Opinion
J-A29012-17 No. 70 EDA 2017
11-30-2017
COMMONWEALTH OF PENNSYLVANIA v. GARY GREEN, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order October 22, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0209571-1988 BEFORE: LAZARUS, J., PLATT, J., and STRASSBURGER*, J. JUDGMENT ORDER BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
Gary Green appeals nunc pro tunc from the order, entered in the Court of Common Pleas of Philadelphia County on October 22, 2015, dismissing as untimely his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 ("PCRA"). We affirm.
Green is serving a life sentence for murder. A jury convicted him in 1989, and this Court affirmed his judgment of sentence on August 21, 1990. The Supreme Court of Pennsylvania denied allocatur on January 23, 1991. Green did not file a petition for a writ of certiorari to the United States Supreme Court; thus, his judgment of sentence became final ninety days later, on April 23, 1991. 42 Pa.C.S. §§ 9545(b)(1), (3); U.S. Sup. Ct. Rule 13.
Before us is Green's fourth PCRA petition, filed on May 14, 2012, which is patently untimely. The PCRA court appointed counsel, and on June 15, 2015, counsel filed an amended petition on Green's behalf. The Commonwealth filed a motion to dismiss and the court issued a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907. Green filed a response on October 7, 2015. In his response, Green avers that the United States Supreme Court's decision in Lafler v. Cooper , 132 S.Ct. 1376 (2012), which held that a claim of ineffective assistance of counsel at the plea stage is viable even where defendant subsequently received a fair trial, created a newly-recognized constitutional right. Green filed his petition within 60 days of the Lafler decision and claims, therefore, that his petition is timely under the newly-recognized constitutional right exception to the time bar. See 42 Pa.C.S. § 9545(b)(1)(iii). We disagree.
See Pa.R.Crim.P. 904(E) ("The judge shall appoint counsel to represent a defendant whenever the interests of justice require it."). --------
In Commonwealth v. Feliciano , 69 A.3d 1270 (Pa. Super. 2013), this Court held that Lafler did not create a new constitutional right. We stated that Lafler
simply applied the Sixth Amendment right to counsel, and the Strickland 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 . . . Lafler in an attempt to satisfy the timeliness exception of section 9545(b)(1)(iii) is unavailing.Id. at 1277. See also Commonwealth v. Hernandez , 79 A.3d 649, 654 (Pa. Super. 2013) ( Lafler did not "enunciate a constitutional right that was recognized by the Supreme Court of the United States that would provide Appellant with an exception to the timeliness requirements of the PCRA.") (internal quotations omitted).
Based on the foregoing, we conclude the PCRA court had no jurisdiction to entertain Green's petition. Acccordingly, the PCRA court properly dismissed his petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/30/2017