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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GREG DEWAYNE HERRING
Appellant No. 766 WDA 2016
Appeal from the PCRA Order May 6, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010184-2005
BEFORE: SHOGAN, J., MOULTON, J., and STRASSBURGER, J.*
MEMORANDUM BY MOULTON, J.: FILED APRIL 11, 2017
Greg Dewayne Herring appeals, pro se, from the May 6, 2016 order
dismissing as untimely his petition filed pursuant to the Post Conviction
Relief Act, 42 Pa.C.S. §§ 9541-9546. We affirm.
On April 26, 2006, a jury convicted Herring of second-degree murder,
robbery (serious bodily injury), and criminal conspiracy.1 On July 14, 2006,
the trial court sentenced Herring to life imprisonment without the possibility
of parole. Herring filed a notice of appeal, and on October 1, 2007, this
Court affirmed. Herring did not file a petition for allowance of appeal with
the Pennsylvania Supreme Court.
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 2501(a), 3701(a)(1) and 903(a)(1), respectively.
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On September 3, 2008, Herring filed a timely PCRA petition. On
January 5, 2011, the PCRA court dismissed the petition. This Court affirmed
the dismissal on April 16, 2012. Herring filed a petition for allowance of
appeal, which the Supreme Court denied on August 28, 2012.
In March 2016,2 Herring filed a second PCRA petition. On April 7,
2016, the PCRA court issued notice of its intent to dismiss the petition
pursuant to Pennsylvania Rule of Criminal Procedure 907, and, on May 6,
2016, the PCRA court dismissed the petition. On May 18, 2016, Herring filed
a timely notice of appeal.
Herring raises the following issues on appeal:
I. DID TRIAL COURT ERR WHEN IT DISMISSED
[HERRING’S] PETITION WITHOUT A HEARING ON
[HERRING’S] CLAIMS OF CRUEL AND UNUSUAL
PUNISHMENT, NAMELY THAT THE EIGHTH AMENDMENT
FORBIDS A SENTENCING SCHEME THAT MANDATES LIFE
WITHOUT POSSIBILITY OF PAROLE FOR JUVENILE
OFFENDERS, WHERE PENNSYLVANIA’S MANDATORY
SENTENCING SCHEME VIOLATES THE PROPORTIONALITY
PRINCIPLE, IMPOSING LIFE SENTENCES ON JUVENILES
WITHOUT ANY INDIVIDUALIZED CONSIDERATIONS.
II. DID TRIAL COURT ERR WHEN IT DISMISSED
[HERRING’S] PETITION WITHOUT A HEARING ON
[HERRING’S] CLAIMS OF EQUAL PROTECTION
VIOLATIONS, NAMELY THAT THE EQUAL PROTECTION
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2
The 2016 PCRA petition contained in the original record does not
have a stamp indicating the date it was received. Herring dated the PCRA
petition March 19, 2016, but it was entered on the docket on March 29,
2016. The record does not indicate when Herring delivered the PCRA
petition to prison authorities for mailing or when the trial court received the
petition.
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CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRES
THAT THE DISTINCTION MADE HAVE SOME RELEVANCE
TO THE PURPOSE FOR WHICH THE CLASSIFICATION IS
MADE, WHERE ARTICLE V § 16(q)(ii) OF THE
PENNSYLVANIA CONSTITUTION DEFINES [HERRING] AS A
JUVENILE.
III. DID THE TRIAL COURT ERR WHEN IT DISMISSED
[HERRING’S] PETITION WITHOUT A HEARING [ON
HERRING’S] CLAIMS OF DUE PROCESS VIOLATIONS,
NAMELY THAT THE DUE PROCESS CLAUSE GIVES
[HERRING] THE EIGHTH AMENDMENT PROTECTIONS
GUARANTEED UNDER THE UNITED STATES
CONSTITUTION, WHERE NO INDIVIDUALIZED
CONSIDERATIONS WERE MADE AND [HERRING] A
JUVENILE WAS SENTENCED TO LIFE WITHOUT PAROLE.
Herring’s Br. at 4.
Our standard of review from the denial 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).
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), app. denied, 125 A.3d 1197 (Pa. 2015). 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).
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Herring’s judgment of sentence became final on October 31, 2007,
when his time to petition the Pennsylvania Supreme Court for allowance of
appeal expired. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a) (“Except
as otherwise prescribed by this rule, a petition for allowance of appeal shall
be filed with the Prothonotary of the Supreme Court within 30 days after the
entry of the order of the Superior Court or the Commonwealth Court sought
to be reviewed.”). He had one year from that date, or until October 31,
2008, to file a timely PCRA petition. Therefore, his current petition filed in
March 2016 is facially untimely.
Herring’s petition remains untimely unless it alleges and proves a
PCRA time-bar exception. Courts may consider a PCRA petition filed more
than one year after a judgment of sentence became final only if the
petitioner alleges 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); see Brown, 111 A.3d at 175. In addition,
when invoking an exception to the PCRA time bar, the petition must “be filed
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within 60 days of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).
In his PCRA petition, Herring argued his petition was timely because
he asserted a constitutional right that was held to apply retroactively.
Herring relied on the United States Supreme Court’s decisions in Miller v.
Alabama, 132 S.Ct. 2455 (2012), and Montgomery v. Louisiana, 136
S.Ct. 718 (2016). In Miller, the Supreme Court held that a sentence of life
imprisonment without the possibility of parole was unconstitutional when
imposed upon defendants who were “under the age of 18 at the time of their
crimes.” 132 S.Ct. at 2460. In Montgomery, the Supreme Court held that
its Miller decision applied retroactively to cases on state collateral review.
Montgomery, 136 S.Ct. at 732.
Herring was 19 at the time he committed the murder for which he was
convicted.3 We have held that Miller’s prohibition of life without parole
sentences does not apply to those who were not juveniles at the time of the
offense. See Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super.
2013) (concluding that, for appellants, who were 19 and 21 at time of
offense, “the holding in Miller does not create a newly-recognized
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3
Herring was born on October 4, 1984 and committed the offenses at
issue on October 9, 2003.
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constitutional right that can serve as the basis for relief”); 4 see also
Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super. 2016)
(reaffirming holding of Cintora that petitioners who were 18 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”).
In sum, because Herring was 19 at the time of the offenses, Miller
does not apply, and Herring has failed to satisfy the new constitutional right
exception to the PCRA time-bar. Therefore, we conclude the PCRA court did
not err in dismissing the petition.
Order affirmed.
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4
In Cintora, this Court rejected the appellants’ argument that it
would violate the equal protection clause to not grant relief pursuant to
Miller. The appellants argued that Miller should apply to those under the
age of 25 “because Miller created a new Eighth Amendment right, that
those whose brains were not fully developed at the time of their crimes are
free from mandatory life without parole sentences, and because research
indicates that the human mind does not fully develop or mature until the age
of 25.” 69 A.3d at 764. The Court noted that the appellants’ “contention
that a newly-recognized constitutional right should be extended to others
does not render their petition timely pursuant to section 9545(b)(1)(iii).”
Id. (emphasis in original).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2017
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