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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ERNEST BENJAMIN, :
:
Appellant : No. 2615 EDA 2015
Appeal from the PCRA Order entered on July 29, 2015
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0332721-1993
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E. and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 08, 2016
Ernest Benjamin (“Benjamin”) appeals, pro se, from the Order denying
his second Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On March 31, 1994, following a non-jury trial, Benjamin was found
guilty of murder in the second degree, robbery, criminal conspiracy,
possession of an instrument of crime, and a violation of the Uniform
Firearms Act. The trial court sentenced Benjamin to life in prison. This
Court affirmed the judgment of sentence in July 1995. See
Commonwealth v. Benjamin, 668 A.2d 1186 (Pa. Super. 1995)
(unpublished memorandum).
On June 15, 2006, Benjamin filed a pro se Petition for Writ of Habeas
Corpus. The PCRA court treated the Petition as a PCRA Petition, and
subsequently dismissed the Petition without a hearing. This Court affirmed
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the dismissal. See Commonwealth v. Benjamin, 6 A.3d 557 (Pa. Super.
2010), appeal denied, 17 A.3d 1250 (Pa. 2011).
On May 15, 2012, Benjamin filed the instant pro se Petition. On
August 15, 2012, Benjamin filed an Amended PCRA Petition. The PCRA court
issued a Pennsylvania Rule of Criminal Procedure 907 Notice of Intent to
Dismiss without an Evidentiary Hearing. Benjamin filed a Response to the
Rule 907 Notice. The PCRA court denied the Petition, after which Benjamin
filed a timely Notice of Appeal.
We review an order d[enying] 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
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).
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 the United States and 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
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raised if the PCRA petition was not timely filed. Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Here, Benjamin’s judgment of sentence became final in August 1995.
Thus, Benjamin had until August 1996 to file a PCRA petition. Because
Benjamin did not file his second PCRA Petition until 2012, his Petition is
facially untimely.
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.
In his brief, Benjamin raises various ineffective assistance of counsel
claims. However, Benjamin did not explicitly raise these claims in his
Amended PCRA Petition. See Commonwealth v. Santiago, 855 A.2d 682,
691 (Pa. 2004) (stating that “a claim not raised in a PCRA petition cannot be
raised for the first time on appeal.”). Nevertheless, even if the claims had
been properly preserved, “allegations of ineffective assistance of counsel will
not overcome the jurisdictional timeliness requirements of the PCRA.”
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).
Additionally, Benjamin claims that the trial judge committed various legal
violations and should have recused herself based upon her conduct at trial.
Again, Benjamin did not raise these claims in his Amended PCRA Petition.
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See Santiago, 855 A.2d at 691. Further, these claims are not cognizable
under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2).
We note that in his Amended PCRA Petition, Benjamin cites the
Supreme Court’s recent decision in Miller v. Alabama, 132 S. Ct. 2455
(2012), and invokes the newly recognized constitutional right exception at
42 Pa.C.S.A. § 9545(b)(1)(iii). In Miller, the United States Supreme Court
held that sentencing schemes that mandate life in prison without parole for
defendants who committed their crimes while under the age of eighteen
violate the Eighth Amendment’s prohibition on “cruel and unusual
punishments.” Miller, 132 S. Ct. at 2460; see also id. at 2469 (reasoning
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). 1
Here, the Supreme Court in Miller set forth a bright-line rule holding
mandatory sentences of life without parole unconstitutional for defendants
under the age of eighteen. Benjamin admits that he was over eighteen
years old at the time he committed the murder; thus, Miller does not apply.
Order affirmed.
1
In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the United States
Supreme Court held that its decision in Miller applies retroactively.
Montgomery, 136 S. Ct. at 736.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2016
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