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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GEARY T. MYERS :
:
Appellant : No. 162 EDA 2023
Appeal from the PCRA Order Entered December 6, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0228571-1993
BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 1, 2023
Appellant, Geary T. Myers, appeals pro se from the order entered
December 6, 2022, in the Court of Common Pleas of Philadelphia County,
denying as untimely his petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
Following a jury trial, Appellant was found guilty of one count of second-
degree murder, multiple counts of aggravated assault and robbery, and a
variety of weapons-related offenses, arising out of a shooting spree in
Philadelphia on November 20, 1992. Appellant was sentenced to an aggregate
term of life in prison. This Court affirmed the judgment of sentence, and our
Supreme Court denied Appellant’s petition for allowance of appeal. See
Commonwealth v. Myers, 677 A.2d 1266 (Pa. Super. 1996) (unpublished
memorandum), appeal denied, 681 A.2d 177 (Pa. 1996).
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This Court subsequently affirmed the denial of Appellant’s first, second,
third, and fourth PCRA petitions. See Commonwealth v. Myers, No. 2503
EDA 2000 (Pa. Super. filed May 16, 2001) (unpublished memorandum);
Commonwealth v. Myers, No. 1219 EDA 2004 (Pa. Super. filed October 28,
2004) (unpublished memorandum); Commonwealth v. Myers, No. 184 EDA
2015 (Pa. Super. filed August 31, 2015) (unpublished memorandum); and
Commonwealth v. Myers, No. 2376 EDA 2017 (Pa. Super. filed July 13,
2018) (unpublished memorandum).
On February 12, 2020, Appellant filed the PCRA petition at issue here,
which he styled as a “Petition for Writ of Habeas Corpus Ad Subjiciendum,”
which the PCRA court dismissed as untimely on December 6, 2022. This
appeal followed.
When reviewing the propriety of an order pertaining to PCRA relief,
we consider the record in the light most favorable to the prevailing
party at the PCRA level. This Court is limited to determining
whether the evidence of record supports the conclusions of the
PCRA court and whether the ruling is free of legal error. We grant
great deference to the PCRA court’s findings that are supported in
the record and will not disturb them unless they have no support
in the certified record. However, we afford no such deference to
the post-conviction court’s legal conclusions. We thus apply a de
novo standard of review to the PCRA [c]ourt’s legal conclusions.
Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018).
All PCRA petitions, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final” unless an
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exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). 1 “The PCRA’s
time restrictions are jurisdictional in nature. Thus, if a PCRA petition is
untimely, neither this Court nor the [PCRA] court has jurisdiction over the
petition. Without jurisdiction, we simply do not have the legal authority to
address the substantive claims.” Commonwealth v. (Frank) Chester, 895
A.2d 520, 522 (Pa. 2006) (internal citations and quotation marks omitted)
(overruled on other grounds by Commonwealth v. Small, 238 A.3d 1267
(Pa. 2020)). As timeliness is separate and distinct from the merits of
Appellant’s underlying claims, we first determine whether this PCRA petition
is timely filed. Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).
If it is not timely, we cannot address the substantive claims raised in the
petition. Id.
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1 It is undisputed the underlying PCRA petition is facially untimely. Appellant’s
judgment of sentence became final on October 31, 1996, at the expiration of
the time for seeking review by the Supreme Court of the United States. See
U.S. Sup. Ct. R. 13. Appellant had until October 31, 1997, to file a timely
PCRA petition. Since the instant petition was filed in 2020, more than 22 years
after the expiration of the deadline, the petition is facially untimely under the
PCRA.
The one-year time limitation can be overcome if a petitioner (1) alleges and
proves one of the three exceptions set forth in Section 9545(b)(1), and (2)
files a petition raising this exception within one year of the date the claim
could have been presented, see 42 Pa.C.S.A. § 9545(b)(2). It would appear
that Appellant claims that Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017)
(Batts II) qualifies as an exception to the PCRA time bar under 42 Pa.C.S.A.
§ 9545(b)(1)(iii).
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Appellant essentially argues that he is entitled to relief under Batts II.
According to Appellant, Batts II introduced new sentencing procedures,
which, if applied to his case, would result in a more lenient sentence for
Appellant. Appellant also argues that failure to apply these procedures results
in constitutional violations (i.e., equal protection and due process) that cannot
be remedied under the PCRA. The only way to remedy these alleged
constitutional violations is through a writ for habeas corpus, as acknowledged
by this Court in Commonwealth v. Rouse, 191 A.3d 1 (Pa. Super. 2018).
Because the challenge is not governed by the PCRA, Appellant argues, the
PCRA time restrictions are not applicable here.
Appellant’s argument raises several issues. We first address Appellant’s
contention that the issues raised here are outside the scope of the PCRA.
To the extent Appellant argues that the issues raised under Batts II
involve questions of constitutional dimension outside the scope of the PCRA,
we disagree, noting that: (i) claims of constitutional dimension are routinely
raised and addressed under the PCRA; (ii) Batts II involves the legality of the
sentence, see Commonwealth v. Prinkey, 277 A.3d 554, 566 n.22 (Pa.
2022); and (iii) challenges to the legality of the sentence fall with the purview
of the PCRA, id. at 560. See also Commonwealth v. Fahy, 737 A.2d 214,
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233 (Pa. 1999). Thus, the PCRA Court properly treated Appellant’s underlying
filing as a PCRA petition, subject to the PCRA rules.2
Appellant’s reliance on Batts II also is misplaced. In Batts II, our
Supreme Court devised a procedure for the implementation of Miller v.
Alabama, 567 U.S. 460 (2012) and Montgomery v. Louisiana, 577 U.S.
190 (2016) in Pennsylvania.3 Specifically, our Supreme Court held that
procedural safeguards beyond consideration of youth and attendant
characteristics pursuant to Miller or the sentencing factors set forth in section
1102.1(d) were required to satisfy Eighth Amendment scrutiny and to ensure
life without possibility of parole [“LWOP”] sentences were imposed only on the
rarest of juvenile offenders whose crimes reflect permanent incorrigibility,
irreparable corruption, and irretrievable depravity. See Commonwealth v.
Street, No. 1038 WDA 2022, at *2 (Pa. Super. filed July 18, 2022) (citing
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2 To the extent Appellant espouses our reasoning in Rouse to argue that
Appellant’s underlying petition, similarly to Rouse, does not fall within the
scope of the PCRA, we note that our Supreme Court expressly rejected our
reasoning in Rouse. See Commonwealth v. Moore, 247 A.3d 990, 998
(Pa. 2021). Thus, Rouse offers no assistance to Appellant’s argument.
3 In Miller, the U.S. Supreme Court determined 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.” Miller,
576 U.S. at 465. In Montgomery, the U.S. Supreme Court held that Miller
was a new substantive rule that, under the United States Constitution, must
be applied retroactively in cases on state collateral review. Montgomery,
577 U.S. at 212.
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Batts II, 163 A.3d at 416).4 The Batts II court recognized a presumption
against the imposition of LWOP for a juvenile offender and held that the
Commonwealth must provide reasonable notice of its intent to seek a LWOP
sentence and then prove beyond a reasonable doubt that the juvenile offender
is “permanently incorrigible and that rehabilitation would be impossible.” Id.
*2 (quoting Batts II at 459).
In 2021, the United Supreme Court decided Jones v. Mississippi, 141
S.Ct. 1307 (2021) which altered our holding in Batts II that a showing of
permanent incorrigibility must be demonstrated. In Jones, the United States
Supreme Court reaffirmed its decision in Miller and Montgomery and
reiterated that mandatory LWOP sentences for juvenile offenders violate the
Eighth Amendment. Street, at *2 (citing Jones, 141 S.Ct. at 1311).
However, the Supreme Court held that sentencing schemes that allow the
discretionary imposition of life sentences after consideration of the juvenile
homicide offender’s youth and attendant characteristic pass constitutional
muster without the need for a separate factual finding of permanent
incorrigibility. Id. (citing Jones, 141 S.Ct. at 1317-18).
In response to Jones, our Supreme Court issued its decision in
Commonwealth v. Felder, 269 A.3d 1232 (Pa. 2022), wherein it rescinded
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4 See Pa.R.A.P. 126(b) (non-precedential memorandum decisions of the
Superior Court filed after May 1, 2019, may be cited for their persuasive
value).
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the procedural requirements set forth in Batts II that are not constitutionally
required, i.e., the presumption against sentencing a juvenile homicide
offender to LWOP, and the imposition on the Commonwealth of the burden of
proving beyond a reasonable doubt that the juvenile is permanently
incorrigible. Street, at *3 (citing Felder, 269 A.3d at 1244). Thus, in light
of Jones and Felder, to the extent Appellant argues that he is entitled to the
procedure devised in Batts II, the argument is misplaced as those
requirements are no longer valid under Jones.
Next, and most importantly, Appellant is not entitled to the application
of Batts II (to the extent it survived Jones) because Appellant was 20 years
old at the time of the underlying crimes. See Commonwealth v. Cotton,
2020 WL 3469702 at *5 (Pa. Super. 2020) (“Batts II is inapposite to the
instant case because [Cotton] was not a juvenile at the time he committed his
crime”); Commonwealth v. Reeves, 2020 WL 1042640 *4 (Pa. Super.
2020) (“Batts II is inapplicable to this case, as Batts II involved the
sentencing of a juvenile offender to life imprisonment without the possibility
of parole. Here, Reeves was not a juvenile at the time of the murder, but
rather 24 years old.”).
Finally, to the extent that Batts II survived Jones, there is no indication
that Batts II ever qualified as a newly recognized constitutional right for
purposes of 42 Pa.C.S.A. § 9545(b)(1)(iii). See Cotton, 2020 WL 3469702
at *5 (even if Batts II were otherwise applicable, our Pennsylvania Supreme
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Court has never held that its holding is a newly-recognized constitutional right
or that it applies retroactively. Accordingly, Appellant cannot satisfy
subsection 9545(b)(1)(iii)’s time-bar exception); Commonwealth v. Gaddy,
2020 WL 1970778 (Pa. Super. April 24, 2020) (same).
In light of the foregoing where Appellant’s underlying petition is facially
untimely and Appellant has failed to prove that he otherwise has met one of
the exceptions to the PCRA’s one-year time bar, we affirm the order of the
PCRA court dismissing as untimely Appellant’s petition.
Order affirmed.
Date: 11/01/2023
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