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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CLEATUS T. MILTON :
:
Appellant : No. 531 EDA 2017
Appeal from the PCRA Order January 4, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0311451-2006
BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 22, 2017
Appellant Cleatus T. Milton appeals the Order entered in the Court of
Common Pleas of Philadelphia County on January 4, 2017, dismissing as
untimely his second petition filed pursuant to the Post Conviction Relief Act
(PCRA).1 Because this petition is untimely without an applicable exception,
we affirm.
On July 31, 2007, following a jury trial, Appellant was convicted of
rape of a child under the age of thirteen, involuntary deviate sexual
intercourse (IDSI) of a child under the age of thirteen, incest, indecent
assault, and corrupting the morals of a minor. Appellant’s convictions arose
from his anal, oral and vaginal rape of his then ten-year-old, mentally
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*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S.A. §§ 9541-9546.
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disabled daughter. On December 18, 2007, the trial court sentenced
Appellant to an aggregate term of forty-seven and one-half (47½) years to
ninety-five (95) years’ imprisonment.2 Appellant filed a timely appeal with
this Court claiming the trial court abused its discretion by sentencing him to
a manifestly excessive period of incarceration which amounted to a life
sentence and in failing to take into account his prior record score. Finding
that the trial court had considered appropriate sentencing factors and
adequately set forth its reasons for fashioning its sentence, which included
an upward departure from the Sentencing Guidelines, this Court found no
abuse of discretion and affirmed Appellant’s judgment of sentence. See
Commonwealth v. Milton, 976 A.2d 1211 (Pa.Super. 2009) (unpublished
memorandum).
On June 15, 2009, Appellant filed a timely PCRA petition, pro se.
Counsel was appointed and filed an amended petition which ultimately was
denied without a hearing on October 28, 2010.3 Therein, Appellant
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2
The trial court imposed sentences in the standard range of the Sentencing
Guidelines for the rape, IDSI and incest convictions, and it sentenced
Appellant outside of the guidelines for the indecent assault and corruption
convictions. Specifically, Appellant received twenty (20) to forty (40) years
in prison for the rape conviction and the same prison term for the IDSI
conviction. Additionally, he received two and one half (2 ½) years to five
(5) years in prison each for the incest, indecent assault, and corrupting the
morals of a minor convictions. Each sentence was to run consecutively.
3
The PCRA court properly provided Appellant with Pa.R.Crim.P. 907 notice
before it dismissed the petition without a hearing. See Order filed
10/28/10.
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maintained that the PCRA court erred in denying him an evidentiary hearing
and in preventing him from establishing his claim that trial counsel had been
ineffective for failing to file a Pa.R.Crim.P. 600 petition. Finding no merit to
Appellant’s arguments, this Court affirmed the PCRA court’s Order on
October 26, 2011. See Commonwealth v. Milton, 37 A.3d 1245
(Pa.Super. 2011) (unpublished memorandum). Our Supreme Court denied
Appellant’s petition for allowance of appeal on February 28, 2012. See
Commonwealth v. Milton, 615 Pa. 755, 32 A.3d 1245 (2012) (table).
Appellant filed the instant PCRA petition, his second, pro se, on March
29, 2016, and an amended petition on April 11, 2016. In both documents,
Appellant avers his sentence is illegal in light of the United States Supreme
Court’s decisions in Alleyne v. United States, ___U.S. ____, 133 S.Ct.
2151, 186 L.Ed.2d 314 (2013) and Montgomery v. Louisiana, ___ U.S.
____, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) and their progeny. Appellant
maintains that he “was sentenced to a Mandatory Minimum under statute 42
Pa.C.S. § 9718, which was effected by the Alleyne Case as containing
unconstitutional aspects.” Appellant goes on to aver that “[i]n Montgomery
v. Louisiana, the United States Supreme Court recognized that when a new
Substantive Rule of Constitutional Law controls the outcome of a case, the
Constitution requires state collateral review courts to give retroactive effect
to that rule.” See Motion for Post Conviction Collateral Relief, filed 3/26/16,
at 4. After properly notifying Appellant of its intent to do so under Rule 907,
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the PCRA court dismissed Appellant’s second PCRA petition without a hearing
on January 4, 2017.
In his brief, Appellant presents the following questions for our review:
A. Did the lower court err when it failed to acknowledge and
address the unconstitutional sentence it imposed upon
appellant in light of a new substantive ruling[?]
B. Did the lower court err when it failed to acknowledge and
address Appellant’s Brady/Dennis[4] Claims that deprived
Appellant of a fair trial[?]
Brief for Appellant at 2 (unnecessary capitalization omitted).
When reviewing the propriety of an order denying PCRA relief, this
Court is limited to a determination of whether the evidence of record
supports the PCRA court’s conclusions and whether its ruling is free of legal
error. Commonwealth v. Robinson, ___ Pa. ____, ____, 139 A.3d 178,
185 (2016). This Court will not disturb the PCRA court’s findings unless
there is no support for them in the certified record. Commonwealth v.
Lippert, 85 A.3d 1095, 1100 (Pa.Super. 2014).
At the outset, we consider whether this appeal is properly before us.
The question of whether a petition is timely raises a question of law, and
where a petitioner raises questions of law, our standard of review is de novo
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4
Appellant apparently is referring to Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Commonwealth v. Dennis, 609 Pa.
442, 17 A.3d 297 (2011).
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and our scope of review is plenary. Commonwealth v. Callahan, 101 A.3d
118, 121 (Pa.Super. 2014).
All PCRA petitions must be filed within one year of the date upon which
the judgment of sentence became final, unless one of the statutory
exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The
petitioner bears the burden to plead and prove an applicable statutory
exception. If the petition is untimely and the petitioner has not pled and
proven an exception, the petition must be dismissed without a hearing
because Pennsylvania courts are without jurisdiction to consider the merits
of the petition. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super.
2013).
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the
date the judgment of sentence becomes final, unless the
petition alleges and the petitioner proves that:
(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.
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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). In addition, any petition attempting to
invoke one of these exceptions “shall be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
As noted previously, Appellant was sentenced on December 18, 2007,
and this Court affirmed the judgment of sentence on May 28, 2009.
Appellant did not file a petition for allowance of appeal with our Supreme
Court; therefore his judgment of sentence became final thirty days
thereafter, on June 28, 2009. See 42 Pa.C.S.A. § 9545(b)(3) (stating, “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[ ]”). Since Appellant filed the instant petition almost seven years
thereafter, it is patently untimely and the burden fell upon Appellant to plead
and prove that one of the enumerated exceptions to the one-year time-bar.
See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284,
1286 (Pa.Super. 2008) (to invoke a statutory exception to the PCRA time-
bar, a petitioner must properly plead and prove all required elements of the
exception).
Though his arguments are at times vague and disjointed, Appellant
initially attempts to invoke 42 Pa.C.S.A. § 9545(b)(1)(iii), the “newly
recognized constitutional right” exception to the PCRA time-bar. Appellant
contends that Alleyne, supra and its progeny rendered unconstitutional all
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statutes that require mandatory minimum sentences. In Alleyne, the
Supreme Court of the United States held that “facts that increase mandatory
minimum sentences must be submitted to the jury” and must be found
beyond a reasonable doubt. Alleyne, supra at 2163. “The Alleyne decision,
therefore, 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.” Commonwealth v.
Watley, 81 A.3d 108, 117 (Pa.Super. 2013) (en banc ), appeal denied, 95
A.3d 277 (Pa. 2014) (footnotes omitted).
However, in considering whether Alleyne provides an exception to the
PCRA time-bar, the Pennsylvania Supreme Court in Commonwealth v.
Washington, ___ Pa. ____, 142 A.3d 810 (2016) addressed a situation in
which the defendant raised an Alleyne claim in a timely PCRA petition, but
his judgment of sentence had become final prior to the Alleyne decision.
The Washington Court held that “Alleyne does not apply retroactively to
cases pending on collateral review, and that [a]ppellant’s judgment of
sentence, therefore, is not illegal on account of Alleyne.” Id. at ___, 142
A.3d at 815. Therefore, even if he were serving a mandatory sentence,
Appellant’s reliance upon Alleyne would be fatal to his claim. Id. at ___,
142 A.3d at 820.
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In addition, Alleyne was decided in 2013, and Appellant did not file
the instant PCRA petition until March 29, 2016. Accordingly, Appellant failed
to comply with 42 Pa.C.S.A. § 9545(b)(2) (stating “Any petition invoking an
exception provided in paragraph (1) shall be filed within 60 days of the date
the claim could have been presented”). Appellant’s arguments in support of
this claim otherwise reiterate the challenges to his sentence that he
presented in his initial PCRA petition which this Court previously deemed to
be meritless. See Commonwealth v. Milton, 37 A.3d 1245 (Pa.Super.
2011) (unpublished memorandum). Hence, Appellant is not eligible for
PCRA relief on these issues. 42 Pa.C.S.A. §§ 9543(a)(3) (“To be eligible for
relief under this subchapter, the petitioner must plead and prove by a
preponderance of the evidence ... [t]hat the allegation of error has not been
previously litigated or waived.”).
Appellant also attempts to evoke the newly-recognized constitutional
right exception when averring his sentence of life imprisonment is illegal
under Montgomery, supra. In Montgomery, the United States Supreme
Court declared its prior holding in Miller, supra, constitutes a substantive
rule of constitutional law to which state collateral review courts were
required as a constitutional matter to give retroactive effect. Montgomery
v. Louisiana, ___ U.S. at ____, 136 S.Ct. at 736, 193 L.Ed.2d at ___. The
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High Court held therein that the new rule of law announced in Miller applies
retroactively to cases on collateral review.5
The United States Supreme Court decided Montgomery on January
25, 2016, and Appellant filed the current PCRA petition on March 29, 2016.
In Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa.Super. 2016), this
Court held that the date upon which Montgomery had been decided is to be
used when calculating whether a petition is timely filed under the sixty-day
rule of 42 Pa.C.S.A. § 9545(b)(2). Because Appellant’s PCRA petition was
filed after March 25, 2016, he has failed to satisfy the PCRA time-bar. See
42 Pa.C.S.A. § 9545(b)(2). In any event, as previously stated, even had
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5
In Miller, the Supreme Court had held that “mandatory life without parole
for those under the age of 18 at the time of their crimes violated the Eighth
Amendment’s prohibition on ‘cruel and unusual punishments.’” Miller v.
Alabama, ___ U.S. at ____, 132 S.Ct. at 2460, 183 L.Ed.2d at ____.
Notwithstanding, while the Supreme Court’s holding in Miller set forth a
bright-line rule that mandatory sentences of life imprisonment without the
possibility of parole are unconstitutional for juvenile offenders, it did not
prevent a trial court from imposing a life sentence upon an individual such
as Appellant who was over the age of eighteen at the time he committed the
offense and did not receive a mandatory sentence of life imprisonment.
Therefore, the right recognized by Miller and held to be retroactive in
Montgomery does not provide Appellant a basis for relief from the PCRA
time-bar. See Miller, ___ U.S. at ____, 132 S. Ct. at 2469, ___ L.Ed.2d at
____ (holding “the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders.”)
See also Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super. 2013)
(holding Miller is not an exception under Section 9545(b)(1)(iii) to those
over the age of eighteen at the time crimes were committed);
Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super. 2016) (holding
the Miller decision applies only to defendants “under the age of 18 at the
time of their crimes”).
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Appellant timely filed the instant petition, since he was over eighteen years
old when he committed the crimes of which he was convicted, Miller does
not apply to his case.
Appellant also contends the trial court erred in failing to consider his
claims of governmental interference and Brady violations in that he was
prohibited from confronting his daughter’s physicians at trial. While
Appellant’s arguments essentially characterize this claim as one arising
under the governmental interference and newly-discovered fact exceptions
to the PCRA time-bar, Appellant clearly would have been aware of his
perceived inability to confront his daughter’s treating physicians or obtain
relevant records pertaining thereto at the time of trial, and he makes no
argument to the contrary. As such, Appellant has waived this claim for his
failure to raise it properly on direct appeal or in terms of trial counsel’s
ineffectiveness in his first PCRA petition.6 Hence, Appellant is not eligible for
PCRA relief on these issues. See 42 Pa.C.S.A. § 9544(b) (“For purposes of
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6
This claim additionally is waived for Appellant’s failure to raise it in either
his initial PCRA petition filed on March 29, 2016, or in the amendment
thereto filed on April 11, 2016. It is well-settled that issues not raised in a
PCRA petition or amended PCRA petition are waived on appeal. See
Commonwealth v. Lauro, 819 A.2d 100, 103 (Pa.Super. 2003), appeal
denied, 830 A.2d 975 (Pa. 2003) (finding five issues not in original or
amended PCRA petition waived). An appellant cannot raise a subject for the
first time on appeal. See Commonwealth v. Hanford, 937 A.2d 1094,
1098 n.3 (Pa.Super. 2007), appeal denied, 956 A.2d 432 (Pa. 2008) (new
legal theories cannot be raised for first time on appeal); Pa.R.A.P. 302(a).
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this subchapter, an issue is waived if the petitioner could have raised it but
failed to do so before trial, at trial, during unitary review, on appeal or in a
prior state postconviction proceeding.”) Commonwealth v. Chmiel, 612
Pa. 333, 365, 30 A.3d 1111, 1129-30 (2011) (where defendant provided no
indication as to the time or manner in which he became aware of alleged
Brady materials apparently available at time of trial or direct appeal, such
claim is waived for failure to raise it in earlier proceeding); Commonwealth
v. Roney, 622 Pa. 1, 25, 79 A.3d 595, 609 (2013) (Brady claims deemed
waived on appeal of PCRA where appellant failed to raise them at trial or on
direct appeal).
For the foregoing reasons, Appellant's second PCRA petition is
untimely, and he has failed to plead and prove an exception to the statutory
time-bar. The PCRA court correctly determined it lacked jurisdiction to
review the merits of Appellant's petition and properly dismissed it, and we
discern no other basis on which to disturb the PCRA court's dismissal of
Appellant's petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2017
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