COMMONWEALTH OF PENNSYLVANIA v. HERMAN T. WOODS
No. 1946 WDA 2016
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED JUNE 12, 2017
2017 PA Super 181
STEVENS, P.J.E.
J-S35039-17; Appeal from the PCRA Order November 4, 2016 In the Court of Common Pleas of Mercer County Criminal Division at No(s): No. 523 Criminal 1980; BEFORE: LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.*
Appellant Herman T. Woods appeals the Order entered in the Court of Common Pleas of Mercer County on November 4, 2016, dismissing as untimely his serial petition filed pursuant to the Post Conviction Relief Act (PCRA).1 Because this petition is untimely without an applicable exception, we affirm.
Given our disposition, a detailed recitation of the facts is unnecessary in this matter. Appellant was convicted of second degree murder in 1981 following a jury trial. Appellant was eighteen years, thirty-six days old when he committed the crime on November 22, 1980, as his date of birth was October 17, 1962. On October 28, 1981, Appellant was sentenced to a mandatory
Because Appellant‘s judgment of sentence became final prior to the 1995 amendments to the PCRA, which added certain time restrictions, Appellant was permitted to file his first PCRA petition by January 16, 1997. See Commonwealth v. Peterkin, 554 Pa. 547, 554-55, 722 A.2d 638, 641 (1998) (holding where conviction became final on or before effective date of Act, to be timely PCRA petition must be filed within one year of effective date and must be first petition to be eligible for one-year grace period). Notwithstanding, Appellant did not file his first PCRA petition until July 27, 1998, making it untimely. Counsel was appointed and later filed a petition to withdraw wherein he averred private counsel had entered his appearance for Appellant in the action. In an Order entered on October 13, 1998, the trial court granted appointed counsel‘s petition to withdraw; however, the official docket entries do not indicate that privately retained counsel took any further action regarding the PCRA petition, nor do they contain an Order entered by the trial court on the merits thereof.
On August 27, 2012, Appellant filed a second PCRA petition pro se wherein he generally alleged ineffectiveness of prior counsel and that “mandatory life without parole violates the Eighth Amendment Art 5 of the Universal Declaration of Human Rights as well as Art. I #3 of the Pennsylvania Constitution for someone under the age of 25.” See Motion for Post Conviction Collateral Relief, filed 8/27/12, at 3. Counsel was appointed on September 12, 2012, and in an Order entered on October 16, 2012, the trial court directed counsel to file an Amended PCRA Petition and/or a no-merit letter on or before November 1, 2012, although an amended petition was not forthcoming. Instead, on July 13, 2015, Appellant filed pro se his “Motion for Leave to Amend Petition for Habeas Corpus Relief under Article I, Sections 5, 6 & 14 of the Pennsylvania Constitution and for Post Conviction Relief Under the Post Conviction Relief Act et Seq.” In its Order entered on July 16, 2015, the trial court denied the same without prejudice because Appellant was represented by counsel.
The trial court also scheduled a status conference to be held on August 17, 2015, to address Appellant‘s Habeas Corpus petition and the status of his previously filed
On September 10, 2015, counsel filed a motion to withdraw along with a “no merit letter” pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988). Therein, he noted Appellant was challenging the legality of his sentence based upon the United States Supreme Court‘s ruling in Miller v. Alabama, ___ U.S. ____, 132 S.Ct. 2455, 183 L.Ed. 2d 407 (2012) wherein the Court had held that mandatory sentences of life imprisonment without parole are unconstitutional for juvenile offenders. In its September 11, 2015, Order, the trial court granted counsel‘s petition to withdraw and dismissed Appellant‘s PCRA petition without a hearing. The trial court further indicated Appellant may proceed pro se or with the assistance privately retained counsel.
On February 17, 2016, Appellant again filed a petition of Habeas Corpus relief pro se challenging his conviction under the United States Supreme Court‘s recent decision in Montgomery v. Louisiana, ___ U.S. ____, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (filed on January 25, 2016, as revised on January 27, 2016) wherein the Court held the application of Miller is retroactive. In its Order entered on February 22, 2016, the trial court denied Appellant‘s Petition for Writ of Habeas Corpus Relief and in doing so found, inter alia, that the retroactive application of the Supreme Court‘s holding in Miller which pertained to juvenile offenders is inapplicable to Appellant because he was eighteen years old at the time of the murder.
On March 18, 2016, Appellant filed pro se the PCRA petition presently before us. Therein, Appellant again averred he was entitled to relief under Montgomery and Miller, supra, as well as under Alleyne v. United States, ___U.S. ____, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) and their progeny.3 The trial court appointed counsel to represent Appellant in an Order entered on April 19, 2016;4 notwithstanding, Appellant filed a pro se supplemental PCRA petition on May 23, 2016. In its Order entered on July 1, 2016, the trial court directed counsel to file either an amended PCRA petition, a “no-merit letter” or a motion requesting an evidentiary hearing on or before August 31, 2016.
Counsel filed a “no-merit letter” on September 27, 2016, and in its Order entered on that same date, the trial court granted counsel leave to withdraw and Appellant leave to proceed pro se. In the meantime, Appellant had filed another supplemental PCRA petition. On October 31, 2016, Appellant filed his “Response and Answer to PCRA Court‘s Notice and Order to Dismiss Pro Se Petition for Post Conviction Relief Pursuant to the Post Conviction Relief Act,
In his brief, Appellant presents the following three questions for this Court‘s review:
A. Does not the decision of the Pennsylvania Supreme Court in Commonwealth v. Vasquez, 744 A.2d 1284 (Pa. 2000),6 which held that non-compliance with
Pa.R.Crim.Proc., 42 Pa.C.S.A. § 1410 and,42 Pa.C.S.A. § 5505 creates no bar to reviewing the application by the trial court of42 Pa.C.S. § 9714 ?B. Does not the recent decision of the United States Supreme Court in Alleyne v. United States, 133 S.Ct. 2151 (2013), and its progeny, Commonwealth v. Newman, 99 A.3d 86 (2014), including Commonwealth v. Watley 81 A.3d 108, 117 (Pa. Super. 2013), Commonwealth v. Valentine, 2014 Pa. Syuper 220, 2014 WL-4942256, 2014 Pa.Super. Lexis 3420 (2014); Commonwealth v. [Hopkins,] 117 A.3d 247 (Pa. 2015), and Commonwealth v. Wolfe, 121 A.3d 433 (Pa. 2016), constitute illegal sentencing claims that any fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt?
C. Does not the PCRA Court‘s Answer fail to address [Appellant‘s] illegal sentencing claims that non-compliance with Pa.R.Crim.Proc‘s create no bar to reviewing the application by the trial court in any meaningful way, for it also fails to even mention the applicability of
42 Pa.C.S. 9542 action established in 42 Pa.C.S. pt. VIII, ch. 95, subch. B shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when subch. B takes effect, before denying the PCRAmotion as without merit and untimely filed?
Brief for Appellant at 1-3.
When reviewing the propriety of an order denying PCRA relief, this Court is limited to a determination of whether the evidence of record supports the PCRA court‘s conclusions and whether its ruling is free of legal error. Commonwealth v. Robinson, ___ Pa. ____, ____, 139 A.3d 178, 185 (2016). This Court will not disturb the PCRA court‘s findings unless there is no support for them in the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.Super. 2014).
At the outset, we consider whether this appeal is properly before us. The question of whether a petition is timely raises a question of law, and where a petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa.Super. 2014).
All PCRA petitions must be filed within one year of the date upon which the judgment of sentence became final, unless one of the statutory exceptions set forth in
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment of sentence becomes final, unless the petition alleges and the petitioner proves that:
(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.
As noted previously, Appellant was sentenced on October 28, 1981, and the United States Supreme Court denied his petition for writ of certiorari on May 14, 1984, at which time his judgment of sentence became final. The 1995 amendments to the PCRA provided for a “transitional, statutory grace period” of one year, applicable to first petitions in cases where the judgment of sentence became final before the January 16, 1996, effective date of the 1995 amendments. Commonwealth v. Baroni, 573 Pa. 589, 827 A.2d 419, 420 n. 1 (2003). Thus, Appellant‘s first PCRA petition would have been deemed to be timely if it had been filed no later than January 16, 1997. See Commonwealth v. Fenati, 561 Pa. 106, 109, 748 A.2d 205, 206-07 (2000). Since the instant petition was not filed
Appellant‘s somewhat disjointed arguments, which fail to line up neatly with his Statement of Questions Involved, when liberally construed are twofold. First, Appellant essentially maintains the instant matter “falls within the ‘narrow class of cases considered to implicate illegal sentences‘” in that his sentence had been illegal from its inception and a trial court never relinquishes jurisdiction over one‘s challenge to the legality of his sentence. Appellant reasons that because his claim is cognizable under the PCRA, the trial court erred in dismissing his petition in light of Vasquez, supra, in that it had “no discretion to deviate its sentence from that which is defined by statute.” Brief for Appellant at 3-6 (citations omitted).
Appellant‘s claim is in contravention to well-established precedent, for a challenge to the legality of one‘s sentence does not allow him to evade the PCRA‘s timeliness requirements. In fact, in Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214 (1999), the Pennsylvania Supreme Court rejected this contention. The Fahy Court stated, “[a]lthough 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.” Id. at 331, 737 A.2d at 223 (citation omitted). Thus, Appellant cannot elude the PCRA‘s timeliness requirements based on a claim of an illegal sentence. See id. Indeed, despite his arguments to the contrary, Appellant also concedes that “the PCRA statute by its own terms provides relief from any illegal sentence if such a claim is raised in a timely PCRA petition.” Brief for Appellant at 14.
In his final two questions presented, Appellant attempts to invoke
In addition, Appellant evokes the newly-recognized constitutional right exception when averring his sentence of life imprisonment is illegal under Montgomery, supra. In Montgomery, the United States Supreme Court declared its prior holding in Miller, supra, constitutes a substantive rule of constitutional law to which state collateral review courts were required as a constitutional matter to give retroactive effect. Montgomery v. Louisiana, ___ U.S. at ____, 136 S.Ct. at 736, 193 L.Ed.2d at ___. Appellant filed his petition within
In Miller, the Supreme Court had held that “mandatory life without parole for those under the age of 18 at the time of their crimes violated the Eighth Amendment‘s prohibition on ‘cruel and unusual punishments.‘” Miller v. Alabama, ___ U.S. at ____, 132 S.Ct. at 2460, 183 L.Ed.2d at ____. However, while the Supreme Court‘s holding in Miller set forth a bright-line rule that mandatory sentences of life imprisonment without the possibility of parole are unconstitutional for juvenile offenders, it did not prevent a trial court from imposing a life sentence upon an individual such as Appellant who was over the age of eighteen at the time he committed the offense. Therefore, the right recognized by Miller and held to be retroactive in Montgomery does not provide Appellant a basis for relief from the PCRA time-bar. See Miller, ___ U.S. at ____, 132 S. Ct. at 2469, ___ L.Ed.2d at ____ (holding “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.“) See also Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super. 2013) (holding Miller is not an exception under Section 9545(b)(1)(iii) to those over the age of eighteen at the time crimes were committed); Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super. 2016) (holding the Miller decision applies only to defendants “under the age of 18 at the time of their crimes” and not to a nineteen year old defendant convicted of homicide who claimed he was a “technical juvenile” and relied on neuroscientific theories pertaining to immature brain development to support his claim).
For the foregoing reasons, Appellant‘s PCRA petition is untimely, and he has failed to plead and prove an exception to the statutory time-bar. The PCRA court correctly determined it lacked jurisdiction to review the merits of Appellant‘s petition and properly dismissed it, and we discern no other basis on which to disturb the PCRA court‘s dismissal of Appellant‘s petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/2017