J-S74025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JACQUIN JARON BYRD

                            Appellant                 No. 3760 EDA 2015


                Appeal from the PCRA Order November 16, 2015
              In the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-CR-0001939-2006


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                             FILED JANUARY 23, 2017

        Jacquin Jaron Byrd appeals, pro se, from the order entered November

16, 2015, in the Montgomery County Court of Common Pleas, dismissing as

untimely filed his second petition for collateral relief filed pursuant to the

Post Conviction Relief Act (“PCRA”).1 Byrd seeks relief from the judgment of

sentence of an aggregate term of life imprisonment following his March 22,

2007, conviction of first degree murder, possessing an instrument of crime

(“PIC”) (three counts), and unsworn falsification to authorities,2 for the

January 26, 2006 death of Sarah Boone. On appeal, Byrd argues the PCRA

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*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    See 18 Pa.C.S. §§ 2502(a), 907, and 4904, respectively.
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court erred in dismissing his petition as untimely filed, and in failing to

conduct an evidentiary hearing on his claims.      For the reasons below, we

affirm.

       The facts underlying Byrd’s conviction are well known to the parties,

and were recounted in detail by this Court in the memorandum decision

affirming Byrd’s judgment of sentence on direct appeal.3 As the PCRA court

concisely stated: “[T]he Commonwealth presented overwhelming evidence

at trial that, on the afternoon of January 26, 2006, [Byrd] brutally murdered

twenty-four year old Sarah Boone by bludgeoning, stabbing, and possibly

stomping her to death.” PCRA Court Opinion, 2/17/2016, at 1-2.

       On March 22, 2007, a jury returned a verdict of guilty on charges of

first-degree murder, PIC, and unsworn falsification to authorities. The court

sentenced Byrd, on May 25, 2007, to a mandatory term of life imprisonment

for the charge of murder, three consecutive terms of one to two years’

imprisonment for the charges of PIC, and a concurrent term of two years’

probation for the unsworn falsification offense.    Byrd filed a timely post-

sentence motion challenging the weight and sufficiency of the evidence. The

trial court promptly denied the motion on June 29, 2007, and Byrd filed a

direct appeal.



____________________________________________


3
 See Commonwealth v. Byrd, 953 A.2d 824 [1873 EDA 2007, 1-11] (Pa.
Super. 2008) (unpublished memorandum).



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       As noted above, a panel of this Court affirmed the judgment of

sentence on direct appeal, and the Pennsylvania Supreme Court denied

Byrd’s petition for allowance of appeal. See Commonwealth v. Byrd, 953

A.2d 824 (Pa. Super. 2008) (unpublished memorandum), appeal denied,

956 A.2d 431 (Pa. 2008).           Thereafter, on August 28, 2009, Byrd filed a

timely, counseled PCRA petition, raising numerous claims of the ineffective

assistance of both trial and appellate counsel.        Following an evidentiary

hearing, the PCRA court denied the petition on September 13, 2010.           A

panel of this Court affirmed the order on appeal, and the Pennsylvania

Supreme Court once again denied review. See Commonwealth v. Byrd,

32 A.3d 833 (Pa. Super. 2011) (unpublished memorandum), appeal denied,

40 A.3d 1233 (Pa. 2012).

       On September 3, 2015, Byrd filed the present pro se PCRA petition.

On September 28, 2015, the PCRA court sent Byrd notice of its intent to

dismiss the petition without first conducting an evidentiary hearing pursuant

to Pa.R.Crim.P. 907. Byrd did not respond to the court’s Rule 907 notice.

On November 16, 2015, the PCRA court entered an order dismissing the

petition, and this timely appeal followed.4, 5


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4
  On December 18, 2015, the PCRA court ordered Byrd to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Byrd complied with the court’s directive and filed a concise statement on
January 4, 2016.

(Footnote Continued Next Page)


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      When reviewing an order dismissing a PCRA petition, we must

determine whether the ruling of the PCRA court is supported by record

evidence and is free of legal error.             Commonwealth v. Burkett, 5 A.3d

1260, 1267 (Pa. Super. 2010). “Great deference is granted to the findings

of the PCRA court, and these findings will not be disturbed unless they have

no support in the certified record.”             Commonwealth v. Carter, 21 A.3d

680, 682 (Pa. Super. 2011) (citation omitted).

      Here, the PCRA court concluded that Byrd’s petition was untimely filed.

See PCRA Court Opinion, 2/17/2016.

      The PCRA’s timeliness requirements are jurisdictional; therefore,
      a court may not address the merits of the issues raised if the
      petition was not timely filed. The timeliness requirements apply
      to all PCRA petitions, regardless of the nature of the individual
      claims raised therein.

Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012) (citations omitted).

                       _______________________
(Footnote Continued)

       Thereafter, Byrd filed a motion advising this Court that he was
proceeding pro se. This Court, relying on docket entries in the trial court,
mistakenly believed Byrd was represented by counsel, and entered an order
on February 2, 2016, directing the PCRA court to conduct a Grazier hearing.
See Order, 2/2/2016; Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
The PCRA court responded by letter dated February 17, 2016, informing this
Court that Byrd was not represented by counsel, or entitled to counsel, since
this was his second PCRA petition. See Letter from PCRA Court, 2/17/2016.
By Order entered March 2, 2016, this Court directed the docket be amended
to reflect that Byrd was proceeding pro se. Order, 3/2/2016.
5
  We note the appeal was initially dismissed on May 5, 2016, when Byrd
failed to file a brief.     See Order, 5/5/2016.     However, upon Byrd’s
application, this Court reinstated the appeal on June 20, 2016. See Order,
6/20/2016.



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      A PCRA petition must be filed within one year of the date the judgment

of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). Byrd’s judgment

of sentence was final on November 25, 2008, 90 days after the Pennsylvania

Supreme Court denied his petition for allowance of appeal from his direct

appeal, and he failed to petition for a writ of certiorari in the United States

Supreme Court. See id. at § 9545(b)(3); United States Supreme Court Rule

13. Therefore, Byrd had until November 25, 2009, to file a timely petition,

and the one before us, filed nearly six years later, was manifestly untimely.

      However, the PCRA provides that an otherwise untimely petition is not

time-barred if a petitioner pleads and proves the applicability of one of three

time-for-filing exceptions:     (1) interference by government officials, (2)

newly discovered evidence, or (3) a newly-recognized constitutional right

which had been applied retroactively. See 42 Pa.C.S. §§ 9545(b)(1)(i)-(iii).

Any petition invoking one of these exceptions must be filed “within 60 days

of the date the claim could have been presented.” Id. at § 9545(b)(2).

      Here, Byrd contends his petition falls within the newly-recognized

constitutional right exception. His overriding contention is that his sentence

of life imprisonment without the possibility of parole is illegal, and violates

the Equal Protection Clause because “[t]he vast majority of States, 31 to be

exact, have applied parole eligibility to life term inmates for non capital

cases of first degree murder on down.”         Byrd’s Brief at 6.    Byrd further

claims the United States Supreme Court’s decision in Obergefell v.

Hodges,    135   S.Ct.   2584    (U.S.    2015),   “expound[ed]     upon   general

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princip[le]s of equal protection of the law that can be applied to any class of

persons who are discriminated against for any reason.” Byrd’s Brief at 12.

Although he recognizes the Obergefell decision considered how the equal

protection clause applied to the issue of same-sex marriages, Byrd asserts:

        [T]he holding in Obergefell that United States Citizens who are
        same-sex couples and allowed to marry in some states but
        denied the right to marry in other States violates equal
        protection of the law does, in principal, equate to the fact that
        individuals convicted of first degree murder in the majority of
        States and given the privilege of parole, but individuals
        convicted of the exact same crime in other States, such as
        Pennsylvania, are denied this privilege also violates equal
        protection of the law.

Id. at 14. Furthermore, Byrd maintains he filed the instant petition within

60 days of the date the Obergefell decision was filed. Id. at 5.

        Upon our review of the record, the parties’ briefs, and the relevant

statutory and case law, we conclude the PCRA court properly determined

Byrd’s petition was untimely filed, and that the Obergefell decision did not

constitute an exception to the time-for-filing requirements. See PCRA Court

Opinion, 2/17/2016, at 3-6 (finding (1) the instant petition was facially

untimely; (2) “there is nothing in … Obergefell demonstrating an intention

on the part of that Court to recognize a new principle of constitutional law

that is to be accorded retroactive effect to criminal cases on post-conviction

collateral review[;]”6 (3) and even presuming it could apply retroactively,

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6
    PCRA Court Opinion, 2/17/2016, at 6.



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the holding in Obergefell relating to the rights of same-sex couples does

not apply to individual convicted of first-degree murder).     Accordingly, we

rest upon its well-reasoned basis.

        With respect to Byrd’s contention that the PCRA court should have

conducted an evidentiary hearing to consider, what he characterizes as,

“evidence of [his] actual innocence,”7 we remind Byrd that:

        For purposes of post-conviction proceedings an evidentiary
        hearing is not required when “there are no genuine issues
        concerning any material fact....” Pa.R.Crim.P. 909(B)(2).
        Furthermore, the decision whether to grant an evidentiary
        hearing is within the discretion of the PCRA court and will not be
        overturned absent an abuse of that discretion.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1133–1134 (Pa. 2012)

(some internal citations omitted). As explained above, once the PCRA court

properly determined Byrd’s petition was untimely filed, and that Byrd failed

to plead or prove one of the timeliness exceptions, the court had no

jurisdiction to review of the underlying issues raised in his PCRA petition.

See Jones, supra. Accordingly, no relief is warranted.

        Order affirmed.




____________________________________________


7
    Byrd’s Brief at 16.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2017




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