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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROLAND D. SCANDLE, JR. :
:
Appellant : No. 1253 MDA 2017
Appeal from the PCRA Order July 11, 2017
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): 1975-10540
BEFORE: PANELLA, J., NICHOLS, J., and PLATT, J.*
MEMORANDUM BY NICHOLS, J.: FILED JUNE 13, 2018
Appellant Roland D. Scandle, Jr. appeals pro se from the order
dismissing as untimely his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant, who was nineteen years old
when he committed the underlying offenses, claims that he properly raised
the newly-recognized constitutional right exception under 42 Pa.C.S. §
9545(b)(1)(iii) based on Miller v. Alabama, 132 S. Ct. 2455 (2012), and
Montgomery v. Louisiana, 136 S. Ct. 718 (2016). We affirm.
The relevant procedural history of this case is as follows. On November
17, 1975, a jury convicted Appellant of three counts of first-degree murder
and one count of conspiracy. On December 20, 1976, the trial court sentenced
Appellant to life imprisonment without the possibility of parole. On June 22,
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* Retired Senior Judge assigned to the Superior Court.
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1979, the Pennsylvania Supreme Court affirmed Appellant’s judgment of
sentence. See Commonwealth v. Scandle, 401 A.2d 1332 (Pa. 1979).
Appellant filed the instant PCRA petition on August 17, 2012. In his
petition, he argued that his sentence was unconstitutional because it barred
consideration of mitigating factors, such as his youth. See PCRA Pet.,
8/17/12, at 3. In support his argument he relied on Miller. See id. at 8a.
On that same date, the PCRA court filed a notice of its intent to dismiss the
petition. Appellant did not file a response the court’s notice of intent. No
further action was taken until March 21, 2016.
On March 21, 2016, Appellant filed another PCRA petition raising the
same arguments as in his 2012 petition and further claiming that his sentence
violated his rights under the Eighth and Fourteenth Amendments. See PCRA
Pet., 3/21/16, at 3. The PCRA court treated this petition as an amendment to
Appellant’s 2012 PCRA petition. On March 28, 2016, the PCRA court filed its
notice of intent to dismiss. On April 20, 2016, Appellant filed a response to
the notice in which he claimed that: (1) although he was nineteen years old
at the time of the offense, the holding in Miller and Montgomery should
apply to his case because his brain was not fully developed; (2) his sentence
violated the Eighth and Fourteenth Amendments; and (3) the court should
appoint counsel and grant Appellant an evidentiary hearing.
On June 10, 2016, the PCRA court entered an order appointing counsel
for Appellant. On December 9, 2016, appointed counsel filed a petition to
withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
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and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc),
which the PCRA court granted. On July 11, 2017, the court dismissed
Appellant’s PCRA petition without a hearing. Appellant filed a timely notice of
appeal. The PCRA court did not order a Rule 1925(b) statement. On October
6, 2017, the PCRA court filed a Rule 1925(a) opinion, explaining that Appellant
did not meet the timeliness exception in section 9545(b)(1)(iii) because Miller
and Montgomery were inapplicable given that Appellant was nineteen at the
time he committed the offenses. PCRA Ct. Op., 10/6/17, at 4-7. The court
further explained that similar arguments to those made by Appellant were
addressed and rejected in Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.
Super. 2016). PCRA Ct. Op., 10/6/17, at 4-7. Appellant filed a timely notice
of appeal.
Appellant raises the following issues on appeal, which we have reordered
as follows:
1. Whether Appellant’s sentence of life without parole violated his
rights under the Eighth and Fourteenth Amendments to the
United States Constitution[.]
2. Whether the PCRA court improperly dismissed the petition for
post-conviction relief without providing Appellant with
advanced notice of it’s [sic] intent to dismiss the petition
without a hearing[.]
Appellant’s Brief at 2 (full capitalization omitted).
Appellant admits that he was nineteen at the time of the crime.
Appellant’s Brief at 10. However, he argues that the holding in Miller should
apply to him because his “brain was not fully developed, he lacked the level
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of moral culpability that characterizes the most serious adult conduct and that
the distinctive attributes of his youth diminish the penological justification for
a sentence of life without parole.” Id. at 14. Appellant cites to several studies
in support of his contention that the brain is not fully developed until the age
of twenty-five. Id. at 11-14. Appellant further argues that not applying the
holding in Miller to his case is a violation of the Eighth and Fourteenth
Amendments. Id. at 14-18. Finally, Appellant argues that the PCRA court
improperly dismissed his claims without giving him notice pursuant to
Pa.R.Crim.P. 907 and without granting him a hearing. Id. at 6-7.
Our standard of review from the dismissal of a PCRA petition “is limited
to examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted).
It is well settled that “the timeliness of a PCRA petition is a jurisdictional
requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015)
(citation omitted). A PCRA 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). 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).
Courts may consider a PCRA petition filed more than one year after a
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judgment of sentence became final only if the petitioner pleads and proves
one of the following 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
(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).1
It is well settled that in order to establish an exception to the PCRA time
bar under section 9545(b)(1)(iii), the petitioner must establish: (1) “the right
asserted is a constitutional right that was recognized by the Supreme Court
of the United States or [the Supreme Court of Pennsylvania;]” and (2) “the
right has been held by that court to apply retroactively.” Commonwealth v.
Leggett, 16 A.3d 1144, 1147 (Pa. Super. 2011) (citation omitted). The
asserted right must be recognized at the time the petition was filed. Id.
There is no dispute here that Appellant’s conviction became final in
1979, and that Appellant’s current PCRA petition is facially untimely. Because
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1Moreover, to invoke one of these exceptions, a petitioner must also file the
petition within sixty days of the date the claim could have been presented.
See 42 Pa.C.S. § 9545(b)(2).
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Appellant failed to file the instant PCRA petition within one year after his
judgment of sentence became final, he must satisfy one of the exceptions to
the PCRA time bar.2
Here, Appellant was nineteen years old at the time he committed the
murders for which he was convicted. We have held that prohibition of
mandatory life-without-parole sentences under Miller does not establish a
newly-recognized constitutional right for petitioners who were eighteen years
or older at the time of the offense. See Furgess, 149 A.3d at 94 (reaffirming
Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013), and stating
that petitioners who were eighteen or older “at the time they committed
murder are not within the ambit of the Miller decision and therefore may not
rely on that decision to bring themselves within the time-bar exception”).
Similarly, Appellant’s argument that his brain was not fully developed at
the time of his crimes has been previously rejected by this Court for the
purposes of establishing a PCRA time-bar exception under section
9545(b)(1)(iii). See Furgess, 149 A.3d at 94 (citing Cintora, 69 A.3d at 764
for the proposition that a “contention that a newly-recognized constitutional
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2 We acknowledge that Appellant previously filed a petition for collateral relief
under the former Post Conviction Hearing Act on April 1, 1980, which Appellant
subsequently withdrew. We further note that the PCRA amendments took
effect in 1995 and contained a grace proviso that would have extended the
time for filing a first PCRA petition until January 16, 1997. See
Commonwealth v. Lesko, 15 A.3d 345, 361 (Pa. 2011). However, because
Appellant filed the instant petition in 2012, he is not entitled to the proviso’s
benefit.
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right should be extended to others does not render [a] petition . . . timely
pursuant to section 9545(b)(1)(iii)”).
As for Appellant’s argument that the PCRA court did not give him notice
of its intent to dismiss his petition, this claim is belied by the record. Appellant
filed the instant petition on August 17, 2012. The PCRA court filed a notice of
intent to dismiss the petition that same day. Appellant then filed another
PCRA petition on March 21, 2016, which the PCRA court treated as an
amended PCRA petition. On March 28, 2016, the court again gave Appellant
notice of its intent to dismiss. In fact, Appellant filed a response to the court’s
notice on April 20, 2016. Therefore, we find no merit to Appellant’s claim.
Appellant’s claim that the PCRA court erred in not granting him a hearing
is also meritless. This Court has held that “[a] petitioner is not entitled to a
PCRA hearing as a matter of right.” Commonwealth v. Smith, 121 A.3d
1049, 1052 (Pa. Super. 2015) (citation omitted). “It is within the PCRA court’s
discretion to decline to hold a hearing.” Commonwealth v. Turetsky, 925
A.2d 876, 882 (Pa. Super. 2007) (citation omitted). “[T]he PCRA court can
decline to hold a hearing if there is no genuine issue concerning any material
fact and the petitioner is not entitled to post-conviction collateral relief, and
no purpose would be served by any further proceedings.” Smith, 121 A.3d
at 1052 (citation omitted); see Pa.R.Crim.P. 907(2) & cmt. On appeal, we
“examine each of the issues raised in the PCRA petition in light of the record
in order to determine whether the PCRA court erred in concluding that there
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were no genuine issues of material fact and in denying relief without an
evidentiary hearing.” Smith, 121 A.3d at 1052 (citation omitted).
As stated above, the PCRA court held that Miller and Montgomery
were inapplicable to Appellant’s case and, thus, he did not meet the section
9545(b)(1)(iii) timeliness exception to the PCRA time bar. Because we agree
with the court’s holding, Appellant’s claim did not warrant a hearing under
Pa.R.Crim.P. 907. See Pa.R.Crim.P. 907; Smith, 121 A.3d at 1052.
Accordingly, because Appellant was nineteen years old at the time of
the offenses, Miller does not apply, and Appellant has failed to satisfy the
newly-recognized constitutional right exception to the PCRA time bar. See
Furgess, 149 A.3d at 94. Further, we find no error in the court’s decision to
not grant a hearing. See Pa.R.Crim.P. 907; Smith, 121 A.3d at 1052.
Therefore, the PCRA court did not err in dismissing the petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/13/2018
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