Com. v. Ford, P.

J-S05005-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PAUL FORD :
:
Appellant : No. 312 WDA 2017

Appeal from the Order Entered January 17, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002612-1994

BEFORE: OLSON, J., OTT, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.: FILED APRIL 09, 2018

Appellant, Paul Ford, appeals pro se from an order entered on January

13, 2017 in the Criminal Division of the Court of Common Pleas of Allegheny

County that dismissed, as untimely, his fifth petition filed pursuant to the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

At docket number 2612-1994, the Commonwealth charged Appellant

with one count each of criminal homicide (18 Pa.C.S.A. § 2501) and criminal

conspiracy (18 Pa.C.S.A. § 903) in connection with the fatal shooting of

Maurice Price during a gunpoint robbery. Appellant was 18 years old when

this incident occurred. At the conclusion of trial on September 21, 1994, a

jury found Appellant guilty of second-degree murder.1 That same day, the

____________________________________________

1 The Commonwealth withdrew the conspiracy charge immediately prior to
trial.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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trial court imposed the mandatory sentence of life imprisonment without

parole. Following a direct appeal, this Court affirmed Appellant’s judgment

of sentence on March 26, 1997 and our Supreme Court denied further

review on December 19, 1997. See Commonwealth v. Ford, 695 A.2d

436 (Pa. Super. 1997), appeal denied, 705 A.2d 1305 (Pa. 1997).

Thereafter, Appellant initiated several unsuccessful attempts at attaining

collateral relief in both state and federal court.

On March 23, 2016, Appellant, acting pro se, filed the instant petition,

his fifth. The PCRA court issued notice of its intent to dismiss the petition

without a hearing on December 12, 2016. By order dated January 13, 2017

but entered on the trial court docket on January 17, 2017, the court

dismissed Appellant’s petition. This appeal followed.2

On appeal, Appellant raises the following question for our review.

Did the PCRA court err in denying Appellant’s successive PCRA
petition [as untimely] in light of Montgomery v. Lousiana, 136
S.Ct. 718 (2016), where he was a juvenile when the crime
occurred?

Appellant’s Brief at 4 (complete capitalization omitted).
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2 Appellant’s notice of appeal bears a docket date of February 17, 2017,
which exceeds the 30-day appeal period from the PCRA court’s dismissal
order by one day. See Pa.R.A.P. 105(b) and 903(a). However, Appellant,
incarcerated and acting pro se, dated his notice of appeal and proof of
service as having been mailed on January 27, 2017. Thus, it is timely. See
Commonwealth v. Chambers, 35 A.3d 34 (Pa. Super. 2011), appeal
denied, 46 A.3d 715 (Pa. 2012) (prisoner mailbox rule provides that pro se
prisoner's document is deemed filed on date he delivers it to prison
authorities for mailing).

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Relying on 42 Pa.C.S.A. § 9545(b)(1)(iii) and (2), Appellant asserts on

appeal that the PCRA court erred in dismissing his petition as untimely.

Specifically, Appellant points out that, in Miller v. Alabama, 132 S.Ct. 2455

(2012), the United States Supreme Court held that a sentence of life without

the possibility of parole constituted cruel and unusual punishment in

violation of the Eighth Amendment when imposed upon a juvenile homicide

defendant. Appellant further notes that the Court’s decision in

Montgomery gave Miller retroactive application to cases pending on

collateral review. Appellant reasons that because he was under 21 years of

age at the time of the underlying offense, he is entitled to relief under

Miller. Lastly, since he filed the instant petition on March 23, 2016,

Appellant claims that he satisfied the 60-day filing requirement set forth in

42 Pa.C.S.A. § 9545(b)(2) because Montgomery was filed on January 25,

2016.3

On appeal from the denial of PCRA relief, this Court determines,

“whether the findings of the PCRA court are supported by the record and

free of legal error.” Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012).

Here, the PCRA court dismissed Appellant’s petition without a hearing on

grounds that it was untimely and Appellant could not invoke any exception

to the PCRA’s time-bar. Because this appeal raises a question of law, our
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3Using January 25, 2016 as the start date, § 9545(b)(2)’s 60-day period
would not expire until March 25, 2016.

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standard of review is de novo and our scope of review plenary. See

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. 2012).

“Crucial to the determination of any PCRA appeal is the timeliness of

the underlying petition.” Commonwealth v. Brown, 141 A.3d 491, 499

(Pa. Super. 2016) (citation omitted). The timeliness requirement for PCRA

petitions “is mandatory and jurisdictional in nature[.]” Commonwealth v.

Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citation omitted). No court

may address an issue raised in an untimely petition. Jones, 54 A.3d at 17.

A PCRA petition, including a second or subsequent one, must be filed

within one year of the date the petitioner's judgment of sentence became

final, unless he pleads and proves one of the three exceptions outlined in 42

Pa.C.S.A. § 9545(b)(1).4 Jones, 54 A.3d at 16; 42 Pa.C.S.A. § 9545(b)(1).

____________________________________________

4 The three timeliness exceptions under the PCRA are as follows:

(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.

(Footnote Continued Next Page)

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“[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.” 42 Pa.C.S.A. § 9545(b)(3).

In this case, Appellant does not contest that he filed his petition

outside the one-year time limit found in § 9545(b)(1). Instead, he

maintains that he properly invoked the timeliness exception found at

§ 9545(b)(1)(iii) because he was under 21 years of age at the time of the

offense (and thus eligible for relief under Miller) and filed his petition within

60 days of the United States Supreme Court’s decision in Montgomery.

Contrary to Appellant’s claims, however, this Court has held that Miller

applies only to petitioners who were “under the age of 18 at the time of their

crimes” and that petitioners who were older than 18 may not rely on that

decision to invoke the time-bar exception in § 9545(b)(1)(iii).

Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016). Because

the record and pertinent case law confirms that Appellant’s petition was

untimely and that he was not entitled to invoke an exception to the PCRA’s

(Footnote Continued) _______________________

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). If an exception applies, a PCRA petition
may be considered if it is filed “within 60 days of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2). “The petitioner bears
the burden to plead and prove an applicable statutory exception.”
Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017),
appeal denied, 2017 WL 3614192 (Pa. Aug. 23, 2017).

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timeliness requirement, the PCRA court did not err in dismissing Appellant's

petition for lack of jurisdiction.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/9/2018

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