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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NELSON BIRDWELL III
Appellant No. 1059 EDA 2016
Appeal from the PCRA Order entered March 15, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at Nos: CP-39-CR-0001070-1995;
CP-39-CR-0002580-1995
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED JANUARY 19, 2017
Appellant, Nelson Birdwell III, appeals from the order the Court of
Common Pleas of Lehigh County entered March 15, 2016, dismissing his
petition for collateral relief pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
We adequately summarized the underlying facts in our Memorandum
issued in connection with Appellant’s direct appeal. See Commonwealth v.
Birdwell, No. 2918 Philadelphia 1996 (Pa. Super. filed October 22, 1999).
Thus, we need not repeat them here again.1
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*
Former Justice specially assigned to the Superior Court.
1
We also note that the underlying facts are undisputed, including the age of
Appellant at the time of the crimes. He was 18 years old. See Appellant’s
Brief at 7.
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The procedural history can be summarized as follows. Following a jury
trial, Appellant was found guilty of first degree murder, criminal conspiracy,
and hindering apprehension. On direct appeal, this Court affirmed the
judgment of sentence. Id. Appellant’s subsequent petition for allowance of
appeal to the Pennsylvania Supreme Court was denied on April 27, 2000.
See Commonwealth v. Birdwell, 758 A.2d 659 (Pa. 2000).
On April 23, 2001, Appellant filed a timely pro se PCRA petition, which
the PCRA court denied on October 7, 2003. On appeal, this Court affirmed.
Commonwealth v. Birdwell, No. 3401 EDA 2003 (Pa. Super. filed
December 28, 2004). The Supreme Court denied Appellant’s petition for
allowance of appeal on May 3, 2006. See Commonwealth v. Birdwell,
898 A.2d 1068 (Pa. 2006). On May 25, 2012, Appellant filed the instant
PCRA petition, which the PCRA court dismissed on March 15, 2016. This
appeal followed.
On appeal, Appellant argues the PCRA court erred in dismissing the
instant PCRA petition as untimely. Additionally, on the merits, Appellant
raises several claims of ineffective assistance of counsel.
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). All PCRA
petitions, “including a second or subsequent petition, shall be filed within
one year of the date the judgment becomes final” unless an exception to
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timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time
restrictions are jurisdictional in nature. Thus, [i]f 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. Chester, 895 A.2d
520, 522 (Pa. 2006) (first alteration in original) (internal citations and
quotation marks omitted). As timeliness is separate and distinct from the
merits of Appellant’s underlying claims, we first determine whether this
PCRA petition is timely filed. See Commonwealth v. Stokes, 959 A.2d
306, 310 (Pa. 2008) (consideration of Brady claim separate from
consideration of its timeliness). The timeliness requirements of the PCRA
petition must be met, even if the underlying claim is a challenge to the
legality of the sentence. See Commonwealth v. Holmes, 933 A.2d 57, 60
(Pa. 2007) (“Although legality of sentence is always subject to review within
the PCRA, claims must still first satisfy the PCRA’s time limits or one of the
exceptions thereto”) (citing Commonwealth v. Fahy, 737 A.2d 214, 223
(1999)).
Appellant acknowledges that the instant PCRA petition is facially
untimely.2 However, he alleges that his petition is rendered timely under
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2
Appellant’s judgment of sentence became final after the Supreme Court
denied allowance of appeal on April 27, 2000, and the time for filing a
petition for writ of certiorari to the United States Supreme Court expired.
See 42 Pa.C.S.A. § 9545(b)(3); U.S. Supreme Court Rule 13 (petition for
(Footnote Continued Next Page)
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Martinez v. Ryan, 132 S.Ct. 1309 (2012), and Miller v. Alabama, 132
S.Ct. 2455 (2012). We disagree.
In Commonwealth v. Saunders, 60 A.3d 162 (Pa. Super. 2013),
appeal denied, 72 A.3d 603 (Pa. 2013), cert. denied, Saunders v.
Pennsylvania, 134 S.Ct. 944 (2014), this Court explained:
Martinez recognizes that for purposes of federal habeas corpus
relief, “[i]nadequate assistance of counsel at initial-review
collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance of trial
counsel.” Martinez, supra at 1315. While Martinez
represents a significant development in federal habeas corpus
law, it is of no moment with respect to the way Pennsylvania
courts apply the plain language of the time bar set forth in
section 9545(b)(1) of the PCRA.
Id. at 165. Accordingly, we affirmed the dismissal of the appellant’s PCRA
petition, finding “the trial court correctly held that Saunders failed to
establish any of the exceptions to the PCRA’s requirement that all petitions
be filed within one year of the date a petitioner’s judgment of sentence
became final.” Id. Thus, to the extent Appellant claims a timeliness
exception based on Martinez, no such exception is available. See
Saunders, supra.
_______________________
(Footnote Continued)
writ of certiorari is deemed timely when filed within 90 days after
discretionary review is denied by the Pennsylvania Supreme Court). Thus, in
order to satisfy the PCRA timeliness requirement, Appellant was required to
file his PCRA petition within one year from July 26, 2000. Because the
instant petition was filed on May 25, 2012, clearly more than one year from
the date his judgment became final, the petition is facially untimely.
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Appellant also argues that Miller is relevant to the issue of timeliness
of his PCRA petition. Even if Miller makes his petition timely, Appellant has
no claim under Miller. Miller held 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, 132
S.Ct. at 2460 (emphasis added). As noted above, Appellant was 18 years
old at the time of the underlying crimes. Accordingly, Appellant has no claim
under Miller.
In light of the foregoing, we conclude that Appellant’s PCRA petition is
untimely and that Appellant failed to plead and prove any exception to save
it from the PCRA time-bar. Accordingly, we will not review the merits of
Appellant’s contentions because we have no jurisdiction to entertain an
untimely PCRA petition. See Chester, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2017
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