J-S26044-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DONALD REEL : : Appellant : No. 2484 EDA 2017
Appeal from the PCRA Order July 12, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0819632-1976
BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 03, 2018
Appellant, Donald Reel, was convicted of first-degree murder,
aggravated assault, simple assault, and firearms offenses in 1977. He is
serving a mandatory term of life imprisonment without parole. Here, he
appeals, pro se, from the order entered in the Court of Common Pleas of
Philadelphia County dismissing his serial petition filed under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We
affirm.
The PCRA court’s Opinion filed on August 9, 2017, sets forth the full
procedural history of the case sub judice such that we need not repeat it for
purposes of our review. Suffice it to say Appellant has appealed from the
PCRA court’s denial of his fifth PCRA petition and asserts that he qualifies for
a “newly recognized constitutional right” exception to the PCRA’s timeliness
provision at Section 9545(b)(1)(iii), as explained more fully below.
____________________________________ * Former Justice specially assigned to the Superior Court. J-S26044-18
The timing of a PCRA petition “is a threshold question implicating our
subject matter jurisdiction and ability to grant the requested relief.”
Commonwealth v. Whitney, 817 A.2d 473, 478 (Pa. 2003) (citations
omitted). A petition must be filed within one year of the date the judgment is
final unless the petition alleges, and the petitioner proves, an exception to the
timeliness requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
A petition invoking one of these statutory exceptions “shall be filed
within 60 days of the date the claim could have been presented[,]” 42
Pa.C.S.A. § 9545(b)(2), and exceptions to the PCRA's time bar must be pled
in the petition, see Commonwealth v. Burton, 936 A.2d 521, 525
(Pa.Super. 2007). Notably, “[a] contention that a newly-recognized
constitutional right should be extended to others does not render [a] petition
[seeking such an expansion of the right] timely pursuant to section
9545(b)(1)(iii).” Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super.
2016) (citation omitted; brackets in original; emphasis in original).
Appellant’s judgment of sentence became final on or about May 28,
1981, ninety days after the Pennsylvania Supreme Court affirmed his
judgments of sentence in Commonwealth v. Reel, 425 A.2d 739 (Pa. 1981)
(per curiam). See 42 Pa.C.S.A. § 9545(b)(3) (“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”). Therefore, this petition, his fifth,
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filed over thirty years later on June 29, 2012, and incorporating two amended
petitions, is patently untimely.
Appellant argues his petition qualifies for a newly-recognized
constitutional right exception set forth in § 9545(b)(1)(iii). Specifically, he
alleges the United States Supreme Court decision in Miller v. Alabama, 567
U.S. 460, 132 S.Ct. 2455, 183 L.Ed. 2d. 407 (2012), holding that “mandatory
life without parole for those under the age of 18 at the time of their crimes
violated the Eighth Amendment’s prohibition on cruel and unusual
punishment[,]” Id., ---- U.S. at ----, 132 S. Ct. at 2469, ---- L.Ed. 2d at ----,
provides him with a basis for relief.
Appellant evokes this newly-recognized constitutional right exception
through Montgomery v. Louisiana, ––– U.S. at ––––, 136 S.Ct. at 736, 193
L.Ed.2d at ––––. In Montgomery, the United States Supreme Court declared
its prior holding in Miller constitutes a substantive rule of constitutional law
to which state collateral review courts were required as a constitutional matter
to give retroactive effect. Montgomery, ––– U.S. at ––––, 136 S.Ct. at 736,
193 L.Ed.2d at ––––. The Supreme Court held therein that the new rule of
law announced in Miller applies retroactively to cases on collateral review.
The United States Supreme Court decided Montgomery on January 25,
2016, and Appellant filed his amended petition on March 25, 2016. In
Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa.Super. 2016), this Court
held that the date upon which Montgomery had been decided is to be used
when calculating whether a petition is timely filed under the sixty-day rule of
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42 Pa.C.S.A. § 9545(b)(2). Because Appellant's PCRA petition was filed on
March 25, 2016, he has satisfied the PCRA time-bar. See 42 Pa.C.S.A. §
9545(b)(2). Notwithstanding, Miller does not apply to his case.
While the Supreme Court’s holding in Miller set forth a bright-line rule
prohibiting the imposition of such mandatory life sentences on juvenile
offenders, it did not prevent a trial court from imposing such a sentence upon
an individual such as Appellant who was over the age of eighteen at the time
he committed murder.1 Therefore, the right recognized by Miller and held to
be retroactive in Montgomery does not provide Appellant a basis for relief
from the PCRA time-bar. See Miller, ––– U.S. at ––––, 132 S. Ct. at 2469,
––– L.Ed.2d at –––– (holding “the Eighth Amendment forbids a sentencing
scheme that mandates life in prison without possibility of parole for juvenile
offenders.”) See also Commonwealth v. Cintora, 69 A.3d 759, 764
(Pa.Super. 2013) (holding Miller is not an exception under Section
9545(b)(1)(iii) to those over the age of eighteen at the time crimes were
committed); Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super. 2016)
(holding the Miller decision applies only to defendants “under the age of 18
at the time of their crimes”).
Additionally, Appellant attempts to defeat the PCRA time-bar by alleging
an exception pursuant to Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376,
182 L.Ed. 2d 398 (2012), in which the United States Supreme Court held a
____________________________________________
1 Appellant was 18 years, 11 months’ old at the time he committed murder.
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defendant's Sixth Amendment right to counsel requires effective assistance of
counsel at all crucial stages of a criminal proceeding, id. at 1384–85, and its
companion case Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d
379 (2012). This Court emphasized, however, in Commonwealth v.
Feliciano, 69 A.3d 1270, 1277 (Pa.Super.
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J-S26044-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DONALD REEL : : Appellant : No. 2484 EDA 2017
Appeal from the PCRA Order July 12, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0819632-1976
BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 03, 2018
Appellant, Donald Reel, was convicted of first-degree murder,
aggravated assault, simple assault, and firearms offenses in 1977. He is
serving a mandatory term of life imprisonment without parole. Here, he
appeals, pro se, from the order entered in the Court of Common Pleas of
Philadelphia County dismissing his serial petition filed under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We
affirm.
The PCRA court’s Opinion filed on August 9, 2017, sets forth the full
procedural history of the case sub judice such that we need not repeat it for
purposes of our review. Suffice it to say Appellant has appealed from the
PCRA court’s denial of his fifth PCRA petition and asserts that he qualifies for
a “newly recognized constitutional right” exception to the PCRA’s timeliness
provision at Section 9545(b)(1)(iii), as explained more fully below.
____________________________________ * Former Justice specially assigned to the Superior Court. J-S26044-18
The timing of a PCRA petition “is a threshold question implicating our
subject matter jurisdiction and ability to grant the requested relief.”
Commonwealth v. Whitney, 817 A.2d 473, 478 (Pa. 2003) (citations
omitted). A petition must be filed within one year of the date the judgment is
final unless the petition alleges, and the petitioner proves, an exception to the
timeliness requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
A petition invoking one of these statutory exceptions “shall be filed
within 60 days of the date the claim could have been presented[,]” 42
Pa.C.S.A. § 9545(b)(2), and exceptions to the PCRA's time bar must be pled
in the petition, see Commonwealth v. Burton, 936 A.2d 521, 525
(Pa.Super. 2007). Notably, “[a] contention that a newly-recognized
constitutional right should be extended to others does not render [a] petition
[seeking such an expansion of the right] timely pursuant to section
9545(b)(1)(iii).” Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super.
2016) (citation omitted; brackets in original; emphasis in original).
Appellant’s judgment of sentence became final on or about May 28,
1981, ninety days after the Pennsylvania Supreme Court affirmed his
judgments of sentence in Commonwealth v. Reel, 425 A.2d 739 (Pa. 1981)
(per curiam). See 42 Pa.C.S.A. § 9545(b)(3) (“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”). Therefore, this petition, his fifth,
-2- J-S26044-18
filed over thirty years later on June 29, 2012, and incorporating two amended
petitions, is patently untimely.
Appellant argues his petition qualifies for a newly-recognized
constitutional right exception set forth in § 9545(b)(1)(iii). Specifically, he
alleges the United States Supreme Court decision in Miller v. Alabama, 567
U.S. 460, 132 S.Ct. 2455, 183 L.Ed. 2d. 407 (2012), holding that “mandatory
life without parole for those under the age of 18 at the time of their crimes
violated the Eighth Amendment’s prohibition on cruel and unusual
punishment[,]” Id., ---- U.S. at ----, 132 S. Ct. at 2469, ---- L.Ed. 2d at ----,
provides him with a basis for relief.
Appellant evokes this newly-recognized constitutional right exception
through Montgomery v. Louisiana, ––– U.S. at ––––, 136 S.Ct. at 736, 193
L.Ed.2d at ––––. In Montgomery, the United States Supreme Court declared
its prior holding in Miller constitutes a substantive rule of constitutional law
to which state collateral review courts were required as a constitutional matter
to give retroactive effect. Montgomery, ––– U.S. at ––––, 136 S.Ct. at 736,
193 L.Ed.2d at ––––. The Supreme Court held therein that the new rule of
law announced in Miller applies retroactively to cases on collateral review.
The United States Supreme Court decided Montgomery on January 25,
2016, and Appellant filed his amended petition on March 25, 2016. In
Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa.Super. 2016), this Court
held that the date upon which Montgomery had been decided is to be used
when calculating whether a petition is timely filed under the sixty-day rule of
-3- J-S26044-18
42 Pa.C.S.A. § 9545(b)(2). Because Appellant's PCRA petition was filed on
March 25, 2016, he has satisfied the PCRA time-bar. See 42 Pa.C.S.A. §
9545(b)(2). Notwithstanding, Miller does not apply to his case.
While the Supreme Court’s holding in Miller set forth a bright-line rule
prohibiting the imposition of such mandatory life sentences on juvenile
offenders, it did not prevent a trial court from imposing such a sentence upon
an individual such as Appellant who was over the age of eighteen at the time
he committed murder.1 Therefore, the right recognized by Miller and held to
be retroactive in Montgomery does not provide Appellant a basis for relief
from the PCRA time-bar. See Miller, ––– U.S. at ––––, 132 S. Ct. at 2469,
––– L.Ed.2d at –––– (holding “the Eighth Amendment forbids a sentencing
scheme that mandates life in prison without possibility of parole for juvenile
offenders.”) See also Commonwealth v. Cintora, 69 A.3d 759, 764
(Pa.Super. 2013) (holding Miller is not an exception under Section
9545(b)(1)(iii) to those over the age of eighteen at the time crimes were
committed); Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super. 2016)
(holding the Miller decision applies only to defendants “under the age of 18
at the time of their crimes”).
Additionally, Appellant attempts to defeat the PCRA time-bar by alleging
an exception pursuant to Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376,
182 L.Ed. 2d 398 (2012), in which the United States Supreme Court held a
____________________________________________
1 Appellant was 18 years, 11 months’ old at the time he committed murder.
-4- J-S26044-18
defendant's Sixth Amendment right to counsel requires effective assistance of
counsel at all crucial stages of a criminal proceeding, id. at 1384–85, and its
companion case Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d
379 (2012). This Court emphasized, however, in Commonwealth v.
Feliciano, 69 A.3d 1270, 1277 (Pa.Super. 2013) that Lafler did not create a
new constitutional right. Indeed, we reiterated in Commonwealth v.
Hernandez, 79 A.3d 649, 654 (Pa.Super. 2013) that neither Lafler nor Frye
established a newly-recognized constitutional right that would provide an
appellant with an exception to the PCRA timeliness requirements. See also
Commonwealth v. Wharton, 584 Pa. 576, 588, 886 A.2d 1120, 1127
(2005); Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa.Super. 2007)
(allegations of counsel's ineffectiveness will not overcome the jurisdictional
timeliness requirements of the PCRA). Furthermore, to the extent Appellant
invokes Lafler and Frye simply as an alternate means by which to achieve
merits review of his Miller claim, we reiterate Miller is inapplicable to his
case.
As Appellant has failed to plead and prove one of the exceptions to the
PCRA time-bar, the courts of this Commonwealth are without jurisdiction to
offer him any relief. Commonwealth v. Jackson, 30 A.3d 516, 523
(Pa.Super. 2011). Accordingly, the PCRA court properly denied Appellant's
patently untimely PCRA petition without a hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/3/18
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