J-S05005-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PAUL FORD : : Appellant : No. 312 WDA 2017
Appeal from the Order Entered January 17, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002612-1994
BEFORE: OLSON, J., OTT, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED APRIL 09, 2018
Appellant, Paul Ford, appeals pro se from an order entered on January
13, 2017 in the Criminal Division of the Court of Common Pleas of Allegheny
County that dismissed, as untimely, his fifth petition filed pursuant to the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
At docket number 2612-1994, the Commonwealth charged Appellant
with one count each of criminal homicide (18 Pa.C.S.A. § 2501) and criminal
conspiracy (18 Pa.C.S.A. § 903) in connection with the fatal shooting of
Maurice Price during a gunpoint robbery. Appellant was 18 years old when
this incident occurred. At the conclusion of trial on September 21, 1994, a
jury found Appellant guilty of second-degree murder.1 That same day, the
____________________________________________
1 The Commonwealth withdrew the conspiracy charge immediately prior to trial.
____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S05005-18
trial court imposed the mandatory sentence of life imprisonment without
parole. Following a direct appeal, this Court affirmed Appellant’s judgment
of sentence on March 26, 1997 and our Supreme Court denied further
review on December 19, 1997. See Commonwealth v. Ford, 695 A.2d
436 (Pa. Super. 1997), appeal denied, 705 A.2d 1305 (Pa. 1997).
Thereafter, Appellant initiated several unsuccessful attempts at attaining
collateral relief in both state and federal court.
On March 23, 2016, Appellant, acting pro se, filed the instant petition,
his fifth. The PCRA court issued notice of its intent to dismiss the petition
without a hearing on December 12, 2016. By order dated January 13, 2017
but entered on the trial court docket on January 17, 2017, the court
dismissed Appellant’s petition. This appeal followed.2
On appeal, Appellant raises the following question for our review.
Did the PCRA court err in denying Appellant’s successive PCRA petition [as untimely] in light of Montgomery v. Lousiana, 136 S.Ct. 718 (2016), where he was a juvenile when the crime occurred?
Appellant’s Brief at 4 (complete capitalization omitted). ____________________________________________
2 Appellant’s notice of appeal bears a docket date of February 17, 2017, which exceeds the 30-day appeal period from the PCRA court’s dismissal order by one day. See Pa.R.A.P. 105(b) and 903(a). However, Appellant, incarcerated and acting pro se, dated his notice of appeal and proof of service as having been mailed on January 27, 2017. Thus, it is timely. See Commonwealth v. Chambers, 35 A.3d 34 (Pa. Super. 2011), appeal denied, 46 A.3d 715 (Pa. 2012) (prisoner mailbox rule provides that pro se prisoner's document is deemed filed on date he delivers it to prison authorities for mailing).
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Relying on 42 Pa.C.S.A. § 9545(b)(1)(iii) and (2), Appellant asserts on
appeal that the PCRA court erred in dismissing his petition as untimely.
Specifically, Appellant points out that, in Miller v. Alabama, 132 S.Ct. 2455
(2012), the United States Supreme Court held that a sentence of life without
the possibility of parole constituted cruel and unusual punishment in
violation of the Eighth Amendment when imposed upon a juvenile homicide
defendant. Appellant further notes that the Court’s decision in
Montgomery gave Miller retroactive application to cases pending on
collateral review. Appellant reasons that because he was under 21 years of
age at the time of the underlying offense, he is entitled to relief under
Miller. Lastly, since he filed the instant petition on March 23, 2016,
Appellant claims that he satisfied the 60-day filing requirement set forth in
42 Pa.C.S.A. § 9545(b)(2) because Montgomery was filed on January 25,
2016.3
On appeal from the denial of PCRA relief, this Court determines,
“whether the findings of the PCRA court are supported by the record and
free of legal error.” Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012).
Here, the PCRA court dismissed Appellant’s petition without a hearing on
grounds that it was untimely and Appellant could not invoke any exception
to the PCRA’s time-bar. Because this appeal raises a question of law, our ____________________________________________
3Using January 25, 2016 as the start date, § 9545(b)(2)’s 60-day period would not expire until March 25, 2016.
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standard of review is de novo and our scope of review plenary. See
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. 2012).
“Crucial to the determination of any PCRA appeal is the timeliness of
the underlying petition.” Commonwealth v. Brown, 141 A.3d 491, 499
(Pa. Super. 2016) (citation omitted). The timeliness requirement for PCRA
petitions “is mandatory and jurisdictional in nature[.]” Commonwealth v.
Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citation omitted). No court
may address an issue raised in an untimely petition. Jones, 54 A.3d at 17.
A PCRA petition, including a second or subsequent one, must be filed
within one year of the date the petitioner's judgment of sentence became
final, unless he pleads and proves one of the three exceptions outlined in 42
Pa.C.S.A. § 9545(b)(1).4 Jones, 54 A.3d at 16; 42 Pa.C.S.A. § 9545(b)(1).
4 The three timeliness exceptions under the PCRA are as follows:
(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.
(Footnote Continued Next Page)
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“[A] judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S.A. § 9545(b)(3).
In this case, Appellant does not contest that he filed his petition
outside the one-year time limit found in § 9545(b)(1). Instead, he
maintains that he properly invoked the timeliness exception found at
§ 9545(b)(1)(iii) because he was under 21 years of age at the time of the
offense (and thus eligible for relief under Miller) and filed his petition within
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J-S05005-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PAUL FORD : : Appellant : No. 312 WDA 2017
Appeal from the Order Entered January 17, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002612-1994
BEFORE: OLSON, J., OTT, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED APRIL 09, 2018
Appellant, Paul Ford, appeals pro se from an order entered on January
13, 2017 in the Criminal Division of the Court of Common Pleas of Allegheny
County that dismissed, as untimely, his fifth petition filed pursuant to the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
At docket number 2612-1994, the Commonwealth charged Appellant
with one count each of criminal homicide (18 Pa.C.S.A. § 2501) and criminal
conspiracy (18 Pa.C.S.A. § 903) in connection with the fatal shooting of
Maurice Price during a gunpoint robbery. Appellant was 18 years old when
this incident occurred. At the conclusion of trial on September 21, 1994, a
jury found Appellant guilty of second-degree murder.1 That same day, the
____________________________________________
1 The Commonwealth withdrew the conspiracy charge immediately prior to trial.
____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S05005-18
trial court imposed the mandatory sentence of life imprisonment without
parole. Following a direct appeal, this Court affirmed Appellant’s judgment
of sentence on March 26, 1997 and our Supreme Court denied further
review on December 19, 1997. See Commonwealth v. Ford, 695 A.2d
436 (Pa. Super. 1997), appeal denied, 705 A.2d 1305 (Pa. 1997).
Thereafter, Appellant initiated several unsuccessful attempts at attaining
collateral relief in both state and federal court.
On March 23, 2016, Appellant, acting pro se, filed the instant petition,
his fifth. The PCRA court issued notice of its intent to dismiss the petition
without a hearing on December 12, 2016. By order dated January 13, 2017
but entered on the trial court docket on January 17, 2017, the court
dismissed Appellant’s petition. This appeal followed.2
On appeal, Appellant raises the following question for our review.
Did the PCRA court err in denying Appellant’s successive PCRA petition [as untimely] in light of Montgomery v. Lousiana, 136 S.Ct. 718 (2016), where he was a juvenile when the crime occurred?
Appellant’s Brief at 4 (complete capitalization omitted). ____________________________________________
2 Appellant’s notice of appeal bears a docket date of February 17, 2017, which exceeds the 30-day appeal period from the PCRA court’s dismissal order by one day. See Pa.R.A.P. 105(b) and 903(a). However, Appellant, incarcerated and acting pro se, dated his notice of appeal and proof of service as having been mailed on January 27, 2017. Thus, it is timely. See Commonwealth v. Chambers, 35 A.3d 34 (Pa. Super. 2011), appeal denied, 46 A.3d 715 (Pa. 2012) (prisoner mailbox rule provides that pro se prisoner's document is deemed filed on date he delivers it to prison authorities for mailing).
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Relying on 42 Pa.C.S.A. § 9545(b)(1)(iii) and (2), Appellant asserts on
appeal that the PCRA court erred in dismissing his petition as untimely.
Specifically, Appellant points out that, in Miller v. Alabama, 132 S.Ct. 2455
(2012), the United States Supreme Court held that a sentence of life without
the possibility of parole constituted cruel and unusual punishment in
violation of the Eighth Amendment when imposed upon a juvenile homicide
defendant. Appellant further notes that the Court’s decision in
Montgomery gave Miller retroactive application to cases pending on
collateral review. Appellant reasons that because he was under 21 years of
age at the time of the underlying offense, he is entitled to relief under
Miller. Lastly, since he filed the instant petition on March 23, 2016,
Appellant claims that he satisfied the 60-day filing requirement set forth in
42 Pa.C.S.A. § 9545(b)(2) because Montgomery was filed on January 25,
2016.3
On appeal from the denial of PCRA relief, this Court determines,
“whether the findings of the PCRA court are supported by the record and
free of legal error.” Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012).
Here, the PCRA court dismissed Appellant’s petition without a hearing on
grounds that it was untimely and Appellant could not invoke any exception
to the PCRA’s time-bar. Because this appeal raises a question of law, our ____________________________________________
3Using January 25, 2016 as the start date, § 9545(b)(2)’s 60-day period would not expire until March 25, 2016.
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standard of review is de novo and our scope of review plenary. See
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. 2012).
“Crucial to the determination of any PCRA appeal is the timeliness of
the underlying petition.” Commonwealth v. Brown, 141 A.3d 491, 499
(Pa. Super. 2016) (citation omitted). The timeliness requirement for PCRA
petitions “is mandatory and jurisdictional in nature[.]” Commonwealth v.
Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citation omitted). No court
may address an issue raised in an untimely petition. Jones, 54 A.3d at 17.
A PCRA petition, including a second or subsequent one, must be filed
within one year of the date the petitioner's judgment of sentence became
final, unless he pleads and proves one of the three exceptions outlined in 42
Pa.C.S.A. § 9545(b)(1).4 Jones, 54 A.3d at 16; 42 Pa.C.S.A. § 9545(b)(1).
4 The three timeliness exceptions under the PCRA are as follows:
(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.
(Footnote Continued Next Page)
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“[A] judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S.A. § 9545(b)(3).
In this case, Appellant does not contest that he filed his petition
outside the one-year time limit found in § 9545(b)(1). Instead, he
maintains that he properly invoked the timeliness exception found at
§ 9545(b)(1)(iii) because he was under 21 years of age at the time of the
offense (and thus eligible for relief under Miller) and filed his petition within
60 days of the United States Supreme Court’s decision in Montgomery.
Contrary to Appellant’s claims, however, this Court has held that Miller
applies only to petitioners who were “under the age of 18 at the time of their
crimes” and that petitioners who were older than 18 may not rely on that
decision to invoke the time-bar exception in § 9545(b)(1)(iii).
Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016). Because
the record and pertinent case law confirms that Appellant’s petition was
untimely and that he was not entitled to invoke an exception to the PCRA’s
(Footnote Continued) _______________________
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). If an exception applies, a PCRA petition may be considered if it is filed “within 60 days of the date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). “The petitioner bears the burden to plead and prove an applicable statutory exception.” Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017), appeal denied, 2017 WL 3614192 (Pa. Aug. 23, 2017).
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timeliness requirement, the PCRA court did not err in dismissing Appellant's
petition for lack of jurisdiction.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/9/2018
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