J-S24029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RAHMIL FIELDS,

                        Appellant                   No. 2887 EDA 2014


         Appeal from the PCRA Order entered September 23, 2014,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0003495-2007


BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED APRIL 13, 2015

      Rahmil Fields (“Appellant”) appeals from the order denying his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa. C.S.A. §§

9541-9546. We affirm.

      The PCRA court summarized the pertinent facts and procedural history

as follows:

             On October 26, 2006, [Appellant, who was then sixteen
         years old,] shot and killed Mr. Antonio Johnson on Cantrell
         Street in Philadelphia.       [Appellant] was subsequently
         charged with murder, generally, and other offenses, and
         went to trial thereon in October of 2008. On October 14,
         2008, a jury convicted [Appellant] of first-degree murder
         following a trial before this Court. After the jury rendered
         its decision and the verdict was recorded, this Court
         imposed the mandatory sentence of life imprisonment on
         [Appellant].    [Appellant] filed a direct appeal to the
         Superior Court; however, it was dismissed on February 4,
         2010, because counsel failed to file a brief. (3194 EDA
         2008).
J-S24029-15


            On September 13, 2011, [Appellant] sent a letter to the
        Pennsylvania Attorney Discipline Board, which informed
        [Appellant] by letter dated September 29, 2011, that his
        appeal had been dismissed.        [Appellant], who was a
        juvenile at the time the crime herein occurred, took no
        action in his case until August 2, 2012, when he mailed a
        pro se pleading requesting the appointment of counsel for
        purposes of seeking relief pursuant to the decision
        rendered by the United States Supreme Court in Miller v.
        Alabama, [132 S.Ct. 2455 (2012)], wherein the Supreme
        Court held that “mandatory life without parole for those
        under the age of 18 at the time of their crimes violates the
        Eighth Amendment’s prohibition against ‘cruel and unusual
        punishments.’” On October 10, 2012, [Appellant] filed a
        pro se [PCRA petition,] and counsel was appointed to
        represent him.     Counsel thereafter filed an amended
        petition and an amended petition seeking habeas corpus
        relief.

           After conducting an extensive and exhaustive review of
        these filings, the record and applicable case law, this Court
        found that [Appellant’s PCRA petition] was untimely filed.
        Consequently, on September 23, 2014, after having served
        [Appellant] notice of this Court’s intent to dismiss his
        petition without a hearing pursuant to Pa.R.Crim.P. 907,
        this Court issued an Order denying [Appellant] PCRA relief.

PCRA Court Opinion, 11/4/14, at 1-2.       This timely appeal followed.   Both

Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

     Appellant raises the following issues:

           I. Is [A]ppellant, a juvenile at the time of the shooting
        that resulted in his conviction, entitled to be resentenced
        since his life sentence is illegal under the United States
        Constitution and the Pennsylvania Constitution and in
        accordance with Miller v. Alabama, [supra]?

           II. Is [Appellant] entitled to post conviction relief in the
        form of the grant of leave to file a notice of appeal nunc
        pro tunc to the Superior Court or a remand for an
        evidentiary hearing since trial counsel rendered ineffective
        assistance of counsel when he failed to protect


                                     -2-
J-S24029-15


          [A]ppellant’s appellate rights by complying with the
          Superior Court’s briefing order resulting in the dismissal of
          the appeal?

Appellant’s Brief at 4.

       After careful review, we conclude that the Honorable Jeffrey P.

Minehart has prepared a thorough and well-reasoned opinion that correctly

refers to the timeliness restrictions of the PCRA, and explains why

Appellant’s argument of an exception based on Miller v. Alabama, supra,

is   unavailing.    See   PCRA    Court   Opinion,   11/4/14,   at   3-5   (citing

Commonwealth         v.   Seskey,    86     A.3d   237   (Pa.   Super.     2014);

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). In addition, Judge

Minehart correctly held that Appellant’s request for habeas corpus relief is

subsumed within the PCRA.           Id. at 6-7 (citing Commonwealth v.

Peterkin, 722 A.2d 638 (Pa. Super. 1998); Seskey, supra).                Thus, we

adopt Judge Minehart’s November 4, 2014 opinion as our own in determining

that Appellant’s PCRA petition is untimely.

       With regard to Appellant’s second issue, our review of the certified

record supports Judge Minehart’s conclusion that this issue is also time

barred. See PCRA Court Opinion, 11/4/14, at 7-8.

       In sum, we affirm the PCRA court’s order denying post-conviction relief

on the basis of the PCRA Court’s November 4, 2014 opinion.

       Order affirmed.




                                      -3-
J-S24029-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015




                          -4-
                                                                                           RLE,
                                                                    Circulated 04/01/2015 11:51 AM
                                                                                 10i-17.2014 035412 PM
                                                                                       POS1 Teki 1. rn

                                                                                      By: P. GRA



                       IN THE
    COURT OF COMMON PLEAS OF PMLADELPHIA COUNTY
               CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA :                       CP-51-0003495-2007

                v.

RAHMIL FIELDS                                        HOMICIDE

                    CONCISE STATEMENT OF
               ERRORS COMPLAINED OF ON APPEAL

             The defendant, RAHMIL FIELDS, by and through counsel,

JANIS SMARRO, ESQUIRE, complies with the Order pursuant to

Pa.R.A.P, 1925(b), and files this Concise Statement of Errors Complained of

on Appeal stating that he intends to complain of the following on appeal:

             1. The defendant is entitled to post-conviction relief in the form

of resentencina or an evidentiary hearing since the life sentence imposed on

the defendant, a juvenile at the time of the incident, is illegal pursuant to the

recent -United Supreme Court cases of Miller v. Alabama and Jackson v.

Hobbs as the life sentence constitutes cruel and unusual punishment in

violation of the Eight Amendment to the United States Constitution and

Article I, Section 13 cif the Pennsylvania Constitution. The arguments made

in the defendant's amended post-conviction petition are adopted herein.
                                                                   Circulated 04/01/2015 11:51 AM




             2. The defendant is entitled to post-conviction relief in the form

of reinstatement of appellate rights mine pm tune or an evidentiary hearing

since trial counsel rendered ineffective assistance of counsel when he failed

to protect the defendant's appellate rights by complying with the Superior

Court's briefing order resulting in the dismissal of the appeal.            The
amuments made in the defendant's amended post-conviction petition are

adopted herein.




                        JANIS SMARRO, ESQUIRE
                        ATTORNEY FOR THE DEFENDANT
                        ATTORNEY NO.36429
                        SUITE 1200-1515 MARKET STREET
                        PHILADELPHIA, PA. 19102
                        2I 5.854.6406
                                                                              Circulated 04/01/2015 11:51 AM




                 IN THE COURT OF COMMON PLEAS OF
                       PHILADELPHIA COUNTY

                              OFFENSE TRACKING NUMBER

COMMONWEALTH OF PENNSYLVANIA:                        CRIMINAL TRIAL DIVISION


                   v.                                CP-51-CR-000305-2007


RAHMIL FIELDS                                        HOMICIDE

                                 PROOF OF SERVICE

               I certify that l am this day serving a true and correct copy of the attached
by First Class Mail or hand delivery, to the following:


                                      Trial Judge:
                                Hon. Jeffrey P. Minehart
                              1206 Crirninal Justice Center
                                   1301 Filbert Street
                                Philadelphia,PA 19107

                            Attorney for the Commonwealth
                                  Hugh Burns, Esquire
                                   Chief-Appeals Unit
                               District Attorney-s Office
                               Three South Penn Square
                                Philadelphia., PA 19107




                                    JANIS SMARRO,ESQUIRE
                                    ATTORNEY FOR DEFENDANT
                                    ATTORNEY NO.36429
                                    SUITE 1200-1515 MARKET STREET
                                    PHILA.,PA 19102
                                    215.854.6406


DATE:
                                                                                              Circulated 04/01/2015 11:51 AM




                           IN THE COURT OF COMMON PLEAS
                      FIRST JUDICIAL DISTIUCT OF PENNSYLVANIA
                          TRIAL DIVISION-CRIMINAL SECTION
                                                                                                    FILED
 COMMONWEALTH OF PENNSYLVANIA
                                                                                                KOV 0 4 2014

                                                                           rtiti
                                                                        kahfl
                                                                                               Pest Trial Unit
                                   CP-51-01-0003495 2007 Comm v Fiekiš.
                       v.                            Opinion




 RAHMIL FIELDS                                  1,1\1 .1\319.4\1\11111             CP-51-CR-0003495-2007


                                               OPINION


PROCEDURAL RISTORY

        On October 26. 2006, defendant shot and killed Mr. Antonio Johnson on Cantrell Street

in Philadelphia. Defendant was subsequently charged with murder, generally, and other
                                                                                      offenses
and went to trial thereon in October of 2008. On October 14, 2008, a jury convicted the
                                                                                        above-
named defendant of first-degree murder following a trial betbre this Court.
                                                                            After the jury
rendered its decision and the verdict was recorded. this Court imposed the mandatory
                                                                                                  sentence of
life imprisonment on defendant. Defendant filed a direct appeal to the Superior Court;
                                                                                       however
it was dismissed on February 4,2010, because counsel failed to file a brief.(3194 EDA
                                                                                                    2008).
       On September 13, 2011, defendant sent a letter to the Pennsylvania Attorney
                                                                                   Disciplin              ary
Board, which informed defendant by letter dated September 29, 2011, that his
                                                                             appeal had been
dismissed. Defendant, a juvenile at the time the crime herein occurred, took no action
                                                                                                  in his case
until August 2, 2012, when he mailed a pro se pleading requesting the appointm
                                                                               ent of counsel
for purposes of seeking relief pursuant to the decision rendered by the United States
                                                                                      Supreme
Court in Miner v. Alabama, _US , 132 S. Ct. 2455, 183 L, Ed. 2d 407 (2012),
                                                                            wherein the


                                                     1
                                                                                    Circulated 04/01/2015 11:51 AM




 Supreme Court held that -mandatory life without parole for those under the age of 18 at the time

 of their crimes violates the Eighth Amendment's prohibition against 'cruel and unusual

 punishments.'" On October 10, 2012, defendant filed a pro se petition pursuant to the Post-

 Conviction Relief Act, 42 Pa.C.S. § 9541 et seq, and counsel was appointed to represent him.

Counsel thereafter filed an amended petition and then an amended petition seeking habeas

corpus relief.

        After conducting an extensive and exhaustive review ofthese filings, the record and

applicable case law, this Court found that Petitioner's petition for post conviction collateral relief

was untimely filed. Consequently, on September 23,2014, after having served defendant notice

ofthis Court's intent to dismiss his petition without a hearing pursuant to Pa.R.Crim.P. 907, this

Court issued an Order denying defendant PCRA relief. Defendant thereafter filed a timely notice

of appeal and a requested Pa.R.A.P. 1925(b) statement of issues to be raised on appeal.

DISCUSSION

       In his 1925(b)statement defendant first argues that he was entitled to post-conviction

relief because his sentence of life imprisonment without parole is illegal and unconstitutional as

it constitutes cruel and unusual punishment pursuant to thc holding of Miller, supra. This claim

entitled defendant to no relief because he did not file his petition in accordance with the time

strictures of the PCRA.

       In reviewing the propriety of the PCRA eourt's dismissal of a petition without a hearing,

the reviewing court is limited to determining whether the court's findings are supported by the

record and whether the order in question is free of legal error. Cornmonwealth v. Holmes, 905

A.2d 707, 509 (Pa. Super. Ct. 2006) citing Commonwealth v. Halley, 870 A.2d 795, 799 (Pa.

2005). The PCRA court's findings will not be disturbed unless there is no support for the
                                                                                      Circulated 04/01/2015 11:51 AM




findings in the certified record. Cornmonwealth v. Carr, 768 A.2d 1164, 1166(Pa. Super. 2001).

A PCRA court may decline to hold a hearing on the petition if the petitioner's claim is patently

frivolous and is without a trace of support either in the record or from other evidence.

Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001). The reviewing court on

appeal must examine each of the issues raised in the PCRA petition in light of the record in order

to determine whether the PCRA court erred in concluding that there were no genuine issues of

material fact and denying relief without an evidentiary hearing. Id. See also Commonwealth v.

Hardcastle, 701 A.2d 541, 542(Pa. 1997).

        Under the P.C.R.A., a defendant has one year frorn the date a judgment becomes final to

file fOr collateral relief. 42 Pa. C.8. §9545. A petitioner may file a petition after that date but, in

order to avoid having it dismissed on timeliness grounds, he must plead and prove that one of
                                                                                                   the
three exceptions to the filing requirements apply. 42 Pa. C.S. §9545(b) provides:

                      (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 preriously was
                        the result ofinterference by government officials
                        with the presentation of the claim in violation
                        ofthe Constitution or laws ofthis Commonwealth'
                        or the Constitution or laws ofthe United States:

                       (ii) the facts upon which the clairn 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 ofthe
                       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.


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                             (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.

                             (3) For purposes of his subchapter, ajudgment becomes
                             final at the conclusion ofthe direct review. including
                             discretionary review in the Supreme Court of the United
                             States and the Supreme Court of Pennsylvania, or at the
                             expiration of time for seeking the review.

                             (4) For purposes ofthis subchapter,"government
                             officials" shall not include defense counsel, whether
                             appointed or retained.
          The P.C.R.A.'s time limit is jurisdictional. Commonwealth v. Yarris, 731 A.2d 581

 (1999). Commonwealth v. Peterkin, 722 A.2d 638,641 (1998). Thus, an untimely petition rnay

 not be addressed simply because it is couched in terms of ineffectiveness. Peterkin, 722 A.2d
                                                                                               at
 643. Moreover, to successfully invoke one of these exceptions a petitioner must plead and then

 prove that an exception to the time for filing the petition set forth at 42 Pa.C.S. § 9545(b)(1
                                                                                                 )(i)-
(iii) applies. 42 Pa.C.S. § 9545(b)(2); Commonwealth v. Bennett, 930 A.2d 1264. 1272 n.11
                                                                                          (Pa.
2007); Commonwealth v. Crews,863 A.2d 498, 501 (Pa. 2004),

          Defendant's judgment of sentence became final on March 8, 2010.1 IA] judgn-ient

becomes final at the conclusion of direct review, including discretionary review in the
                                                                                        Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the expiration
                                                                                       of time
for seeking the review." 42 Pa.C.S. § 9545(b)(3); Pa.R.Crim.P. 720(A)(2)(a)(providin
                                                                                     g                            that if
defendant files timely post-sentence motion, notice of appeal shall be filed within thirty
                                                                                           days of
order deciding motion); Pa.R.A.P 903 ("Except as otherwise prescribed by this rule,
                                                                                    the notice



'Although a conviction usually becomes final thirty days after the Superior Court affirms a
                                                                                                  judgment of sentence,
the thirtieth day fell on March 6, 2010, a Saturday and by rule, defendant had until the next date the
                                                                                                         Court was open
for business to file a petition of allowance of appeal. See 1Pa.C.S.§ 1908. This Court considered
                                                                                                        the mailing of the
request for counsel to be a request for post-conviction collateral relief as it was filed after defendant's
                                                                                                            conviction
becarne final. It is noted that it was deemed to be filed when defendant mailed it pursuant to the
                                                                                                      prison "mailbox"
rule.

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 of appeal ... shall he filed within 30 days after the entry of the order from which the appeal is

 taken.").

         Here defendant mailed his petition for appointment of counsel on August 2, 2012, well

 past March 8, 2010, and thus, his petition clearly was untimely filed under the PCRA, even

 though he filed the aforementioned petition within sixty days of the date on which Miller was

 issued. While defendant did file his petition for the appointment of counsel within sixty days of

 the date Miller was handed down, the only potentially applicable exception to the one-year filing

 deadline is the one set forth in section 9545(b)(1)(iii). Although defendant did not waive
                                                                                            his
 Miller claim because he raised it within sixty days of the date Miller was handed
                                                                                   down,
 defendant still had the burden of establishing that this Court had jurisdiction to address
                                                                                            the claim.
 See Commonwealth v, Seskey, 86 A.3d 237, 241 (Pa. Super. 2014). He failed in this endeavo
                                                                                           r
 because Miller was held in Commonwealth v. Cunningham, 81 A.3d 1 (2013), cert.
                                                                                denied, 573
 U.S. -- (U.S. June 9, 2014)(No. 13-1 038), not to apply retroactively. As the
                                                                               Superior Court
explained in Seskey:

                Subsection (iii) of Section 9545[(b)(1)] has two requirements.
                First, h provides that 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 provided in this
               section. Second, it provides that the right "has been helr by "that
               courr to apply retroactively. Thus, a petitioner must prove that
               there is a "new- constitutional right and that the right "has been
               held" by that court to apply retroactively. The language "has been
               held" is in the past tense. These words mean that the action has
               already occurred, i.e., "that courr has already held the new
               constitutional right to be retroactive to cases on collateral review.
               By employing the past tense in writing this provision, the
               legislature clearly intended that the right was already recognized at
               the time the petition was filed.

Seskey, 86 A.3d at 242-43 (quoting Commonwealth v. Copenhefer, 941 A.2d 646,
                                                                             649-50)(Pa.
2007)(citation omitted)).


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         Thus, defendant's claim that this Court erred by dismissing his Miller claim entitles him

 to no relief becau.se it is clear that defendant failed to establish that Miller set forth a new

 constitutional right that applied retroactively at the time he filed his pro se petition, and

 therefore. his request fbr PCRA relief was untimely filed. This Court had no authority to ignore

 the Cunningham ruling.

        This Court notes that even though defendant challenged the legality and constitutionality

 of his sentence, the one-year deadline of the PCRA still applied. See Commonwealth v.

 Slotcavage, 939 A.2d 901, 903 (Pa. Super. 2007)(citing Commonwealth v. Fahy, 737 A.2d
                                                                                       214,
 223 (Pa. 1999)("Although a legality of sentence is always subject to review within the PCRA,

 claims must still first satisfy the PCRA's time limits or one of the exceptions thereto."
                                                                                           )).
 Therefore, to be entitled to relief even on his sentencing claim it was incumbent on
                                                                                      defendant to
establish that one of the exceptions to the one-year filing requirement applied to excuse
                                                                                            the late
filing of his petition. As noted above, defendant failed to meet his burden.

        Finally, although defendant sought relief from his life sentence pursuant to
                                                                                     a writ of
habeas corpus, in Peterkin, 722 A.2d at 640, the Pennsylvania Suprerne Court
                                                                             explained that
"the PCR A subsumes the remedy of habeas corpus with respect to remedies offered
                                                                                 under the
PCRA and that any petition seeking relief under the PCRA rnust be filed within one
                                                                                   year offinal
judgrnent." The writ of habeas corpus "continues to exist only in cases in
                                                                           which there is no
rernedy under the PCRA." Id.

       In the instant rnatter, defendant argued in his habeas petition that his sentence
                                                                                         is illegal
because it is unconstitutional under Miller, supra. Such claims are cognizable
                                                                               under the PCRA.
42 Pa,C.S.A. § 9543(a)(2)(ii)(vii). As such, the PCRA subsumed defendant's
                                                                           issue and this
Court lacked jurisdiction to address the issues raised in defendant's habeas
                                                                             petition because


                                               6
                                                                                   Circulated 04/01/2015 11:51 AM




 defendant failed to prove that one of the PCRA time exceptions excused the late filing of his

 petition. In Seskey,supra, the Superior Court stated:

                        Throughout his brief, Appellant attempts to circumvent the
                effect that Cunningham has upon our jurisdiction by arguing, inter
                alia: that he is entitled to relief under Article 1, § 13 of the
               Pennsylvania Constitution ("Excessive bail shall not be required,
                nor excessive fines imposed, nor cruel punishments inflicted."),
               independently of the Eighth Amendment. Brief for Appellant 10-
                13; that Miller should be applied retroactively based upon
               Pennsylvania's broader retroactivity principles, Brief for Appellant
               at 19-26; and that the inequitable result that Miller created violates
               Pennsylvania's due process and equal protection principles. Brief
               for Appellant at 27-30. While these arguments someday may
               require consideration by our courts, today cannot be that day.
               Before a court may address Appellant's arguments, or similar
               contentions, that court must have jurisdiction. We cannot
               manufacture jurisdiction based upon the substantive claims raised
               by the parties. Presently, we are confined by the express terms of
               subsection 9545(b)(I )(iii) and our Supreme Court's decision in
               Cunningham. Combined, those two elements require us to
               conclude that we lack jurisdiction. No substantive claim can
               overcome this conclusion.

Seskey, 86 A.3d at 243.

       Therefore. under the holding of Seskey, this Court's determination that defendant was not

entitled to habeas relief, respectfully, should be affirmed.

       Accordingly, for the reasons stated, it is suggested that this Court's ruling finding
                                                                                             no
merit to defendant's claim that he is entitled to relief because his sentence is illegal
                                                                                         should be
affirmed.

       Defendant's next and final issue was also properly dismissed on timeliness grounds.
                                                                                           As
an initial matter. in order to invoke an exception to the Act's timeliness provision, there
                                                                                            is a
requirement that a petitioner file his claim "within 60 days of the date the claim could
                                                                                         have been
presented." 42 Pa.C.S.A. § 9545(b)(2). The 60-day rule requires a petitioner to plead and
                                                                                            prove



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    that the information on which he relies could not have been obtained earlier, despite the exercise

    of due diligence. Commonwealth v. Marshall, 947 A.2d 714, 720(Pa. 2008),

            In the instant case. defendant was made aware that his appeal had been dismissed because

    appellate counsel had not filed a brief on September 29, 2011, when he received a letter

    informing him of that fact. Defendant did not file his petition for appointrnent of counsel until

    August 2,2012, well after sixty day period set forth in section 9545 had expired.

           Defendant attempts to overcome the late filing by claiming that the letter he received on

    September 29, 2011, failed to inform him of the steps necessary to have his appellate rights

    reinstated and that he did not have the transcript from his trial or discovery materials. Neither

    ground excuses defendant's late filing because he waited over ten months after receiving
                                                                                             the
    letter before he filed his petition for the appointment of counsel. Moreover, defendant
                                                                                            did not
    need his trial transcript or discovery material to seek PCRA relief. Finally, defendant has failed

 to explain why he could not have learned prior to his receipt ofthe letter that his appeal had been

dismissed. For all of these reason, it is clear that defendant's second claim was time
                                                                                       barred and
it is respectfully sugaested that this Court's dismissal of it be affirmed?




2 Defendant cited to Bennett, supra, as supporting his claim. In Bennett, the Supreme Court
                                                                                              ruled that if a defendant
proves that he was abandoned by counsel and raises the claim within sixty days of the date
                                                                                              he learned ofthe
abandonment, he meets the newly discovered time exception set forth in section 95459b). Here
                                                                                                     defendant, failed to
meet his burden because he did not seek relief within sixty days of the date he learned that his
                                                                                                  appeal had been
dismissed. Consequently, Bennett did not apply to excuse defendant's untimely request for
                                                                                               relief.

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CONCLUSION

        In sum,defendant failed to file his claims within the PCRA's necessary time limitations,

or establish that any ofthe exceptions applied to his case. Accordingly. for all of thc foregoing

reasons, defendant's petition was properly dismissed as untimely and, respectfully. it is

suggested that the ruling be affirmed.

                                                            BY THE COURT,




DATE:




                                              9
