J-S56019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDGAR MARTINEZ
Appellant No. 2304 EDA 2016
Appeal from the PCRA Order Entered June 24, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0201401-1998
BEFORE: BOWES, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 25, 2017
Appellant, Edgar Martinez, appeals pro se from the June 24, 2016
order entered in the Court of Common Pleas of Philadelphia County, denying
as untimely his second petition for collateral relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant
contends his petition is saved from the PCRA’s time bar because he has
asserted a constitutional right recognized as applying retroactively by the
United States Supreme Court. We disagree and, therefore, affirm.
As the PCRA court explained, on September 22, 1998, a jury convicted
Appellant of first-degree murder, firearms violations, and conspiracy. PCRA
Court Rule 1925(a) Opinion, 12/9/16, at 1. On January 21, 1999, Appellant
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* Retired Senior Judge assigned to the Superior Court.
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was sentenced to life in prison for murder, plus a consecutive term for the
firearms violation and a concurrent term for conspiracy. Id. After the trial
court denied his post-sentence motions, Appellant pursued a direct appeal to
this Court. On October 17, 2000, we affirmed his judgment of sentence.
Our Supreme Court denied Appellant’s petition for allowance of appeal on
April 16, 2001. Id. at 1-2. Therefore, Appellant’s judgment of sentence
became final ninety days later, on July 15, 2001, when the time for seeking
discretionary review in the United States Supreme Court expired.
U.S.Sup.Ct. Rule 13.
Appellant filed his first PCRA petition on March 8, 2002. The petition
was ultimately dismissed by the PCRA court and this Court affirmed on June
26, 2003. PCRA Court Rule 1925(a) Opinion, 12/9/16, at 2.
At issue in this appeal is Appellant’s second PCRA petition filed on May
21, 2012, nearly eleven years after his judgment of sentence was final. 1 Id.
Appellant claimed he was eligible for relief based upon an after-recognized
constitutional right. Id. After conducting “an extensive and exhaustive
review of the record and applicable case law,” the PCRA court determined
that the petition was untimely. Id. On May 4, 2016, the PCRA court served
a notice in accordance with Pa.R.Crim.P. 907, advising Appellant of the
court’s intent to dismiss the petition. The notice explained, in relevant part:
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1Appellant filed supplements to the petition on August 2, 2012, October 10,
2012, September 5, 2013, and March 24, 2016.
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[Appellant] attempts to invoke the after-recognized
constitutional right exception under 42 Pa.C.S.A.
§ 9545(b)(1)(iii), and cites to the United States Supreme Court
decisions in Miller v. Alabama, 132 S.Ct. 2455 (2012) and
Montgomery v. Louisiana, 136 S.C.t 718 (2016). The High
Court in Miller established a new constitutional right by holding
that “the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile
offenders.” Id. at 2469. In Montgomery, the High Court held
that the constitutional right in Miller is retroactive. However,
the Miller and Montgomery holdings are explicitly limited to
juveniles under eighteen years of age who were sentenced to life
without parole for committing the crime of murder. Here,
although [Appellant] was convicted for a murder, he fully admits
he was over eighteen at the time of the crime. [Appellant] also
attempts to raise [an] after-recognized constitutional right
exception citing Lafler v. Cooper, 132 S.Ct. 1376 (2012),
asserting ineffective assistance of counsel. This claim also fails
to provide [Appellant] an avenue for PCRA relief. Therefore,
[Appellant] did not successfully invoke an exception, and this
court remains without jurisdiction to address the merits.
PCRA Court Rule 907 Notice, 5/4/16, at 1. On May 20, 2016, Appellant filed
a response to the Rule 907 notice. On June 24, 2016, the PCRA issued its
order dismissing the petition as untimely. This timely appeal followed. Both
Appellant and the PCRA court complied with Pa.R.A.P. 1925.
In this appeal, Appellant asks us to consider two issues, which
we set forth here verbatim without capitalization:
I. Whether (in) reviewing the (property) [sic] of the (PCRA)
court’s dismissal of Appellant’s PCRA filing, it was an abuse
of discretion for the (PCRA) court to determine that it was
untimely . . . where the petition was timely filed under
Title 42 Pa.S.C.A. § 9545(b)(1)(iii) and § 9545(b)(2),
because newly recognized constitutional rights were
enacted by the United States Supreme [sic] court applying
to Appellant retroactively?
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II. Whether the PCRA court erred and denied Appellant his
federal and state constitutional rights to due process of law
by dismissing Appellant’s second/subsequent PCRA petition
without an evidentiary hearing and appointment of counsel
. . . where Appellant raised substantial questions of
disputed facts regarding the timeliness of his
second/subsequent PCRA petition.
Appellant’s Brief at 4.2
We begin by setting forth our scope and standard of review. As our
Supreme Court has explained, “In PCRA proceedings, an appellate court’s
scope of review is limited by the PCRA’s parameters; since most PCRA
appeals involve mixed questions of fact and law, the standard of review is
whether the PCRA court’s findings are supported by the record and free of
legal error.” Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009)
(citing Commonwealth v. Strong, 761 A.2d 1167, 1170 n. 3 (Pa. 2000)).
As our Supreme Court recently reiterated:
“PCRA time limits are jurisdictional in nature, implicating a
court’s very power to adjudicate a controversy.”
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2 We note that Appellant filed an untimely reply brief in violation of Pa.R.A.P.
2185, which requires that a reply brief be filed within 14 days after service
of the preceding brief. Here, the Commonwealth filed its brief on August 16,
2017. Appellant filed the reply brief on September 12, 2017. However,
even if timely, we would not consider the brief because it also violates
Pa.R.A.P. 2113, which permits an appellant to “file a brief in reply to matters
raised by appellee’s brief . . . and not previously addressed in appellant’s
brief.” Here, the “reply brief” was actually the same document Appellant
filed in objection to the PCRA court’s Rule 907 notice of intent to dismiss
with only minor modification, such as changing “Petitioner” to “Appellant.”
The arguments in the reply brief were previously addressed in Appellant’s
original brief and did not address the jurisdictional and timeliness arguments
raised in the Commonwealth’s brief.
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Commonwealth v. Ali, 624 Pa. 309, 86 A.3d 173, 177 (2014).
“Accordingly, the ‘period for filing a PCRA petition is not subject
to the doctrine of equitable tolling;’ instead, the time for filing a
PCRA petition can be extended only if the PCRA permits it to be
extended, i.e., by operation of one of the statutorily enumerated
exceptions to the PCRA time-bar.” Id. (quoting
Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 222
(1999)). “The court cannot ignore a petition’s untimeliness and
reach the merits of the petition.” [Commonwealth v. Taylor,
67 A.3d 1245, 1248 (Pa. 2013)].
Commonwealth v. Mitchell, 141 A.3d 1277, 1284 (Pa. 2016).
Appellant contends that his otherwise-untimely second PCRA petition is
saved by 42 Pa.C.S.A. § 9545(b)(1)((iii) as a constitutional right recognized
by the United States Supreme Court and held by that court to apply
retroactively. In his March 24, 2016 supplemental petition, he asserted that
§ 9545(b)(1)(ii), relating to newly-discovered facts, also provided him a
basis for escaping the PCRA’s time bar. In essence, Appellant argues that he
is entitled to relief under Miller and Montgomery because he was eighteen
years old when he committed the murder leading to his conviction, and
studies have shown that the brain does not finish developing until an
individual’s mid-20s. He also argues that setting eighteen as the age at
which a sentence of life in prison without parole is acceptable is arbitrary,
especially in Pennsylvania, which defines a minor in 1 Pa.C.S.A. § 1991 as
“[a]n individual under the age of 21 years of age.”
This Court rejected the “technical juvenile” argument in
Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016) and
Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013). Quoting
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Cintora, this Court stated that “a contention that a newly-recognized
constitutional right should be extended to others does not render a petition
seeking such an expansion of the right timely pursuant to section
9545(b)(1)(iii).” Furgess, 149 A.3d at 94 (quoting Cintora, 69 A.3d at 764
(emphasis in original) (brackets omitted)). Therefore, as this Court held in
Cintora, “petitioners who were older than 18 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 Section 9545(b)(1)(iii).” Id.
The PCRA court concluded that it lacked jurisdiction to consider
Appellant’s untimely PCRA petition. The court’s findings are supported by
the record and are free of legal error. Therefore, we affirm the June 24,
2016 order denying Appellant post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2017
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Com. v. Martinez, E.
Combined Opinion