Com. v. Freemore, S.

• Court: Superior Court of Pennsylvania
• Decided: August 3, 2018
• Docket: 3611 EDA 2017
• Status: Unpublished

Opinion

J-S41033-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : SHAWN FREEMORE, : : Appellant : No. 3611 EDA 2017

Appeal from the PCRA Order October 12, 2017 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000258-2009

BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED AUGUST 03, 2018

Appellant, Shawn Freemore, appeals pro se from the order entered in

the Franklin County Court of Common Pleas, which dismissed as untimely his

second petition filed under the Post Conviction Relief Act (“PCRA”) at 42

Pa.C.S.A. §§ 9541-9546. On February 3, 2009, Appellant fatally stabbed

Victim, when Appellant was 19 years old. On September 21, 2011, a jury

convicted Appellant of first-degree murder, conspiracy to commit murder, and

tampering with and/or fabricating physical evidence. The court sentenced

Appellant on December 12, 2011, to life imprisonment without the opportunity

of parole (“LWOP”). This Court affirmed on July 23, 2013, and our Supreme

Court denied allowance of appeal on September 2, 2014. See

Commonwealth v. Freemore, 82 A.2d 1074 (Pa.Super. 2013) (unpublished

memorandum), appeal denied, 626 Pa. 704, 99 A.3d 76 (2014). Appellant

____________________________________ * Former Justice specially assigned to the Superior Court. J-S41033-18

sought no further direct review, so the judgment of sentence became final on

December 1, 2014. Appellant timely filed his first pro se PCRA petition on

April 22, 2015; the PCRA court appointed counsel and later denied relief on

September 11, 2015. This Court affirmed on August 3, 2016, and our

Supreme Court denied allowance of appeal on February 15, 2017. See

Commonwealth v. Freemore, 156 A.3d 327 (Pa.Super. 2016) (unpublished

memorandum), appeal denied, ___ Pa. ___, 166 A.3d 1226 (2017).

Appellant filed his second, current pro se PCRA petition on August 25,

2017. On August 30, 2017, the PCRA court issued Rule 907 notice; Appellant

filed a pro se response on September 13, 2017. The PCRA court dismissed

Appellant’s petition on October 13, 2017. Appellant timely filed a pro se notice

of appeal on November 8, 2017, and a court-ordered Rule 1925(b) statement

on November 29, 2017.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA petition

must be filed within one year of the date the underlying judgment becomes

final. 42 Pa.C.S.A § 9545(b)(1). A judgment is deemed final at the conclusion

of direct review or at the expiration of time for seeking review. 42 Pa.C.S.A.

§ 9545(b)(3). The statutory exceptions to the PCRA time-bar allow for very

limited circumstances which excuse the late filing of a petition and are also

subject to a separate 60-day deadline. 42 Pa.C.S.A. § 9545(b)(1-2). To

assert the newly-created-constitutional-right exception under Section

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9545(b)(1)(iii), “a petitioner must prove that there is a new constitutional

right and that the right has been held by that court to apply retroactively.”

Commonwealth v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal

denied, 616 Pa. 625, 46 A.3d 715 (2012).

Instantly, the judgment of sentence became final on December 1, 2014,

upon expiration of the time to file a petition for writ of certiorari in the United

States Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the current pro

se PCRA petition on August 25, 2017, which is patently untimely. See 42

Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the “new constitutional

right” exception by citing three decisions: Miller v. Alabama, 567 U.S. 460,

132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (ruling unconstitutional mandatory

life without possibility of parole (“LWOP”) sentences for juvenile offenders);

Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d 599

(filed January 25, 2016, and revised on January 27, 2016) (holding Miller

applies retroactively to cases on collateral review); and Commonwealth v.

Batts, ___ Pa. ___, 163 A.3d 410 (2017) (“Batts II”) (providing rebuttable

presumption exists against sentencing juveniles to LWOP and explaining

Commonwealth can rebut presumption if it proves beyond reasonable doubt

that juvenile defendant cannot be rehabilitated). Appellant, however, was 19

years old at the time of his offenses. Consequently, he cannot assert

Montgomery/Miller as an exception to the PCRA timeliness requirement to

obtain resentencing under Batts II. Thus, Appellant’s petition remains time-

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barred, and the PCRA court lacked jurisdiction to review it. See Zeigler,

supra. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/3/18

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