J-S26037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GREGORY SCOTT SOURBEER
Appellant No. 1514 MDA 2014
Appeal from the PCRA Order August 11, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-933-1976
BEFORE: OTT, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MAY 08, 2015
Appellant Gregory Sourbeer appeals from the order of the Lancaster
County Court of Common Pleas dismissing as untimely his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et
seq. We affirm.
On October 6, 1976, a jury convicted Appellant, who was fourteen at
the time of the crime, of first-degree murder1 following the death of his
mother. On October 28, 1977, the court sentenced Appellant to life
imprisonment without the possibility of parole. On November 15, 1977,
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1
18 Pa.C.S. § 2502(a).
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Appellant filed a notice appeal to the Supreme Court of Pennsylvania, which
affirmed the judgment of sentence on February 1, 1980.2
On August 2, 2012, Appellant filed a pro se PCRA petition, alleging his
sentence was unconstitutional pursuant to Miller v. Alabama, 132 S.Ct.
2455 (U.S.2012). The PCRA court appointed counsel, who filed an amended
petition on August 20, 2012. The PCRA court held the petition in abeyance
pending the decision of the Supreme Court of the United States as to
whether it would grant a writ of certiorari in Commonwealth v.
Cunningham, 81 A.3d 1 (Pa.2013). On June 19, 2014, the Commonwealth
filed a supplemental answer to the amended petition, informing the court the
Supreme Court of the United States denied the petition for a writ of
certiorari in Cunningham.
On August 11, 2014, the PCRA court denied Appellant’s PCRA petition
as untimely. On September 10, 2014, Appellant filed a timely notice of
appeal. Both Appellant and the trial court complied with Pennsylvania Rule
of Appellate Procedure 1925.
Appellant raises the following issue on appeal:
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
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2
In 1977, the Supreme Court of Pennsylvania had exclusive jurisdiction of
“felonious homicide” convictions. See Com. ex rel. Colcough v. Aytch,
323 A.2d 359, 361 (Pa.Super.1974) (citing 17 P.S. § 211.202(1)); Com. ex
rel. Reyes v. Aytch, 369 A.2d 1325, 1326 n.2 (Pa.Super.1977).
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one year filing requirement under Pennsylvania’s [PCRA]
Statute? 42 [Pa. C.S. §] 9545(b)(1)(iii).
Appellant’s Brief at 2.
Pursuant to Pennsylvania law, no court has jurisdiction to hear an
untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079
(Pa.Super.2010) (citing Commonwealth v. Robinson, 837 A.2d 1157,
1161 (Pa.2003)). The PCRA provides that a petition, “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Monaco, 996 A.2d at
1079; Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). A
judgment is 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 the review.” 42
Pa.C.S. § 9545(b)(3).
Three exceptions to the PCRA’s time-bar exist. The exceptions allow
for limited circumstances under which a court may excuse the late filing of a
PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. The
late filing of a petition will be excused if a petitioner alleges and proves:
(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
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(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). When invoking a time-bar exception, the
petition must “be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
On February 1, 1980, the Supreme Court of Pennsylvania affirmed
Appellant’s judgment of sentence. Appellant’s judgment of sentence
became final when the time to seek review in the Supreme Court of the
United States expired. 42 Pa.C.S. § 9545(b)(3). Therefore, his current
petition, filed on August 2, 2012, more than thirty-two years later, is facially
untimely. See 42 Pa.C.S. § 9545(b)(1).
Appellant claims the new constitutional right exception to the PCRA
time-bar applies because the Supreme Court of the United States recognized
a new constitutional right made retroactive to cases on collateral review in
Miller. Appellant’s Brief at 10-13. We disagree.
In Miller, the Supreme Court of the United States found mandatory
life imprisonment without parole for juvenile offenders unconstitutional. 132
S.Ct. at 2469. On October 30, 2013, the Supreme Court of Pennsylvania
found Miller was not retroactive and did not apply to defendants whose
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judgments of sentence were final prior to the issuance of the Miller
opinion.3 Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa.2013).
Because the Supreme Court of Pennsylvania has found Miller is not
retroactive, it does not apply to Appellant and the trial court did not err in
denying Appellant’s PCRA petition. See Cunningham 81 A.3d at 11.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2015
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3
Appellant filed his August 2, 2012 PCRA petition within 60 days of the
issuance of the Miller opinion on June 25, 2012.
4
The Supreme Court of the United States granted a writ of certiorari in
Montgomery v. Louisiana, ___ U.S. ___, 190 L.Ed.2d 649, 135 S.Ct.781
(U.S.2014), which addresses the retroactivity of Miller v. Alabama, 567
U.S. ––––, 135 S.Ct. 1546, (2012). If the Supreme Court determines Miller
applies retroactively to cases on collateral review, Appellant would have
sixty days from that opinion to file his PCRA petition seeking relief.
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