Com. v. Morningwake, D.

• Court: Superior Court of Pennsylvania
• Decided: August 25, 2014
• Docket: 2120 MDA 2013
• Status: Unpublished

Opinion

J-S37030-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

DWAYNE M. MORNINGWAKE

Appellant No. 2120 MDA 2013

Appeal from the PCRA Order entered November 4, 2013 In the Court of Common Pleas of York County Criminal Division at No: CP-67-CR-0001999-1988

BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED AUGUST 25, 2014

Appellant, Dwayne M. Morningwake, appeals from the November 4,

2013 order of the York County Court of Common Pleas denying his petition

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

9546. Upon review, we conclude the petition is untimely. Accordingly, we

history of the case.1 For a recitation of the factual background, we direct the ____________________________________________

1 occurred in June 1988, when Appellant was approximately fifteen years and 11 months old. On April 14, 1989, a jury convicted Appellant of murder in the first degree, robbery, burglary, and criminal conspiracy to commit murder. On September 4, 1990, the trial court sentenced Appellant to life imprisonment for murder in the first degree, 8 to 16 years incarceration for robbery, 1 to 2 years incarceration for burglary, and no further penalty for criminal conspiracy. This Court affirmed the judgment of sentence on direct appeal (Footnote Continued Next Page) J-S37030-14

appeal and first PCRA petition.

Appellant raises the following issue for our review:

[p]etition on the grounds that the court did not have jurisdiction to hear the matter because of the ruling in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013)?

Before we can address the merits of the claims, we must determine

the timeliness of the instant PCRA petition because we have no jurisdiction

to entertain any review of the claim if the petition is untimely.

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011).2

_______________________ (Footnote Continued)

on July 25, 1991. See Commonwealth v. Morningwake, 595 A.2d 158

allowance appeal on November 25, 1991. See Commonwealth v. Morningwake, 600 A.2d 535 (Pa. 1991). Appellant then filed a petition for writ of mandamus with the Pennsylvania Supreme Court, which was denied on April 21, 1994. Appellant filed his first PCRA petition in May 2005. After the trial court denied relief, this Court affirmed the denial in 2007. See Commonwealth v. Morningwake, 944 A.2d 796 (Pa. Super. 2007) (unpublished memorandum) 2 The timeliness requirements also apply to challenges to the legality of sentence. See Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 2007) legality of sentence is always subject to review within the PCRA, claims must still first satisfy the time limits or one of the exceptions thereto. Commonwealth v. Fahy, 737 A.2d 214, 223 (1999)). Similarly, the constitutional dimension of the allegations does not shield from the jurisdictional time bar. See, e.g., Commonwealth v. Turner, 80 A.3d 754, 767 (Pa. 2013).

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The PCRA contains the following restrictions governing the timeliness

of any PCRA petition.

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner 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. (2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented. (3) For purposes of this subchapter, 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.

42 Pa.C.S.A. § 9545(b).

after November 25, 1991, when the Pennsylvania Supreme Court denied his

petition for allowance of appeal. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup.

Ct. R. 13; see also Commonwealth v. Monaco, 996 A.2d 1076, 1081 n.2

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(Pa. Super. 2010). The instant PCRA petition, which is the second one, is

patently untimely because it was filed on June 30, 2010.

The one-year time limitation can be overcome if a petitioner alleges

and proves one of the exceptions set forth in Section 9545(b)(1)(i)-(iii).

Here, however, Appellant did not even try to allege any exception. 3 In fact,

tension of the existing

PCRA time-

Commonwealth v. Eller, 807

A.2d 838 (Pa. 2002), and then again in [Commonwealth v. Robinson, 837

A.2d 1157 (Pa. 2003)], we do not have authority to create ad hoc equitable

exceptions to the PCRA time-bar Commonwealth v. Johnson, 841

A.2d 136, 140 (Pa. Super. 2003). Accordingly, we conclude the petition is

untimely, and the trial court properly dismissed the petition.

Order affirmed.

____________________________________________

3 As also noted by Appellant, the only exception potentially relevant for

in Miller v. Alabama, __ U.S. ___, 132 S.Ct. 2455 (2012). Appellant acknowledges, however, that our Supreme Court in Cunningham held that an on sentencing schemes that impose a mandatory life sentence without the possibility of parole for juveniles announced in Miller does not apply retroactively. Cunningham, 81 A.3d at 10. As such, Appellant acknowledges he cannot rely on Miller to establish See also Commonwealth v. Seskey, 86 A.3d 237, 243 (Pa. Super. 2014) (Miller does not apply retroactively and does not permit assertion of otherwise time-barred Eight Amendment claim under the subsection 9545(b)(1)(iii) exception).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/25/2014

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