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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
DALE MADDEN-EL :
: No. 609 WDA 2017
Appellant
Appeal from the PCRA Order March 15, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0005127-1980
BEFORE: BOWES, J., RANSOM, J., and STEVENS*, P.J.E.
MEMORANDUM BY RANSOM, J.: FILED JANUARY 12, 2018
Appellant, Dale Madden-El, pro se appeals from the March 15, 2017
order dismissing, as untimely, his serial petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
Following a jury trial, Appellant was found guilty of first-degree murder.1
In July 1981, Appellant was sentenced to a term of life imprisonment.
Appellant timely filed a direct appeal, and this Court vacated his
sentence and remanded the matter for an evidentiary hearing on trial
counsel’s effectiveness. Commonwealth v. Madden, 474 A.2d 690 (Pa.
Super. 1984) (unpublished memorandum). Upon conducting the evidentiary
hearing, the trial court determined that counsel was not ineffective, and
reimposed Appellant’s sentence of life imprisonment. Appellant again
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1 18 Pa.C.S. § 2502(a).
* Former Justice specially assigned to the Superior Court.
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appealed, and this Court affirmed his judgment of sentence on December 20,
1985. Commonwealth v. Madden, 506 A.2d 1337 (pa. Super. 1985)
(unpublished memorandum). Appellant did not appeal to the Supreme Court
of Pennsylvania.
On February 20, 1987, Appellant pro se filed his first PCRA petition,
which was dismissed on October 20, 1988. On September 25, 1989, this
Court affirmed the dismissal. Commonwealth v. Madden, 569 A.2d 1384
(Pa. Super. 1989) (unpublished memorandum). Appellant's petition for
allocatur was denied. Commonwealth v. Madden, 584 A.2d 314 (Pa. 1990)
(table).
On March 18, 2016, Appellant pro se filed the instant petition, seeking
relief based on Miller v. Alabama, 132 S. Ct. 2455 (2012) (finding mandatory
life sentences for juvenile offenders to violate the Eighth Amendment). Newly
appointed counsel reviewed the record and filed a no merit letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super 1988). On February 14, 2017, after
reviewing the record and PCRA counsel’s no merit letter, the PCRA court issued
an order (1) permitting counsel to withdraw, (2) notifying Appellant that he
was no longer entitled to appointed counsel, and (3) advising Appellant how
he may proceed with his petition. See Order of Court, 2/14/2017. This order
did not comply with Pa.R.Crim.P. 907, as it did not give notice of the court’s
intent to dismiss the PCRA petition or state the reason for its dismissal. See
Pa.R.Crim.P. 907(1). Appellant filed a response. On March 15, 2017, the
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PCRA court dismissed Appellant’s petition without a hearing and characterized
its February 14, 2017 order as a notice of intent to dismiss. Appellant filed a
motion for reconsideration of the dismissal on March 30, 2017, to which the
court took no action.
Appellant timely2 pro se appealed the dismissal of his PCRA petition and
filed a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued a
responsive opinion.
Appellant raises the following issues for our review:
1. DID THE PCRA COURT ERR AS A MATTER OF LAW WHEN IT
DISMISSED THE PCRA PETITION?
2. DID THE COURT BELOW HAVE JURISDICTION OVER THE
MATTER UNDER 42 PA.C.S. § 6502, PENNSYLVANIA RULES OF
CRIMINAL PROCEDURE RULE 108, AND 42 PA.C.S. § 931?
3. DOES THE EIGHTH AMENDMENT TO THE UNITED STATES
CONSTITUTION PROHIBIT THE SENTENCE OF MANDATORY LIFE
WITHOUT PAROLE FOR INDIVIDUALS OVER THE AGE OF 17 BUT
BELOW AGE 25?
4. DOES THE EIGHTH AMENDMENT TO THE UNITED STATES
CONSTITUTION PROHIBIT THE SENTENCE OF MANDATORY LIFE
WITHOUT PAROLE FOR ADULTS CONVICTED OF MURDER?
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2 Appellant’s notice of appeal was docketed as filed by this Court on April 20,
2017, beyond the 30-day window to appeal the dismissal of his petition. See
Pa.R.A.P. 903(b). However, the instant appeal is timely as Appellant is
incarcerated and the envelope attached to his notice of appeal is postmarked
for April 7, 2017. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa.
1997) (An appeal by a pro se prisoner is deemed filed on the date the he
deposits the appeal with prison authorities or places is it in the mailbox, even
though appeal is actually received by the court after the deadline for filing an
appeal).
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5. DOES THE FOURTEENTH AMENDMENT TO EQUAL PROTECTION
CLAUSE PROHIBIT THE SENTENCE OF MANDATORY LIFE
WITHOUT PAROLE FOR PERSONS CONVICTED OF MURDER IN THE
COMMONWEALTH OF PENNSYLVANIA?
Appellant’s Brief at 5 (some formatting added).
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by the evidence of
record and are free of legal error. Commonwealth v. Ragan, 923 A.2d
1169, 1170 (Pa. 2007). We afford the court’s findings deference unless there
is no support for them in the certified record. Commonwealth v. Brown, 48
A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,
995 A.2d 1184, 1189 (Pa. Super. 2010)).
Initially, we must address the PCRA timeliness requirements. The
timeliness of Appellant’s petition implicates our jurisdiction and may not be
altered or disregarded in order to address the merits of his claim. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for relief, including second and subsequent petitions, must
be filed within one year of the date on which the judgment of sentence
becomes final. Id. There are three statutory exceptions:
(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
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(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). Any petition attempting to invoke these
exceptions “shall be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant’s petition is untimely, and he has failed to establish an
exception to the timeliness requirements of the PCRA.3 Appellant seeks relief
based on Miller, which held that mandatory life sentences imposed on juvenile
offenders violates the Eighth Amendment's prohibition on “‘cruel and unusual
punishments.’” Miller 132 S. Ct. at 2460. In Montgomery v. Louisiana,
136 S. Ct. 718 (2016), the U.S. Supreme Court determined that Miller
announced a new substantive rule that applied retroactively. Montgomery,
136 S. Ct. 718. Appellant filed his petition within 60 days of the Montgomery
decision; however, the precedent is inapplicable to Appellant as he concedes
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3 Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on January 19, 1986, at the expiration of his thirty days to file
an appeal to our Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (a judgment
of sentence becomes final at the conclusion of direct review or the expiration
of the time for seeking the review); Pa.R.A.P. 1113. Appellant filed the instant
petition more than nineteen years later. We note further that Appellant’s
judgment of sentence became final prior to the amendments to the PCRA
enacted November 17, 1995; however, this has no bearing on the instant
analysis, as the instant petition is not Appellant’s first. Commonwealth v.
Fenati, 732 A.2d 625, 627 (Pa. Super. 1999) (where a defendant's judgment
of sentence became final before the effective date of the amendments, his
first PCRA petition will be considered timely if it is filed within one year of the
effective date of the amendments [January 16, 1996]); Act of November 17,
1995, P.L. 1118, No. 32 (Spec. Sess. No. 1) § 3(1).
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that he was twenty-four at the time of commission of the underlying crimes.
Appellant’s Brief at 13. As this Court noted in Commonwealth v. Furgess,
149 A.3d 90, 94 (Pa. Super. 2016), the constitutional rule rendering
mandatory sentences of life imprisonment without possibility of parole on
juveniles unconstitutional applies only to those defendants who were under
eighteen when offenses were committed.
Additionally, Appellant correctly asserts that the PCRA court failed to
comply with Pa.R.Crim.P. 907, and has preserved the claim for review.
“However, ‘our Supreme Court has held that where the PCRA petition is
untimely, the failure to provide such notice is not reversible error.’”
Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (quoting
Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa. Super. 2007)).
Accordingly, the PCRA court’s failure to provide the requisite Rule 907 notice
does not entitle Appellant to relief.
Consequently, the PCRA court was without jurisdiction to review the
merits of Appellant’s claims and properly dismissed his petition. See Ragan,
932 A.2d at 1170.
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2018
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