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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH METTS,
Appellant No. 1242 WDA 2014
Appeal from the PCRA Order Entered July 29, 2014
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000769-1992
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 10, 2014
Appellant, Joseph Metts, appeals from the trial court’s July 29, 2014
order denying his petition for relief filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
A detailed recitation of the facts of this case is unnecessary to our
disposition. Instead, we simply note that Appellant was convicted on May 4,
2000, of second degree murder, robbery, theft by unlawful taking, and
receiving stolen property.1 Appellant was 17 years’ old at the time he
committed these crimes. For his murder conviction, Appellant was
sentenced to a mandatory term of life imprisonment. This Court affirmed
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1
A full recitation of the facts and procedural history leading up to Appellant’s
May 4, 2000 conviction can be found in Commonwealth v. Metts, 787
A.2d 996 (Pa. Super. 2001), the opinion of this Court affirming Appellant’s
judgment of sentence.
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Appellant’s judgment of sentence on November 19, 2001. Metts, 787 A.2d
996. On August 14, 2002, our Supreme Court denied his subsequent
petition for allowance of appeal. Commonwealth v. Metts, 806 A.2d 859
(Pa. 2002).
More than eight years later, on July 26, 2012, Appellant filed [a]
pro se PCRA petition, his first, in which he sought relief under
Miller v. Alabama, 132 S. Ct. 2455 (2012).4 Appellant was
appointed counsel on September 10, 2012. The PCRA court
directed counsel to file a supplemental brief on the applicability
of Miller after the Pennsylvania Supreme Court issued its
decision in Commonwealth v. Cunningham[, 81 A.3d 1 (Pa.
2013)].5 Although the Pennsylvania Supreme Court issued its
decision on October 30, 2013, it does not appear that any such
supplemental brief was filed. On November 5, 2013, the PCRA
court filed a Pa.R.Crim.P. 907(1) notice of intention to dismiss
the petition without a hearing based on untimeliness. Appellant
filed a pro se response on December 2, 2013, in which he
requested the court hold his petition in abeyance pending the
consideration of Cunningham by the United States Supreme
Court. On December 4, 2013, the PCRA court denied Appellant’s
request and dismissed the petition for untimeliness. Appellant
timely appealed on December 12, 2013.
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4
In Miller, the United States 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 on ‘cruel and unusual punishments.’” Miller, 132 S.
Ct. at 2460 (emphasis added).
5
In [] Cunningham, … the Pennsylvania Supreme Court held
that the decision in Miller is not retroactive to persons whose
judgments of sentence were final at the time Miller was
decided. [Cunningham, 81 A.3d at 11].
Commonwealth v. Metts, No. 1983 WDA 2013, unpublished memorandum
at 2-3 (Pa. Super. filed May 13, 2014) (some footnotes omitted).
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While Appellant’s appeal from the denial of his first petition was
pending, he filed a pro se “Amended Petition for Habeas Corpus Relief Under
Article I, Section 14 of the Pennsylvania Constitution And For Post-
Conviction Relief Under the Post Conviction Relief Act” (Pro Se Amended
Petition). Therein, Appellant sought to amend his July 26, 2012 PCRA
petition to argue that Miller “can be retroactively applied under broader
principles of retroactivity based in Pennsylvania law, as suggested by both
the majority and the concurrence in Cunningham.” Pro Se Amended
Petition, 12/20/13, at 4. On January 23, 2014, the PCRA court denied
Appellant’s request to amend his petition because an appeal from the denial
of Appellant’s July 26, 2012 petition was then pending before this Court.
On May 13, 2014, this Court issued an unpublished memorandum
decision concluding that Appellant’s PCRA counsel had effectively abandoned
Appellant. Accordingly, we vacated the PCRA court’s December 4, 2013
order denying Appellant’s petition and remanded for an amended petition to
be filed on Appellant’s behalf. See Metts, No. 1983 WDA 2013, unpublished
memorandum at 3-4.
On remand, the PCRA court appointed new counsel (the Public
Defenders Office of Fayette County) to represent Appellant. On May 30,
2014, counsel filed an amended petition on Appellant’s behalf. Curiously,
counsel did not raise any of the arguments asserted by Appellant in his
December 20, 2013 Pro Se Amended Petition. Instead, PCRA counsel
presented a generalized argument that Appellant was entitled to a PCRA
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hearing “based on the ruling of Miller[,]” which “should apply retroactively
to [Appellant’s] conviction.” Counseled Amended Petition, 5/30/14, at 4.
On July 29, 2014, the PCRA court issued an order and opinion denying
Appellant’s amended petition. The court concluded that in light of
Cunningham, “[a]n evidentiary hearing in this matter would serve
absolutely no purpose since there is no evidence that needs to be presented
and considered.”2 PCRA Court Opinion and Order, 7/29/14, at 2. Appellant
filed a timely notice of appeal, as well as a timely concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, he
raises three questions for our review:
[1.] Did the [PCRA court] err in denying [Appellant’s] PCRA
petition without [a] hearing?
[2.] Should the court have reviewed [Appellant’s] PCRA petition?
[3.] Should the court have conducted a hearing on [Appellant’s]
PCRA [petition] based on the Miller decision?
Appellant’s Brief at 7.3
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
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2
It does not appear that the court filed a Rule 907 notice of its intent to
dismiss Appellant’s petition without a hearing. However, Appellant does not
object to that omission on appeal; accordingly, this issue is waived. See
Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa. Super. 2007).
3
Despite raising three separate issues, Appellant presents one continuous,
undivided argument. Accordingly, we will address Appellant’s three claims
together.
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by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified
record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
We must begin by addressing the timeliness of Appellant’s petition,
because the PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded in order to address the merits of a petition.
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded to address the merits of the petition); Commonwealth v.
Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding the Superior
Court lacks jurisdiction to reach merits of an appeal from an untimely PCRA
petition). Under the PCRA, any petition for post-conviction relief, including a
second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the exceptions set forth
in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant
part:
(b) Time for filing petition.--
(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 previously was the
result of interference by government officials with
the presentation of the claim in violation of the
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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 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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on November
12, 2002, and thus, he had until November 12, 2003, to file a timely
petition. While we consider Appellant’s current petition as an amendment of
his first petition filed on July 26, 2012, that initial petition was still facially
untimely. Thus, for this Court to have jurisdiction to review the instant
appeal, Appellant must prove that he meets one of the exceptions to the
timeliness requirements set forth in 42 Pa.C.S. § 9545(b).
In his brief, Appellant argues that he was entitled to an evidentiary
hearing because he satisfied “one of the enumerated exceptions” to the
PCRA timeliness requirement. Appellant’s Brief at 10-11. While Appellant
does not specify exactly which exception applies to this case, it is apparent
from his argument that he is attempting to invoke the exception set forth in
section 9545(b)(1)(iii). Specifically, Appellant argues that Miller creates a
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new constitutional rule that “should apply retroactively to [Appellant’s]
conviction….” Appellant’s Brief at 11. He elaborates:
When the United States Supreme Court issued the Miller
decision in June 2012, and rendered Pennsylvania’s mandatory
scheme of life imprisonment for first and second degree murder
unconstitutional, it should have applied to any and all offenders
under the age of eighteen at the time of their crimes. It is clear
that evidentiary hearings should have been conducted on all
cases, including [] [A]ppellant’s case. The [Miller] majority
remarked that its decision requires that a sentencing authority
“follow a certain process” before imposing the harshest possible
penalty on a juvenile offender. Therefore, simply denying []
[Appellant’s] Post Conviction Petition without a hearing denies all
process.
It is [Appellant’s] position that the Miller [decision] applies
retroactively to him, even though he may have exhausted all his
appeal rights and [is] proceeding under the [PCRA] since Miller
had not been determined. Therefore, by simply denying the Post
Conviction [petition] without a [sic] evidentiary hearing denies
due process.
Id. at 4-5.
Appellant’s arguments do not circumvent our Supreme Court’s decision
in Cunningham. We acknowledge that the Cunningham Court left open
the possibility that Miller applies retroactively as a “watershed rule[] of
criminal procedure implicating the fundamental fairness and accuracy of the
criminal proceeding….” Cunningham, 81 A.3d at 4-5, 10. Justice Castille
also suggested in his concurring opinion that Miller could possibly be held to
apply retroactively under Pennsylvania constitutional law. Id. at 14
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(Castille, J. concurring). However, Appellant does not present arguments in
either of these regards.4
Consequently, we are compelled to conclude that Appellant’s
generalized claim that Miller applies retroactively is insufficient to
distinguish his assertions from those already disposed of in Cunningham.
Accordingly, Appellant has not proven the applicability of the timeliness
exception set forth in section 9545(b)(1)(iii).
Order affirmed.
Judge Lazarus joins in the memorandum.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2014
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4
It is unfortunate for Appellant that PCRA counsel did not assert any of the
claims raised in Appellant’s pro se petition filed on December 20, 2013,
wherein Appellant attempted to assert that Miller applies retroactively under
Pennsylvania constitutional law.
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