Com. v. Foreman, B.

• Court: Superior Court of Pennsylvania
• Decided: July 17, 2015
• Docket: 2622 EDA 2014
• Status: Unpublished

Opinion

J-A21025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

BRYANT A. FOREMAN

Appellant No. 2622 EDA 2014

Appeal from the PCRA Order July 8, 2014 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001289-2003 CP-23-CR-0004594-2001

BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED JULY 17, 2015

Appellant, Bryant A. Foreman, appeals pro se from the July 8, 2014

order dismissing, as untimely, his third petition for relief filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1 After

careful review, we affirm.2

____________________________________________ * Former Justice specially assigned to the Superior Court. 1 The PCRA court appointed counsel for Appellant, who later withdrew pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny. Appellant does not challenge said withdrawal on appeal. 2 On June 22, 2015, Appellant filed an application for relief to liberally construe the Rule of Appellate Procedure and excuse his failure to specifically comply with Rule 2132(b). Appellant’s motion is granted. J-A21025-15

On August 5, 2003, the trial court imposed an aggregate sentence of

life imprisonment without the possibility of parole after Appellant was found

guilty of first-degree murder3 and related offenses committed when he was

17 years-old. This Court affirmed Appellant’s judgment of sentence on June

23, 2004. Commonwealth v. Foreman, 2647 EDA 2003 (Pa. Super. 2004)

(unpublished memorandum), appeal denied, 867 A.2d 522 (Pa. 2005). Our

Supreme Court denied Appellant’s petition for allowance of appeal on

January 12, 2005. Id. As Appellant did not seek a writ of certiorari from

the United States Supreme Court, his judgment of sentence became final on

April 12, 2005, when the filing period for a certiorari petition expired. See

42 Pa.C.S.A. § 9545(b)(3) (stating, “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[]”); U.S. Sup. Ct. R. 13(1) (stating,

“[a] petition for a writ of certiorari seeking review of a judgment of a lower

state court that is subject to discretionary review by the state court of last

resort is timely when it is filed with the Clerk within 90 days after entry of

the order denying discretionary review[]”). Therefore, Appellant had until

____________________________________________ 3 18 Pa.C.S.A. § 2502(a).

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April 12, 2006 to timely file a PCRA petition. 4 See 42 Pa.C.S.A.

§ 9545(b)(1) (stating, “[a]ny petition under this subchapter, including a

second or subsequent petition, shall be filed within one year of the date the

judgment becomes final[]”). Appellant filed the instant petition on July 19,

2012. As a result, it was patently untimely.

In the instant appeal, Appellant argues that the United States

Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012)

should be retroactively applied. Appellant’s Brief at 10. However, our

Supreme Court has rejected that argument.5 Commonwealth v.

Cunningham, 81 A.3d 1, 11 (Pa. 2013), cert. denied, Cunningham v.

Pennsylvania, 134 S. Ct. 2724 (2014). To the extent Appellant argues that

this Court should give broader retroactive effect to Miller under Danforth v.

Minnesota, 552 U.S. 264 (2008), this Court lacks the judicial power to

decide that question for the purposes of the PCRA time-bar. See 42

Pa.C.S.A. § 9545(b)(1)(iii) (allowing a time-bar exception for “a

____________________________________________ 4 Appellant timely filed his first PCRA petition on April 25, 2005, which the PCRA court denied on October 26, 2006. Appellant did not file a notice of appeal to this Court. Appellant filed his second PCRA petition on June 24, 2010, which the PCRA court dismissed on January 25, 2011 as untimely. Again, Appellant did not file a notice of appeal. 5 On March 23, 2015, the Supreme Court granted certiorari in Montgomery v. Louisiana, 135 S. Ct. 1546 (2015), which presents the Miller retroactivity question. Nonetheless, until the United States Supreme Court issues its decision, Cunningham remains dispositive of the issue in Pennsylvania.

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constitutional right that was recognized by the Supreme Court of the United

States or the Supreme Court of Pennsylvania … and has been held by that

court to apply retroactively[]”) (emphasis added).

Appellant also argues that he is entitled to habeas corpus relief outside

of the parameters of the PCRA. Appellant’s Brief at 16. This Court has

explained that claims pertaining to Miller go to the legality of the sentence.

Commonwealth v. Brown, 71 A.3d 1009, 1015-1016 (Pa. Super. 2013),

appeal denied, 77 A.3d 635 (Pa. 2013). Legality of sentence claims are

expressly cognizable under the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(vii);

accord Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004)

(citation omitted). Therefore, because Appellant’s “claim[] [was] cognizable

under the PCRA … the writ of habeas corpus was not available.”

Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 2013) (citation omitted),

cert. denied, Turner v. Pennsylvania, 134 S. Ct. 1771 (2014); see also

42 Pa.C.S.A. § 9542 (stating that the PCRA “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 this subchapter

takes effect, including habeas corpus and coram nobis[]) (emphasis and

italics added).

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Based on the foregoing, we conclude the PCRA court properly

dismissed Appellant’s PCRA petition as untimely.6 Accordingly, the PCRA

court’s July 8, 2014 order is affirmed.

Order affirmed. Application for relief granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/17/2015

____________________________________________ 6 In light of our conclusion, we do not address Appellant’s underlying argument as to whether his sentence is unconstitutional under Miller.

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