Com. v. Cruz, J.

• Court: Superior Court of Pennsylvania
• Decided: March 2, 2017
• Docket: Com. v. Cruz, J. No. 1224 MDA 2016
• Status: Unpublished

Opinion

J-S05046-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOSE GUADELUPE CRUZ,

Appellant No. 1224 MDA 2016

Appeal from the PCRA Order Entered June 23, 2016 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000204-1993

BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 02, 2017

Appellant, Jose Guadalupe Cruz, appeals from the trial court’s June 23,

2016 order dismissing, without a hearing, his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. In addition,

Appellant’s counsel, Jamison Entwistle, Esq., petitions this Court for leave to

withdraw as counsel pursuant to Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988). Because we determine that we lack jurisdiction due to the

untimeliness of Appellant’s petition, we affirm the PCRA court’s order and

grant counsel’s petition to withdraw.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S05046-17

On October 13, 1994, Appellant pled nolo contendere to three counts

of second degree murder, 18 Pa.C.S. § 2502(b). On that same day, he was

sentenced to three consecutive terms of life imprisonment without the

possibility of parole. He did not file a post-sentence motion or a direct

appeal, and his judgment of sentence became final on November 14, 1994.

See 42 Pa.C.S. § 9545(b)(3) (stating that judgment of sentence becomes

final at the conclusion of direct review or the expiration of the time for

seeking the review); Pa.R.A.P. 903(a) (directing that a notice of appeal to

Superior Court must be filed within 30 days after the entry of the order from

which the appeal is taken).1

Since that time, Appellant has filed two PCRA petitions, which were

ultimately denied. On March 21, 2016, Appellant filed a third, pro se PCRA

petition, which forms the basis of this appeal. In this present petition,

1 Our review of the record shows that the thirtieth day after the entry of Appellant’s judgment of sentence — which would ordinarily constitute the last day of the appeal period pursuant to Pa.R.A.P. 903 — fell on Saturday, November 12, 1994. We must omit that day and the following day, Sunday, November 13, 1994, from our computation of the appeal period. See Pa.R.A.P. 107 (“Chapter 19 of Title 1 of the Pennsylvania Consolidated Statutes (rules of construction) so far as not inconsistent with any express provision of these rules, shall be applicable to the interpretation of these rules and all amendments hereto to the same extent as if these rules were enactments of the General Assembly.”); see also 1 Pa.C.S. § 1908 (“Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.”). Therefore, the last day of the thirty-day appeal period fell on Monday, November 14, 1994.

-2- J-S05046-17

Appellant sought to withdraw his pleas of nolo contendere and argued that

his sentences of life imprisonment without the possibility of parole must be

vacated based on the Supreme Court’s holding in Miller v. Alabama, 132

S.Ct. 2455, 2460 (2012) (stating 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’”). See

“Petition for Relief under 42 Pa.C.S.[] § 9545,” 3/21/2016, at 1

(unnumbered pages). In short, Appellant, who was 20 years old at the time

of his crimes, claims that Miller should apply to him because he “suffered

chronic traumatic abuse throughout childhood and adolescence[,] which

delayed the physical maturity of [his] brain[.]” Id. at 2.

In response, the PCRA court gave Pa.R.Crim.P. 907 notice on May 5,

2016, that it intended to dismiss Appellant’s PCRA petition without a hearing

because it lacked jurisdiction pursuant to 42 Pa.C.S. § 9545. On May 20,

2016, Appellant submitted a pro se response, in which he asserted, inter

alia, that the PCRA court, in fact, had jurisdiction because he filed his

petition within sixty days from the date of the United States Supreme

Court’s decision in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), which

held that Miller applies retroactively. See Appellant’s “Application for Relief

in Response to Forty-Five Day Notice of Intent to Dismiss,” 5/20/2016, at 1

-3- J-S05046-17

(unnumbered pages).2 Subsequently, on June 23, 2016, the PCRA court

dismissed Appellant’s PCRA petition without a hearing, explaining that the

petition “has not been filed within one year of the date of judgment

becoming final nor has [Appellant] specifically pled an exception to the

jurisdictional time limits.” See PCRA Court Order, 6/23/2016. More

specifically, the PCRA court stated: [Appellant’s] reliance on Miller…, as applied retroactively in Montgomery…, and Commonwealth v. Secreti, 2016 Pa. Super. 28[, 134 A.3d 77] (Pa. Super. 2016), is misplaced as those cases apply a constitutional right recognized by the United States Supreme Court which was held to apply retroactively. The claim currently being advanced by [Appellant] has not been recognized as a constitutional right by either the Supreme Court of the United States or the Supreme Court of Pennsylvania[,] nor has either Court ruled on the precise issue in favor of [Appellant]. Thus, exception to the timely filing of the Petition pursuant to 42 Pa.C.S.[] § 9545(b)(1)(iii) is inapplicable.

Id. Thereafter, Appellant filed a timely, pro se notice of appeal. On August

2, 2016, Attorney Entwistle was appointed to represent Appellant, and

subsequently filed a timely concise statement of matters complained of on

appeal on Appellant’s behalf. However, on November 7, 2016, Attorney

2 Shortly thereafter, on May 31, 2016, Appellant also filed a Motion to Recuse, in which he requested that the Honorable Michael A. George of the Court of Common Pleas of Adams County recuse himself. Acknowledging that he had “served as Adams County District Attorney during the period of time [Appellant’s] initial PCRA petition was pending[,]” Judge George granted Appellant’s motion “in order to avoid the appearance of impropriety[.]” See PCRA Court Order, 6/7/2016. As a result, Appellant’s case was forwarded to the Honorable Thomas R. Campbell, also of the Court of Common Pleas of Adams County.

-4- J-S05046-17

Entwistle filed with this Court a petition to withdraw as counsel and a “no-

merit” letter pursuant to Turner/Finley.

In response, Appellant filed a pro se brief, raising the following issues

for our review: 1. Whether the PCRA court erred when it determined that … [A]ppellant’s pro se motion for post-conviction collateral relief was not timely filed[?]

2. Whether the PCRA court erred when it determined that even if … [A]ppellant’s [p]ro se PCRA motion was timely filed[,] [A]ppellant still was not entitled to PCRA relief in the form of being granted a new trial because [A]ppellant’s claim was not recognize[d] by the U.S. Supreme [C]ourt[?]

Appellant’s Brief at 10 (formatting added).

Before addressing Appellant’s claims, we must first determine whether

counsel has satisfied the prerequisites of withdrawal. In Turner, our

Supreme Court “set forth the appropriate procedures for the withdrawal of

court-appointed counsel in collateral attacks on criminal convictions[.]”

Turner, 544 A.2d at 927. The traditional requirements for proper

withdrawal of PCRA counsel, originally set forth in Finley, were updated by

this Court in Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006),

abrogated by Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009),3 which

provides:

3 In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend stands for the proposition that an appellate court may sua sponte review the sufficiency of a no-merit letter when the defendant has not raised such issue.” Pitts, 981 A.2d at 879. In this case, Attorney Entwistle filed his (Footnote Continued Next Page)

-5- J-S05046-17

1) As part of an application to withdraw as counsel, PCRA counsel must attach to the application a “no-merit” letter[;]

2) PCRA counsel must, in the “no-merit” letter, list each claim the petitioner wishes to have reviewed, and detail the nature and extent of counsel's review of the merits of each of those claims[;]

3) PCRA counsel must set forth in the “no-merit” letter an explanation of why the petitioner's issues are meritless[;]

4) PCRA counsel must contemporaneously forward to the petitioner a copy of the application to withdraw, which must include (i) a copy of both the “no-merit” letter, and (ii) a statement advising the PCRA petitioner that, in the event the trial court grants the application of counsel to withdraw, the petitioner has the right to proceed pro se, or with the assistance of privately retained counsel;

5) the court must conduct its own independent review of the record in [] light of the PCRA petition and the issues set forth therein, as well as of the contents of the petition of PCRA counsel to withdraw; and

6) the court must agree with counsel that the petition is meritless.

Friend, 896 A.2d at 615 (footnote omitted).

“Once counsel for the petitioner determines that the issues raised

under the PC[R]A are ‘meritless,’ and the PC[R]A court concurs, counsel will

be permitted to withdraw and the petitioner may proceed on his own or with

the aid of private counsel to pursue a review of the ruling entered, if he/she

so wishes.” Finley, 550 A.2d at 215. The preceding sentence assumes that

counsel filed the no-merit letter with the trial court. However, counsel “may

_______________________ (Footnote Continued)

petition to withdraw and no-merit letter with this Court and, thus, our Supreme Court’s holding in Pitts is inapplicable.

-6- J-S05046-17

withdraw at any stage of collateral proceedings if he, in the exercise of his

professional judgment, determines that the issues raised in those

proceedings are meritless,” Commonwealth v. Bishop, 645 A.2d 274, 275

(Pa. Super. 1994), and “the initial court before whom the request to

withdraw is pleaded would logically be the tribunal making the ruling.”

Finley, 550 A.2d at 215 n.4. Attorney Entwistle filed his petition to

withdraw with our Court; accordingly, we must determine whether he has

complied with the Turner/Finley requirements.

In the case sub judice, Attorney Entwistle submitted to Appellant a

copy of his no-merit letter. That letter sets forth each claim Appellant

“wishes to have reviewed, and detail[s] the nature and extent of counsel’s

review of the merits of each of those claims[.]” Friend, 896 A.2d at 615.

The letter also provides an explanation as to why each issue is without merit

and wholly frivolous. Moreover, Attorney Entwistle advised Appellant of his

right to retain new counsel, or to proceed pro se, and/or to provide this

Court with any information that he deems worthy of our attention.

Accordingly, we conclude that Attorney Entwistle has complied with the

requirements necessary to withdraw as counsel.

Next, this Court must conduct its own independent review of the

record in light of the issues presented in Appellant’s PCRA petition. Our

standard of review regarding an order denying post conviction relief is

whether the determination of the court is supported by the evidence of

record and is free from legal error. Commonwealth v. Ragan, 923 A.2d

-7- J-S05046-17

1169, 1170 (Pa. 2007). We must begin by addressing the timeliness of

Appellant’s petition because the PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007). With respect to timeliness, the PCRA provides, in pertinent part,

the following: (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 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.

(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.

42 Pa.C.S. § 9545(b)(1)-(2).

In this case, as stated above, Appellant’s judgment of sentence

became final on November 14, 1994. Therefore, his present petition, filed

on March 21, 2016, is clearly untimely, and Appellant must satisfy one of the

-8- J-S05046-17

exceptions to the timeliness requirement set forth in section 9545(b)(1)(i)-

(iii), supra. Appellant seemingly argues that he meets the ‘retroactive

constitutional right’ exception of section 9545(b)(1)(iii) based on the

Supreme Court’s holding in Miller. In that case, as described supra, the

Supreme Court established a new constitutional right by holding “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). After

Miller, the United States Supreme Court issued Montgomery, clarifying

that Miller applies retroactively. Montgomery, 136 S.Ct. at 735-36. This

Court also held, in Secreti, that the date of the Montgomery decision is to

be used when calculating whether a petition is timely filed under the 60-day

rule of 42 Pa.C.S. § 9545(b)(2). Secreti, 134 A.3d at 82.

Initially, under the holding of Secreti, Appellant has complied with the

60-day rule of section 9545(b)(2), as his March 21, 2016 petition was filed

56 days after Montgomery was issued on January 25, 2016.

Notwithstanding, Appellant has not demonstrated that the rule created in

Miller applies to him. As the PCRA court observes, Appellant was born on

December 12, 1971, and committed the offense for which he is now

imprisoned on November 28, 1992. PCRA Court Opinion (PCO), 8/26/2016,

-9- J-S05046-17

at 2. As such, Appellant was 20 years and 11 months old at the time of his

crimes.4 Id.

Nevertheless, on appeal, Appellant argues that the rule in Miller

should apply to him because “the brain is immature until age 25[,]” and

“[t]here is no legitimate basis for lowering the age of adulthood below the

age of brain maturity; 25 years old.” See Appellant’s Brief at 13. We

disagree, and have already rejected such arguments. Specifically, in

Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), the co-

appellants, who were 19 and 21 years old at the time of their crimes, argued

that Miller applied to them because a human brain does not fully develop

until the age of 25, and because “it would be a violation of equal protection

for the courts to treat them[,] or anyone else with immature brains, as

adults.” Cintora, 69 A.3d at 764. In denying these claims, this Court

emphasized that the co-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).

We recently reaffirmed Cintora’s holding in Commonwealth v.

Furgess, 149 A.3d 90 (Pa. Super. 2016). In that case, the appellant — who

was 19 years old when he committed his crimes — advanced an argument

4 Appellant does not contend that he was under 18 at the time he committed his crimes.

- 10 - J-S05046-17

similar to Appellant’s, insisting that he “may invoke Miller because he was a

‘technical juvenile’” based on “neuroscientific theories regarding immature

brain development….” Id. at 94. Relying on Cintora, we reiterated that

“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.

Based on our holdings in Cintora and Furgess, it is clear that the rule

announced in Miller cannot apply to Appellant, who was 20 years and 11

months old when he committed the offenses for which he is now imprisoned.

Appellant’s arguments that Miller should apply to his case do not satisfy the

timeliness exception of section 9545(b)(1)(iii). Therefore, after our review

of the record and Appellant’s claims, we agree with Attorney Entwistle that

Appellant’s PCRA petition is meritless.5 ____________________________________________

5 We acknowledge that, in addition to his claims related to Miller, Appellant seems to raise issues regarding the ineffective assistance of his trial counsel and the validity of his plea in his third PCRA petition. He states that “[a]t no time did I consent to enter this plea due to my mental incapacity[,]” and that his trial counsel gave him incompetent advice regarding his plea. See “Petition for Relief under 42 Pa.C.S.[] § 9545,” 3/21/2016, at 7-8 (unnumbered pages). In his no-merit letter, Attorney Entwistle notes that these issues have already been litigated in Appellant’s prior PCRA actions. Based on our review of the record, we reach the same conclusion. In his first PCRA petition, filed on July 25, 2000, Appellant contended that his counsel was incompetent and that he was “coerced into a plea of nolo contendre [sic], whereas [his] mental conditions [] warrant[ed] a penalty phase hearing or an insanity defense[.]” See PCRA Petition, 7/25/2000, Exhibit 1, at 1, 6 (unnecessary capitalization and emphasis omitted). (Footnote Continued Next Page)

- 11 - J-S05046-17

Order affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/2/2017

Because Appellant has already litigated these issues, we agree with Attorney Entwistle that these issues do not entitle Appellant to relief. See 42 Pa.C.S. § 9543(a)(3) (stating that, to be eligible for relief, the petitioner must, among other things, plead and prove by a preponderance of evidence that “the allegation of error has not been previously litigated or waived”); 42 Pa.C.S. § 9544(a)(3) (explaining that an issue has been previously litigated if “it has been raised and decided in a proceeding collaterally attacking the conviction or sentence”).

- 12 -