J-S73035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CORY JOHN ALTMAN
Appellant No. 490 WDA 2016
Appeal from the PCRA Order March 1, 2016
In the Court of Common Pleas of Warren County
Criminal Division at No(s): CP-62-CR-0000053-2009
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED OCTOBER 04, 2016
Cory Altman appeals from an order dismissing his petition under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We affirm.
In 2008, Altman, then 28 years old, conspired with his sister, Susan
Yeager, to murder Yeager’s husband, Shawn Yeager, and make his death
appear to be a hunting accident. On December 5, 2008, Shawn Yeager’s
two sons returned home to find Shawn Yeager dead, lying on the porch of
his residence. When the police investigated, several witnesses revealed that
Susan Yeager had discussed a number of times, with numerous people, over
a period of several years that “she would be better off if her husband were
dead.” Upon questioning, Susan Yeager confessed that she had solicited
Altman and two others to commit the crime. On December 8, 2008, Altman
confessed that he had killed Shawn Yeager. On May 14, 2009, a jury
J-S73035-16
convicted Altman of, inter alia, first degree murder and cruelty to animals.1
On June 16, 2009, the trial court sentenced Altman to life imprisonment
without the possibility of parole.
Altman filed timely post-sentence motions, which the trial court
denied. Altman filed a timely direct appeal, but on December 2, 2009, he
filed a praecipe to discontinue this appeal.
In 2010, Altman filed a timely PCRA petition. The PCRA court denied
the petition after a hearing, and this Court affirmed at 1687 WDA 2010. In
2013, Altman filed a second PCRA petition. The PCRA court dismissed the
petition without a hearing, and this Court affirmed at 785 WDA 2013.
On December 26, 2014, Altman filed his third PCRA petition, the
petition presently under review. The PCRA court appointed counsel, who
filed a Turner/Finley2 letter stating that Altman failed to state any basis for
relief and a motion seeking leave to withdraw as counsel. The court issued a
notice of intent to dismiss the petition without a hearing and granted
counsel’s motion to withdraw. Altman filed a pro se response to the notice
of intent to dismiss.
____________________________________________
1
18 Pa.C.S. §§ 2502 and 5511, respectively.
2
See Commonwealth v. Turner, 544 A.2d 927 (Pa.1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
-2-
J-S73035-16
On March 1, 2016, the court entered an order dismissing Altman’s
petition. On March 31, 2016, Altman filed a timely notice of appeal. Both
Altman and the PCRA court complied with Pa.R.A.P. 1925.
In this appeal, Altman raises a single issue, which we have
paraphrased for ease of disposition: whether his sentence is unconstitutional
under Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super.2014), and
Miller v. Alabama, -- U.S. --, 133 S.Ct. 2151 (2013).
Before we address the merits of Altman’s claims, we must determine
whether the PCRA court had jurisdiction to review his petition. We conclude
that the PCRA court lacked jurisdiction to review Altman’s challenge to the
legality of his sentence under the PCRA’s one-year statute of limitations, 42
Pa.C.S. § 9545(b).
Section 9545 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 Commonwealth v.
Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). 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)). 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).
-3-
J-S73035-16
Three exceptions to the PCRA’s time-bar provide for very 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
(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). A petition invoking an exception to the
PCRA time bar must “be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
Altman’s judgment of sentence became final on December 2, 2009,
the date he discontinued his direct appeal to the Superior Court. The statute
of limitations for filing a PCRA petition expired on December 2, 2010. The
present PCRA petition, which Altman filed on December 26, 2014, is
untimely on its face.
None of the exceptions in section 9545(b)(i-iii) apply to this case.
Altman does not allege that the government interference or newly acquired
evidence exceptions in section 9545(b)(i-ii) apply to his case.
-4-
J-S73035-16
With regard to subsection (iii), Altman alleges that his sentence is
unconstitutional under Valentine, in which this Court held that the
defendant’s mandatory minimum sentence under 42 Pa.C.S. § 9712.1 for
committing a robbery with a firearm was unconstitutional under Alleyne v.
United States, -- U.S. --, 133 S.Ct. 2151 (2013). Subsection (iii) only
permits relief when our Supreme Court or the United States Supreme Court
recognizes a constitutional right and applies that right retroactively. Our
Supreme Court has held that Alleyne does not apply retroactively to cases
pending on collateral review, such as the present case. Commonwealth v.
Washington, -- A.3d --, 2016 WL 3909088 (Pa., 7/15/16). Moreover,
Valentine, as a decision from this Court, cannot afford retroactive relief to
PCRA petitioners such as Altman.
Nor can Altman obtain relief under Miller v. Alabama. Miller held
that mandatory sentences of life without parole violated the Eighth
Amendment of the United States Constitution when imposed upon juvenile
homicide defendants. Earlier this year, the United States Supreme Court
held in Montgomery v. Louisiana, -- U.S. --, 135 S.Ct. 1546 (2016), that
Miller applies retroactively to cases pending on collateral review wherein the
judgment of sentence has already become final. Altman, however, was 28
years old at the time of his crime, so Miller does not entitle him to
retroactive relief. See Commonwealth v. Cintora, 69 A.3d 759, 764
(Pa.Super.2013) (argument that Miller should be extended to persons over
-5-
J-S73035-16
the age of 18 whose brains were immature at time of their offenses did not
bring PCRA petition within exception to time bar for petitions asserting
newly-recognized constitutional rights).
For these reasons, the PCRA court and this Court lack jurisdiction over
Altman’s third PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2016
-6-