J-A21025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRYANT A. FOREMAN
Appellant No. 2622 EDA 2014
Appeal from the PCRA Order July 8, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001289-2003
CP-23-CR-0004594-2001
BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JULY 17, 2015
Appellant, Bryant A. Foreman, appeals pro se from the July 8, 2014
order dismissing, as untimely, his third petition for relief filed pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1 After
careful review, we affirm.2
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*
Former Justice specially assigned to the Superior Court.
1
The PCRA court appointed counsel for Appellant, who later withdrew
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and
their progeny. Appellant does not challenge said withdrawal on appeal.
2
On June 22, 2015, Appellant filed an application for relief to liberally
construe the Rule of Appellate Procedure and excuse his failure to specifically
comply with Rule 2132(b). Appellant’s motion is granted.
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On August 5, 2003, the trial court imposed an aggregate sentence of
life imprisonment without the possibility of parole after Appellant was found
guilty of first-degree murder3 and related offenses committed when he was
17 years-old. This Court affirmed Appellant’s judgment of sentence on June
23, 2004. Commonwealth v. Foreman, 2647 EDA 2003 (Pa. Super. 2004)
(unpublished memorandum), appeal denied, 867 A.2d 522 (Pa. 2005). Our
Supreme Court denied Appellant’s petition for allowance of appeal on
January 12, 2005. Id. As Appellant did not seek a writ of certiorari from
the United States Supreme Court, his judgment of sentence became final on
April 12, 2005, when the filing period for a certiorari petition expired. See
42 Pa.C.S.A. § 9545(b)(3) (stating, “a judgment 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, or at the
expiration of time for seeking the review[]”); U.S. Sup. Ct. R. 13(1) (stating,
“[a] petition for a writ of certiorari seeking review of a judgment of a lower
state court that is subject to discretionary review by the state court of last
resort is timely when it is filed with the Clerk within 90 days after entry of
the order denying discretionary review[]”). Therefore, Appellant had until
____________________________________________
3
18 Pa.C.S.A. § 2502(a).
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April 12, 2006 to timely file a PCRA petition. 4 See 42 Pa.C.S.A.
§ 9545(b)(1) (stating, “[a]ny petition under this subchapter, including a
second or subsequent petition, shall be filed within one year of the date the
judgment becomes final[]”). Appellant filed the instant petition on July 19,
2012. As a result, it was patently untimely.
In the instant appeal, Appellant argues that the United States
Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012)
should be retroactively applied. Appellant’s Brief at 10. However, our
Supreme Court has rejected that argument.5 Commonwealth v.
Cunningham, 81 A.3d 1, 11 (Pa. 2013), cert. denied, Cunningham v.
Pennsylvania, 134 S. Ct. 2724 (2014). To the extent Appellant argues that
this Court should give broader retroactive effect to Miller under Danforth v.
Minnesota, 552 U.S. 264 (2008), this Court lacks the judicial power to
decide that question for the purposes of the PCRA time-bar. See 42
Pa.C.S.A. § 9545(b)(1)(iii) (allowing a time-bar exception for “a
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4
Appellant timely filed his first PCRA petition on April 25, 2005, which the
PCRA court denied on October 26, 2006. Appellant did not file a notice of
appeal to this Court. Appellant filed his second PCRA petition on June 24,
2010, which the PCRA court dismissed on January 25, 2011 as untimely.
Again, Appellant did not file a notice of appeal.
5
On March 23, 2015, the Supreme Court granted certiorari in Montgomery
v. Louisiana, 135 S. Ct. 1546 (2015), which presents the Miller
retroactivity question. Nonetheless, until the United States Supreme Court
issues its decision, Cunningham remains dispositive of the issue in
Pennsylvania.
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constitutional right that was recognized by the Supreme Court of the United
States or the Supreme Court of Pennsylvania … and has been held by that
court to apply retroactively[]”) (emphasis added).
Appellant also argues that he is entitled to habeas corpus relief outside
of the parameters of the PCRA. Appellant’s Brief at 16. This Court has
explained that claims pertaining to Miller go to the legality of the sentence.
Commonwealth v. Brown, 71 A.3d 1009, 1015-1016 (Pa. Super. 2013),
appeal denied, 77 A.3d 635 (Pa. 2013). Legality of sentence claims are
expressly cognizable under the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(vii);
accord Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004)
(citation omitted). Therefore, because Appellant’s “claim[] [was] cognizable
under the PCRA … the writ of habeas corpus was not available.”
Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 2013) (citation omitted),
cert. denied, Turner v. Pennsylvania, 134 S. Ct. 1771 (2014); see also
42 Pa.C.S.A. § 9542 (stating that the PCRA “shall be the sole means of
obtaining collateral relief and encompasses all other common law and
statutory remedies for the same purpose that exist when this subchapter
takes effect, including habeas corpus and coram nobis[]) (emphasis and
italics added).
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Based on the foregoing, we conclude the PCRA court properly
dismissed Appellant’s PCRA petition as untimely.6 Accordingly, the PCRA
court’s July 8, 2014 order is affirmed.
Order affirmed. Application for relief granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2015
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6
In light of our conclusion, we do not address Appellant’s underlying
argument as to whether his sentence is unconstitutional under Miller.
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Com. v. Foreman, B.
Combined Opinion