J-S38025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FELIX LAMAR,
Appellant No. 2535 EDA 2015
Appeal from the PCRA Order of July 28, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1205341-1995
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.
MEMORANDUM BY OLSON, J.: FILED JULY 05, 2016
Appellant, Felix Lamar, appeals from the order entered on July 28,
2015, dismissing as untimely his fourth petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court summarized the facts and procedural history of this
case as follows:
On November 10, 1997, [Appellant] pleaded guilty to third-
degree murder, criminal conspiracy and possession of an
instrument of crime.[1] On December 15, 1997, [Appellant]
was sentenced to an aggregate term of thirty-five to
seventy years’ imprisonment. [Appellant] did not file a
direct appeal.
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1
18 Pa.C.S.A. §§ 2502(c), 903, and 907, respectively.
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On March 4, 1999, [Appellant] file[d] his first pro se PCRA
petition. Counsel was appointed. The [PCRA] court
subsequently denied his petition. No appeal was taken.
On January 21, 2003, [Appellant] filed his second PCRA
petition. Appointed counsel filed a [] “no-merit” brief and
was permitted to withdraw [pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)]. Relief
was denied on September 19, 2003, and no appeal was
taken.
On August 4, 2004, [Appellant] filed his third PCRA petition.
Counsel was again appointed, and [counsel] filed an
amended petition. The [PCRA] court dismissed his petition
as untimely. The Superior Court affirmed the dismissal on
December 19, 2006. [See Commonwealth v. Lamar, 918
A.2d 787 (Pa. Super. 2006) (unpublished memorandum).]
PCRA Court Opinion, 9/14/2015, at 1-2 (footnotes incorporated).
Appellant filed the current pro se PCRA petition, his fourth, on August
12, 2013. In that petition, Appellant averred that his sentence was illegal
pursuant to the United States Supreme Court decision in Peugh v. United
States, 133 S. Ct. 2072 (2013). Thereafter, on October 15, 2013, Appellant
filed a pro so attachment to the initial PCRA filing, claiming he was entitled
to relief pursuant to the United States Supreme Court decision in Miller v.
Alabama, 132 S. Ct. 2455 (2012). On July 3, 2014, Appellant filed a
memorandum of law in support of his PCRA petition in which he relied upon
the United States Supreme Court decision in Alleyne v. United States, 133
S. Ct. 2151 (2013).
Pursuant to Pennsylvania Rule of Criminal Procedure 907, the PCRA
court served Appellant with notice of the court’s intention to dismiss his
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PCRA petition on June 16, 2015. The PCRA court dismissed his petition as
untimely on July 28, 2015. This timely pro se appeal resulted.2
On appeal, Appellant presents the following issue for our review:
Whether the PCRA court erred by not allowing [Appellant] to
proceed under his amended habeas corpus petition[,]
because he did not have any remedy available under [42
Pa.C.S.A. §] 9545[’s] time limitations [] to challenge his
(unconstitutional) sentence in violation of Alleyne v.
United States?
Appellant’s Brief at 3.
Appellant contends his aggregate aggravated range sentence of 35 to
70 years of imprisonment for third-degree murder, aggravated assault,
burglary, possessing an instrument of crime, and conspiracy “imperatively
required habeas corpus relief” in “the interest of justice.” Id. at 5. While
not entirely clear from his appellate brief, it appears that Appellant argues
the trial court illegally imposed mandatory maximum sentences under 42
Pa.C.S.A. § 9712 for committing the offenses with a firearm. 3 See
Memorandum in Support of PCRA Petition, 7/3/2014, at 3 (arguing, “the
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2
Appellant filed a pro se notice of appeal on August 17, 2015. The PCRA
court issued an opinion pursuant to Pa.R.A.P. 1925(a) on September 14,
2015.
3
We note that the certified record in this case has been reconstructed. The
reconstructed record only contains PCRA filings; there are no direct appeal
documents. Hence, it is difficult to ascertain precisely how the trial court
sentenced Appellant. However, the main thrust of Appellant’s claim is that
the trial court unlawfully imposed mandatory sentences under 42 Pa.C.S.A. §
9712 for committing the offenses of third-degree murder, aggravated
assault, and burglary with a firearm.
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mandatory minimum sentence provided for in 42 Pa.C.S.[A.] § 9712(a) is
unconstitutional.”). Thus, Appellant maintains the United States Supreme
Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013)
entitles him to relief because Alleyne, “renders those Pennsylvania
mandatory minimum sentencing statutes that do not pertain to prior
convictions constitutionally infirm insofar as they permit a judge to
automatically increase a defendant’s sentence based on a preponderance of
the evidence standard.” Appellant’s Brief, at 5-6. Appellant contends that
he presented his claim within 60 days of the date that the Supreme Court
decided Alleyne. Id. at 5.
Initially, we note that Appellant did not raise claims related to Peugh
v. United States, 133 S. Ct. 2072 (2013) and/or Miller v. Alabama, 132
S. Ct. 2455 (2012) in his appellate brief. As Appellant has abandoned these
claims, we conclude they are waived.4 See Commonwealth v. Bullock,
948 A.2d 818, 823 (Pa. Super. 2008) (holding an issue identified on appeal
but not properly developed in an appellate brief is waived).
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4
Moreover, those cases appear inapplicable to Appellant’s case. Peugh
dealt with a violation of the ex post facto clause when a defendant was
sentenced under more punitive guidelines than the guidelines in effect at the
time he committed the offenses. Appellant never alleged that he was
sentenced under inapplicable guidelines or sentencing statutes that were not
in effect. Miller prohibited mandatory life sentences without parole for
juvenile offenders. Here, although Appellant was a juvenile when he
committed a homicide, he did not receive a mandatory life sentence without
the possibility of parole.
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Next,
[w]e agree that Appellant's writ of habeas corpus [was
properly] treated as a PCRA petition. It is well-settled that
the PCRA is intended to be the sole means of achieving
post-conviction relief. Unless the PCRA could not provide
for a potential remedy, the PCRA statute subsumes the writ
of habeas corpus. Issues that are cognizable under the
PCRA must be raised in a timely PCRA petition and cannot
be raised in a habeas corpus petition. Phrased differently, a
defendant cannot escape the PCRA time-bar by titling his
petition or motion as a writ of habeas corpus.
Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa. Super. 2013)
(internal citations omitted). “[A]n issue pertaining to Alleyne goes to the
legality of the sentence.” Commonwealth v. Miller, 102 A.3d 988, 995
(Pa. Super. 2014). The PCRA provides for an action by which persons
serving illegal sentences may obtain collateral relief. See Commonwealth
v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011), citing 42 Pa.C.S.A.
§ 9542. Thus, the PCRA court properly treated Appellant’s filings under the
PCRA.
“As a general proposition, we review a denial of PCRA relief to
determine whether the findings of the PCRA court are supported by the
record and free of legal error.” Commonwealth v. Eichinger, 108 A.3d
821, 830 (Pa. 2014) (bracket omitted). “[A] court may entertain a challenge
to the legality of the sentence so long as the court has jurisdiction to hear
the claim. In the PCRA context, jurisdiction is tied to the filing of a timely
PCRA petition.” Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super.
2007). Stated differently, “although illegal sentencing issues cannot be
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waived, they still must be presented in a timely PCRA petition.” Taylor, 65
A.3d at 465 (citation omitted).
This Court stated:
The timeliness of a PCRA petition is a jurisdictional
threshold and may not be disregarded in order to reach the
merits of the claims raised in a PCRA petition that is
untimely. Effective January 16, 1996, the PCRA was
amended to require a petitioner to file any PCRA petition
within one year of the date the judgment of sentence
becomes final. 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.
* * *
However, an untimely petition may be received when the
petition alleges, and the petitioner proves, that any of the
three limited exceptions to the time for filing the petition
[….] are met.5 A petition invoking one of these exceptions
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5
The exceptions to the timeliness requirement are:
(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
(Footnote Continued Next Page)
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must be filed within sixty days of the date the claim could
first have been presented. In order to be entitled to the
exceptions to the PCRA's one-year filing deadline, the
petitioner must plead and prove specific facts that
demonstrate his claim was raised within the sixty-day time
frame[.]
Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (internal
citations and quotations omitted).
Here, Appellant did not file a direct appeal from his December 15,
1997 judgment of sentence. Thus, his judgment of sentence became final
30 days later, on January 14, 1998, after the time for seeking review with
this Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (providing “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[.]”);
Pa.R.Crim.P. 720(a)(3) (“the defendant's notice of appeal shall be filed
within 30 days of imposition of sentence[.]”). Appellant filed his most
recent PCRA petition on August 12, 2013, over 14 years after his judgment
of sentence became final. Accordingly, the petition was patently untimely.
In arguing that he was entitled to habeas review, Appellant concedes
on appeal “his PCRA petition did not satisfy any exception to [the Section]
9545 time limitations.” Appellant’s Brief at 6. Regardless, Appellant relies
_______________________
(Footnote Continued)
provided in this section and has been held by that court to
apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i-iii).
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primarily upon Alleyne in alleging that his sentence is illegal. However, we
previously determined that Alleyne is not retroactive and cannot serve as
the basis for invoking the timeliness exception found at 42 Pa.C.S.A.
§ 9545(b)(1)(iii). See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.
Super. 2014). Thus, Appellant failed to invoke an exception to the PCRA’s
jurisdictional timeliness requirement. Accordingly, we conclude the PCRA
court lacked jurisdiction and properly dismissed Appellant’s PCRA petition as
untimely.
Finally, on March 23, 2016, Appellant filed a petition under
Pa.R.Crim.P. 1236 to supplement his argument to this Court with the United
States Supreme Court’s January 25, 2016 decision in Montgomery v.
Louisiana, 136 S.Ct. 718 (2016). In Montgomery v. Louisiana, the
United States Supreme Court determined that the Louisiana Supreme Court
improperly refused to give collateral relief and retroactive effect to the
prohibition upon mandatory life sentences without parole for juvenile
offenders as set forth in Miller v. Alabama, supra. We have already
concluded that Appellant abandoned and waived his Miller issue, and that
Miller was otherwise inapplicable to Appellant. See n.3, supra. We
conclude, therefore, that Montgomery v. Louisiana is likewise irrelevant.
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6
Pennsylvania Rule of Criminal Procedure 123 relates to the application for
the assignment of counsel. Ostensibly, Appellant sought relief under
Pennsylvania Rule of Appellate Procedure 123.
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Appellant also claims, for the first time in his application for relief, that trial
counsel was ineffective for failing to investigate psychological evidence and
specific witnesses in negotiating his plea.7 See Application for Relief,
3/23/2016, at 5-8. Accordingly, we deny Appellant’s application for relief.
Order affirmed. Application for relief denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/5/2016
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7
This issue is waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
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Com. v. Lamar, F.
Combined Opinion