J-S09040-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALBERT IRBY,
Appellant No. 1558 WDA 2014
Appeal from the PCRA Order entered September 19, 2014,
in the Court of Common Pleas of Allegheny County,
Criminal Division, at No(s): CP-02-CR-0000013-1969
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 18, 2015
Albert Irby (“Appellant”) appeals from the order denying as untimely
his first petition for post-conviction relief filed pursuant to the Post
Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.
The Honorable Beth A. Lazzara, sitting as the PCRA court, summarized
the pertinent facts and procedural history as follows:
[Appellant], who was a seventeen (17) year-old juvenile
at the time of his offense, was convicted by a jury of first-
degree murder, and was sentenced to the then-mandatory
sentence of life without parole on May 6, 1971. The . . .
Pennsylvania Supreme Court subsequently affirmed the
Judgment of Sentence in 1971.
On August 6, 2012, Appellant filed a [pro se] PCRA
petition, seeking to challenge the legality of his sentence
based on the United States Supreme Court’s decision in
Miller v. Alabama, ___ U.S. ___, 132 S.Ct 2455 (2012),
which held that “the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders.” Id. at 2469.
J-S09040-15
This court appointed counsel to represent [Appellant], and,
on January 8, 2013, an Amended PCRA petition was filed.
On January 11, 2013, and October 31, 2013, the
Commonwealth filed its answers to the amended petition.
On November 15, 2013, this court filed its Notice of
Intent to Dismiss the PCRA Petition based on the
Pennsylvania Supreme Court’s decision in
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013),
which held that the ruling in Miller did not apply
retroactively to cases on collateral review. On November
26, 2013, [Appellant] filed a Response to the Notice of
Intention to Dismiss PCRA Petition, Petition to Stay
Dismissal of Amended PCRA Petition, and Request to
Amend PCRA Petition,” requesting that the court stay its
dismissal of his petition “pending the outcome of
finalization (i.e., a ruling by the United States Supreme
Court) of Commonwealth v. Cunningham . . . . since a
Petition for Reconsideration in the PA Supreme Court or a
Petition for Writ of Certiorari in the United States Supreme
Court will be filed in that case.” [Appellant’s] Response to
Notice of Intention to Dismiss PCRA Petition, p.2.
Alternatively, [Appellant] sought leave to file a second
amended petition so that he could raise state habeas
corpus claims pursuant to Article 1, Section 14 of the
Pennsylvania Constitution and claim that his mandatory
sentence of life without parole “violates the ban on cruel
punishments pursuant to Art. 1, Section 13 of the
Pennsylvania Constitution.” Id. at 3. On September 19,
2014, this court dismissed the petition[.]
PCRA Court Opinion, 11/13/14, at 1-3 (footnotes omitted). This timely
appeal followed. Both Appellant and the PCRA court have complied with
Pa.R.A.P. 1925.
Appellant phrases his claims on appeal as follows:
1. DID THE [PCRA] COURT ERR IN DENYING APPELLANT’S
PCRA PETITION SINCE PURSUANT TO THE 6/25/12
UNITED STATES SUPREME COURT DECISION IN MILLER
V. ALABAMA, SINCE [sic] APPELLANT, WHO WAS A
JUVENILE AT THE TIME OF THE COMMISSION OF THE
-2-
J-S09040-15
INSTANT CRIME, RECEIVED AN UNCONSTITUTIONAL
MANDATORY SENTENCE OF LIFE WITHOUT THE
POSSIBILITY OF PAROLE FOR SECOND [sic] DEGREE
MURDER AND THEREFORE HIS SENTENCE MUST BE
VACATED AND HE BE RE-SENTENCED? MOREOVER,
REGAR[D]LESS OF THE PA SUPREME COURT’S HOLDING
IN COMMONWEALTH V. CUNNINGHAM, 2013 PA LEXIS
2546 (PA 2013; 10/30/13), THAT MILLER V. ALABAMA
IS NOT RETROACTIVE TO DEFENDANTS IN APPELLANT’S
PROCEDUREAL [sic] POSTURE WHO WERE NOT ON DIRECT
APPEAL WHEN MILLER V. ALABAMA WAS DECIDED,
THIS HONORABLE COURT CAN STILL DECIDE, ON OTHER
GROUNDS, THAT MILLER V. ALABAMA IS APPLICABLE
AND SHOULD BE RETROACTIVELY APPLIED TO
APPELLANT’S CASE. ADDITIONALLY, THE [PCRA] COURT
ERRED IN DENYING APPELLANT’S PETITION TO STAY
DISMISSAL OF THE PCRA PETITION AND APPELLANT’S
REQUEST TO AMEND THE PCRA PETITION.
Appellant’s Brief at 3.1
Our standard of review regarding an order dismissing a petition under
the PCRA is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Commonwealth v. Halley,
870 A.2d 795, 799 n.2 (Pa. 2005). 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).
Moreover, a PCRA court may decline to hold a hearing on the petition if the
PCRA court determines that the petitioner’s claim is patently frivolous and is
____________________________________________
1
We remind PCRA counsel that the “statement of questions involved must
state concisely the issues to be resolved[.]” Pa.R.A.P. 2116(a). Appellant’s
one issue actually encompasses four distinct claims.
-3-
J-S09040-15
without a trace of support in either the record or from other evidence.
Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001).
Upon careful review, we conclude that Judge Lazzara’s November 13,
2014 opinion correctly determines that Appellant’s PCRA petition is untimely,
and that Appellant has failed to prove any exception to the PCRA’s time bar.
Further, we discern no abuse of discretion in Judge Lazzara’s decision to
deny Appellant’s requests to stay his petition and/or permit him to amend it
to include a claim for habeas corpus relief that is beyond the remedies
afforded by the PCRA. See generally, Commonwealth v. Seskey, 86
A.2d 237 (Pa. Super. 2014). We therefore adopt the opinion of the trial
court in affirming the dismissal of Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2015
-4-
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IN THE COURT OF COMMON PLEAS FIFTH JUDIC
JUDICIAL
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DISTRICT
AL LEGHENY COUN T
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OPINION
The Pelitioner
Pe lilioner appeals Irom
from this court's
courl's September
Seplember 19, 2014 Order,
19,2014 Order, dismissing
11is petition
Ilis pelilion under Ihe
the Post Conviction Relief
Posl Convlcllon Reliel Acl ("PCRA") . I See 42 Pa
Act ("PCRA").' Pa.C
.C .S.
.S . §§9541 -
9546. The Petitioner,
Pelilioner, who was a seventeen
sevenleen (17)
( 17) year-old juvenile' allhe
at the lime
time 01 hiS
h,s
offense, was co nvic ted by a JUry
convicted first -deg ree murder, and was sent
jury of first-degree e nced 10 the then
sentenced th e n--
mandatory
mandalory sentence
senle nce ollile 6, 1971. 3 The Superior Court of
withou t parole on May 6,1971.
of life wilhoul
Pe nn sylvania and the Pennsylvania Supreme Court subsequently affirmed th
Pennsylvania thee
4
Judgment of Sen tence in 1971.
1 The Petitioner's case was transferred to this court
court following
foll owing Ihe
the passing of the
Honorable Sa muel Strauss.
Samuel Strauss.
, Petition er was born on March 17,
Petitioner t7, 1952, and th e oliense
the offense occurred on September 22,
1969. See Amended PCRA Petition
Petilion IiliIed
led on January 8,20
8, 20 13, and Commonwealth's
Answer to Amended PCRA Petition
Pelilion IiliIed
led on January 1" 2013.
3 According to the Warrant of Arrest dated September 23,23. 1969.
1969, Petitioner wa wass also was
charged wilh
with Armed Robbery,
Robbery, Assault and Batter Intent to Kill , "VUFA ., and PFA."
Batler with Inlenllo PFA ."
Peti tioner's Concise Statement of Errors Complained of on Appeal (page 3) . The
See Petitioner's
suggest
records are unclear, but they also seem to su ggest that Petitioner was co nvic
nvicted
ted 0of1
second -degree
-degre e murder as well
we ll .
• As noted both Counsel and Ihe
no led by bolh Commonweal/h , it is diflicultto
the Commonwealth, the
d iHicul/ 10 ascertain Ihe
hislory in Ihis
procedural history this case because Ihe
th e Allegheny Counly
County Departmenl
Department 0o 1f Court
Cour!
Circulated 01/23/2015 01:04 PM
On Augu
Au gust
sl6,
6, 20 12, Pelllioner
Petition er filed a PCRA pelition
petition,, seeking 1
to
0 cchallenge
hallenge Ihe
the
legality
legali ty of sent ence
o f his sente nce based on Sta tes Supreme Court's decIsIon
on the United States decision in
In M ill e r v.
Miller
Alabama,
Alabama, - U.S. - -,
-,132
132 S.C!. 2455 (20
(2012),
12), which held Ihal
tha t "Ihe
"the Eighlh
Eighth
Am endmentt forbid s a sentencing scheme
Amendmen th at mandates
schem e thai mandales lif e in son wi
In pri son without
th out possibility
possibi lity
offenders." &
01parole for juve nile offenders," at 2
IQ. al 2469.
469. Thi
Thiss coun appointed to
apPoinled co unse l 1 rep resent
0 represenl
Pelilioner on appea
Petitioner appeall,, and
and,, on January 8, 2013, Amended
201 3, an Am pe tition was fi led .
ended PCRA petition
On January 11 ,201
, 201 3, and OClober
Oc tober 3
311,, 201 3, th
20 13, Ihee Commonwea lth filed ils
Commonweallh answe rs 5 1
its answers' to
0
Ihe
the amended pelilion
pe tit ion..
Novem ber 15, 20
On November 2013, th is court
13, Ihis courl filed ils
its Nolice of Inlenllo
Intent to DismiSS Ihe
th e PCRA
Petition
Pe tition based on the
th e Pennsylvania
Pennsylvani a Supreme
S upreme Court's decision in Commonwealth
Commonwea lth v.
Cunningham , 8
811 A.3d 1 (Pa. 20
2013),
13), which held lhallhe
that the ruling in
fn Mllier
Miller did nol
not apply
retroac tively to cases on collateral review. On November 26,201
retroactively 26,20 13
3,, th e Petitioner
Pe titioner filed a
"Response to th e Notice
NOlice o
off Intention Dismiss
Inte ntion to Di smiss PC
P C RA Pe tition, Petitio n 1
Pe tition 10
0 S tay
Dismissa
Di smissa l of PCRA
o f Amended PC RA Petition,
Pe tition , and Request 10
to Amend PCRA
P CRA Pe tition ,"
Pelition ,"
requesling
reques ting Ihalll1e
thai the cou n
rt slay
stay ils
its dismissal of his petition "pending
pe tit ion "pe nding Ihe
the outcome of
finalizallon
finaliza tion (i.e
(i .e ., a ruling by Ihe
the United States Supreme Court)
Court ) of Commonwealth v.
C unningham . ..
. , since a Pe lition
titio n for Reconsidera tion in the PA Supreme Court or a
Reconside ration
Pe ti tio n for W
Peti rit of
Writ Certiorari
01 Certiora ri in the Unit ed States
United Sta tes Supreme Court will be filed in thai
that
Records
Reco rds file ha rdly co
hardly ntains any
contains a ny information
information,, and th
the incom ple te . See
doc ke t is incomplele.
e docket
Am ended Petition, (p. 4). 4) . Petitioner's Q!Q se "Motio~
Pelilioner's pro "M otio~ for Post Conviction
Convic tion Collaleral
Collateral
Relie f" states
Relief" slates that
tha I the judgment of sentence a ff i'rmed by both appe lla te courts In
sentencewas affirmed
197 1.
1971
5 O n January 11,
On 11 ,201
2 01 3, Leann S hiley, EsqUire
Lea nn e Shiley, Esquire fil ed the Comm onwea lth's initial
filed
Answer,
Answer. An Amended
Am ended Answer
An swer was filed by Ronald
Ron ald M,
M. Wabby, JJr.,
r., EsqUire Oclober
Esquire on Oc tobe r
1,201
3 1, 20 t 3.
2
Circulated 01/23/2015 01:04 PM
case ," Petitioner's Response to Notice of Intention to Dismiss PCRA Petition, p, 2
Petition, p. 2,,
Alternative ly, Petitioner
ty, Pe tition er soughlleave
sought leave 10 pelition so that he could
to file a second amended petition
raise state habeas corpus
co rpus claims pursuanllo
pursuant to Article
Art icle 1, Section 14
t 4 of the Pennsylvan
Pennsylvania
ia
Constitu tion and claim that his mand a tory sentence
Constitution se ntence of
or life wit hout parole
paro le "viola te s the
"violates
ban on cruel punishments pursuant to Art,
Art. 1, Section 13 of the Pennsylvania
kl at 33'6 On September 19, 2014, this court
Consli tution," !fL
Consti co urt dismissed the pelition, and
th e petition,
this timely
tim ely appeal followed .'
In his Statemen t of Errors Complained of on Appeal ("Concise
11 is Concise Statement
Statement"),, Peti
Statement") Petitioner
tioner raises the following arguments:
argumen ts:
THE TRIAL COURT ERRED IN DENYING APPELLANT'S PCRA
PETITION PURSUANT TO THE 6/25112 6/25/ 12 UNITED STATES SUPREME COU RT
COURT
DECISION IN MILLER V. V, ALABAMA , SINCE APPELLANT, WHO WA S A
JUVENILE AT THE T TIME
IME OF T THE
HE COMM ISSION OF THE INSTANT CRIME CRIME,,
RE CE IVED AN UNCONSTITUTIONAL MANDATORY SENTENCE OF LIFE
RECEIVED
WI TH OUT THE POSSIBILITY
POSSIBI LITY FOR PAROLE FOR SECOND DEGREE DEG REE
MURDER AND THEREFORE HIS SENTENCE MUST BE VACATED AND HE
-SENTENCED. MOREOVER, REGA
BE RE -SENTENCED, REGARDLES
RDLES S OF THE PA SUPREME
COURT'S HOLDING IN COMMONWEALTH
COMMONWEA LTH V, CUNNINGHAM , 20
V. CUNNINGHAM, 2013
13 PA LEXIS
2546(PA 20 13; 10/30/13),
10/30/13), THAT MILLER V _ . ALABAMA IS NOT RETROACTIVE
TO DEFENDANT'S IN APPELLANT'S PROCEDURUREAL
PROCEDUR UREAL IS [S IC] POSTURE,
WHO WERE NOT ON DIRECT APPEAL W WHEN
HEN MILLER V,V. ALABAMA WAS
DECIDED
DEC IDED , AND REGARDLESS
REGARDLE SS OF THE UNITED STATES SUPREME
COURT'S
COU RT' S DECISION TO DECLINE A GRANT OF CERTIORARI REGARDING
CUNNI NG HAM IN 20
CUNNINGHAM 2014,
14, T
THIS
HI S HONORABLE COURT CAN STILL DECIDE, ON
OTHER GROUNDS, THAT MILLER MI LLER V ., ALABAMA IS APPLICABLE
APPLI CABLE AND
SHOULD
SHO ULD BE RETROACTIVELY APPLIED TO APPELLANT'S AP PELLANT'S CASE.
CASE,
ADDITIONALLY,
ADD ITIONALLY, THE TRI AL COURT ERRED IN DENYING APPELLANT'S
TRIAL APPELLANT' S
PETITION TO STA Y DISMISSAL OF THE PCRA PETITION AND
APPELLANT'
APPELLANT'S S REQUEST
RE OUEST TO AMEND THE PCRA PETITION .,
•' Specifically, Article 1, Section 13 provides that
that "Ie]xcessive
"[eJxcessive bail shall not be required ,
nor excessive fines imposed,
imposed , nor crue
cruell punishm
punishmen ts inflicted,"
ents inllicted ." Pa.
Pa , Cons t. Art , 1,
Sec tion 13.
13,
Petitioner filed his Notice of Appeal, as well
71 we ll as his Concise Statement of Errors
Appeal , on Seplember
Complained of on Appeal, September 24,2014
24, 2014._
3
Circulated 01/23/2015 01:04 PM
Petitioner's Concise Sta tem
tement Appeal , p.
ent of Errors Complained of on Appeal, p 44 .
For the reasons that follow,
follow , the Pelitioner's
Petitioner's contentions are without merit,
merit , and
this
thi amended
s court 's decision to dismiss the amende pelltion should
d PCRA petition shoutd be upheld
uphetd..
t. THE PETITIONER
I. PETtTIONER'S FfLED,
'S PCRA PETITION WAS UNTIMELY FILED.
Under
Unde r 42 Pa.C.S.
Pa .C .S. §95 45(b)( 1),
§9545(b)( I ), a PCRA petition musl
must be lited
fited within
Within o ne (t) year
one
01
of the dale
da te th
that
at the
th e judgment becomes finat'
final ' A petition fil
filed
ed ou
outside
tside of this one
one-year
-year
window IS
IS considered untimel y, unless it can be shown th
untimely, that
a t one of the
th e three
thre e narrow
statu tory exceptions to the general timeliness requirements
statutory applies, See 42 Pa.C
req uiremen ts applies. Pa C .S .
§9545(b)( I1)(i)-(iii).
)(i)-(iii) The PCRA statute provides as follows
follows:
(b) Time filing petition--
Tim e for fitlng petition -·
(1)
( I ) Any petition under this subchapter, including
Including a second or subsequent
subsequen t
petition, tiled within one year of the date the judgment becomes fina
petition . shall be filed finall,,
unless the
Ihe pelilion alleges and Ihe
the petitioner
pelilioner proves that
(i) the failure to raise the claim
cla im previously was the result
resu lt of Interierence by
of Interference
government officials
o fficials with the presentation of th e claim In
in viola
vio lation
tion of the
Constitut ion
Consti tu tion or laws of this Commonwealth or th e Consti tution or laws of
Constitution o f the
United States
States;;
8 As explained by the Court in Commonwealth v. Lawson,
Lawson , 90 A.3d t , 4 -5 (Pa . Super.
4-5 Supe r.
20t4):
20 14):
Effective January 16, 1996, the PCRA was amended to reqUire
t 6, 1996, req uire a
pe ti tioner to file any PCRA petition within
petitioner wi thin one year of01 the date the judgment of
sentence becomes final. 42 Pa.C.S,A Pa.C .S.A., § 9545(b)(I)
9545(b)( I ).. A Judgment
judgment of sentence
"becomes
"become s final at the
th e conclusion
conclu sion of review,, including discre tionary review In
of direct review
Ihe
the Supreme Court of the United Siaies States and theth e Supreme Court of 01 Pe
Pennsylva
nnsylvania
nia ,
or a t the
th e expiration
expira tion of time
tim e for seeking the review,"
review." 42 Pa,C
Pa.C .S.A. § 9545(b)(3)
954S(b)(3) .
Where
Whe re a pe petitioner's
titIOner's judgment
judgmen t of sentence
sen tence became fifinal nal on
on or before the effective
effec tive
date of the
dale th e amendment, a special grace proviso proVISO allowed first PCRA pe petitions 10
titions to
be filed
fited by January 16, t 6, 1997,
1997. See Commonwealth
Commonweal th v. v. Alcorn , 703 A.2d 1054,
1056- 1057 (Pa (Pa.Super.1997)
,Super, 1997) (explaining application of PCRA tlmetlnesstim eliness
proviso) ," ."
4
Circulated 01/23/2015 01:04 PM
(ii) Ihe facls
lac Is upon which Ihe claim is predicated
predicaled were unknown 1 10
0 Ihe
petifioner ascerta ined by the exercise of
pe titioner and could not have been ascertained oj due diligence ;
or
(iii) the right asse
asserted
rted is a constitutional
constttutional right that
tha t was recogntzed
recog ntzed by the
S upre
upreme
me Court of of the United States or the Supreme Court of of Pennsylvania afte
afterr
Ihe lime period provided in Ihis secl on and has been held by that court to appty
sectiion apply
re troactive ly.
retroactively.
(2) Any petition
petilion invoking an exception prov ided in paragraph
provided paragra ph (1) sha
sh allll be
filed within 60 days 01
of Ihe
th e date
dale the
th e claim could
cou ld have been presented
presenled .
subchapler, a judgment becomes final at the
01 this subchapter.
(3) For purposes of
conclusion of direct revie w, including discretionary
review, discre tionary review in the Supreme Court
of the United Stales
States and the Supreme Court of Pennsylvania,
Pennsylvania , or a
alt the expi ra tion
expiration
01 tim e for
of time review .
fo r seeking the review.
.C,S.§9545(b)( 1)-(3) (emphaSIS
42 Pa .C.S.§9545(b)( (emphasIs added)
added)..
The
T he timeliness requirement under 42 Pa.C.S.
Pa .C.S. §9S4S(b)(1)
§9S45(b)( 1) is lurisdiclional
jurisdictional in
na lure , and
nalure, if th
a nd , if thee petition
pe tition is fac ia lly untime
facially ly, the court
untimely, co urt lacks jurisdic tion over
jurisdiction ove r th
thee
petition
pe tition unless the
th e petitioner
pe tit ioner is able to plead and prove thai
tha i his cla
claIms fallU under one of
im s fa
the three e)(ceptions
exceptions se t fo above . See Commonwea
rth above.
forth lth v. Taylor, 933 A.2d
Commonwealth
1035,1038
1035, 1038 (Pa
(Pa.. Super.
Supe r. 2007) ("Pennsylvania law makes clea
clearr no co
court
url has jurisdiction
l urisdlc tion
10
1 petition."). "If the petition is delermined
0 hear an untimely PCRA pelition."). determined 10
to be untimely,
untimely, and
no exception
excep tion has been pled a
and prove n,, the petition must
nd proven must be dismissed
dIsmissed without
withou t a
hea rin g because
hearing beca use Pennsylva nia co urt s a
Pennsylvania re without
are jurisdiction to cons
wi thout jurisdiction conS Ide
id e r til
tt1 e meri ts of
merits
petition." Commonwealth v. Perrin,
Ihe petilion." Pe rrin, 947 A.2d 1284,
1284, 1285
t285 (Pa.
(Pa . Super. 2008) .
Pe tit Ioner was sentenced in
Petitioner In 197 1, and his petition was filed
1971, fil ed on Augu
August
st 6,
6 , 201 2.
Although the record is unclear as to th
the exac t date thai his co nviction
e exact nVIction beca me final a fte
became fterr
direc
directt review, Pe tition er cla
Petitioner claims
im s that his judgment was affirm ed in 1971, and
affirmed a nd It IS
IS
reasonable
rea 0 conc lude tha
sonabl e 1to thatt direct review would
wou ld have concluded long before
be fore August
Augus l 6 ,
5
Circulated 01/23/2015 01:04 PM
9
2011
20 11 . 9 Thus, the Petitioner could not prove tha
thatt hi
hiss petition was filed within one (1)
( 1) year
of
of the date that his judgment
Judgment became final
final,, thereby
th ereby making his petition
pelilton facially untimely
unlimely
C.S.
under 42 Pa .C §9545(b)(1).
.S. §9S4S(b)( 1).
NOlwithslandlng the
Notwithstanding Ihe fa
faCia nature of the petition,
cia lly untimely nalure petition , Ihe
th e Petitioner
Pelitloner seeks to
10
argue that
tha t his claim under Miller v. Alabama ,, supra,
hiS claim supra, is
IS cog ni zable under the third
cognizable th ird
exception to the timeliness
tim eliness requirement , which permits an Individual
individual seeking relief
retroactive , constitutional rule of law, to file a petition Within
pursuant to a new, and retroactive, with in 60
days of the dale Ihat
Ihat the claim cou
could presented See 42 Pa
firsl been presenfed.
ld have first Pa.C.S.
.C .S.
§§9545(b)(1)(ili)
§§9S4S(b)(1 Pelilioner asserls
)(ili) and (b)(2). Petitioner asserts that
Ihal his pelition
petition was timely
tim ely in th
Ihis
is regard,
as Miller
Milier was decided on June 2S
25,, 20 12,, and his
2012 hiS petition
pelition was filed on August
Augusl 6,
6. 20 12 .
However,
However, Pelitioner's
Petitioner's ability to meel
meet the 60-day
60·day filing deadline under 42
Pa.C.S .§9S4S(b)( 2) is irrelevanl,
§9545(b)(2) irrelevant, because,
because , even if Miller announced a new consiliulional
cons tituti onal
rule o
off law,
law, Petitioner has fa
failed to prove Iha
iled 10 Ihatl ilit applies retroactively to hiS case.
case .
Cunningham, supra, the Pennsylvania Supreme Courl expressly held Ihal
In Cunningham. that Ihe
th e
ruling in Miller did not apply retroactively to cases on collateral reView,
retroac tive ly 10 Casess following
review. Case
Cunningham its ruling . For example, the Pennsylvania Superior Court
C unningham have reaHirmed lis
in Commonwealth v. Lawson
Lawson,, 90 A.3d
A,3d 1,
I , 6 (Pa
(Pa.. Super. 20 14) and Commonwealth v.
Seskey,
Seskey, 86 A.3d
A,3d 237.
237, 242·43
242-43 (Pa . Super. 20 14) found Ihal
2014) Cunnin9ham direclly
that Cunningham
foreclosed any argumenl
argument that
thai a Miller claim was cognizab le under 42
cognizable
Pa.C .S.§9S4S(b)(1
Pa.C.S )(iii).. In so holding, the
§9545(b)( 1)(iii) Ihe Court offered Ihe
the following analysis of Ihe
th e
statu
statute:
te:
9"
9 11 is unlikely Ihal
th ai ilit wo uld lake over forty (40) years to resolve hiS
would his direci
direct appeal.
6
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Subsection (iii) of Section 9S4S[(b)(1)]
954S[(b)(1)J has Iwo
two requiremenls.
require ments. Firsl
Firs t , il
it
provide s Ihallhe
provides that the righl
right asserted is a conslilulional
constitutional righllhal
right that was recognized by
Ihe
the Supreme Court of Ihe United Siales
the Uniled States or [the
[Ihe Supreme Court o off Pennsylvania]
PennsytvaniaJ
after the time
tim e provided in th section , Second, ifit provides that
is section,
this mat the right 'has been
'thatt court ' to apply re troactively. Thu s, a petilioner
held' by 'tha petitione r musl
must prove Ihal
th a i Ihere
there
Is
is a 'new' constitutional
consiliutional righl
right and Iha
tha li the
lhe nghl
fight "has been held" by Ihal
that court 1to0
apply retroac
relroaclively, Thee language "has been held" is ,n
tively. Th in Ihe
th e pasllense
pasl le nse . These
words mean that "thatt court" has
i.e., "tha
thaI the action has already occurred, Le., l7as already
held
hetd the new consl1lutionat
conSl/tut/onal right to be retroactive to cases on collateral
collaterat review.
review.
By employing the pastpasl le
te nse in writing this prOvision,
provision , the legislature clearly
clea rly
in tend ed that the right was already recognized at tl7e
intended 117e time the pellfion was filed.
Seskey, supra, at 242-243 (emphasis added). Wilh
Wi th respect to Ihe
respec t 10 the meaning ol
ollhe
th e
"he ld by thai
phrase "held that court":
[O]ur
[O)ur Supreme Court explained Ihal, subseclion (iii), Ihe
that, for purposes of subsection th e
language "has been held by Ihal to apply relroaclively"
that court 10 re troactively" means 'he
the court
announcing
a nnouncing the rule must have also ruled on the retroactivity of the new
constitutional oght,
figh t, before
be fo re the pelitioner
petitioner can assert retroactive application o( o ( the
righ t in a PCRA petition.
petition.
Taylor,
Taylor, supra, at 1042 (citing
(Ci ting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 50
5011 (Pa .
2002)).
2002».
Not only did Ihe
the Uniled
United Siaies
Slates Supreme Court slay
stay sile nt as 10 Ihe
silent th e Issue o f
troactivity
re troa Miller, it
ctivi ty in Miller, if declined to review the issue
Issue on June 9,
9, 2014, after
a ft er being
presented with the opportunity 1o
to revlsil
revisit lhe
the maNer, re'verse the holding in Cunningham
matter, reverse Cunningham,,
retroactive
and declare Miller re troa ctive ., See Cunningham v. Pennsylvania, S .Ct. 2724 (June
Pennsylvania, 134 S,C!.
9,2014)
9,20 14) (denying petition for writ of certioraff) .'o Th e Court's
.10 The Court 's silence as to th e matter
prevenls
prevents Pelilioner
Petitioner Irom relying on 42 Pa .C.S.§9545(b)(1 )(iii) as a vehicle
ve h icle 10 challenge
the legality of his sentence.
ttle beca use the Petitioner
sen tence. Acco rd ingly, because Pe ti tione r canno
ca nno t SllOW tha t his
show Ihat
pelilion
peti tion was lfiled
iled within one ( 1) year of Ihe dale Ihal
the date thai his conviction
convlcllon became final
frnal , and
10 See also hltp:/Iwww
hlJp:llwww .supremecourLgov/orders/courlorders/060914zor_pQm
,supremecourt.gov/orders/courtorders!060914zor_pqm l.pdf
I .pdf (tast
(last visited
Visited on
November 7,7 , 2014)
7
21
Z'
Circulated 01/23/2015 01:04 PM
he is unable
because he unable to
10 invoke
invo ke any of the
Ihe exceptions under 42
42 Pa.C
Pa C .S.§9545(b)(
,S,§9545(b) ( 1)(i) -
(iii)
(iu),, his peti tion is untimely,
pe ltltOn unlrmely, aand
nd thi
thiss court
cou rt lacks
lacks jUrisdiction to enle rta ln the arguments
10 entertain
ra ised theretn
raised the re,n . Given that the
th e court was bound by Cunningham and 42
Pa,C,S,§9545(b)(1)(lil),
Pa.C.S.§9545(b)(1 ils decision
)(iii), its decIsion to
10 dismiss the
Ihe pe
pelilion should
tition shou td be upheld .
PETITIONER'S
II. THE COURT DID NOT ERR BY DENYING PETITIONER ' S REQUEST TO STAY
DISMISSAL
In his Concise S
Sialemenl, Pelilioner argues that
ta tement, Petitioner Ihallhe
the court erred by denying hiS
his
requesl to
request 10 slay its
lis dismissa l of the
Ihe proceedings and cont
conlends Ihal Ihe court
ends that courl should have
hailed Ihe
th e procee dings unlil
proceedings "I he Pennsylva
until "the nia Supreme Court (throu
Pennsylvania (Ihrough
gh a success ful
successful
motion for reconsideration of [Cunni ngham))
of [Cunningham l) or United Slates
States Supreme Court makes a
linal decision
final deCision regarding the
Ihe issue of retroactivity
relroacl ivily of Miller to
10 Defendant
Defendanl and Similarly
sim ilarly
situated defendan
defendants
ts."
." Concise Statem
Statement
ent , p. 11 .
Ass an initia l matter, the cou
A rt noles
court no tes that
tha i,, in his response
respo nse to the
th e cou rt 's dismissal
court
notice, Peli tioner requested
Peti ltoner requ es ted that the case be stayed pending a deciSion from the
th e United
Unit ed
Siaies
S ta tes Suprem
Supremee Court on whether
whelher it
il would gra
grant cerllorari in Cunningham . While Ihe
nl certiorari the
co urlt may nol
cour not have formally slayed
stayed Ihe proceedings,, ifit did
the proceedings did,, for all praclica
practicall purposes,
purpose s,
ullimalely honor Petitioner's request. Indeed, Petitioner
ultimately filed his
Pe lilione rfiled \0 this court
"is response to cou rt's
's
Notice Inlenlt 10
Nolice of Inten to dismiss on November 26, 20 13; Ihe
26,2013; the Uniled
United Siaies
States Supreme Courl
Court
denied certiorari on
certiorari o n June
Jun e g,
9, 20 4 ; and this court did not dis
20114 dismiss pe tition unlll
m iss the petition until
September t19,20
Seplember 9, 20 14. Accordingly.
Accordingly, Ihe
lhe co url afforded Pelilloner
court Petitioner wllh
wilh preCisely wilal he
precisely what
requested,, which was a stay
requested "pending
sta y "pe nding the outcome
outcom e of finaliza tion (Le"
fin alization (i.e ., a ruling by the
th e
B
Circulated 01/23/2015 01:04 PM
Unlled Sia
Uniled States
ies Supreme Court) of Commonwealth v. Cunningham ."." Pelilioner's
Petilioner's
10 Dismissal Notice,
Response to Notice, p. 2 .
Furthermore, even if Petitioner had reques
Furthermore. ted a stay
requested slay pending a general ruling
from the United Slates Supreme Court on whelher
whe ther Miller applied retroaclively,
retroactively, it would
not have been unreasonable lor
for Ihe
the court to deny such a requesl
request given Ihe
the time
lime thai ilit
could Indeed, ifjf the law reqUires
co uld take for such a ruling to eve r be rendered . Indeed, require s that the
declaralion of retroactivity come from the court thai
Ihal announced the new co
constit utional
nstitutional
declared
rule of law, then the chance of Miller being dec/a retroacllve by the
red retroactive Ihe Pennsylva nia
Pennsylvania
IS highly unlikely. Moreover, given the fac
Supreme Court is factl thai
that Ihe
the United Stales
States
Supreme Court has stayed
slayed silent as to the issue,
Issue, despite being presented
present ed with the
opportunity
opportuni ty to make such a declarat
declaration it CQuid
ion in both Miller and Cunningham , It could be years
before itil revisIted issue,, if it ever did al all.
rev isited the issue aiL
given:: {i}
Thus, given (i) Ihe
the uncertainly regarding when
when,, if ever, such a ruling wou ld eve
everr
rendered, (ii) Ihe
be rendered, the unlikelihood thai
that such a ru
ruling fa vorable 10
ling would be favorable to Ihe
the Petitioner
Petilioner
given the Court's sile nce as to the issue, and (iii) 1I,;s
this court's
cou rt's need to manage its docket
and ensure an effiCient resolution to the matters pending before it.
efficient resolullon it was
it, if wa s well witt11n
within thiS
this
co urt's discre
court's tion to deny the request
discretion reques t to stay the proceedings pendjng
pending a general ruting
ruling
from Ihe
th e United States
Stales Supreme Court on the retroaclivlly issue. See Commonwealth v.
retroactivity Issue.
Renchenskl , 52 A.3d 251,
25 t , 260 (Pa. 2012) (noting thai
that "the
"Ihe PCRA court does have th
Ihee
ability and responsibility to manage its docket and case load and thus ha
abitity hass an essen
essential
tial
role in ensu rrng the Ilmely
ensuring timely resolulion
resolution of PCRA matters.") (ci ti ng Commonwealth v.
(cHing v.
Porter.
Poner, 35 A.3d 4,
4, 24--25
24-25 (Pa.
(Pa . 2012)
20t2) ('Flhe
("fTlhe court,
co un , not counse
counselt,, controls Ihe
the scope,
liming and pace of the below.") ; See also Commonwealth v. Coward,
Ihe proceedings below."); Coward , 335,
9
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414 A.2d 91, 95 (Pa. 1980) ("A court's discrelion in handling liS own dockel has long
been recogniz
recognized.").
ed.") .
In any even t, the court
cou rt notes that , if the United Sta les Supreme Court ever
Sla tes eve r
declares that Miller
MirIer is retroactive to cases on collate
collateral
ral review
review,, th en the Petitioner
presumably would be able to lile petition under 42 Pa.C.S.§9545(b) relYing
file a successive pelition
on such a case
case,, assuming he did so wilhin
within Ihe
the 50-day filing deadline .
GO-day liling
III. THE COURT'S LACK OF JURISDICTION OVER THE PETITION FORECLOSED
ITS ABILITY TO CONSIDER CLAIMS UNDER ARTICLE I, SECTIONS 13 AND 14 OF
THE PENNSYLVANIA CONSTITUTION
In his Concise S tatemen
ta tem en t, Petitioner contends thai he should have been given
give n
leave 10 file a second ame nded PCRA pelilion
petition in order
orde r 1to
0 raise sla
sta le
te habeas corpus
claims purs ua nt 1
pursuant to " Section 14, in order to a
0 Article 1, argue
rgue Ihal
thai his sentence violated the
th e
ban on cruel punishment set forth in Article 1, Section 13 of ttle Pennsylvania
Penn sylvania
Constitution . Contrary to Petitioner's claims,
claims , the court did nol err in
10 denying
d enying his request
to file a second amended PCRA pelition
10 pelilion to raise such clai
claims.
ms .
In SeskeY,supra,
SeskeY,supra, Ihe
the Pelitioner,
Petitioner, who
w ho was a juvenile al
a t the time o
01f his offense,
liled
fi led a PCRA petition , arguing,
arguing. among oth
olher
er tIlings:
things: (t)
(1) Ihal
that his mandalory
mandatory senlence
sen tence of
life
lile without
wilhout parole viola led Article 1, Sec lion
tion 13 of Ihe
the Pennsylvania Constitution; (2) thai
Miller should
sl10uld be applied retroaclively
retroactively pursuanl to Article 1t Section 13 of
01 Ihe
th e Cons
Conslltulion,
titution,
notwithstanding Ihe
the Court's ruling in Cunningham;
Cunningham ; and (3) Ihaillis
thaillis claims should be
reviewed under "Pennsylvania's constitutional guarantee
co nstitut ional gua off Habeas
rantee o Ha beas Corpus,"
Corpus." Id . at 2
241.
41.
co urt found that Itit lacked junsdiction
The court jurisdiction over the petition
petil ion because the petition was
untimely and Ihallhe
unlrmely that the pelition
pelillon did not meet
meel any ollhe
of the three exceptions sellorth
se t forth In
in 42
Pa .C.S.§9545(b)(
.C.S.§9S45(b)(11)(iii)
)(ili) ,
10
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In making thai
tha t finding
finding,, th e court in Seskey noted the followIng:
Throug
Througho
houtut his brief, Appellant a ttempts to circumvent the effect tha t
Cunnmgham has upon our jurisdiction by arguing, inter alia: alia. that
thaI he is enl/tled
entitled to
ArtIcle tt,, § 13 of the Pennsylvania Constitution ("Excessive bail
relief under Article
retief bait shall
no t be required
nol required,, nO/
nor excessive fines imposed
imposed,, nor cruel
cruel punishm
punishment ents s inflic
in fl ic ted ,"),
independen tly of Ihe
th e Eighth Appellanl 10-
Eighlh Amendment, Brief for Appellant 10- 13;
13 ; Ihal
Ihat Miller
should be applied retroa
retroacttvely
cttve ly based upon Pennsylvania's
Pennsyl va nia's broader retroactivity
retroac ti vIty
principles, Brief for Appellanl al 19-26
pnnciples, 19- 26;; and Ihal the
tha tlh e inequilable
inequitable resull Ihal
Iha t M iller
Miller
crea ted viola
vio la tes Pennsylvania's due process and equal prot ec tion prin
principles
ciples .
Brief for Appe llant al 27-30. While th ese argum ents
llanl at enls someday may require
requite
consideration by our courts,
conSideration courts, today cacannot
nnot be that day. Before a cou rt may
address Appellant's
Appellant' s argument
a rgumen ts,s, or simila r co
connttentions
entions , th at court
co urt mu st have
Jurisdiction. We cannot
ca nnol manufacture jurisdiction based upon the substantive
raIsed by the parties. Presenlly,
claims raised Presently we are confined by the express terms
I lerms of
subseclion 9545(b)(I
subsection 9545(bj(lj(iiij
)(iiiJ and our Supreme Court's decision in Cunningham.
Combined,
Combined , those two elements re require
quire us to co nclude thai we lack jurisdic tion.
ncl ude that tion .
No substantive claim can overcome this conclusion.
al 243.
Seske y, supra, at 243 . Acco rdingly, because Ihis courllacked
thi s court lacked jurisdiction ove
overr Ihe
th e
pe tition, it
unlimely petition, th e substantive
It was unable to consider any of the substanti ve cla
claims
ims presen ted
therein. Give n that the
lhe court would
wou ld have been unable 1
to
0 e ntertain any of
of th e argumen ts
th att Pe
tha Petitioner
titioner soughlto
sought to raise in a second amended petiti
petillOn,
on. the co urt did not err in
denying his request for leave
lea ve to file such a petition.
pelition.
Furthermore, although Pelitioner
Pefitioner reques ted Ihat
requesled that th
thee court re-characterize
re-characleri ze his
11is
pe tition as a slale
slate habeas corpus peti
petition
tion,, "[i]t well-sellied Ihallhe
"[iJI is well-sellled Ihatthe PCRA is
IS intended
inlended
to be Ihe
th e sale means of achieving post-convic
pos t-conviction
tion relief" and
a nd "a defendant ca
canno
nnott
time-bar by lithng
escape the PCRA lIme-bar titling his petition writ of habeas corpus."
pelition or motion as a wril corpus ."
Commonwealtll v. Taylor, 65 A.3d 462,
Commonwealth 462, 465-66 (Pa. Super.
Super. 20 13 ). Pelitioner
Pe titioner cclearly
learly
seeks to challenge
cha llenge the legality of his sentence.
sen tence, and claim
claimss "that are cognizable under
Ihe
th e PCRA must be raised in a ltimely
imely PCRA pelition
petition and can not be raised in a habeas
11
Circulated 01/23/2015 01:04 PM
co rpu pelltion." lit
rpuss petItion." Accordingly. because Petitioner's claims were cognizable under
.!.Q.,. Accordingly,
th e PCRA,
PCRA. this cou
court
rt did not err in denying his
hi s requesllo amend Ihe
the PCRA
PC RA petition so
that Petitioner could re-charac
Ihat pe tition . See
fe-charac terize his petition as a habeas corpus petilion
Taylor, supra,
Taylor, supra, al 466 ("Beca use Appellant's claims may be addressed under Ihe
the PCRA
PC RA
see 42 Pa
Pa,C S. § 9543(a)(2)(i) (providing
.C.,S, that
thai PCRA relief IS
is available for convic tion
co nvic lio nss
resulting from constitutional viola
vIola tions),
tions) , the
th e PCRA court
cou rt properly dismissed Appellant's
Appellant 's
habeas
ha corpus
beas co rpu s pelition as an
an unlimely petitio n."),
untimely PCRA petition.").
IV ., CONCLUSION
CON CLUSION
ThIS
Thi s cou rt did not err in dismi
dismissing
ssing th e PCRA pelition because the pe lition
tit ion was
facia
facially
ll y un
untIm
tim ely,
ely, and it failed to raise
rai se a claim thai
that fell under any of the exceptions
excepti ons 1
to
0 the
slatu to ry ltime
statutory ime ·bar.
-bar, The co urt did not err in
In denying Petitioners to file a second
Petitioner's req uest 10
amended PCRA
PC RA pelilion because Ihe
the court lacked jurisdiclion 0 consider any
jurisdiction 1to
substan ti ve argum
sub stantive ents in the petition. Moreover,
a rguments th e PC RA pe
Moreover, the tilion could nol
petilion not be re-
re ·
charac te rized as a habeas corpus pelilion
characterized petition since Petitioner's
Petitione r's claims were cognizable
cognIzable
underr th e PCRA stat ut
unde Llt e. Accordingly,
Acco rdingly, the court 's decision to dismISS
court's dismiss the
th e amended
PCRA pe tition untimely should be upheld.
tilion as unlimely upheld _
BY THE C0URT:
::-c:"1~¢::'~B~=, J.
Beth
Date
12