Com. v. Irby, A.

• Court: Superior Court of Pennsylvania
• Decided: February 18, 2015
• Docket: 1558 WDA 2014
• Status: Unpublished

Opinion

J-S09040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ALBERT IRBY,

Appellant No. 1558 WDA 2014

Appeal from the PCRA Order entered September 19, 2014, in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP-02-CR-0000013-1969

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 18, 2015

Albert Irby (“Appellant”) appeals from the order denying as untimely

his first petition for post-conviction relief filed pursuant to the Post

Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

The Honorable Beth A. Lazzara, sitting as the PCRA court, summarized

the pertinent facts and procedural history as follows:

[Appellant], who was a seventeen (17) year-old juvenile at the time of his offense, was convicted by a jury of first- degree murder, and was sentenced to the then-mandatory sentence of life without parole on May 6, 1971. The . . . Pennsylvania Supreme Court subsequently affirmed the Judgment of Sentence in 1971.

On August 6, 2012, Appellant filed a [pro se] PCRA petition, seeking to challenge the legality of his sentence based on the United States Supreme Court’s decision in Miller v. Alabama, ___ U.S. ___, 132 S.Ct 2455 (2012), which held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Id. at 2469. J-S09040-15

This court appointed counsel to represent [Appellant], and, on January 8, 2013, an Amended PCRA petition was filed. On January 11, 2013, and October 31, 2013, the Commonwealth filed its answers to the amended petition.

On November 15, 2013, this court filed its Notice of Intent to Dismiss the PCRA Petition based on the Pennsylvania Supreme Court’s decision in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), which held that the ruling in Miller did not apply retroactively to cases on collateral review. On November 26, 2013, [Appellant] filed a Response to the Notice of Intention to Dismiss PCRA Petition, Petition to Stay Dismissal of Amended PCRA Petition, and Request to Amend PCRA Petition,” requesting that the court stay its dismissal of his petition “pending the outcome of finalization (i.e., a ruling by the United States Supreme Court) of Commonwealth v. Cunningham . . . . since a Petition for Reconsideration in the PA Supreme Court or a Petition for Writ of Certiorari in the United States Supreme Court will be filed in that case.” [Appellant’s] Response to Notice of Intention to Dismiss PCRA Petition, p.2. Alternatively, [Appellant] sought leave to file a second amended petition so that he could raise state habeas corpus claims pursuant to Article 1, Section 14 of the Pennsylvania Constitution and claim that his mandatory sentence of life without parole “violates the ban on cruel punishments pursuant to Art. 1, Section 13 of the Pennsylvania Constitution.” Id. at 3. On September 19, 2014, this court dismissed the petition[.]

PCRA Court Opinion, 11/13/14, at 1-3 (footnotes omitted). This timely

appeal followed. Both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925.

Appellant phrases his claims on appeal as follows:

1. DID THE [PCRA] COURT ERR IN DENYING APPELLANT’S PCRA PETITION SINCE PURSUANT TO THE 6/25/12 UNITED STATES SUPREME COURT DECISION IN MILLER V. ALABAMA, SINCE [sic] APPELLANT, WHO WAS A JUVENILE AT THE TIME OF THE COMMISSION OF THE

-2- J-S09040-15

INSTANT CRIME, RECEIVED AN UNCONSTITUTIONAL MANDATORY SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE FOR SECOND [sic] DEGREE MURDER AND THEREFORE HIS SENTENCE MUST BE VACATED AND HE BE RE-SENTENCED? MOREOVER, REGAR[D]LESS OF THE PA SUPREME COURT’S HOLDING IN COMMONWEALTH V. CUNNINGHAM, 2013 PA LEXIS 2546 (PA 2013; 10/30/13), THAT MILLER V. ALABAMA IS NOT RETROACTIVE TO DEFENDANTS IN APPELLANT’S PROCEDUREAL [sic] POSTURE WHO WERE NOT ON DIRECT APPEAL WHEN MILLER V. ALABAMA WAS DECIDED, THIS HONORABLE COURT CAN STILL DECIDE, ON OTHER GROUNDS, THAT MILLER V. ALABAMA IS APPLICABLE AND SHOULD BE RETROACTIVELY APPLIED TO APPELLANT’S CASE. ADDITIONALLY, THE [PCRA] COURT ERRED IN DENYING APPELLANT’S PETITION TO STAY DISMISSAL OF THE PCRA PETITION AND APPELLANT’S REQUEST TO AMEND THE PCRA PETITION.

Appellant’s Brief at 3.1

Our standard of review regarding an order dismissing a petition under

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

evidence of record and is free of legal error. Commonwealth v. Halley,

870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

Moreover, a PCRA court may decline to hold a hearing on the petition if the

PCRA court determines that the petitioner’s claim is patently frivolous and is ____________________________________________

1 We remind PCRA counsel that the “statement of questions involved must state concisely the issues to be resolved[.]” Pa.R.A.P. 2116(a). Appellant’s one issue actually encompasses four distinct claims.

-3- J-S09040-15

without a trace of support in either the record or from other evidence.

Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001).

Upon careful review, we conclude that Judge Lazzara’s November 13,

2014 opinion correctly determines that Appellant’s PCRA petition is untimely,

and that Appellant has failed to prove any exception to the PCRA’s time bar.

Further, we discern no abuse of discretion in Judge Lazzara’s decision to

deny Appellant’s requests to stay his petition and/or permit him to amend it

to include a claim for habeas corpus relief that is beyond the remedies

afforded by the PCRA. See generally, Commonwealth v. Seskey, 86

A.2d 237 (Pa. Super. 2014). We therefore adopt the opinion of the trial

court in affirming the dismissal of Appellant’s PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/18/2015

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IN THE COURT OF COMMON PLEAS FIFTH JUDIC JUDICIAL IAL DISTRI CT DISTRICT AL LEGHENY COUN T COUNTY,Y, PENNSYLVANIA

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OPINION

The Pelitioner Pe lilioner appeals Irom from this court's courl's September Seplember 19, 2014 Order, 19,2014 Order, dismissing

11is petition Ilis pelilion under Ihe the Post Conviction Relief Posl Convlcllon Reliel Acl ("PCRA") . I See 42 Pa Act ("PCRA").' Pa.C .C .S. .S . §§9541 -

9546. The Petitioner, Pelilioner, who was a seventeen sevenleen (17) ( 17) year-old juvenile' allhe at the lime time 01 hiS h,s

offense, was co nvic ted by a JUry convicted first -deg ree murder, and was sent jury of first-degree e nced 10 the then sentenced th e n--

mandatory mandalory sentence senle nce ollile 6, 1971. 3 The Superior Court of withou t parole on May 6,1971. of life wilhoul

Pe nn sylvania and the Pennsylvania Supreme Court subsequently affirmed th Pennsylvania thee

4 Judgment of Sen tence in 1971.

1 The Petitioner's case was transferred to this court court following foll owing Ihe the passing of the Honorable Sa muel Strauss. Samuel Strauss.

, Petition er was born on March 17, Petitioner t7, 1952, and th e oliense the offense occurred on September 22, 1969. See Amended PCRA Petition Petilion IiliIed led on January 8,20 8, 20 13, and Commonwealth's Answer to Amended PCRA Petition Pelilion IiliIed led on January 1" 2013. 3 According to the Warrant of Arrest dated September 23,23. 1969. 1969, Petitioner wa wass also was charged wilh with Armed Robbery, Robbery, Assault and Batter Intent to Kill , "VUFA ., and PFA." Batler with Inlenllo PFA ." Peti tioner's Concise Statement of Errors Complained of on Appeal (page 3) . The See Petitioner's suggest records are unclear, but they also seem to su ggest that Petitioner was co nvic nvicted ted 0of1 second -degree -degre e murder as well we ll .

• As noted both Counsel and Ihe no led by bolh Commonweal/h , it is diflicultto the Commonwealth, the d iHicul/ 10 ascertain Ihe hislory in Ihis procedural history this case because Ihe th e Allegheny Counly County Departmenl Department 0o 1f Court Cour! Circulated 01/23/2015 01:04 PM

On Augu Au gust sl6, 6, 20 12, Pelllioner Petition er filed a PCRA pelition petition,, seeking 1 to 0 cchallenge hallenge Ihe the

legality legali ty of sent ence o f his sente nce based on Sta tes Supreme Court's decIsIon on the United States decision in In M ill e r v. Miller

Alabama, Alabama, - U.S. - -, -,132 132 S.C!. 2455 (20 (2012), 12), which held Ihal tha t "Ihe "the Eighlh Eighth

Am endmentt forbid s a sentencing scheme Amendmen th at mandates schem e thai mandales lif e in son wi In pri son without th out possibility possibi lity

offenders." & 01parole for juve nile offenders," at 2 IQ. al 2469. 469. Thi Thiss coun appointed to apPoinled co unse l 1 rep resent 0 represenl

Pelilioner on appea Petitioner appeall,, and and,, on January 8, 2013, Amended 201 3, an Am pe tition was fi led . ended PCRA petition

On January 11 ,201 , 201 3, and OClober Oc tober 3 311,, 201 3, th 20 13, Ihee Commonwea lth filed ils Commonweallh answe rs 5 1 its answers' to 0

Ihe the amended pelilion pe tit ion..

Novem ber 15, 20 On November 2013, th is court 13, Ihis courl filed ils its Nolice of Inlenllo Intent to DismiSS Ihe th e PCRA

Petition Pe tition based on the th e Pennsylvania Pennsylvani a Supreme S upreme Court's decision in Commonwealth Commonwea lth v.

Cunningham , 8 811 A.3d 1 (Pa. 20 2013), 13), which held lhallhe that the ruling in fn Mllier Miller did nol not apply

retroac tively to cases on collateral review. On November 26,201 retroactively 26,20 13 3,, th e Petitioner Pe titioner filed a

"Response to th e Notice NOlice o off Intention Dismiss Inte ntion to Di smiss PC P C RA Pe tition, Petitio n 1 Pe tition 10 0 S tay

Dismissa Di smissa l of PCRA o f Amended PC RA Petition, Pe tition , and Request 10 to Amend PCRA P CRA Pe tition ," Pelition ,"

requesling reques ting Ihalll1e thai the cou n rt slay stay ils its dismissal of his petition "pending pe tit ion "pe nding Ihe the outcome of

finalizallon finaliza tion (i.e (i .e ., a ruling by Ihe the United States Supreme Court) Court ) of Commonwealth v.

C unningham . .. . , since a Pe lition titio n for Reconsidera tion in the PA Supreme Court or a Reconside ration

Pe ti tio n for W Peti rit of Writ Certiorari 01 Certiora ri in the Unit ed States United Sta tes Supreme Court will be filed in thai that

Records Reco rds file ha rdly co hardly ntains any contains a ny information information,, and th the incom ple te . See doc ke t is incomplele. e docket Am ended Petition, (p. 4). 4) . Petitioner's Q!Q se "Motio~ Pelilioner's pro "M otio~ for Post Conviction Convic tion Collaleral Collateral Relie f" states Relief" slates that tha I the judgment of sentence a ff i'rmed by both appe lla te courts In sentencewas affirmed 197 1. 1971

5 O n January 11, On 11 ,201 2 01 3, Leann S hiley, EsqUire Lea nn e Shiley, Esquire fil ed the Comm onwea lth's initial filed Answer, Answer. An Amended Am ended Answer An swer was filed by Ronald Ron ald M, M. Wabby, JJr., r., EsqUire Oclober Esquire on Oc tobe r 1,201 3 1, 20 t 3.

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case ," Petitioner's Response to Notice of Intention to Dismiss PCRA Petition, p, 2 Petition, p. 2,,

Alternative ly, Petitioner ty, Pe tition er soughlleave sought leave 10 pelition so that he could to file a second amended petition

raise state habeas corpus co rpus claims pursuanllo pursuant to Article Art icle 1, Section 14 t 4 of the Pennsylvan Pennsylvania ia

Constitu tion and claim that his mand a tory sentence Constitution se ntence of or life wit hout parole paro le "viola te s the "violates

ban on cruel punishments pursuant to Art, Art. 1, Section 13 of the Pennsylvania

kl at 33'6 On September 19, 2014, this court Consli tution," !fL Consti co urt dismissed the pelition, and th e petition,

this timely tim ely appeal followed .'

In his Statemen t of Errors Complained of on Appeal ("Concise 11 is Concise Statement

Statement"),, Peti Statement") Petitioner tioner raises the following arguments: argumen ts:

THE TRIAL COURT ERRED IN DENYING APPELLANT'S PCRA PETITION PURSUANT TO THE 6/25112 6/25/ 12 UNITED STATES SUPREME COU RT COURT DECISION IN MILLER V. V, ALABAMA , SINCE APPELLANT, WHO WA S A JUVENILE AT THE T TIME IME OF T THE HE COMM ISSION OF THE INSTANT CRIME CRIME,, RE CE IVED AN UNCONSTITUTIONAL MANDATORY SENTENCE OF LIFE RECEIVED WI TH OUT THE POSSIBILITY POSSIBI LITY FOR PAROLE FOR SECOND DEGREE DEG REE MURDER AND THEREFORE HIS SENTENCE MUST BE VACATED AND HE -SENTENCED. MOREOVER, REGA BE RE -SENTENCED, REGARDLES RDLES S OF THE PA SUPREME COURT'S HOLDING IN COMMONWEALTH COMMONWEA LTH V, CUNNINGHAM , 20 V. CUNNINGHAM, 2013 13 PA LEXIS 2546(PA 20 13; 10/30/13), 10/30/13), THAT MILLER V _ . ALABAMA IS NOT RETROACTIVE TO DEFENDANT'S IN APPELLANT'S PROCEDURUREAL PROCEDUR UREAL IS [S IC] POSTURE, WHO WERE NOT ON DIRECT APPEAL W WHEN HEN MILLER V,V. ALABAMA WAS DECIDED DEC IDED , AND REGARDLESS REGARDLE SS OF THE UNITED STATES SUPREME COURT'S COU RT' S DECISION TO DECLINE A GRANT OF CERTIORARI REGARDING CUNNI NG HAM IN 20 CUNNINGHAM 2014, 14, T THIS HI S HONORABLE COURT CAN STILL DECIDE, ON OTHER GROUNDS, THAT MILLER MI LLER V ., ALABAMA IS APPLICABLE APPLI CABLE AND SHOULD SHO ULD BE RETROACTIVELY APPLIED TO APPELLANT'S AP PELLANT'S CASE. CASE, ADDITIONALLY, ADD ITIONALLY, THE TRI AL COURT ERRED IN DENYING APPELLANT'S TRIAL APPELLANT' S PETITION TO STA Y DISMISSAL OF THE PCRA PETITION AND APPELLANT' APPELLANT'S S REQUEST RE OUEST TO AMEND THE PCRA PETITION .,

•' Specifically, Article 1, Section 13 provides that that "Ie]xcessive "[eJxcessive bail shall not be required , nor excessive fines imposed, imposed , nor crue cruell punishm punishmen ts inflicted," ents inllicted ." Pa. Pa , Cons t. Art , 1, Sec tion 13. 13,

Petitioner filed his Notice of Appeal, as well 71 we ll as his Concise Statement of Errors Appeal , on Seplember Complained of on Appeal, September 24,2014 24, 2014._

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Petitioner's Concise Sta tem tement Appeal , p. ent of Errors Complained of on Appeal, p 44 .

For the reasons that follow, follow , the Pelitioner's Petitioner's contentions are without merit, merit , and

this thi amended s court 's decision to dismiss the amende pelltion should d PCRA petition shoutd be upheld uphetd..

t. THE PETITIONER I. PETtTIONER'S FfLED, 'S PCRA PETITION WAS UNTIMELY FILED.

Under Unde r 42 Pa.C.S. Pa .C .S. §95 45(b)( 1), §9545(b)( I ), a PCRA petition musl must be lited fited within Within o ne (t) year one

01 of the dale da te th that at the th e judgment becomes finat' final ' A petition fil filed ed ou outside tside of this one one-year -year

window IS IS considered untimel y, unless it can be shown th untimely, that a t one of the th e three thre e narrow

statu tory exceptions to the general timeliness requirements statutory applies, See 42 Pa.C req uiremen ts applies. Pa C .S .

§9545(b)( I1)(i)-(iii). )(i)-(iii) The PCRA statute provides as follows follows:

(b) Time filing petition-- Tim e for fitlng petition -·

(1) ( I ) Any petition under this subchapter, including Including a second or subsequent subsequen t petition, tiled within one year of the date the judgment becomes fina petition . shall be filed finall,, unless the Ihe pelilion alleges and Ihe the petitioner pelilioner proves that

(i) the failure to raise the claim cla im previously was the result resu lt of Interierence by of Interference government officials o fficials with the presentation of th e claim In in viola vio lation tion of the Constitut ion Consti tu tion or laws of this Commonwealth or th e Consti tution or laws of Constitution o f the United States States;;

8 As explained by the Court in Commonwealth v. Lawson, Lawson , 90 A.3d t , 4 -5 (Pa . Super. 4-5 Supe r. 20t4): 20 14): Effective January 16, 1996, the PCRA was amended to reqUire t 6, 1996, req uire a pe ti tioner to file any PCRA petition within petitioner wi thin one year of01 the date the judgment of sentence becomes final. 42 Pa.C.S,A Pa.C .S.A., § 9545(b)(I) 9545(b)( I ).. A Judgment judgment of sentence "becomes "become s final at the th e conclusion conclu sion of review,, including discre tionary review In of direct review Ihe the Supreme Court of the United Siaies States and theth e Supreme Court of 01 Pe Pennsylva nnsylvania nia , or a t the th e expiration expira tion of time tim e for seeking the review," review." 42 Pa,C Pa.C .S.A. § 9545(b)(3) 954S(b)(3) . Where Whe re a pe petitioner's titIOner's judgment judgmen t of sentence sen tence became fifinal nal on on or before the effective effec tive date of the dale th e amendment, a special grace proviso proVISO allowed first PCRA pe petitions 10 titions to be filed fited by January 16, t 6, 1997, 1997. See Commonwealth Commonweal th v. v. Alcorn , 703 A.2d 1054, 1056- 1057 (Pa (Pa.Super.1997) ,Super, 1997) (explaining application of PCRA tlmetlnesstim eliness proviso) ," ."

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(ii) Ihe facls lac Is upon which Ihe claim is predicated predicaled were unknown 1 10 0 Ihe petifioner ascerta ined by the exercise of pe titioner and could not have been ascertained oj due diligence ; or (iii) the right asse asserted rted is a constitutional constttutional right that tha t was recogntzed recog ntzed by the S upre upreme me Court of of the United States or the Supreme Court of of Pennsylvania afte afterr Ihe lime period provided in Ihis secl on and has been held by that court to appty sectiion apply re troactive ly. retroactively.

(2) Any petition petilion invoking an exception prov ided in paragraph provided paragra ph (1) sha sh allll be filed within 60 days 01 of Ihe th e date dale the th e claim could cou ld have been presented presenled .

subchapler, a judgment becomes final at the 01 this subchapter. (3) For purposes of conclusion of direct revie w, including discretionary review, discre tionary review in the Supreme Court of the United Stales States and the Supreme Court of Pennsylvania, Pennsylvania , or a alt the expi ra tion expiration 01 tim e for of time review . fo r seeking the review.

.C,S.§9545(b)( 1)-(3) (emphaSIS 42 Pa .C.S.§9545(b)( (emphasIs added) added)..

The T he timeliness requirement under 42 Pa.C.S. Pa .C.S. §9S4S(b)(1) §9S45(b)( 1) is lurisdiclional jurisdictional in

na lure , and nalure, if th a nd , if thee petition pe tition is fac ia lly untime facially ly, the court untimely, co urt lacks jurisdic tion over jurisdiction ove r th thee

petition pe tition unless the th e petitioner pe tit ioner is able to plead and prove thai tha i his cla claIms fallU under one of im s fa

the three e)(ceptions exceptions se t fo above . See Commonwea rth above. forth lth v. Taylor, 933 A.2d Commonwealth

1035,1038 1035, 1038 (Pa (Pa.. Super. Supe r. 2007) ("Pennsylvania law makes clea clearr no co court url has jurisdiction l urisdlc tion

10 1 petition."). "If the petition is delermined 0 hear an untimely PCRA pelition."). determined 10 to be untimely, untimely, and

no exception excep tion has been pled a and prove n,, the petition must nd proven must be dismissed dIsmissed without withou t a

hea rin g because hearing beca use Pennsylva nia co urt s a Pennsylvania re without are jurisdiction to cons wi thout jurisdiction conS Ide id e r til tt1 e meri ts of merits

petition." Commonwealth v. Perrin, Ihe petilion." Pe rrin, 947 A.2d 1284, 1284, 1285 t285 (Pa. (Pa . Super. 2008) .

Pe tit Ioner was sentenced in Petitioner In 197 1, and his petition was filed 1971, fil ed on Augu August st 6, 6 , 201 2.

Although the record is unclear as to th the exac t date thai his co nviction e exact nVIction beca me final a fte became fterr

direc directt review, Pe tition er cla Petitioner claims im s that his judgment was affirm ed in 1971, and affirmed a nd It IS IS

reasonable rea 0 conc lude tha sonabl e 1to thatt direct review would wou ld have concluded long before be fore August Augus l 6 ,

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9 2011 20 11 . 9 Thus, the Petitioner could not prove tha thatt hi hiss petition was filed within one (1) ( 1) year

of of the date that his judgment Judgment became final final,, thereby th ereby making his petition pelilton facially untimely unlimely

C.S. under 42 Pa .C §9545(b)(1). .S. §9S4S(b)( 1).

NOlwithslandlng the Notwithstanding Ihe fa faCia nature of the petition, cia lly untimely nalure petition , Ihe th e Petitioner Pelitloner seeks to 10

argue that tha t his claim under Miller v. Alabama ,, supra, hiS claim supra, is IS cog ni zable under the third cognizable th ird

exception to the timeliness tim eliness requirement , which permits an Individual individual seeking relief

retroactive , constitutional rule of law, to file a petition Within pursuant to a new, and retroactive, with in 60

days of the dale Ihat Ihat the claim cou could presented See 42 Pa firsl been presenfed. ld have first Pa.C.S. .C .S.

§§9545(b)(1)(ili) §§9S4S(b)(1 Pelilioner asserls )(ili) and (b)(2). Petitioner asserts that Ihal his pelition petition was timely tim ely in th Ihis is regard,

as Miller Milier was decided on June 2S 25,, 20 12,, and his 2012 hiS petition pelition was filed on August Augusl 6, 6. 20 12 .

However, However, Pelitioner's Petitioner's ability to meel meet the 60-day 60·day filing deadline under 42

Pa.C.S .§9S4S(b)( 2) is irrelevanl, §9545(b)(2) irrelevant, because, because , even if Miller announced a new consiliulional cons tituti onal

rule o off law, law, Petitioner has fa failed to prove Iha iled 10 Ihatl ilit applies retroactively to hiS case. case .

Cunningham, supra, the Pennsylvania Supreme Courl expressly held Ihal In Cunningham. that Ihe th e

ruling in Miller did not apply retroactively to cases on collateral reView, retroac tive ly 10 Casess following review. Case

Cunningham its ruling . For example, the Pennsylvania Superior Court C unningham have reaHirmed lis

in Commonwealth v. Lawson Lawson,, 90 A.3d A,3d 1, I , 6 (Pa (Pa.. Super. 20 14) and Commonwealth v.

Seskey, Seskey, 86 A.3d A,3d 237. 237, 242·43 242-43 (Pa . Super. 20 14) found Ihal 2014) Cunnin9ham direclly that Cunningham

foreclosed any argumenl argument that thai a Miller claim was cognizab le under 42 cognizable

Pa.C .S.§9S4S(b)(1 Pa.C.S )(iii).. In so holding, the §9545(b)( 1)(iii) Ihe Court offered Ihe the following analysis of Ihe th e

statu statute: te:

9" 9 11 is unlikely Ihal th ai ilit wo uld lake over forty (40) years to resolve hiS would his direci direct appeal.

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Subsection (iii) of Section 9S4S[(b)(1)] 954S[(b)(1)J has Iwo two requiremenls. require ments. Firsl Firs t , il it provide s Ihallhe provides that the righl right asserted is a conslilulional constitutional righllhal right that was recognized by Ihe the Supreme Court of Ihe United Siales the Uniled States or [the [Ihe Supreme Court o off Pennsylvania] PennsytvaniaJ after the time tim e provided in th section , Second, ifit provides that is section, this mat the right 'has been 'thatt court ' to apply re troactively. Thu s, a petilioner held' by 'tha petitione r musl must prove Ihal th a i Ihere there Is is a 'new' constitutional consiliutional righl right and Iha tha li the lhe nghl fight "has been held" by Ihal that court 1to0 apply retroac relroaclively, Thee language "has been held" is ,n tively. Th in Ihe th e pasllense pasl le nse . These words mean that "thatt court" has i.e., "tha thaI the action has already occurred, Le., l7as already held hetd the new consl1lutionat conSl/tut/onal right to be retroactive to cases on collateral collaterat review. review. By employing the pastpasl le te nse in writing this prOvision, provision , the legislature clearly clea rly in tend ed that the right was already recognized at tl7e intended 117e time the pellfion was filed.

Seskey, supra, at 242-243 (emphasis added). Wilh Wi th respect to Ihe respec t 10 the meaning ol ollhe th e

"he ld by thai phrase "held that court":

[O]ur [O)ur Supreme Court explained Ihal, subseclion (iii), Ihe that, for purposes of subsection th e language "has been held by Ihal to apply relroaclively" that court 10 re troactively" means 'he the court announcing a nnouncing the rule must have also ruled on the retroactivity of the new constitutional oght, figh t, before be fo re the pelitioner petitioner can assert retroactive application o( o ( the righ t in a PCRA petition. petition.

Taylor, Taylor, supra, at 1042 (citing (Ci ting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 50 5011 (Pa .

2002)). 2002».

Not only did Ihe the Uniled United Siaies Slates Supreme Court slay stay sile nt as 10 Ihe silent th e Issue o f

troactivity re troa Miller, it ctivi ty in Miller, if declined to review the issue Issue on June 9, 9, 2014, after a ft er being

presented with the opportunity 1o to revlsil revisit lhe the maNer, re'verse the holding in Cunningham matter, reverse Cunningham,,

retroactive and declare Miller re troa ctive ., See Cunningham v. Pennsylvania, S .Ct. 2724 (June Pennsylvania, 134 S,C!.

9,2014) 9,20 14) (denying petition for writ of certioraff) .'o Th e Court's .10 The Court 's silence as to th e matter

prevenls prevents Pelilioner Petitioner Irom relying on 42 Pa .C.S.§9545(b)(1 )(iii) as a vehicle ve h icle 10 challenge

the legality of his sentence. ttle beca use the Petitioner sen tence. Acco rd ingly, because Pe ti tione r canno ca nno t SllOW tha t his show Ihat

pelilion peti tion was lfiled iled within one ( 1) year of Ihe dale Ihal the date thai his conviction convlcllon became final frnal , and

10 See also hltp:/Iwww hlJp:llwww .supremecourLgov/orders/courlorders/060914zor_pQm ,supremecourt.gov/orders/courtorders!060914zor_pqm l.pdf I .pdf (tast (last visited Visited on November 7,7 , 2014)

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he is unable because he unable to 10 invoke invo ke any of the Ihe exceptions under 42 42 Pa.C Pa C .S.§9545(b)( ,S,§9545(b) ( 1)(i) -

(iii) (iu),, his peti tion is untimely, pe ltltOn unlrmely, aand nd thi thiss court cou rt lacks lacks jUrisdiction to enle rta ln the arguments 10 entertain

ra ised theretn raised the re,n . Given that the th e court was bound by Cunningham and 42

Pa,C,S,§9545(b)(1)(lil), Pa.C.S.§9545(b)(1 ils decision )(iii), its decIsion to 10 dismiss the Ihe pe pelilion should tition shou td be upheld .

PETITIONER'S II. THE COURT DID NOT ERR BY DENYING PETITIONER ' S REQUEST TO STAY

DISMISSAL

In his Concise S Sialemenl, Pelilioner argues that ta tement, Petitioner Ihallhe the court erred by denying hiS his

requesl to request 10 slay its lis dismissa l of the Ihe proceedings and cont conlends Ihal Ihe court ends that courl should have

hailed Ihe th e procee dings unlil proceedings "I he Pennsylva until "the nia Supreme Court (throu Pennsylvania (Ihrough gh a success ful successful

motion for reconsideration of [Cunni ngham)) of [Cunningham l) or United Slates States Supreme Court makes a

linal decision final deCision regarding the Ihe issue of retroactivity relroacl ivily of Miller to 10 Defendant Defendanl and Similarly sim ilarly

situated defendan defendants ts." ." Concise Statem Statement ent , p. 11 .

Ass an initia l matter, the cou A rt noles court no tes that tha i,, in his response respo nse to the th e cou rt 's dismissal court

notice, Peli tioner requested Peti ltoner requ es ted that the case be stayed pending a deciSion from the th e United Unit ed

Siaies S ta tes Suprem Supremee Court on whether whelher it il would gra grant cerllorari in Cunningham . While Ihe nl certiorari the

co urlt may nol cour not have formally slayed stayed Ihe proceedings,, ifit did the proceedings did,, for all praclica practicall purposes, purpose s,

ullimalely honor Petitioner's request. Indeed, Petitioner ultimately filed his Pe lilione rfiled \0 this court "is response to cou rt's 's

Notice Inlenlt 10 Nolice of Inten to dismiss on November 26, 20 13; Ihe 26,2013; the Uniled United Siaies States Supreme Courl Court

denied certiorari on certiorari o n June Jun e g, 9, 20 4 ; and this court did not dis 20114 dismiss pe tition unlll m iss the petition until

September t19,20 Seplember 9, 20 14. Accordingly. Accordingly, Ihe lhe co url afforded Pelilloner court Petitioner wllh wilh preCisely wilal he precisely what

requested,, which was a stay requested "pending sta y "pe nding the outcome outcom e of finaliza tion (Le" fin alization (i.e ., a ruling by the th e

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Unlled Sia Uniled States ies Supreme Court) of Commonwealth v. Cunningham ."." Pelilioner's Petilioner's

10 Dismissal Notice, Response to Notice, p. 2 .

Furthermore, even if Petitioner had reques Furthermore. ted a stay requested slay pending a general ruling

from the United Slates Supreme Court on whelher whe ther Miller applied retroaclively, retroactively, it would

not have been unreasonable lor for Ihe the court to deny such a requesl request given Ihe the time lime thai ilit

could Indeed, ifjf the law reqUires co uld take for such a ruling to eve r be rendered . Indeed, require s that the

declaralion of retroactivity come from the court thai Ihal announced the new co constit utional nstitutional

declared rule of law, then the chance of Miller being dec/a retroacllve by the red retroactive Ihe Pennsylva nia Pennsylvania

IS highly unlikely. Moreover, given the fac Supreme Court is factl thai that Ihe the United Stales States

Supreme Court has stayed slayed silent as to the issue, Issue, despite being presented present ed with the

opportunity opportuni ty to make such a declarat declaration it CQuid ion in both Miller and Cunningham , It could be years

before itil revisIted issue,, if it ever did al all. rev isited the issue aiL

given:: {i} Thus, given (i) Ihe the uncertainly regarding when when,, if ever, such a ruling wou ld eve everr

rendered, (ii) Ihe be rendered, the unlikelihood thai that such a ru ruling fa vorable 10 ling would be favorable to Ihe the Petitioner Petilioner

given the Court's sile nce as to the issue, and (iii) 1I,;s this court's cou rt's need to manage its docket

and ensure an effiCient resolution to the matters pending before it. efficient resolullon it was it, if wa s well witt11n within thiS this

co urt's discre court's tion to deny the request discretion reques t to stay the proceedings pendjng pending a general ruting ruling

from Ihe th e United States Stales Supreme Court on the retroaclivlly issue. See Commonwealth v. retroactivity Issue.

Renchenskl , 52 A.3d 251, 25 t , 260 (Pa. 2012) (noting thai that "the "Ihe PCRA court does have th Ihee

ability and responsibility to manage its docket and case load and thus ha abitity hass an essen essential tial

role in ensu rrng the Ilmely ensuring timely resolulion resolution of PCRA matters.") (ci ti ng Commonwealth v. (cHing v.

Porter. Poner, 35 A.3d 4, 4, 24--25 24-25 (Pa. (Pa . 2012) 20t2) ('Flhe ("fTlhe court, co un , not counse counselt,, controls Ihe the scope,

liming and pace of the below.") ; See also Commonwealth v. Coward, Ihe proceedings below."); Coward , 335,

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414 A.2d 91, 95 (Pa. 1980) ("A court's discrelion in handling liS own dockel has long

been recogniz recognized."). ed.") .

In any even t, the court cou rt notes that , if the United Sta les Supreme Court ever Sla tes eve r

declares that Miller MirIer is retroactive to cases on collate collateral ral review review,, th en the Petitioner

presumably would be able to lile petition under 42 Pa.C.S.§9545(b) relYing file a successive pelition

on such a case case,, assuming he did so wilhin within Ihe the 50-day filing deadline . GO-day liling

III. THE COURT'S LACK OF JURISDICTION OVER THE PETITION FORECLOSED ITS ABILITY TO CONSIDER CLAIMS UNDER ARTICLE I, SECTIONS 13 AND 14 OF THE PENNSYLVANIA CONSTITUTION

In his Concise S tatemen ta tem en t, Petitioner contends thai he should have been given give n

leave 10 file a second ame nded PCRA pelilion petition in order orde r 1to 0 raise sla sta le te habeas corpus

claims purs ua nt 1 pursuant to " Section 14, in order to a 0 Article 1, argue rgue Ihal thai his sentence violated the th e

ban on cruel punishment set forth in Article 1, Section 13 of ttle Pennsylvania Penn sylvania

Constitution . Contrary to Petitioner's claims, claims , the court did nol err in 10 denying d enying his request

to file a second amended PCRA pelition 10 pelilion to raise such clai claims. ms .

In SeskeY,supra, SeskeY,supra, Ihe the Pelitioner, Petitioner, who w ho was a juvenile al a t the time o 01f his offense,

liled fi led a PCRA petition , arguing, arguing. among oth olher er tIlings: things: (t) (1) Ihal that his mandalory mandatory senlence sen tence of

life lile without wilhout parole viola led Article 1, Sec lion tion 13 of Ihe the Pennsylvania Constitution; (2) thai

Miller should sl10uld be applied retroaclively retroactively pursuanl to Article 1t Section 13 of 01 Ihe th e Cons Conslltulion, titution,

notwithstanding Ihe the Court's ruling in Cunningham; Cunningham ; and (3) Ihaillis thaillis claims should be

reviewed under "Pennsylvania's constitutional guarantee co nstitut ional gua off Habeas rantee o Ha beas Corpus," Corpus." Id . at 2 241. 41.

co urt found that Itit lacked junsdiction The court jurisdiction over the petition petil ion because the petition was

untimely and Ihallhe unlrmely that the pelition pelillon did not meet meel any ollhe of the three exceptions sellorth se t forth In in 42

Pa .C.S.§9545(b)( .C.S.§9S45(b)(11)(iii) )(ili) ,

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In making thai tha t finding finding,, th e court in Seskey noted the followIng:

Throug Througho houtut his brief, Appellant a ttempts to circumvent the effect tha t Cunnmgham has upon our jurisdiction by arguing, inter alia: alia. that thaI he is enl/tled entitled to ArtIcle tt,, § 13 of the Pennsylvania Constitution ("Excessive bail relief under Article retief bait shall no t be required nol required,, nO/ nor excessive fines imposed imposed,, nor cruel cruel punishm punishment ents s inflic in fl ic ted ,"), independen tly of Ihe th e Eighth Appellanl 10- Eighlh Amendment, Brief for Appellant 10- 13; 13 ; Ihal Ihat Miller should be applied retroa retroacttvely cttve ly based upon Pennsylvania's Pennsyl va nia's broader retroactivity retroac ti vIty principles, Brief for Appellanl al 19-26 pnnciples, 19- 26;; and Ihal the tha tlh e inequilable inequitable resull Ihal Iha t M iller Miller crea ted viola vio la tes Pennsylvania's due process and equal prot ec tion prin principles ciples . Brief for Appe llant al 27-30. While th ese argum ents llanl at enls someday may require requite consideration by our courts, conSideration courts, today cacannot nnot be that day. Before a cou rt may address Appellant's Appellant' s argument a rgumen ts,s, or simila r co connttentions entions , th at court co urt mu st have Jurisdiction. We cannot ca nnol manufacture jurisdiction based upon the substantive raIsed by the parties. Presenlly, claims raised Presently we are confined by the express terms I lerms of subseclion 9545(b)(I subsection 9545(bj(lj(iiij )(iiiJ and our Supreme Court's decision in Cunningham. Combined, Combined , those two elements re require quire us to co nclude thai we lack jurisdic tion. ncl ude that tion . No substantive claim can overcome this conclusion.

al 243. Seske y, supra, at 243 . Acco rdingly, because Ihis courllacked thi s court lacked jurisdiction ove overr Ihe th e

pe tition, it unlimely petition, th e substantive It was unable to consider any of the substanti ve cla claims ims presen ted

therein. Give n that the lhe court would wou ld have been unable 1 to 0 e ntertain any of of th e argumen ts

th att Pe tha Petitioner titioner soughlto sought to raise in a second amended petiti petillOn, on. the co urt did not err in

denying his request for leave lea ve to file such a petition. pelition.

Furthermore, although Pelitioner Pefitioner reques ted Ihat requesled that th thee court re-characterize re-characleri ze his 11is

pe tition as a slale slate habeas corpus peti petition tion,, "[i]t well-sellied Ihallhe "[iJI is well-sellled Ihatthe PCRA is IS intended inlended

to be Ihe th e sale means of achieving post-convic pos t-conviction tion relief" and a nd "a defendant ca canno nnott

time-bar by lithng escape the PCRA lIme-bar titling his petition writ of habeas corpus." pelition or motion as a wril corpus ."

Commonwealtll v. Taylor, 65 A.3d 462, Commonwealth 462, 465-66 (Pa. Super. Super. 20 13 ). Pelitioner Pe titioner cclearly learly

seeks to challenge cha llenge the legality of his sentence. sen tence, and claim claimss "that are cognizable under

Ihe th e PCRA must be raised in a ltimely imely PCRA pelition petition and can not be raised in a habeas

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co rpu pelltion." lit rpuss petItion." Accordingly. because Petitioner's claims were cognizable under .!.Q.,. Accordingly,

th e PCRA, PCRA. this cou court rt did not err in denying his hi s requesllo amend Ihe the PCRA PC RA petition so

that Petitioner could re-charac Ihat pe tition . See fe-charac terize his petition as a habeas corpus petilion

Taylor, supra, Taylor, supra, al 466 ("Beca use Appellant's claims may be addressed under Ihe the PCRA PC RA

see 42 Pa Pa,C S. § 9543(a)(2)(i) (providing .C.,S, that thai PCRA relief IS is available for convic tion co nvic lio nss

resulting from constitutional viola vIola tions), tions) , the th e PCRA court cou rt properly dismissed Appellant's Appellant 's

habeas ha corpus beas co rpu s pelition as an an unlimely petitio n."), untimely PCRA petition.").

IV ., CONCLUSION CON CLUSION

ThIS Thi s cou rt did not err in dismi dismissing ssing th e PCRA pelition because the pe lition tit ion was

facia facially ll y un untIm tim ely, ely, and it failed to raise rai se a claim thai that fell under any of the exceptions excepti ons 1 to 0 the

slatu to ry ltime statutory ime ·bar. -bar, The co urt did not err in In denying Petitioners to file a second Petitioner's req uest 10

amended PCRA PC RA pelilion because Ihe the court lacked jurisdiclion 0 consider any jurisdiction 1to

substan ti ve argum sub stantive ents in the petition. Moreover, a rguments th e PC RA pe Moreover, the tilion could nol petilion not be re- re ·

charac te rized as a habeas corpus pelilion characterized petition since Petitioner's Petitione r's claims were cognizable cognIzable

underr th e PCRA stat ut unde Llt e. Accordingly, Acco rdingly, the court 's decision to dismISS court's dismiss the th e amended

PCRA pe tition untimely should be upheld. tilion as unlimely upheld _

BY THE C0URT:

::-c:"1~¢::'~B~=, J. Beth

Date