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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DELBERT WILLIAMS
Appellant No. 361 WDA 2014
Appeal from the PCRA Order February 10, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001388-2005
CP-02-CR-0010774-2004
CP-02-CR-0012748-2004
CP-02-CR-0015771-2004
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 21, 2014
Delbert Williams appeals from the order entered on February 10, 2014,
in the Court of Common Pleas of Allegheny County, dismissing his second
Post Conviction Relief Act (PCRA) petition as untimely. See 42 Pa.C.S §§
9541–9546. Following a non-jury trial, Williams was found guilty of murder
of the first degree, four counts of robbery, one count of robbery of a motor
vehicle, and three counts of criminal conspiracy.1 The trial court imposed an
aggregate sentence of life imprisonment plus 25 to 50 years. Williams was
16 years of age at the time of the offenses. In this appeal, Williams
contends: (1) Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013),
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18 Pa.C.S. §§ 2502(a), 3701(a), 3702, and 903.
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cert. denied, 134 S. Ct. 2724 (2014), was wrongly decided, and (2) the
PCRA Court erred in not granting him an opportunity to amend the PCRA
pleading to include the argument raised by Chief Justice Castille in his
concurring opinion in Cunningham. Based upon the following we affirm.
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determinations are supported by the record and are free of legal
error.” Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2014)
(quotations and citation omitted), cert. denied, 134 S. Ct. 2695 (2014). “The
PCRA timeliness requirement, however, is mandatory and jurisdictional in
nature.” Id. (citations omitted).
All PCRA petitions must be filed within one year of the date the
judgment of sentence becomes final, unless the petition alleges, and the
petitioner proves, that one of the three enumerated exceptions to the time
for filing requirement is met. See 42 Pa.C.S. § 9545(b)(1).2 A judgment is
deemed 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 review.” 42 Pa.C.S. §
9545(b)(3). Furthermore, a PCRA petition alleging any of the exceptions
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The PCRA exceptions that allow for review of an untimely petition are as
follows: (1) governmental interference; (2) the discovery of previously
unknown facts; and (3) a newly-recognized constitutional right. See 42
Pa.C.S. § 9545 (b)(1)(i)-(iii).
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under Section 9545(b)(1) must be filed within 60 days of when the PCRA
claim could have first been brought. 42 Pa.C.S. § 9545(b)(2).
On June 30, 2008, this Court affirmed Williams’ judgment of sentence
and the Pennsylvania Supreme Court denied his petition for allowance of
appeal on December 30, 2008. Commonwealth v. Williams, 959 A.2d
976 (Pa. Super. 2008) (unpublished memorandum), appeal denied, 963
A.2d 470 (Pa. 2008). Williams filed a timely pro se PCRA petition on March
9, 2009, and, following the appointment of counsel, the filing of amended
petitions, and an evidentiary hearing, the PCRA court denied relief. On
March 30, 2011, a panel of this Court affirmed the decision of the PCRA
court. Commonwealth v. Williams, 26 A.3d 1211 (Pa. Super. 2011)
(unpublished memorandum). Williams filed a pro se PCRA petition on July
13, 2012. On August 14, 2012, counsel for Williams filed a “Second PCRA
Petition/Motion to Correct Illegal Sentence Pursuant to Miller v. Alabama.”3
Here, Williams’ judgment of sentence became final on March 30, 2009,
90 days after the Pennsylvania Supreme Court denied Williams’ petition for
allowance of appeal and the period for filing a petition for writ of certiorari in
the United States Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3);
U.S. Supreme Court Rule 13. Therefore, given the PCRA’s one-year time
limitation, 42 Pa.C.S. § 9545(b)(1), this second PCRA petition is patently
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Miller v. Alabama, 132 S. Ct. 2455 (2012).
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untimely, unless Williams pleads and proves an exception to the PCRA’s one
year time bar.
Williams contends that his PCRA petition satisfies the PCRA’s timeliness
exception, set forth at subsection 9545(b)(1)(iii), which requires a petitioner
to plead and prove “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)(iii)(emphasis
added). Williams cites the recent decision of Miller v. Alabama, 132 S. Ct.
2455 (2012), wherein the United States Supreme Court held that mandatory
sentences of 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 punishment.’” Miller, 132 S. Ct. at 2460. Williams asserts that the
Miller decision should be applied retroactively to his life sentence.4
The Pennsylvania Supreme Court has determined that the Miller
decision should not be applied retroactively. See Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013). On June 9, 2014, the United States
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The PCRA requires that a petition invoking any statutory exception be filed
“within 60 days of the date the claim could have been presented.” 42
Pa.C.S. § 9545(b)(2). Williams satisfied Section 9545(b)(2) by filing his
petition citing Miller, on August 14, 2012, within 60 days of the June 25,
2012 Miller decision. See Commonwealth v. Brandon, 51 A.3d 231, 235
(Pa. Super. 2012) (quotations and citation omitted) (stating “the sixty-day
period [for 42 Pa.C.S. 9545(b)(2)] begins to run upon the date of the
underlying judicial decision.”).
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Supreme Court denied the petition for writ of certiorari in Cunningham.
See Cunningham v. Pennsylvania, 134 S. Ct. 2724 (2014). Therefore,
although Williams was 16 years old at the time he committed the murder,
the Miller holding does not apply to him. As Williams cannot satisfy the
requirement of subsection 9545(b)(1)(iii) that the newly recognized
constitutional right “apply retroactively,” the PCRA court properly concluded
it lacked jurisdiction to consider Williams’ substantive issues.
Here, Williams claims that Cunningham was wrongly decided.
Williams’ argument is unavailing. This Court rejected a similar argument in
in Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014), appeal
denied, ___ A.3d ___ (Pa. Sept. 30, 2014), explaining:
Recently, in Cunningham, our Supreme Court held that the
constitutional right announced by the United States Supreme
Court in Miller does not apply retroactively. 81 A.3d at ___.
Consequently, Appellant cannot rely upon Miller or subsection
9545(b)(iii) to establish jurisdiction over his untimely PCRA
petition in any Pennsylvania court. …
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
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upon the substantive claims raised by the parties.
Presently, we are confined by the express terms of subsection
9545(b)(1)(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, supra, 86 A.3d at 243 (emphasis added).
Accordingly, guided by Seskey, we conclude Williams’ substantive
argument that Cunningham was wrongly decided cannot be reviewed as
this Court, like the PCRA court, lacks jurisdiction. Therefore, Williams’ first
claim fails.
Williams further claims that the PCRA court should have allowed him to
amend his PCRA petition to include a claim for state habeas corpus relief.
See Pa.R.Crim.P. 905(A).5 In support of his claim, Williams refers to Chief
Justice Castille’s concurring opinion in Cunningham. Specifically, Chief
Justice Castille wrote:
As noted earlier, I realize that it is not apparent that [a state
proportionality] constitutional claim, arising from the effect of a
federal decision, is cognizable under the PCRA. To the extent
that it is so, there is at least some basis in law for an argument
that the claim is cognizable via a petition under Pennsylvania’s
habeas corpus statute, found at 42 Pa.C.S. § 6501 et seq. See,
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Rule 905 provides, in pertinent part:
The judge may grant leave to amend or withdraw a
petition for post-conviction collateral relief at any time.
Amendment shall be freely allowed to achieve substantial
justice.
Pa.R.Crim.P. 905(A).
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e.g., Commonwealth v. Judge, 591 Pa. 126, 916 A.2d 511,
518-21 (2007) (since PCRA did not provide remedy for
appellant’s claim regarding deportation from Canada, which
essentially challenged “the continued vitality of his sentence,”
claim could be raised in a petition for writ of habeas corpus).
See also Coady v. Vaughn, 564 Pa. 604, 770 A.2d 287, 290-
94 (2001) (Castille, J., concurring, joined by Newman, J.)
explaining interrelationship of PCRA and traditional habeas
corpus).
Cunningham, 81 A.3d at 18 (Castille, C.J., concurring) (footnote omitted).
We note that this concurring opinion has no precedential value.
Moreover, Chief Justice Castille’s suggestion that juvenile offenders in
Williams’ position may have recourse under Pennsylvania’s habeas corpus
statute references a potential avenue for relief outside the parameters of
the PCRA. Accordingly, we find no error in the PCRA court’s decision to deny
Williams’ motion to amend his PCRA petition.6
Based on the foregoing, we conclude Williams’ PCRA petition is
untimely, and he has failed to meet his burden of proof with regard to any
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As the Commonwealth notes, Williams
has not [been] foreclosed [] from presenting a separate state
habeas corpus petition and attempting to gain resolution of the
issue suggested by Mr. Chief Justice Castille’s concurring opinion
in Cunningham, supra, and left open in Seskey, supra; that
is, “whether the habeas corpus statute provides a viable
mechanism to establish jurisdiction in this situation.” Seskey,
supra, 86 A.3d at 244.
Commonwealth Brief at 18.
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exception to the timeliness requirements of the PCRA. We therefore affirm
the PCRA court’s denial of Williams’ second petition for post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2014
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