2012.

On May 21, 2012, Defendant filed what he titled "A Petition

for Writ of Habeas Corpus." On June 12, 2012, we issued an Order

treating Defendant's Habeas Corpus Petition as a PCRA Petition

and appointed Michael P. Gough, Esquire as Defendant's counsel.

Attorney Gough was directed to either file a letter indicating

that the PCRA Petition was non-meritorious or to file an amended

petition raising all meritorious claims.

On August 30, 2012, Defendant, through Attorney Gough,

filed a "First Amended Petition for Post-Conviction Relief." On

November 20, 2012, the Commonwealth filed its Answer to

Defendant's petition, titled "Commonwealth's Answer to

Defendant's Amended Sixth Petition for Post-Conviction

Collateral Relief." On July 17, 2014, Defendant filed a Praecipe

for Argument with respect to his "First Amended Petition for

Post-Conviction Relief." On July 22, 2014, we issued an Order

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scheduling oral argument for September 19, 2014.

After consideration of Defendant's "First Amended Petition

for Post-Conviction Relief," the Commonwealth's Answer thereto,

review of the parties' briefs, and following oral argument

thereon, we issued our Order of Court dated November 26, 2014

denying Defendant's petition.

DISCUSSION

On December 18, 2014, Defendant filed his Notice of Appeal.

Via Order dated December 18, 2014, we directed Defendant to file

a concise statement of matters complained of on appeal pursuant

to Pennsylvania Rule of Appellate Procedure 1925(b). In

compliance with our Order, Defendant filed his concise statement

on December 31, 2014.

In his concise statement, Defendant raises the following

issues on appeal:

1. That we erred in dismissing the most recent Post-

Conviction Relief Act filing by Defendant, and the

Amended Petition filed on behalf of the Defendant by

his current counsel, as untimely;

2. That we erred in failing to recognize or to properly

construe the argument advanced by Defendant as to his

being abandoned by former counsel Robert M. Buttner,

Esquire who failed to raise in the Superior Court of

Pennsylvania, issues Defendant then wished raised and

who also failed to withdraw from the case when

Defendant asked that he do so, and thus such

abandonment constitutes a newly-discovered fact as

referenced in 42 Pa. C.S.A. § 9545(b) (1) (ii);

3. That the Supreme Court of Pennsylvania has not

expressly overruled the decisions in Commonwealth v.

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Leasa, 759 A.2d 941 (Pa. Super. 2000), Commonwealth v.

Peterson, 756 A.2d 687 (Pa. Super. 2000), and

Commonwealth v. Robinson, 781 A.2d 152 (Pa. Super.

2001), respectively, and thus those cases still afford

support for the proposition that the claims advanced

by Defendant in his most recent filings are merely an

extension of those advanced in his initial and earlier

Post-Conviction Relief Act Petitions and thus we have

jurisdiction to address same.

4. The United States Supreme Court decision in Martinez

v. Ryan, 123 s. Ct. 1309 (2012) applies to this case

sub judice as per 42 Pa. C.S.A. Section

9545(b) (1) (iii) and was expanded by the recent

decision of the United States Court of Appeals, Third

Circuit in Cox v. Horn, Number 13-2982 (Decided August

7, 2014); and

5. That we erred in our conclusion that Defendant was

required to file his Post-Conviction Relief Act

Petition on or before February 12, 2002.

I. Dismissal of Defendant's Most Recent Petition as Untimely

We will address the first and fifth issues raised in

Defendant's concise statement together, as the underlying

determination to be derived relative to both issues is the date

representing the deadline for Defendant to have filed a timely

PCRA petition.

Pursuant to 42 Pa.C.S.A. § 9543(a), in order to make out a

claim under the PCRA, a petitioner must plead and prove by a

preponderance of the evidence that he has been convicted of a

criminal offense under the laws of this Commonwealth and is

currently serving a term of imprisonment, probation or parole

for that crime, awaiting execution of a sentence of death for

the crime, or serving another sentence which must expire before

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the disputed sentence begins, and that the conviction resulted

from one or more of the following:

(i) A violation of the Constitution of this Commonwealth

or the Constitution or laws of the United States

which, in the circumstances of the particular case, so

undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have

taken place;

(ii) Ineffective assistance of counsel which, in the

circumstances of the particular case, so undermined

the truth-determining process that no reliable

adjudication of guilt or innocence could have taken

place;

(iii)A plea of guilty unlawfully induced where the

circumstances make it likely that the inducement

caused the petitioner to plead guilty and the

petitioner is innocent;

(iv) The improper obstruction by government officials of

the petitioner's right of appeal where a meritorious

appealable issue existed and was properly preserved in

the trial court.

PCRA claims must be filed within one year of the date the

judgment becomes final. 42 Pa. C.S.A. § 9545(b) (1). A judgment

becomes final for purposes of the PCRA when either the direct

review is completed or the time for direct review has passed.

42 Pa. C.S.A. § 9545(b) (3). In order to file a petition under

the PCRA beyond that one-year limitation, 42 Pa. C.S.A. §

9545(b) (1) sets forth the following three (3) exceptions:

(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;

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(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.

Any petition invoking an exception pursuant to the

aforementioned sub-section must be filed within sixty (60) days

of the date the claim could have been presented. 42 Pa. C.S.A.

§9545(b) (2). When the merits of an issue have been ruled upon by

the highest appellate court in which the petitioner could have

had review as a matter of right, or where the petitioner could

have raised the issue in a prior proceeding, the issue is

considered waived. 42 Pa. C.S.A. § 9544.

The time limitations of the PCRA are jurisdictional in

nature; as such, when a PCRA petition is not filed within one

year of the expiration of direct review, or not eligible for one

of the three limited exceptions, or entitled to one of the

exceptions, but not filed within 60 days of the date that the

claim could have been first brought, the trial court has no

power to address the substantive merits of a petitioner's PCRA

claims. Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa.

2000) .

Defendant was convicted on March 19, 1999 and sentenced on

May 17, 1999. The Superior Court of Pennsylvania denied

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Defendant's direct appeal and affirmed the judgment of sentence.

Defendant thereafter filed a Petition for Allowance of Appeal,

which was denied by the Supreme Court of Pennsylvania on

November 14, 2000. Defendant's judgment then became final ninety

(90) days subsequent to the Supreme Court's denial of his

Petition for Allowance of Appeal. Defendant's ability to request

PCRA relief under his allotted one-year limitation expired on

February 12, 2002. Defendant's current PCRA Petition was filed

on May 21, 2012, more than ten (10) years beyond the expiration

of his filing deadline. Accordingly, in order for this Court to

have had jurisdiction over Defendant's current PCRA Petition,

one of the exceptions set forth in 42 Pa. C.S.A. § 9545(b) (1)

would have had to apply. However, Defendant failed - as more

thoroughly discussed below - to demonstrate the applicability of

any of the PCRA's three (3) statutory exceptions to the

timeliness requirement set forth in 42 Pa. C.S.A. § 9545(b) (1),

which would allow him to extend the one-year time limitation.

Therefore, the deadline for Defendant to file a timely PCRA

petition was properly calculated. Accordingly, because we lacked

jurisdiction to consider the merits of Defendant's "First

Amended Petition for Post-Conviction Relief," said petition was

properly denied.

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II. Abandonment by Former Counsel

In an attempt to strengthen a meritless argument, Defendant

attempts to divide his claim of abandonment by former counsel

into two separate issues in his concise statement. Because

Defendant's issues two and four both pertain to an alleged

abandonment by counsel, we will address those issues herein.

A. Issue Number Two

In issue number two of his concise statement, Defendant

alleges that because his former counsel, Robert M. Buttner,

Esquire, "failed to raise ... issues the Defendant then wished

raised and ... failed to withdraw from the case when the Defendant

asked that he do so... " such alleged actions and/ or inactions

constitute newly-discovered facts as referenced in 42 Pa. C.S.A.

§ 9545 (b) (1) (ii).

As explained in Section I hereinabove, in order to qualify

for the newly-discovered evidence exception to the one-year time

limitation set forth at 42 Pa. C.S.A. § 9545(b) (1), a claim must

be brought "within sixty (60) days of the date the claim could

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

(b) (1) (ii) requires a petitioner to allege and prove that there

were facts upon which his claim is predicated that were unknown

to him and that he could not have ascertained those facts by the

exercise of due diligence. 42 Pa. C.S.A. § 9545(b) (1) (ii);

Commonwealth v. Lambert, 57 A.3d 645, 648 (Pa. Super. 2012)

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However, prior PCRA counsel's performance does not constitute a

newly-discovered fact which would entitle Defendant to the

benefit of the exception set forth at section 9545(b) (1) (ii)

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000).

Defendant, in his "Memorandum of Law in Support of First

Amended Petition for Post-Conviction Relief," argued that

Attorney Buttner abandoned him during the appeal process and

that such abandonment constituted a newly-discovered fact. In

support of this argument, Defendant attempted to rely on

Commonwealth v. Smith, 35 A.3d 766 (Pa. Super. 2011). The

Superior Court in Smith, relying on Commonwealth v. Bennett, 930

A.2d 1264 (Pa. 2007), held that, because the defendant's initial

appeal was dismissed as a result of counsel failing to file a

brief, such action by counsel was an abandonment of the

defendant. In the instant matter, Attorney Buttner did not

abandon Defendant. Rather, after the Superior Court had issued

its Memorandum and Judgment affirming Judge Webb's Order,

Attorney Buttner filed a petition to withdraw as counsel.

Defendant's appeal was decided on the merits. It was not

dismissed as a result of a procedural default and, therefore, is

not analogous to the situation in Smith.

After distinguishing between Smith and the instant matter

in the footnote of our November 26, 2014 Order, Defendant, in

his concise statement, now asserts that we failed to recognize

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or to properly construe his abandonment of counsel argument -

that Attorney Buttner failed to raise specifically requested

issues and did not withdraw as counsel upon Defendant's request.

However, Defendant's abandonment claim still fails. Attorney

Buttner did not abandon Defendant by, allegedly, not raising

every issue that Defendant had requested. See Commonwealth v.

Grosella, 902 A.2d 1290, 1294 (Pa. Super. 2006) (holding that

the defendant was not abandoned by his counsel when his counsel

failed to raise all issues requested to be raised by the

defendant on direct appeal). Furthermore, we are unable to find

the logic in Defendant's argument that Attorney Buttner's

alleged failure to withdraw as counsel upon Defendant's request

amounts to abandonment. Accordingly, Defendant cannot

demonstrate that any alleged insufficiency of representation, or

abandonment, by Attorney Buttner constitutes a newly-discovered

fact under 42 Pa. C.S.A. § 9545(b) (1) (ii)

B. Issue Number Four

Defendant argues in issue number four of his concise

statement that Martinez v. Ryan, supra, affords him a mechanism

by which he can now bring a PCRA petition to challenge the

effectiveness of counsel. Martinez held that where state law

requires an ineffective assistance of counsel claim to be raised

in an initial review collateral proceeding, a procedural default

will not bar a federal habeas court from hearing the ineffective

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assistance of counsel claim. Martinez v. Ryan, 123 S. Ct. 1309,

1316 (2012). Defendant further argues that Martinez has been

expanded by the Third Circuit Court of Appeals in Cox v. Horn,

757 F.3d 113 (3d Cir. 2014).

Martinez is inapposite to Defendant's case in light of the

recent Pennsylvania Superior Court decision of Commonwealth v.

Saunders, 60 A.3d 162 (Pa. Super. 2013). In that case, Saunders

filed a second prose PCRA petition alleging that his direct

appeal counsel was ineffective for failing to raise the

ineffectiveness of his trial counsel, and that his first PCRA

counsel was ineffective for failing to raise his direct appeal

counsel's ineffectiveness. Saunders argued that Martinez

supported his claim that a petitioner is permitted to file a

second PCRA petition within sixty days of discovering the

ineffectiveness of his PCRA counsel. The Superior Court

disagreed with Saunders' interpretation of Martinez and held

that "[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." Saunders at

165. Furthermore, although Defendant claims that the Cox case

has expanded Martinez, Cox still specifically pertains to

federal habeas corpus law. Ninety-two (92) days after the United

States Supreme Court issued its ruling in Martinez, the

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defendant in Cox filed a motion pursuant to Fed.R.Civ.P.

60(b) (6) whereby he sought to reopen his federal habeas

proceeding based on the significant change created by the

Martinez decision relative to federal habeas corpus law. In

vacating the District Court's order, which denied the

defendant's Fed.R.Civ.P. 60(b) (6) motion, and remanding the case

for further proceedings, the Third Circuit Court of Appeals

merely discussed certain factors to be considered by the

District Court when it reexamined the defendant's Fed.R.Civ.P.

60(b) (6) motion. As in Martinez, the opinion in Cox contains no

discussion relative to this Commonwealth's Post Conviction

Relief Act. Therefore, we apply the reasoning in Saunders with

respect to the Superior Court's analysis of Martinez in reaching

our conclusion that Cox has no impact on the plain language of

42 Pa. C.S.A. § 9545(b) (1).

III. Extension of Defendant's Previously-Advanced PCRA Claims

Defendant argues in issue number three of his concise

statement that the claims advanced in the most recent PCRA

filing are merely an extension of those advanced in his initial

and earlier PCRA petitions, thereby conferring upon this Court

jurisdiction to hear those arguments. Defendant cites the cases

of Commonwealth v. Leasa, 759 A. 2d 941 (Pa. Super. 2000) I

Commonwealth v. Peterson, 756 A. 2d 687 (Pa. Super. 2 000) , and

Commonwealth v. Robinson, 781 A. 2d 152 (Pa. Super. 2001) in

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support of his extension argument. In all three of those cases,

the Superior Court held that the defendants' second, and third

in the case of Robinson, untimely filed PCRA petitions were

merely extensions of their first timely filed PCRA petitions

because the first petitions were dismissed "without prejudice to

[their] rights under the Post Conviction Relief Actll as a result

of each defendants' counsel failing to file a brief. Leasa, 759

A.2d at 942; Peterson, 756 A.2d at 689; Robinson, 781 A.2d at

158-159.

Defendant asserts that because the Supreme Court of

Pennsylvania has not expressly overruled the decisions in Leasa,

Peterson and Robinson, those cases control and we have

jurisdiction to address his most recent PCRA petition. We

disagree. Although the Supreme Court of Pennsylvania has not

expressly overruled the three cases upon which Defendant relies

to bolster his position, it has expressly disapproved of all

three cases. See Commonwealth v. Robinson, 837 A.2d 1157 (Pa.

2003). Accordingly, Defendant's reliance on these cases in

support of his extension argument is clearly misplaced.2

2

Despite the fact that we are not in a position to consider the cases of

Commonwealth v. Leasa, 759 A.2d 941 (Pa. Super. 2000), Commonwealth v.

Peterson, 756 A.2d 687 (Pa. Super. 2000), and Commonwealth v. Robinson, 781

A.2d 152 (Pa. Super. 2001) as a result of the Supreme Court's ruling in

Commonwealth v. Robinson, 837 A.2d 1157 (Pa. 2003), we note that all three

cases are inapposite to the case at bar. Unlike those three cases, Defendant

in the instant matter was not abandoned by counsel during his first PCRA

petition, or at any time thereafter. Therefore, even if those cases were

still good law, they would not be controlling in the instant matter.

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The Superior Court's Leasa/Peterson/Robinson exception to

the PCRA time-bar held that, to the extent the defendant's

serial PCRA petition either renewed issues that were raised and

rejected in his initial PCRA petition or sought reinstatement of

the initial PCRA appeal, it would be considered a mere

"extension" of the first petition which would not be subject to

the PCRA's time restriction. Id. at 1160. In vacating the

judgment of the Superior Court and dismissing the underlying

serial PCRA as time-barred, the Supreme Court noted that the

"extension" theory is not one of the three exceptions to the

time-bar recognized in the PCRA itself and that the theory

should not be permitted to operate as an extra PCRA conduit by

which the jurisdictional time-bar may be nullified. Moreover,

the Supreme Court "has repeatedly stated that the PCRA

timeliness requirements are jurisdictional in nature and,

accordingly, a PCRA court cannot hear untimely PCRA petitions."

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

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

("Pennsylvania courts lack jurisdiction to entertain untimely

PCRA petitions").

"Once a PCRA petition has been decided and the ruling on it

has become final, there is nothing for a subsequent petition or

pleading to 'extend.' Far from continuing into perpetuity, the

trial court's jurisdiction over a matter generally ends once an

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appeal is taken from a final order or, if no appeal is taken,

thirty days elapse after the final order." Commonwealth v.

Robinson, 837 A.2d at 1162. Here, Defendant's initial PCRA

petition was decided when Judge Webb entered his final order of

denial/dismissal on April 14, 2003. Defendant appealed that

order, but his appeal was rejected on the merits by the Superior

Court via memorandum opinion and order dated January 12, 2004.

The Supreme Court then denied Defendant's motion for allowance

of appeal on December 22, 2004. Therefore, Defendant's

subsequent petitions represent entirely new collateral actions

and, as such, they are subject to the time and serial petition

restrictions of§ 9545(b) of the PCRA.

CONCLUSION

For the foregoing reasons, we respectfully recommend that

Defendant's appeal be denied and that our Order of Court entered

on November 26, 2014 denying Defendant's "First Amended Petition

for Post-Conviction Relief" be affirmed accordingly.

BY THE COURT:

Steven

~90~ R. Serfass, J.

FEB l 3 2015 [FS-3-15]

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