Com. v. Ryals, L. ( 2018 )

J-S27030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LUTHER S. RYALS, JR. :
:
Appellant : No. 441 EDA 2018
Appeal from the PCRA Order January 9, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001198-2009
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
JUDGMENT ORDER BY LAZARUS, J.: FILED MAY 17, 2018
Luther S. Ryals, Jr., appeals pro se from the trial court’s order dismissing
as untimely his petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9451-46. Because Ryals’ petition is patently untimely and he
does not prove an exception to the PCRA time bar, we affirm.
On July 30, 2010, Ryals was convicted by a jury of various drug offenses
and sentenced to an aggregate term of imprisonment of 8½ to 20 years. Ryals
filed post-sentence motions that were denied on December 16, 2010. On
August 31, 2011, our Court affirmed his judgment of sentence. See
Commonwealth v. Ryals, 315 EDA 2011 (Pa. Super. filed Aug. 31, 2011)
(unpublished memorandum). Ryals filed a timely first PCRA petition on
September 2, 2011. Counsel filed a no-merit letter and was permitted to
withdraw; on January 5, 2012, the court dismissed his petition without a
hearing. Our Court affirmed that dismissal on May 28, 2015.
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On May 28, 2015, Ryals filed another pro se petition and filed an
amended petition on June 9, 2015. Counsel filed a no-merit letter; the court
dismissed Ryals’ petition on April 4, 2016. Ryals filed the instant pro se PCRA
petition, his third, on October 30, 2017. On January 9, 2018, the court
dismissed his petition as untimely. This timely appeal follows.1
We first note that the timeliness of a post-conviction petition is
jurisdictional. Commonwealth v. Lewis, 63 A.3d 1274, 1280–81 (Pa.
Super. 2013). Generally, a PCRA petition, 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 under section 9545(b)(1)(i-iii), and
that the claim was raised within 60 days of the date on which it became
available. 42 Pa.C.S.A. § 9545(b) and (c). Here, Ryals’ judgment of sentence
became final on September 30, 2011, when the time for filing a petition for
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1 Ryals raises the following issues in his brief:
(1) Did the trial court err in failing to grant relief to the
Appellant’s Post-Conviction Relief Act Petition when one or
more of the Exceptions was met, which the one year filing
period is then tolled?
(2) Did the trial court err in failing to grant relief to the
Appellant’s Post-Conviction Relief Act Petition when the
Court failed to review and apply the Recidivism Risk
Reduction Incentive [RRRI] to Appellant’s sentence?
Appellant’s Brief, at 3.
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allowance of appeal to the Pennsylvania Supreme Court expired. See 42
Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113(a). Thus, Ryals had until September
30, 2012, to file a timely PCRA petition. Ryals’ instant petition was filed on
October 30, 2017 petition – more than 5 years later. Thus, the petition is
patently untimely. Unless Ryals has pled and proven one of the timeliness
exceptions under 42 Pa.C.S.A. § 9545(b)(1), the PCRA court was without
jurisdiction to consider the merits of the petition. Lewis, supra.
Ryals claims that his attorneys “erred” in failing to submit his request
and willingness to participate in the RRRI2 program and that they “clearly
interfered with proper and effective assistance of counsel.” Appellant’s Pro Se
Brief, at 7. Ryals asserts that this claim falls within the “newly-discovered
facts” exception, set forth in 42 Pa.C.S.A. § 9545(b)(1)(ii).3 Our Supreme
Court, however, has held that an allegation of counsel’s ineffectiveness could
not be invoked as a newly-discovered “fact’" for purposes of proving this
exception under the PCRA. See Commonwealth v. Gamboa-Taylor, 753
A.2d 780, 785 (Pa. 2000); see generally Commonwealth v. Lark, 746 A.2d
585, 589-90 (Pa. 2000) (holding that couching argument in terms of
ineffectiveness cannot save PCRA petition that does not fall into exception to
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2 See 61 Pa.C.S. §§ 4501-4512 (RRRI Act).
3 The PCRA sets forth the newly discovered facts exception as follows:
(ii) [T]he facts upon which the claim is predicated were unknown
to the petitioner and could not have been ascertained by the
exercise of due diligence[.]
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
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jurisdictional time bar); Commonwealth v. Fahy, 737 A.2d 214, 223
(reiterating that “a claim of ineffectiveness assistance of counsel does not save
an otherwise untimely petition for review on the merits.”).
Because Ryals has failed to prove an exception to the PCRA time bar,
the court properly dismissed his otherwise untimely petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/18
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