J-S19027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY KENNETH BOGGS, : : Appellant. : No. 3611 EDA 2018
Appeal from the PCRA Order Entered, November 28, 2018, in the Court of Common Pleas of Chester County, Criminal Division at No(s): CP-15-CR-0000505-1997.
BEFORE: LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 31, 2019
Anthony Kenneth Boggs appeals pro se from the order that denied as
untimely his serial petition filed pursuant to the Post Conviction Relief Act
(“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent facts and procedural history are as follows: On March 25,
1998, a jury convicted Boggs of first-degree murder in the shooting of
Raymond Parks. At the time of the victim’s murder, Boggs was approximately
18½ years old. Because the jury could not reach a unanimous decision during
the penalty phase, the trial court, on April 1, 1998, imposed the mandatory
term of life in prison without the possibility of parole. Boggs filed a timely
appeal to this Court, and, on January 14, 1999, we affirmed his judgment of
sentence. Commonwealth v. Boggs, 736 A.2d 678 (Pa. Super. 1999)
(unpublished memorandum). On July 12, 1999, our Supreme Court denied
____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S19027-19
his petition for allowance of appeal. Commonwealth v. Boggs, 740 A.2d
1143 (Pa. 1999).
On February 10, 2000, Boggs filed a timely pro se PCRA petition and an
amended petition on June 22, 2001. The PCRA court appointed counsel, who
later withdrew, and the PCRA court appointed new counsel. On October 18,
2002, PCRA counsel filed an amended PCRA petition, and later “a
supplemented and corrected” amended PCRA petition. Over the course of a
four-month period, the PCRA court held several evidentiary hearings. On June
12, 2003, the PCRA court ultimately denied Boggs’ PCRA petition. Boggs filed
an appeal to this Court. We affirmed the denial of post-conviction relief on
July 13, 2004, and our Supreme Court denied his petition for allowance of
appeal nunc pro tunc on November 24, 2004. Commonwealth v. Boggs,
859 A.2d 826 (Pa. Super. 2004) (unpublished memorandum), appeal denied,
190 MM 2004 (Pa. 2004).
Thereafter, Boggs unsuccessfully sought relief in the federal courts. On
December 15, 2009, he also filed a motion for DNA testing, which the PCRA
court denied on July 1, 2010. Boggs also unsuccessfully sought post-
conviction relief in PCRA petitions he filed in 2015 and 2017. On July 30,
2018, Boggs filed the pro se PCRA petition at issue, his fourth. After the
Commonwealth filed an answer to the petition, the PCRA court, on September
18, 2018, issued Pa.R.Crim.P. 907 notice of its intention to dismiss Boggs’
fourth PCRA petition as untimely filed. Boggs filed a response. By order
entered November 28, 2018, the PCRA court denied Boggs’ serial petition.
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This appeal followed. Both Boggs and the PCRA court have complied with
Pa.R.A.P. 1925.1
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
Before addressing the merits of Boggs’ substantive claims on appeal, we
must first address whether the PCRA court correctly concluded that Boggs’
serial PCRA petition was untimely filed.
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, that an
exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections
____________________________________________
1 The PCRA court asserts that we should quash Boggs’ appeal because he failed to serve the court with a copy of his Rule 1925(b) statement. See PCRA Court Opinion, 1/11/19, at 1 n.1. Boggs’ omission should result in waiver of all his appellate issues. See generally, Commonwealth v. Hooks, 921 A.2d 1199 (Pa. Super. 2007). As discussed, infra, because Boggs did not file his petition in a timely manner, we do not reach his substantive issues.
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9545(b)(1)(i), (ii), and (iii), is met.2 42 Pa.C.S.A. § 9545. A PCRA petition
invoking one of these statutory exceptions must “be filed within 60 days of
the date the claims could have been presented.” See Hernandez, 79 A.3d
651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).3 Finally,
exceptions to the PCRA’s time bar must be pled in the petition, and may not
be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d
521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues
not raised before the lower court are waived and cannot be raised for the first
time on appeal). Pennsylvania law makes clear that no court has jurisdiction
2 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of interference of 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.A. §§ 9545(b)(1)(i), (ii), and (iii).
3 Our legislature recently amended this section of the PCRA to provide petitioner’s one year to file a petition invoking a time-bar exception. See Act of 2018, October 24, P.L. 894, No. 146. This amendment does not apply to Boggs’ serial petition.
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to hear an untimely PCRA petition. See Commonwealth v. Robinson, 837
A.2d 1157, 1161 (Pa. 2003).
Here, Boggs’ judgment of sentence became final on October 7, 1999,
ninety days after our Supreme Court denied his petition for allowance of
appeal, and the time to file a petition for writ of certiorari with the United
States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Thus, Boggs
had until October 7, 2000, to file a timely petition. As he filed the petition at
issue in 2018, it is untimely unless Boggs has satisfied his burden of pleading
and proving that one of the enumerated exceptions applies. See Hernandez,
supra.
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J-S19027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY KENNETH BOGGS, : : Appellant. : No. 3611 EDA 2018
Appeal from the PCRA Order Entered, November 28, 2018, in the Court of Common Pleas of Chester County, Criminal Division at No(s): CP-15-CR-0000505-1997.
BEFORE: LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 31, 2019
Anthony Kenneth Boggs appeals pro se from the order that denied as
untimely his serial petition filed pursuant to the Post Conviction Relief Act
(“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent facts and procedural history are as follows: On March 25,
1998, a jury convicted Boggs of first-degree murder in the shooting of
Raymond Parks. At the time of the victim’s murder, Boggs was approximately
18½ years old. Because the jury could not reach a unanimous decision during
the penalty phase, the trial court, on April 1, 1998, imposed the mandatory
term of life in prison without the possibility of parole. Boggs filed a timely
appeal to this Court, and, on January 14, 1999, we affirmed his judgment of
sentence. Commonwealth v. Boggs, 736 A.2d 678 (Pa. Super. 1999)
(unpublished memorandum). On July 12, 1999, our Supreme Court denied
____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S19027-19
his petition for allowance of appeal. Commonwealth v. Boggs, 740 A.2d
1143 (Pa. 1999).
On February 10, 2000, Boggs filed a timely pro se PCRA petition and an
amended petition on June 22, 2001. The PCRA court appointed counsel, who
later withdrew, and the PCRA court appointed new counsel. On October 18,
2002, PCRA counsel filed an amended PCRA petition, and later “a
supplemented and corrected” amended PCRA petition. Over the course of a
four-month period, the PCRA court held several evidentiary hearings. On June
12, 2003, the PCRA court ultimately denied Boggs’ PCRA petition. Boggs filed
an appeal to this Court. We affirmed the denial of post-conviction relief on
July 13, 2004, and our Supreme Court denied his petition for allowance of
appeal nunc pro tunc on November 24, 2004. Commonwealth v. Boggs,
859 A.2d 826 (Pa. Super. 2004) (unpublished memorandum), appeal denied,
190 MM 2004 (Pa. 2004).
Thereafter, Boggs unsuccessfully sought relief in the federal courts. On
December 15, 2009, he also filed a motion for DNA testing, which the PCRA
court denied on July 1, 2010. Boggs also unsuccessfully sought post-
conviction relief in PCRA petitions he filed in 2015 and 2017. On July 30,
2018, Boggs filed the pro se PCRA petition at issue, his fourth. After the
Commonwealth filed an answer to the petition, the PCRA court, on September
18, 2018, issued Pa.R.Crim.P. 907 notice of its intention to dismiss Boggs’
fourth PCRA petition as untimely filed. Boggs filed a response. By order
entered November 28, 2018, the PCRA court denied Boggs’ serial petition.
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This appeal followed. Both Boggs and the PCRA court have complied with
Pa.R.A.P. 1925.1
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
Before addressing the merits of Boggs’ substantive claims on appeal, we
must first address whether the PCRA court correctly concluded that Boggs’
serial PCRA petition was untimely filed.
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, that an
exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections
____________________________________________
1 The PCRA court asserts that we should quash Boggs’ appeal because he failed to serve the court with a copy of his Rule 1925(b) statement. See PCRA Court Opinion, 1/11/19, at 1 n.1. Boggs’ omission should result in waiver of all his appellate issues. See generally, Commonwealth v. Hooks, 921 A.2d 1199 (Pa. Super. 2007). As discussed, infra, because Boggs did not file his petition in a timely manner, we do not reach his substantive issues.
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9545(b)(1)(i), (ii), and (iii), is met.2 42 Pa.C.S.A. § 9545. A PCRA petition
invoking one of these statutory exceptions must “be filed within 60 days of
the date the claims could have been presented.” See Hernandez, 79 A.3d
651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).3 Finally,
exceptions to the PCRA’s time bar must be pled in the petition, and may not
be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d
521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues
not raised before the lower court are waived and cannot be raised for the first
time on appeal). Pennsylvania law makes clear that no court has jurisdiction
2 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of interference of 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.A. §§ 9545(b)(1)(i), (ii), and (iii).
3 Our legislature recently amended this section of the PCRA to provide petitioner’s one year to file a petition invoking a time-bar exception. See Act of 2018, October 24, P.L. 894, No. 146. This amendment does not apply to Boggs’ serial petition.
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to hear an untimely PCRA petition. See Commonwealth v. Robinson, 837
A.2d 1157, 1161 (Pa. 2003).
Here, Boggs’ judgment of sentence became final on October 7, 1999,
ninety days after our Supreme Court denied his petition for allowance of
appeal, and the time to file a petition for writ of certiorari with the United
States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Thus, Boggs
had until October 7, 2000, to file a timely petition. As he filed the petition at
issue in 2018, it is untimely unless Boggs has satisfied his burden of pleading
and proving that one of the enumerated exceptions applies. See Hernandez,
supra.
Boggs has failed to establish any exception to the PCRA’s time bar. He
attempts to argue that he is entitled relief under the United States Supreme
Court’s recent decisions that held that mandatory life without parole sentences
for juveniles was unconstitutional. See generally, Miller v. Alabama, 567
U.S. 460 (2012); see also Montgomery v. Louisiana, ___ U.S. ___, 136
S.Ct. 718 (2016) (applying the Miller decision retroactively). Unfortunately,
for Boggs, he did not file his fourth petition within 60 days of when such claims
could have been first brought. Thus, the PCRA court lacked authority to
address the substantive merits of Boggs’ claims. See generally,
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
This Court has previously held that the date upon which Montgomery
had been decided is to be the date used when applying the sixty-day rule to
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determine if a PCRA petition raising a Miller/Montgomery claim is timely.
Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa. Super. 2016). The United
States Supreme Court decided Montgomery on January 25, 2016, and Boggs
did not file his serial PCRA petition at issue until July 30, 2018. Even
considering that the PCRA court could not entertain a serial petition until this
Court affirmed the dismissal of his prior petition, see generally
Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000), we affirmed the denial
of his third petition in November 2017. Boggs, supra. As Boggs did not file
his serial petition until over six months later, he cannot establish a time-bar
exception, and the PCRA court properly denied his fourth PCRA petition as
untimely filed.4
Order affirmed.
4 We further note that because Boggs was over the age of eighteen when he killed the victim he is not entitled to the application of Miller/Montgomery, and this Court has repeatedly rejected his argument regarding brain development of post-adolescents (over age 18). See, e.g., Commonwealth v. Pew, 189 A.3d 486 (Pa. Super. 2018); Commonwealth v. Woods, 179 A.3d 37, 44 (Pa. Super. 2017).
In addition, although Boggs relies upon the recent federal court decision in Noel v. United States, 2018 WL 1541898 (D. Conn. 2018), absent a United States Supreme Court pronouncement, the decisions of federal courts are not binding on state courts. Commonwealth v. Walker, 139 A.3d 225 (Pa. Super. 2016). Moreover, as Noel is not a United States Supreme Court decision or a Pennsylvania Supreme Court decision, it cannot used to establish the Section 9545(b)(1)(iii) time-bar exception.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/31/19
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