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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CARL THOMPSON,
Appellant No. 2556 EDA 2014
Appeal from the PCRA Order of August 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0803561-1985
BEFORE: MUNDY, OLSON and MUSMANNO, JJ.:
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 21, 2015
Appellant, Carl Thompson, appeals pro se from an August 12, 2014
order that dismissed as untimely his fifth petition filed pursuant to the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On March 21, 1986, a jury found Appellant guilty of third-degree
murder, aggravated assault, criminal conspiracy, and possession of an
instrument of crime. Thereafter, on July 15, 1986, the trial court sentenced
Appellant to serve life in prison for the murder conviction and concurrent
prison terms for the remaining convictions. This Court affirmed Appellant’s
judgment of sentence on January 19, 1988 and our Supreme Court denied
allocator on September 19, 1988.
Between October 1988 and October 2007, Appellant filed four
unsuccessful petitions for collateral review. Appellant filed the instant
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petition, his fifth, on June 13, 2013. He subsequently filed a supplemental
petition on August 12, 2013. On March 13, 2014, the PCRA court issued
notice of its intent to dismiss Appellant’s petition pursuant to Pa.R.Crim.P.
907. Appellant filed a response on March 24, 2014. The PCRA court
dismissed Appellant’s petition as untimely on August 12, 2014. Appellant
filed a timely notice of appeal on August 27, 2014 and the PCRA court
explained its dismissal order in an opinion issued on December 12, 2014.
On appeal, Appellant challenges the PCRA court’s dismissal of his
petition as time-barred. The following principles govern our review of
Appellant’s claims:
This Court's standard of review regarding an order granting or
denying 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. Ragan, 923 A.2d 1169,
1170 (Pa. 2007). 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). “However, this Court applies a de novo standard of
review to the PCRA court's legal conclusions.” Commonwealth
v. Spotz, 18 A.3d 244, 259 (Pa. 2011).
We must begin by addressing the timeliness of the Petition,
because the PCRA time limitations implicate our jurisdiction and
may not be altered or disregarded in order to address the merits
of a petition. Commonwealth v. Bennett, 930 A.2d 1264,
1267 (Pa. 2007) (stating PCRA time limitations implicate our
jurisdiction and may not be altered or disregarded to address the
merits of the petition); Commonwealth v. Johnson, 803 A.2d
1291, 1294 (Pa. Super. 2002) (holding the Superior Court lacks
jurisdiction to reach merits of an appeal from an untimely PCRA
petition). Under the PCRA, any petition for post-conviction relief,
including a second or subsequent one, must be filed within one
year of the date the judgment of sentence becomes final, unless
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one of the exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii)
applies. That section states, in relevant part:
(b) Time for filing petition.—
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(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
(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). Any petition attempting to
invoke one of these exceptions “shall be filed within 60 days of
the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).
Commonwealth v. Cristina, 114 A.3d 419, 421 (Pa. Super. 2015).
Here, it is undisputed that Appellant’s petition is untimely and that he
needed to plead and prove at least one of the timeliness exceptions set forth
in §§ 9545(b)(1)(i)-(iii). Since Appellant argued that newly-recognized
constitutional rights excuse the untimely nature of his most recent petition,
we focus on whether Appellant can rely on § 9545(b)(1)(iii) to overcome the
PCRA's time restrictions.
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Subsection (iii) of Section 9545[ (b)(1) ] has two requirements.
First, it provides that 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 provided
in this section. Second, it provides that the right “has been
held” by “that court” to apply retroactively. Thus, a petitioner
must prove that there is a “new” constitutional right and that the
right “has been held” by that court to apply retroactively. The
language “has been held” is in the past tense. These words
mean that the action has already occurred, i.e., “that court” has
already held the new constitutional right to be retroactive to
cases on collateral review. By employing the past tense in
writing this provision, the legislature clearly intended that the
right was already recognized at the time the petition was filed.
Cristina, 114 A.3d at 421-422 (citations omitted).
In his original petition, Appellant relied on Miller v. Alabama, 132
S.Ct. 2455 (U.S. 2012) to invoke the timeliness exception found in
§ 9545(b)(1)(iii). In Miller, the United States Supreme Court held that life
imprisonment without the possibility of parole is unconstitutional when
imposed upon juvenile homicide defendants. For the following reasons,
Appellant cannot invoke Miller to satisfy the requirements of
§ 9545(b)(1)(iii). First, although the decision in Miller was filed on June 25,
2012, Appellant did not file the instant petition until June 13, 2013. Hence,
Appellant failed to comply with the 60-day filing requirement found in
§ 9545(b)(2). Second, it is clear that neither the United States Supreme
Court, nor the Pennsylvania Supreme Court, has held that the rule in Miller
applies retroactively. Commonwealth v. Cunningham, 81 A.3d 1 (Pa.
2013), cert. denied, 134 S.Ct. 2724 (U.S. 2014); Cristina, 114 A.3d at 423;
Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014), appeal denied,
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101 A.3d 103 (Pa. 2014). Thus, we agree with the PCRA court that
Appellant cannot rely on Miller to establish the exception set forth in
§ 9545(b)(1)(iii).
Appellant’s supplemental petition alleges that the United States
Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151
(U.S. 2013) announced a newly-recognized constitutional right that allows
him to invoke the timeliness exception found at § 9545(b)(1)(iii). Alleyne
held that “any fact that increases the mandatory minimum is an element [of
the crime] that must be submitted to the jury.” Alleyne, 133 S.Ct. at 2155.
However, since neither the United States Supreme Court nor our Supreme
Court has held that Alleyne applies retroactively to cases on collateral
review, Alleyne does not satisfy the newly-recognized constitutional right
exception set forth at § 9545(b)(1)(iii). Commonwealth v. Miller, 102
A.3d 988, 995 (Pa. Super. 2014) (“This Court has recognized that a new rule
of constitutional law is applied retroactively to cases on collateral review only
if the United States Supreme Court or our Supreme Court specifically holds it
to be retroactively applicable to those cases.”).
For each of the foregoing reasons, we conclude that the PCRA court
correctly dismissed Appellant’s fifth petition as untimely. Accordingly, we
affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2015
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