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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
NATHANIEL RHODES, JR.
Appellant No. 1912 EDA 2016
Appeal from the PCRA Order dated June 14, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008491-2003
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED JANUARY 31, 2017
Appellant, Nathaniel Rhodes, Jr., appeals from the order dismissing his
sixth petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. We affirm.
The PCRA court summarized the facts and procedural history of this
case as follows:
At the conclusion of a three-day jury trial that commenced on
March 10, 2004, [Appellant] was found guilty of three counts of
Robbery and one count of Receiving Stolen Property. The
charges stemmed from a robbery at a 7-11 convenience store
located at 1503 West Main Street in West Norriton, Montgomery
County [on November 22, 2003, when Appellant was 33 years
old]. On June 21, 2004, this court sentenced [Appellant] to 25
to 50 years in prison under the three-strikes statute, pursuant to
42 Pa.C.S.A. Section 9714(a)(2). [Appellant] appealed a
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*
Retired Senior Judge assigned to the Superior Court.
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number of trial-related issues, and the Superior Court ultimately
affirmed the judgment of sentence. Thereafter, the Supreme
Court of Pennsylvania denied [Appellant]’s request for
discretionary review on October 25, 2005.
[Appellant] subsequently prosecuted a counseled PCRA . . .
petition that sought a new trial based on alleged trial counsel
ineffectiveness. The Superior Court affirmed this court’s denial
of the petition in February 2008. On July 24, 2008, [Appellant]
filed a pro-se federal habeas petition. [Appellant] was appointed
counsel to file an amended petition, which was ultimately
dismissed without a hearing on July 29, 2011. The Third U.S.
Circuit Court of Appeals affirmed the dismissal of the federal
habeas petition on July 25, 2012. [Appellant] filed a writ of
certiorari, which the Supreme Court denied on January 7, 2013.
Meanwhile, [Appellant] filed a second pro-se PCRA on August 15,
2012, claiming he had discovered a Supreme Court case
(Commonwealth v. Shiffler, 879 A.2d 185 (Pa. 2005)) that
warrants resentencing in his case. [Appellant asserted “that his
sentence is illegal because the trial court improperly sentenced
him pursuant to the three strikes provision, 42 Pa.C.S.A. §
9714(a)(2),1 when he was never sentenced as a second strike
offender.” Commonwealth v. Rhodes, 2013 WL 11248416, at
*3 (Pa. Super. Dec. 11, 2013).] The court appointed Richard J.
Tompkins, Esquire to review [Appellant]’s pro-se Petition to
determine whether there was merit to his argument.
After a conference with PCRA counsel, [Appellant], and the
Commonwealth present, Attorney Tompkins sent a no-merit
letter on January 9, 2013. Accordingly, and after an
independent review of the record, this court sent [Appellant] a
Notice of our intent to dismiss his PCRA Petition without a
hearing. Subsequently, on March 11, 2013, this court denied the
PCRA Petition without a hearing. [Appellant] timely filed a
Notice of Appeal.
On December 11, 2013, the Superior Court affirmed the
dismissal of [Appellant]’s second PCRA Petition without a
hearing. Thereafter, on March 25, 2014, the [Appellant] filed a
“Motion/Petition for Modification of Sentence Nunc Pro Tunc.”
This Court denied said Motion/Petition on April 11, 2014 due to
its untimeliness. [Appellant] appealed this decision by Notice of
Appeal on April 29, 2014. The Superior Court affirmed this
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Court’s dismissal of the Motion/Petition on November 25, 2014.
Thereafter, on February 9, 2015, the [Appellant] filed a fourth,
pro se “Motion for Post Conviction Collateral Relief,” seeking
relief of the grounds of an illegal sentence. On March 3, 2015,
after an independent review of the record and finding no
exception to the time limits pr[e]scribed by the PCRA, this Court
sent the [Appellant] a Notice of its intent to dismiss his PCRA
petition without a hearing. No response to this notice was
received[;] therefore, on April 3, 2015[,] this Court issued a final
order dismissing the petition without a hearing. On April 3,
2015, “Defendant’s Response to Notice of the Intent to Dismiss
Post Conviction Collateral Relief Act Motion Without A Hearing
Pursuant to the Pennsylvania Rule of Criminal Procedure 907”
was docketed. [Appellant] filed a timely notice of appeal, dated
April 28, 2015 and Docketed May 4, 2015.
On September 17, 2015, the [Appellant]’s appeal from the
dismissal of his 4th PCRA petition was dismissed, by per curium
order, for his failure to file a brief. On January 6, 2016, the
[Appellant] filed a Petition for Writ of Habeas Corpus, which this
Court treated as an untimely 5th PCRA Petition. On January 26,
2016, this Court notified the [Appellant], in accordance with Pa.
R. Crim.P. 907(1), of its intention to dismiss his 5th petition
without a hearing. On February 22, 2016, this Court dismissed
the petition. The [Appellant] did not appeal.
On March 4, 2016, the [Appellant] filed the instant PCRA
petition. On April 11, 2016, after an independent review of the
record and finding no exception to the time limits pr[e]scribed by
the PCRA, this Court sent the [Appellant] a Notice of its intent to
dismiss his PCRA petition without a hearing, in accordance with
R. 907(1). The [Appellant] filed a Response to the Notice on
April 22, 2016, which this Court determined raised no issue
entitling the [Appellant] to relief or requiring a hearing; this
Court issued a final dismissal on June 14, 2016. This timely
appeal followed. The [Appellant] has complied with this Court’s
directive to produce a Concise Statement of Errors, pursuant to
Pa.R.A.P. 1925(b).
PCRA Ct. Op., 8/31/16, at 1-3 (footnotes, citations, and indications of
quotations from earlier opinions omitted; some interpolations added).
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In his pro se appeal, Appellant raises the following issue, as stated in
his brief:
WHETHER THE PCRA COURT ERRED AS A MATTER OF LAW
WHEN DISMISSING THE APPELLANT’S POST-CONVICTION
RELIEF ACT PETITION AS UNTIMELY, CONSIDERING THE FACT
THAT THE APPELLANT ASSERTED IN HIS PETITION A NEWLY
RECOGNIZED CONSTITUTIONAL RIGHT ANNOUNCED BY OUR
UNITED STATES SUPREME COURT IN MONTGOMERY V.
LOUISIANA, 136 S. Ct. 718, 193 L. Ed 2d 599 (2016), IN
WHICH OUR HIGHEST COURT HELD THAT THE CONSTITUTION
REQUIRES THAT ALL NEW SUBSTANTIVE RULES OF LAW APPLY
RETROACTIVELY IN STATE COURT COLLATERAL REVIEW
PROCEEDINGS, REGARDLESS OF WHEN THE CONVICTION OR
SENTENCE BECAME FINAL.
Appellant’s Brief at 3.1
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is “to determine whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.
The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record.” Commonwealth v. Barndt, 74 A.3d
185, 191-92 (Pa. Super. 2013) (citations and internal quotation marks
omitted).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
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1
This challenge was raised in Appellant’s PCRA Petition, 3/4/16, at 3.
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of sentence is final, unless the petition alleges and the petitioner proves one
of the three exceptions to the time limitations for filing the petition set forth
in Section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b).2
Here, the PCRA court concluded that it lacked jurisdiction over
Appellant’s sixth petition because the petition was untimely and Appellant
failed to satisfy an exception to the PCRA’s time bar. The PCRA court
explained:
Despite many futile attempts, [Appellant] is again seeking to
attack the legality of his sentence which, although unwaivable, is
still subject to the timeliness provisions of §9545(b)(1). . . .
“The PCRA’s time restrictions are jurisdictional in nature. Thus,
if a PCRA petition is untimely, neither [the Superior] Court nor
the [PCRA] court has jurisdiction over the petition.”
Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super.
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2
The three 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 provided in
this section and has been held by that court to apply
retroactively.
42 Pa.C.S. § 9545(b)(1).
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2013) (citing Commonwealth v. Chester, 895 A.2d 520, 522
(Pa. Super. 2006)). Moreover, without jurisdiction, there is no
legal authority to address the substantive claims. Id.
“Pursuant to § 9545(3), the one-year period in which to file a
petition under the PCRA begins to run upon the conclusion of
direct review.” Commonwealth v. Banks, 726 A.2d 374, 375
(Pa. 1999). The Defendant was sentenced over 12 years ago on
June 21, 2004. The Superior Court affirmed his judgment of
sentence on May 2, 2004 and the Pennsylvania Supreme Court
denied discretionary review on October 25, 2005. Thus, the
[Appellant]’s sentence became final on January 23, 2006, after
he declined to file a writ of certiorari to the Supreme Court.
Thereafter, he had until January 23, 2007 to file any petition
under the PCRA per 42 Pa.C.S.A. §9545(b). As described in
length in the Court’s previous Opinions and the Superior Court’s
affirmance decisions, the Defendant’s attack on the legality of
his sentence is patently untimely and does not fall within any of
the exceptions provided by the Post-Conviction Relief Act.
PCRA Ct. Op., 8/31/16, at 4-5.
We agree that Appellant fails to meet any exceptions to the PCRA’s
jurisdictional time-bar. Appellant did not file the instant petition until
January 26, 2016, more than a decade after his judgment of sentence
became final. Appellant attempts to circumvent the time-bar by asserting
the “new constitutional right” exception under subsection 9545(b)(1)(iii).
Appellant’s Brief at 10. Specifically, Appellant claims that:
Our United States Supreme Court’s holding in Montgomery v.
Louisiana recognizes a new constitutional right -- that the
Constitution requires new substantive rules to apply retroactively
in state collateral review proceedings regardless of when the
defendant’s conviction or sentence became final -- applies to the
appellant’s case through Commonwealth v. Armstrong, [107
A.3d 735 (Pa. 2014),] which prohibits a certain category of
punishment for a class of defendant[s] that the appellant
belongs to (defendant[s] who have never received a second-
strike sentence pursuant to 42 Pa.C.S.A. Section 9714(a)(1) are
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prohibited from receiving a third-strike sentence pursuant to 42
Pa.C.S.A. Section 9714(a)(2)), making this holding a
constitutional ruling that was asserted by the appellant in his
PCRA petition. Therefore, the appellant has met the time
limitation exception found in 42 Pa.C.S.A. Section
9545(b)(1)(iii).
Appellant’s Brief at 18-19.
Initially, we observe the United States Supreme Court in Montgomery
held that Miller v. Alabama, 132 S. Ct. 2455 (2012), applies retroactively;
Miller held “that mandatory life without parole for those under the age of 18
at the time of their crimes violates the Eighth Amendment’s prohibition on
‘cruel and unusual punishments.’” Id. at 2460. Petitioners, such as
Appellant,3 who were at least 18 years old at the time of their crimes “are
not within the ambit of the Miller decision [and its corollary, Montgomery,]
and therefore may not rely on that decision to bring themselves within the
time-bar exception in Section 9545(b)(1)(iii).” Commonwealth v.
Furgess, 149 A.3d 90 (Pa. Super. 2016). Moreover, Appellant was not
sentenced to life without the possibility of parole. Hence, Miller and
Montgomery are inapplicable to Appellant.
Further, Appellant cannot shoehorn his three-strikes claim, which was
raised in his second PCRA petition and rejected by a prior panel of this
Court, into the Miller/Montgomery framework, which addresses the
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3
Appellant was born in October 1970, and thus was 33 years old when he
committed the robbery at issue in November 2003.
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constitutionality of mandatory sentences of life without parole for juvenile
offenders. Contrary to Appellant’s argument, Montgomery did not hold
that all new constitutional decisions apply retroactively to cases on collateral
review. Neither Miller nor Montgomery addressed whether a court could
impose a third-strike sentence on a defendant, such as Appellant, who
allegedly has not received a second-strike sentence. Having discerned no
abuse of discretion or error of law, we affirm the order below.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2017
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