Com. v. Jones, L.

Opinion

J-S04043-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : LEVAR LEONARD JONES, : : Appellant : No. 1442 MDA 2014

Appeal from the PCRA Order Entered August 11, 2014 in the Court of Common Pleas of Lancaster County, Criminal Division, at No(s): CP-36-CR-0003302-1994

BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 31, 2015

Levar Leonard Jones (Appellant) appeals from the August 11, 2014

order which dismissed his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

When Appellant was 14 years old, he shot and killed Brian Whetts

during the execution of a conspiracy to commit robbery. In 1995, Appellant

pled guilty to, inter alia, second-degree murder, and was sentenced to life

imprisonment without possibility of parole. He filed no direct appeal and was

denied relief on his first two PCRA petitions.

In 2012, Appellant filed the instant PCRA petition, which the PCRA

court dismissed as untimely filed by order of August 11, 2014. Appellant

*Retired Senior Judge assigned to the Superior Court. J-S04043-15

timely filed a notice of appeal, and both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

Appellant presents one question for this Court’s review: “whether the

[PCRA] court erred in denying [Appellant’s] PCRA [petition] when [Appellant]

received a mandatory sentence of life without parole in violation of the

Eighth Amendment to the United States Constitution and Article I Section 13

of the Pennsylvania Constitution?” Appellant’s Brief at 4 (unnecessary

capitalization omitted).

Before we consider the merits of Appellant’s arguments, we must

determine whether his PCRA petition was timely filed. “[T]he timeliness of a

PCRA petition is a jurisdictional requisite.” Commonwealth v. Williams,

35 A.3d 44, 52 (Pa. Super. 2011). “Generally, to obtain merits review of a

PCRA petition filed more than one year after a petitioner’s sentence became

final, the petitioner must allege and prove at least one of the three

timeliness exceptions.” Id.

Here, Appellant attempted to invoke the timeliness exception found at

42 Pa.C.S. § 9545(b)(1)(iii), which provides that a petition may be filed

more than one year after a judgment becomes final if a petitioner pleads and

proves that “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

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by that court to apply retroactively.” 42 Pa.C.S. § 9545(b)(1)(iii). Appellant

claims that in Miller v. Alabama, 132 S.Ct. 2455 (2012), the United States

Supreme Court recognized a new right under the United States Constitution

that must be applied retroactively. Appellant’s Brief at 9. In the alternative,

Appellant argues that he is entitled to relief under the broader protections

offered by the Pennsylvania Constitution. Id. at 13. We disagree.

Subsection (iii) of Section 9545[(b)(1)] has two requirements. First, it provides that 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 provided in this section. Second, it provides that the right “has been held” by “that court” to apply retroactively. Thus, a petitioner must prove that there is a “new” constitutional right and that the right “has been held” by that court to apply retroactively. The language “has been held” is in the past tense. These words mean that the action has already occurred, i.e., “that court” has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed.

Commonwealth v. Seskey, 86 A.3d 237, 242-43 (Pa. Super. 2014)

(quoting Commonwealth v. Copenhefer, 941 A.2d 646, 649–50 (Pa.

2007)).

The United States Supreme Court did not indicate in Miller whether its

decision applies retroactively. In Commonwealth v. Cunningham, 81

A.3d 1 (Pa. 2013), cert. denied, 134 S.Ct. 2724 (2014), our Supreme Court

held that the right recognized in Miller does not apply retroactively. Thus,

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Appellant cannot use the Miller decision to satisfy the requirements of

subsection 9545(b)(1)(iii).

Further, Appellant cites to no case in which our Supreme Court has

recognized a new, retroactively-applicable right under Article I, Section 13 of

the Pennsylvania Constitution. Therefore, Appellant cannot use this claim to

sustain his burden as to subsection 9545(b)(1)(iii). See Seskey, 86 A.3d at

243 (holding that it could not consider the substance of the appellant’s

claims under Article I, Section 13 of the Pennsylvania Constitution given the

language of subsection 9545(b)(1)(iii) and Cunningham).1

Because Appellant did not plead facts that would establish an

exception to the PCRA’s timeliness requirements, the PCRA court lacked

jurisdiction to address the merits of his petition and properly dismissed it

without a hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/31/2015

1 Appellant acknowledges that this Court is unable to grant relief and indicates that he has filed his appeal and brief “in order to preserve these issues for further litigation.” Appellant’s Brief at 9.

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