J-S87010-16
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
STEVEN DENNIS FREDERICK,
Appellant No. 1187 MDA 2016
Appeal from the PCRA Order July 7, 2016 in the Court of Common Pleas of Berks County Criminal Division at No.: CP- 06 -CR- 0000743 -1975
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 17, 2017
Appellant, Steven Dennis Frederick, appeals, pro se, from the order of
July 7, 2016, dismissing, without a hearing, his second petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. Because the petition is untimely without an applicable exception, we
affirm.
We take the underlying facts and procedural history in this matter
from our independent review of the certified record. On May 24, 1977, a
jury convicted Appellant of murder of the first degree, burglary, aggravated assault, robbery, and theft by unlawful taking. On June 5, 1980, the trial
court sentenced Appellant to life in prison without the possibility of parole.
* Retired Senior Judge assigned to the Superior Court. J-S87010-16
On May 27, 1983, the Pennsylvania Supreme Court affirmed the judgment of
sentence in a per curiam order.' (See Commonwealth v. Frederick, 460
A.2d 752 (Pa. 1983)). Appellant did not file a petition for a writ of certiorari
with the United States Supreme Court.
Appellant filed a counseled first PCRA petition in 1988. The trial court
denied the petition on March 29, 1989. This Court affirmed the denial of the
petition on July 23, 1990. (See Commonwealth v. Frederick, 580 A.2d
1163 (Pa. Super. 1990) (unpublished memorandum)). Subsequently, the
Pennsylvania Supreme Court affirmed per curiam. (See Commonwealth v.
Frederick, 601 A.2d 807 (Pa. 1992)).
On March 16, 2016, Appellant, acting pro se, filed the instant PCRA
petition seeking to vacate his sentence pursuant to Montgomery v.
Louisiana, 136 S.Ct. 718 (2016). On June 21, 2016, the PCRA court issued
notice of its intent to dismiss the petition pursuant to Pennsylvania Rule of
Criminal Procedure 907(1). Appellant filed a response on July 1, 2016. On
July 7, 2016, the PCRA court dismissed the petition as untimely. The
instant, timely appeal followed.2
' Appellant appealed the judgment of sentence directly to the Pennsylvania Supreme Court. See Appellate Court Jurisdiction Act of July 31, 1970, P.L. 673, No. 223, Art. II, § 202, repealed and reenacted in part, Act of September 23, 1980, P.L. 686, No. 137, 42 Pa.C.S.A. § 722.
2The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). However, Appellant filed (Footnote Continued Next Page)
-2 J-S87010-16
On appeal, Appellant raises the following question for our review:
I. Did the [PCRA] court abuse its discretion in denying Appellant's subsequent PCRA invoking 42 Pa.C.S.[A.] § 9545(b)(1)(iii) where Appellant's PCRA was filed within sixty [] days in the wake of [Montgomery, supra] where the [United States Supreme Court] utilized the 1880 holding of Ex [P]arte Siebold, 100 U.S. 371 (1880) as the genesis of a newly recognized constitutional right made applicable to the [states] pursuant to the Supremacy Clause of the U.S. Const. art. VI, cl. 2 where Appellant's judgment of sentence is void ab initio where the statute (18 Pa.C.S.[A.] § 1311) utilized as statutory authorization by the sentencing court was found unconstitutional in its entirety thus manifestly warranting discharge and /or resentencing?
(Appellant's Brief, at 4).
Our standard of review for an order denying PCRA relief is well -settled:
This Court's standard of review regarding a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record... .
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted). However, "if a PCRA [p]etition is untimely, a
trial court has no jurisdiction to entertain the petition." Commonwealth v.
Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).
Here, Appellant filed his PCRA petition on March 16, 2016. The PCRA
provides that "[a]ny petition under this subchapter, including a second or (Footnote Continued)
a pro se Rule 1925(b) statement on July 18, 2016. See id. On August 2, 2016, the PCRA court filed an opinion. See Pa.R.A.P. 1925(a).
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subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]" 42 Pa.C.S.A. § 9545(b)(1). Appellant's judgment of
sentence became final on July 26, 1983, after the sixty -day period to file a
petition for a writ of certiorari with the United States Supreme Court expired.
See former U.S.Sup.Ct.R. 20.
Because Appellant did not file his current petition until March 16,
2016, the petition is facially untimely. See 42 Pa.C.S.A. § 9545(b)(1).
Thus, he must plead and prove that he falls under one of the exceptions at
Section 9545(b) of the PCRA. See id.
Section 9545 provides that the court can still consider an untimely
petition where the petitioner successfully 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.
Id. at § 9545(b)(1)(i)- (iii). Further, a petitioner who wishes to invoke any
of the above exceptions must file the petition "within [sixty] days of the date
the claim could have been presented." Id. at § 9545(b)(2). The
Pennsylvania Supreme Court has repeatedly stated that it is an appellant's
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burden to plead and prove that one of the above -enumerated exceptions
applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268
(Pa. 2008), cert. denied, 555 U.S. 916 (2008).
In the instant matter, Appellant appears to contend that his petition is
timely under Section 9545(b)(1)(iii), specifically that the United States
Supreme Court's decision in Montgomery, supra:
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J-S87010-16
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
STEVEN DENNIS FREDERICK,
Appellant No. 1187 MDA 2016
Appeal from the PCRA Order July 7, 2016 in the Court of Common Pleas of Berks County Criminal Division at No.: CP- 06 -CR- 0000743 -1975
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 17, 2017
Appellant, Steven Dennis Frederick, appeals, pro se, from the order of
July 7, 2016, dismissing, without a hearing, his second petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. Because the petition is untimely without an applicable exception, we
affirm.
We take the underlying facts and procedural history in this matter
from our independent review of the certified record. On May 24, 1977, a
jury convicted Appellant of murder of the first degree, burglary, aggravated assault, robbery, and theft by unlawful taking. On June 5, 1980, the trial
court sentenced Appellant to life in prison without the possibility of parole.
* Retired Senior Judge assigned to the Superior Court. J-S87010-16
On May 27, 1983, the Pennsylvania Supreme Court affirmed the judgment of
sentence in a per curiam order.' (See Commonwealth v. Frederick, 460
A.2d 752 (Pa. 1983)). Appellant did not file a petition for a writ of certiorari
with the United States Supreme Court.
Appellant filed a counseled first PCRA petition in 1988. The trial court
denied the petition on March 29, 1989. This Court affirmed the denial of the
petition on July 23, 1990. (See Commonwealth v. Frederick, 580 A.2d
1163 (Pa. Super. 1990) (unpublished memorandum)). Subsequently, the
Pennsylvania Supreme Court affirmed per curiam. (See Commonwealth v.
Frederick, 601 A.2d 807 (Pa. 1992)).
On March 16, 2016, Appellant, acting pro se, filed the instant PCRA
petition seeking to vacate his sentence pursuant to Montgomery v.
Louisiana, 136 S.Ct. 718 (2016). On June 21, 2016, the PCRA court issued
notice of its intent to dismiss the petition pursuant to Pennsylvania Rule of
Criminal Procedure 907(1). Appellant filed a response on July 1, 2016. On
July 7, 2016, the PCRA court dismissed the petition as untimely. The
instant, timely appeal followed.2
' Appellant appealed the judgment of sentence directly to the Pennsylvania Supreme Court. See Appellate Court Jurisdiction Act of July 31, 1970, P.L. 673, No. 223, Art. II, § 202, repealed and reenacted in part, Act of September 23, 1980, P.L. 686, No. 137, 42 Pa.C.S.A. § 722.
2The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). However, Appellant filed (Footnote Continued Next Page)
-2 J-S87010-16
On appeal, Appellant raises the following question for our review:
I. Did the [PCRA] court abuse its discretion in denying Appellant's subsequent PCRA invoking 42 Pa.C.S.[A.] § 9545(b)(1)(iii) where Appellant's PCRA was filed within sixty [] days in the wake of [Montgomery, supra] where the [United States Supreme Court] utilized the 1880 holding of Ex [P]arte Siebold, 100 U.S. 371 (1880) as the genesis of a newly recognized constitutional right made applicable to the [states] pursuant to the Supremacy Clause of the U.S. Const. art. VI, cl. 2 where Appellant's judgment of sentence is void ab initio where the statute (18 Pa.C.S.[A.] § 1311) utilized as statutory authorization by the sentencing court was found unconstitutional in its entirety thus manifestly warranting discharge and /or resentencing?
(Appellant's Brief, at 4).
Our standard of review for an order denying PCRA relief is well -settled:
This Court's standard of review regarding a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record... .
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted). However, "if a PCRA [p]etition is untimely, a
trial court has no jurisdiction to entertain the petition." Commonwealth v.
Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).
Here, Appellant filed his PCRA petition on March 16, 2016. The PCRA
provides that "[a]ny petition under this subchapter, including a second or (Footnote Continued)
a pro se Rule 1925(b) statement on July 18, 2016. See id. On August 2, 2016, the PCRA court filed an opinion. See Pa.R.A.P. 1925(a).
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subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]" 42 Pa.C.S.A. § 9545(b)(1). Appellant's judgment of
sentence became final on July 26, 1983, after the sixty -day period to file a
petition for a writ of certiorari with the United States Supreme Court expired.
See former U.S.Sup.Ct.R. 20.
Because Appellant did not file his current petition until March 16,
2016, the petition is facially untimely. See 42 Pa.C.S.A. § 9545(b)(1).
Thus, he must plead and prove that he falls under one of the exceptions at
Section 9545(b) of the PCRA. See id.
Section 9545 provides that the court can still consider an untimely
petition where the petitioner successfully 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.
Id. at § 9545(b)(1)(i)- (iii). Further, a petitioner who wishes to invoke any
of the above exceptions must file the petition "within [sixty] days of the date
the claim could have been presented." Id. at § 9545(b)(2). The
Pennsylvania Supreme Court has repeatedly stated that it is an appellant's
-4- J-S87010-16
burden to plead and prove that one of the above -enumerated exceptions
applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268
(Pa. 2008), cert. denied, 555 U.S. 916 (2008).
In the instant matter, Appellant appears to contend that his petition is
timely under Section 9545(b)(1)(iii), specifically that the United States
Supreme Court's decision in Montgomery, supra:
is not applicable to juvenile offender's (sic) only but to any and all United States [c]itizens serving an illegal and /or unconstitutionally impose (sic) judgment of sentence of imprisonment where the [trial] court never had the statutory authority (jurisdiction) to impose the punishment where the punishment was not, in fact and law, authorized by duly promulgated substantive law that would merit relief from the unconstitutionality imposed judgment of sentence.
(Appellant's Brief, at 7). We disagree.
Here, Appellant does not argue that he was a juvenile at the time he
committed the offense and thus is eligible for relief under Miller v.
Alabama, 132 S.Ct. 2455 (2012). (See Appellant's Brief, at 10). Rather, he argues that Montgomery requires all new substantive rules of
constitutional law be retroactive in cases regarding allegedly unconstitutional
sentences.3 (See id. at 7, 11). However, Montgomery, supra, has no
bearing on Appellant's case. In Montgomery, the United States Supreme
3 We note Appellant has met the sixty -day statutory filing requirements of the PCRA. See 42 Pa.C.S.A. § 9545(b)(2). Montgomery was decided on January 25, 2016 and revised on January 27, 2016. Appellant filed the instant petition on March 16, 2016, within the sixty -day limit.
-5 J-S87010-16
Court held that its decision in Miller, supra applies retroactively to cases on
collateral review. See Montgomery, supra at 736. Miller held that it is
unconstitutional for state courts to impose an automatic life sentence
without possibility of parole upon a homicide defendant for a murder
committed while the defendant was a juvenile. See Miller, supra at 2460.
However, Miller is inapplicable to Appellant, who was an adult at the time
he committed murder. (See PCRA Court Order and Notice of Intent to
Dismiss, 6/21/16, at 4). Further, Appellant has not pointed to any law in
support of his contention that Montgomery applies to all cases involving
allegedly unconstitutional sentences. Therefore, we reject Appellant's
contention that he is eligible for relief under Montgomery, and conclude
that the PCRA court properly denied his PCRA petition.4
Thus, Appellant's PCRA petition is untimely with no statutory exception
to the PCRA time -bar applying. See Hutchins, supra at 53. Accordingly,
we affirm the order of the PCRA court.
Order affirmed.
4 Moreover, we note that the fact that Appellant challenges the legality of his sentence does not allow him to evade the PCRA's timeliness requirements. In Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), the Pennsylvania Supreme Court rejected this contention. The Fahy Court stated, "[a]lthough 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." Fahy, supra at 223 (citation omitted). Thus, Appellant cannot elude the PCRA's timeliness requirements based on a claim of an illegal sentence. See id.
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Judgment Entered.
J seph D. Seletyn, Prothonotary
Date: 1/17/2017
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