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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ERNEST NEDAB, :
:
Appellant : No. 3307 EDA 2013
Appeal from the PCRA Order Entered November 1, 2013,
In the Court of Common Pleas of Philadelphia County,
Criminal Division, at No. CP-51-CR-0617391-1982.
BEFORE: BOWES, SHOGAN and OTT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 22, 2014
Appellant, Ernest Nedab, appeals pro se from the order denying his
fourth petition for collateral relief filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.1
The relevant facts and procedural history of this matter were set forth
by the PCRA court as follows:
On October 26, 1982, Petitioner entered an open plea to
criminal conspiracy, rape, involuntary deviate sexual intercourse,
burglary, and three counts of robbery. The trial court sentenced
him to forty-five to ninety years imprisonment. Petitioner
appealed, and the Superior Court affirmed the judgment of
1
On April 1, 2014, Appellant filed a pro se motion with this Court to
supplement his PCRA petition. Upon review of the motion, it appears that
Appellant’s filing is in fact, a motion to supplement his appellate brief.
Insofar as it may be considered a motion to supplement his brief, we
GRANT Appellant’s motion, and we shall consider it in our disposition of this
appeal.
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sentence on November 25, 1983. Petitioner did not seek review
in the Pennsylvania Supreme Court.
On November 1, 1984, Petitioner filed a timely PCRA
petition, which the court dismissed. On April 28, 2005, he filed a
second PCRA petition, which the court dismissed as untimely.
The Superior Court affirmed the dismissal on August 18, 2008.
On March 26, 2010, Petitioner filed a Petition for Writ of
Habeas Corpus. Upon review, it was treated as a PCRA petition
and dismissed as untimely on May 26, 2011. Petitioner filed an
appeal, and the Superior Court affirmed the dismissal on
November 15, 2011. Our Supreme Court denied allocatur on May
17, 2012.
Petitioner filed the instant PCRA petition, his fourth, on
August 21, 2012. After conducting an extensive and exhaustive
review of these filings, the record and applicable case law, the
Honorable Judge Woods-Skipper found that Petitioner’s petition
for post conviction collateral relief was untimely filed and thus,
this Court did not have jurisdiction to consider Petitioner’s fourth
PCRA petition.
PCRA Court Opinion, 1/6/14, at 1-2 (footnote omitted).
In this appeal, Appellant raises the following issues, which are set
forth, verbatim, as follows:
I. Whether the Court below erred when it when contrary to
clearly established Federal and State Law when it dismissed
Petitioner’s PCRA Petition as untimely filed when in fact,
Petitioner had filed his PCRA Petition tiemly based on Newly
Discovered Evidence Pursuant to Title 42 Pa. C.S. §9545(b)(i)(ii)
(newly discovered facts exception), based on Miller v. Alabama,
No. 10-9646, 123 S.Ct. 2455 (2012), Commonwealth v.
Williams, No. 2862 EDA 2013. And McQuiggin v. Perkins, U.S.,
No. 12-126, 5/28/13 Also based upon the exceptions to the Law
of the Case Doctrine and coordinated Jurisdiction Rule.
II. Whether the Court below erred in it’s abuse of discretion
when sentencing Appellant to a disparity of sentence that is
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greater than co-defenant Opher’s sentence who was the principle
person in the crimes and received a lesser (suspended) sentence
to the charges in this case. And whether the sentencing Court
ignored or misapplied the law by failing to state on the record
it’s reason for sentencing Appellant outside of the sentencing
guidelines.
Appellant’s Brief at 1.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s decision is free of legal error. Commonwealth v. Phillips, 31 A.3d
317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 A.2d
479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be disturbed
unless there is no support for them in the certified record. Id. (citing
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001)).
We must first address whether Appellant satisfied the timeliness
requirements of the PCRA. The timeliness of a PCRA petition is a
jurisdictional threshold and may not be disregarded in order to reach the
merits of the claims raised in a PCRA petition that is untimely.
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). Effective
January 16, 1996, the PCRA was amended to require a petitioner to file any
PCRA petition within one year of the date the judgment of sentence becomes
final. 42 Pa.C.S. § 9545(b)(1). A judgment of sentence “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,
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or at the expiration of time for seeking the review.” 42 Pa.C.S.
§ 9545(b)(3). Where a petitioner’s judgment of sentence became final on or
before the effective date of the amendment, a special grace proviso allowed
first PCRA petitions to be filed by January 16, 1997. See Commonwealth
v. Alcorn, 703 A.2d 1054, 1056-1057 (Pa. Super. 1997) (explaining
application of PCRA timeliness grace proviso).
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), are met.2 A petition invoking one of these exceptions must be filed
within sixty days of the date the claim could first have been presented.
42 Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
2
The exceptions to the timeliness requirement are:
(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 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), (ii), and (iii).
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PCRA’s one-year filing deadline, “the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.
Our review of the record reflects that Appellant’s judgment of sentence
became final on December 25, 1983, thirty days after this Court affirmed his
judgment of sentence and the time for filing a petition for allowance of
appeal with the Pennsylvania Supreme Court expired. 42 Pa.C.S.
§ 9545(b)(3); Pa.R.A.P. 1113. Accordingly, Appellant’s judgment of
sentence became final prior to the effective date of the PCRA amendments.
However, Appellant’s instant PCRA petition, filed on August 21, 2012, does
not qualify for the grace proviso as it was neither Appellant’s first PCRA
petition, nor was it filed before January 16, 1997. Thus, the instant PCRA
petition is patently untimely.
In his first issue, Appellant seeks to invoke the newly discovered facts
exception set forth in 42 Pa.C.S. § 9545(b)(1)(ii). To this end, Appellant
contends that the PCRA court erred in not applying the United States
Supreme Court’s decision in Miller v. Alabama, 132 S.Ct. 2455 (2012). In
Miller, the Court held that sentencing a juvenile convicted of a homicide
offense to a mandatory term of imprisonment for life without the possibility
of parole violates the Eighth Amendment’s prohibition on cruel and unusual
punishment. However, while Appellant was seventeen years old at the time
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he committed the aforementioned crimes, the holding in Miller was limited
to defendants who were juveniles at the time they committed a homicide.
In the case at bar, Appellant was not charged with or convicted of a
homicide offense, and he did not receive a sentence of life without the
possibility of parole. Thus, Miller is clearly inapposite.3
Appellant has also cited Commonwealth v. Williams, 69 A.3d 735
(Pa. Super. 2013), McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), and in
his supplemental brief, Vosgien v. Persson, 742 F.3d 1131 (9th Cir. 2014),
as support for his assertion that the underlying PCRA petition should be
deemed timely. However, none of these cases entitles Appellant to relief.
Williams was a case in which the appellant challenged the
discretionary aspects of a sentence on direct appeal to this Court. Nothing
in Williams provides, or even mentions, a basis upon which to toll the PCRA
timing requirements. Moreover, both McQuiggin and Vosgien dealt with
federal habeas corpus procedural rules concerning the time for filing habeas
corpus petitions in federal courts. Neither case addressed substantive
constitutional issues that could be construed as satisfying an exception to
the PCRA time bar. In McQuiggin, the Supreme Court held that a claim of
actual innocence could, in some instances, overcome the time bar for federal
3
Additionally, our Supreme Court held that Miller does not apply
retroactively on collateral review. Commonwealth v. Cunningham, 81
A.3d 1, 10 (Pa. 2013).
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habeas corpus relief. McQuiggin, 133 S.Ct. at 1935. In Vosgien, a case
with no precedential value to this Court,4 the Ninth Circuit Court of Appeals
similarly held that actual innocence could overcome the time bar for federal
habeas corpus relief. However, nowhere did either of these cases address
state-court collateral proceedings or substantive constitutional law.
Accordingly, neither of those cases announced a new rule of law pursuant to
42 Pa.C.S. § 9545(b)(1)(iii), nor do they constitute newly discovered
evidence under 42 Pa.C.S. § 9545(b)(1)(ii). See Commonwealth v.
Watts, 23 A.3d 980, 986 (Pa. 2011) (holding that judicial decisions do not
qualify as a previously unknown facts capable of satisfying the timeliness
exception set forth in section 9545(b)(1)(ii) of the PCRA as 9545(b)(1)(ii)
applies only if the petitioner has uncovered facts that could not have been
ascertained through due diligence, and judicial determinations are not facts).
Accordingly, Appellant has failed to establish an exception that would
permit the PCRA court to address the merits of his untimely fourth PCRA
petition.5 Because the instant PCRA petition was untimely and no exceptions
apply, the PCRA court lacked jurisdiction to address the claims presented
4
Decisions from the federal courts are not binding on Pennsylvania state
courts. Commonwealth v. Lambert, 765 A.2d 306, 315 n.4 (Pa. Super.
2000).
5
Because Appellant has failed to plead and prove any exception to the PCRA
time bar, we will not address Appellant’s second issue.
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and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa.
Super. 2002) (holding that the PCRA court lacks jurisdiction to hear an
untimely petition). Likewise, we lack jurisdiction to reach the merits of the
appeal. See Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa.
Super. 2002) (holding that the Superior Court lacks jurisdiction to reach the
merits of an appeal from an untimely PCRA petition).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2014
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