Com. v. Birdwell, N.

• Court: Superior Court of Pennsylvania
• Decided: January 19, 2017
• Docket: 1059 EDA 2016
• Status: Unpublished

Opinion

J-S76014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

* 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. J-S76014-16

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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