J-S04041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRUCE B. BUSSEY :
:
Appellant : No. 2443 EDA 2016
Appeal from the PCRA Order June 28, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001185-1974
BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 21, 2017
Appellant Bruce B. Bussey appeals from the order of the Court of
Common Pleas of Bucks County denying Appellant’s second petition pursuant
to the Post Conviction Relief Act (“PCRA”)1 as untimely filed. We affirm.
In September 1974, Appellant was convicted of First-Degree Murder.
After a successful appeal, Appellant was granted a new trial. In December
1979, a jury convicted Appellant of First-Degree Murder, and on July 13,
1982, Appellant was sentenced to life in prison without parole. On February
22, 1985, this Court affirmed Appellant’s judgment of sentence and on
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*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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August 22, 1985, the Supreme Court denied Appellant’s petition for
allowance of appeal.
In March 1996, Appellant sought habeas corpus relief in the United
States District Court, which that court denied. The United States Court of
Appeals denied Appellant’s request for a certificate of appealability. The
United States Supreme Court denied Appellant’s Petition for Writ of
Certiorari.
On July 15, 2010, Appellant filed his first PCRA petition, claiming that
his sentence of life imprisonment was unconstitutional under Graham v.
Florida, 560 U.S. 48, 82, 130 S.Ct. 2011, 2034, 176 L.Ed.2d 825 (2010), in
which the United States Supreme Court held that the U.S. Constitution
“prohibits the imposition of a life without parole sentence on a juvenile
offender who did not commit homicide.” The PCRA court denied Appellant’s
petition, finding Graham inapplicable to Appellant, who was twenty years
old when he committed homicide. Appellant did not appeal this dismissal.
On March 28, 2016, Appellant filed the instant PCRA decision, claiming
his sentence of life imprisonment was unconstitutional under Miller v.
Alabama, ___U.S.___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), in which
the United States Supreme Court held that the U.S. Constitution prohibits
the imposition of a mandatory sentence of life without parole on a juvenile
offender convicted of murder. On June 6, 2016, the PCRA court notified
Appellant of its intent to dismiss his petition without a hearing pursuant to
Pa.R.Crim.P. 907. Appellant filed two responses to this notice. On June 29,
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2016, the PCRA court dismissed Appellant’s petition and this timely appeal
followed. Appellant complied with the PCRA court’s direction to file a
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
When reviewing the denial of a PCRA petition, we are guided by the
following standard:
The standard of review for an order denying post-conviction
relief is limited to whether the record supports the PCRA court's
determination, and whether that decision 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. Allen, 48 A.3d 1283, 1285 (Pa.Super. 2012) (citations
omitted).
It is well-established that “the PCRA's timeliness requirements are
jurisdictional in nature and must be strictly construed; courts may not
address the merits of the issues raised in a petition if it is not timely filed.”
Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011)
(citations omitted). A PCRA petition must be filed within one year of the
date the judgment of sentence becomes final unless the petitioner meets his
burden to plead and prove one of the exceptions enumerated in 42 Pa.C.S. §
9545(b)(1)(i)-(iii), which include: (1) the petitioner’s inability to raise a
claim as a result of governmental interference; (2) the discovery of
previously unknown facts or evidence that would have supported a claim; or
(3) a newly-recognized constitutional right. 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
As noted above, the trial court sentenced Appellant on July 13, 1982.
This Court affirmed Appellant’s judgment of sentence on February 22, 1985,
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and our Supreme Court denied Appellant’s petition for allowance of appeal
on August 22, 1985. Appellant did not seek a writ of certiorari in the
Supreme Court of the United States. Section 9545(b)(3) of the PCRA
provides that a judgment of sentence becomes final at the conclusion of
direct review or the expiration of the time for seeking the review. 42
Pa.C.S. § 9543(b)(3). As a result, Appellant’s judgment of sentence became
final after the 90-day period in which he was allowed to seek review in the
Supreme Court of the United States. See U.S. Sup.Ct. R. 13(1) (stating “a
petition for a writ of certiorari to review a judgment in any case ... is timely
when it is filed with the Clerk of this Court within 90 days after entry of the
judgment”). Thus, Appellant’s sentence became final on November 20,
1985. As Appellant filed the instant PCRA petition on March 28, 2016, over
thirty years after his sentence became final, his petition is facially untimely.2
Appellant attempts to invoke the PCRA timeliness exception in Section
9545(b)(1)(iii) by citing the United States Supreme Court’s decisions in
Miller and Montgomery v. Louisiana, ___U.S.___, 136 S.Ct. 718, 193
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2
In 1995, our Legislature amended the PCRA, adding the timeliness
provisions of section 9545(b). The 1995 amendments provided a grace
period for petitioners whose judgments of sentence became final on or
before the January 16, 1996 effective date of the amendments. However,
the grace period applies only to first petitions filed by January 16, 1997.
See Commonwealth v. Thomas, 718 A.2d 326, 329-30 (Pa.Super. 1998)
(en banc). As Appellant’s current petition was a second attempt at post-
conviction relief and was filed more than one year after his judgment of
sentence became final, this exception does not apply.
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L.Ed.2d 599 (2016) (holding that the Miller decision should be applied
retroactively on state collateral review). However, the holding in Miller,
which prohibits mandatory life without parole sentences for juvenile
offenders, is inapplicable to this case as Appellant was twenty years old
when he committed the homicide for which he was convicted. Thus,
Appellant has failed to plead and prove that one of the PCRA timeliness
exceptions applies. As a result, the PCRA court did not err in dismissing
Appellant’s petition as untimely filed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2017
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Com. v. Bussey, B.
Combined Opinion