J-S11040-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MELISA ANN McMANUS, :
:
Appellant : No. 1415 MDA 2014
Appeal from the PCRA Order entered on July 22, 2014
in the Court of Common Pleas of Lancaster County,
Criminal Division, No. CP-36-CR-0002039-1993
BEFORE: PANELLA, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 20, 2015
Melisa Ann McManus (“McManus”) appeals from the Order dismissing
her Petition for relief pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In 1994, McManus was convicted of murder of the first degree and
criminal conspiracy after the death of her newborn son.1 McManus was 17
years old at the time of the crime. The trial court sentenced McManus to life
in prison without the possibility of parole on the murder conviction, and a
concurrent 5 to 10 years in prison on the conspiracy conviction.
This Court affirmed the judgment of sentence, and the Supreme Court
denied allowance of appeal. See Commonwealth v. McManus, 664 A.2d
1057 (Pa. Super. 1995) (unpublished memorandum), appeal denied, 670
1
See 18 Pa.C.S.A. §§ 2502(a), 903.
J-S11040-15
A.2d 141 (Pa. 1995). McManus did not file a Petition for Writ of certiorari
with the United States Supreme Court.
McManus filed her first PCRA Petition, pro se, in 2010. The PCRA court
appointed McManus counsel, who filed an Amended PCRA Petition. In this
Petition, McManus argued that her sentence was unconstitutional under
Graham v. Florida, 560 U.S. 48 (2010). The PCRA court issued a Notice of
Intent to Dismiss, and dismissed the Petition without a hearing. McManus
filed a timely Notice of Appeal.
While the appeal was pending, McManus filed a PCRA Petition in 2012,
following the United States Supreme Court’s decision in Miller v. Alabama,
132 S. Ct. 2455 (2012).2 The PCRA court denied the Petition because
McManus’s first Petition was still pending before this Court. McManus filed
an Application for Remand of the 2010 PCRA Petition, which this Court
denied. Instead, this Court ordered the case listed for en banc review to
determine the retroactivity of Miller. The Commonwealth filed an
Application for Stay of the appeal from the dismissal of the 2010 PCRA
Petition pending the Supreme Court of Pennsylvania’s decision in
2
In Miller, the Supreme Court held that sentencing schemes which mandate
life in prison without parole for defendants who committed their crimes while
under the age of eighteen violates the Eighth Amendment’s prohibition on
“cruel and unusual punishments.” Miller, 132 S. Ct. at 2460. The Supreme
Court reasoned that, in light of a juvenile’s diminished culpability and
heightened capacity for change, mandatory juvenile sentencing schemes
pose too great a risk of disproportionate punishment, in contravention of the
Eighth Amendment. Id. at 2469.
-2-
J-S11040-15
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), on the
retroactivity of Miller. This Court granted the Application for Stay. In 2013,
the Supreme Court of Pennsylvania held that Miller should not be applied
retroactively to individuals whose judgments of sentence were final prior to
that decision. Cunningham, 81 A.3d at 11. As a result, this Court
remanded the 2010 PCRA Petition to the PCRA court and relinquished
jurisdiction.
In 2014, the Commonwealth filed an Answer to McManus’s PCRA
Petition, and the PCRA court ruled to stay the remanded PCRA action
pending a ruling by the United States Supreme Court on whether to grant
certiorari in Cunningham. On June 9, 2014, the United States Supreme
Court denied certiorari. See Cunningham v. Pennsylvania, 134 S. Ct.
2724 (2014). The PCRA court subsequently dismissed the PCRA Petition.
McManus filed a timely Notice of Appeal and Pennsylvania Rule of Appellate
Procedure 1925(b) Concise Statement of Matters Complained of on Appeal.
On appeal, McManus raises the following question for our review:
“Does Miller [] apply on collateral review to juveniles serving life sentences
for homicide by creating a newly recognized [c]onstitutional [r]ight and an
exception to the one year filing requirement under [] 42 Pa.C.S.A.
[§] 9545(b)(1)(iii)[?]” Brief for Appellant at 2.
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of record. We will not disturb a PCRA court’s
-3-
J-S11040-15
ruling if it is supported by evidence of record and is free of legal
error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
McManus claims that the PCRA court erred in dismissing her Petition,
and that Miller should apply retroactively. Brief for Appellant at 5.
Initially, under the PCRA, any PCRA petition “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment
of sentence becomes final “at the conclusion of direct review, including
discretionary review in the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” Id. § 9545(b)(3). The PCRA’s
timeliness requirements are jurisdictional in nature and a court may not
address the merits of the issues raised if the PCRA petition was not timely
filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Here, McManus’s Petition is facially untimely under the PCRA. See 42
Pa.C.S.A. § 9545(b).
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of three exceptions set forth
under 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.
-4-
J-S11040-15
Here, McManus invokes the newly recognized constitutional right
exception at 42 Pa.C.S.A. § 9545(b)(1)(iii). McManus asserts that her
sentence was unconstitutional under Miller’s prohibition against life
sentences without the possibility of parole for juveniles. Brief for Appellant
at 5; see also Miller, 132 S. Ct. at 2460. McManus argues that the
Cunningham decision should not be applied because it creates disparate
sentences for juveniles who committed substantially the same crimes,
depending on the date on which they committed the crime. Brief for
Appellant at 6.
However, in order to invoke the exception, the deciding court must
apply the right retroactively. Although the United States Supreme Court did
not address the retroactive application of Miller in its holding, the
Pennsylvania Supreme Court ruled that Miller does not apply retroactively
to juveniles in Pennsylvania whose judgments of sentence were final at the
time Miller was decided. Cunningham, 81 A.3d at 11; see also
Commonwealth v. Seskey, 86 A.3d 237, 243 (Pa. Super. 2014) (holding
that this Court is confined by the Cunningham decision).3 Accordingly,
McManus has failed to plead and prove the exception provided in 42
Pa.C.S.A. § 9545(b)(1)(iii) to overcome the untimeliness of her Petition.
3
The United States Supreme Court granted certiorari in Toca v. Louisiana,
135 S. Ct. 781 (Dec. 12, 2014), to determine the retroactivity of Miller.
However, the Supreme Court subsequently dismissed certiorari under United
States Supreme Court Rule 46.1. See Toca v. Louisiana, 2015 U.S. LEXIS
909 (Feb. 3, 2015).
-5-
J-S11040-15
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/2015
-6-