J-S02034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANIEL ROSADO : : Appellant : No. 278 EDA 2017
Appeal from the PCRA Order December 20, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1217452-1984
BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*
MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 27, 2018
Appellant, Daniel Rosado, appeals from the order dismissing his fourth
petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. After careful review, we affirm.
Appellant was born on July 4, 1966. On November 23, 1984, he
murdered Angel Carrion. Appellant was eighteen years old at the time of the
murder.
This Court has previously summarized the procedural history of this
case, as follows:
Rosado was tried before a jury, the Honorable Juanita Kidd Stout presiding, and convicted of second-degree murder, robbery, criminal conspiracy, possession of an instrument of crime, and related offenses. [On September 25, 1986, t]he court sentenced Rosado to life imprisonment [without parole]. On [April 14, 1987, on] direct appeal, this Court affirmed Rosado’s judgment of sentence[], Commonwealth v. Rosado, 528 A.2d 259 (Pa. Super. 1987); Rosado did not seek review in the Pennsylvania
*Retired Senior Judge Assigned to the Superior Court J-S02034-18
Supreme Court. Rosado filed a petition under the Post Conviction Hearing Act, (now the PCRA), which was denied. On appeal, this Court affirmed. Commonwealth v. Rosado, 665 A.2d 1302 (Pa. Super. 1994). Rosado then filed a petition for allocatur in the Supreme Court of Pennsylvania, which was denied. Commonwealth v. Rosado, 668 A.2d 1129 (Pa. 1995).
In 1996, Rosado filed a second petition for collateral relief, this time under the PCRA, which was dismissed. This Court, on appeal, affirmed the PCRA court’s order. Commonwealth v. Rosado, 742 A.2d 1151 (Pa. Super. 1999). Rosado’s petition for allowance of appeal in the Supreme Court of Pennsylvania was denied. Commonwealth v. Rosado, 747 A.2d 900 (Pa. 1999).
Thereafter, in November 2000, Rosado filed a petition for habeas corpus in the United States District Court for the Eastern District of Pennsylvania, which was dismissed. The United States Court of Appeals for the Third Circuit denied Rosado’s request for a certificate of appealability, and the United States Supreme Court denied his Petition for Writ of Certiorari.
On April 18, 2007, Rosado filed [a third] PCRA petition, which the PCRA court dismissed, without a hearing, following notice pursuant to Pa.R.Crim.P. 907.
Commonwealth v. Rosado, 81 A.3d 991 (Pa. Super. 2013). On May 7,
2013, this Court affirmed the dismissal of Appellant’s third PCRA petition.
On March 24, 2016, Appellant filed his fourth PCRA petition. On
December 20, 2016, the PCRA court dismissed the instant PCRA petition
without a hearing, following notice pursuant to Pa.R.Crim.P. 907. On
January 9, 2017, Appellant filed a notice of appeal.
Appellant now raises the following issues on appeal:
I. Whether [Appellant]’s Instant PCRA Petition Predicated Upon The United States Supreme Court’s Decision Announced In Miller v. Alabama, 567 U.S. [460] (2012), Is Timely Filed Under The Purview Of 42 Pa.C.S. §9545(b)(1)(iii)?
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II. Whether The Court’s Imposition Of An Illegal Mandatory Life Without Parole Sentence, For A Homicide Offense Committed While Petitioner Was A Juvenile, Violates The Eighth Amendment’s Prohibition On “‘Cruel And Unusual Punishments,’” As A Result Of:
(A). Miller’s Application Being Binding Upon All States;
(B). Appellant Is A Juvenile Under Pennsylvania Law; And
(C). Equal Protection Demands Miller’s Application.
Appellant’s Brief at 2.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is “to determine whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.
The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record.” Commonwealth v. Barndt, 74 A.3d
185, 191-92 (Pa. Super. 2013) (citations and internal quotation marks
omitted).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final, unless the petition alleges and the petitioner proves one
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of the three exceptions to the time limitations for filing the petition set forth
in Section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b).1
Here, the PCRA court concluded that it lacked jurisdiction over
Appellant’s fourth petition, because the petition was untimely and Appellant
failed to satisfy an exception to the PCRA’s time bar. The PCRA court
explained:
There is no question that Appellant’s fourth (4[th]) PCRA petition is untimely. Appellant argues that because he was eighteen (18) at the time of the offense he should receive the benefit of the Miller decision. Unfortunately for Appellant’s cause, the Miller decision applies to those defendants who were under the age of 18 at the time of the offense, not over the age of 18. Appellant having reached his eighteenth birthday on July 4, 1984, over four (4) months prior to the incident means he is not within the ambit of Miller and cannot rely on that decision to overcome the
____________________________________________
1 The three exceptions to the timeliness requirement are:
(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.
42 Pa.C.S. § 9545(b)(1).
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PCRA time bar. See Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013). . . .
Appellant’s PCRA petition is untimely and this Court is without jurisdiction to entertain the merits. Consequently, the Order denying PCRA relief and dismissing the PCRA Petition should be affirmed.
PCRA Ct. Op., 5/17/17, at 6.
We agree that Appellant fails to meet any exceptions to the PCRA’s
jurisdictional time-bar. Appellant did not file the instant petition until
March 24, 2016, more than a quarter of a century after his judgment of
sentence became final. Appellant attempts to circumvent the time-bar by
asserting the “new constitutional right” exception under subsection
9545(b)(1)(iii). Appellant’s Brief at 2. Specifically, Appellant claims that:
Appellant concedes that his current PCRA petition is not filed within one year of the date his judgment of sentence became final; nonetheless, Appellant’s claim fulfills the exception of 42 Pa.C.S. §9545(b)(1)(iii).
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J-S02034-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANIEL ROSADO : : Appellant : No. 278 EDA 2017
Appeal from the PCRA Order December 20, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1217452-1984
BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*
MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 27, 2018
Appellant, Daniel Rosado, appeals from the order dismissing his fourth
petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. After careful review, we affirm.
Appellant was born on July 4, 1966. On November 23, 1984, he
murdered Angel Carrion. Appellant was eighteen years old at the time of the
murder.
This Court has previously summarized the procedural history of this
case, as follows:
Rosado was tried before a jury, the Honorable Juanita Kidd Stout presiding, and convicted of second-degree murder, robbery, criminal conspiracy, possession of an instrument of crime, and related offenses. [On September 25, 1986, t]he court sentenced Rosado to life imprisonment [without parole]. On [April 14, 1987, on] direct appeal, this Court affirmed Rosado’s judgment of sentence[], Commonwealth v. Rosado, 528 A.2d 259 (Pa. Super. 1987); Rosado did not seek review in the Pennsylvania
*Retired Senior Judge Assigned to the Superior Court J-S02034-18
Supreme Court. Rosado filed a petition under the Post Conviction Hearing Act, (now the PCRA), which was denied. On appeal, this Court affirmed. Commonwealth v. Rosado, 665 A.2d 1302 (Pa. Super. 1994). Rosado then filed a petition for allocatur in the Supreme Court of Pennsylvania, which was denied. Commonwealth v. Rosado, 668 A.2d 1129 (Pa. 1995).
In 1996, Rosado filed a second petition for collateral relief, this time under the PCRA, which was dismissed. This Court, on appeal, affirmed the PCRA court’s order. Commonwealth v. Rosado, 742 A.2d 1151 (Pa. Super. 1999). Rosado’s petition for allowance of appeal in the Supreme Court of Pennsylvania was denied. Commonwealth v. Rosado, 747 A.2d 900 (Pa. 1999).
Thereafter, in November 2000, Rosado filed a petition for habeas corpus in the United States District Court for the Eastern District of Pennsylvania, which was dismissed. The United States Court of Appeals for the Third Circuit denied Rosado’s request for a certificate of appealability, and the United States Supreme Court denied his Petition for Writ of Certiorari.
On April 18, 2007, Rosado filed [a third] PCRA petition, which the PCRA court dismissed, without a hearing, following notice pursuant to Pa.R.Crim.P. 907.
Commonwealth v. Rosado, 81 A.3d 991 (Pa. Super. 2013). On May 7,
2013, this Court affirmed the dismissal of Appellant’s third PCRA petition.
On March 24, 2016, Appellant filed his fourth PCRA petition. On
December 20, 2016, the PCRA court dismissed the instant PCRA petition
without a hearing, following notice pursuant to Pa.R.Crim.P. 907. On
January 9, 2017, Appellant filed a notice of appeal.
Appellant now raises the following issues on appeal:
I. Whether [Appellant]’s Instant PCRA Petition Predicated Upon The United States Supreme Court’s Decision Announced In Miller v. Alabama, 567 U.S. [460] (2012), Is Timely Filed Under The Purview Of 42 Pa.C.S. §9545(b)(1)(iii)?
-2- J-S02034-18
II. Whether The Court’s Imposition Of An Illegal Mandatory Life Without Parole Sentence, For A Homicide Offense Committed While Petitioner Was A Juvenile, Violates The Eighth Amendment’s Prohibition On “‘Cruel And Unusual Punishments,’” As A Result Of:
(A). Miller’s Application Being Binding Upon All States;
(B). Appellant Is A Juvenile Under Pennsylvania Law; And
(C). Equal Protection Demands Miller’s Application.
Appellant’s Brief at 2.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is “to determine whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.
The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record.” Commonwealth v. Barndt, 74 A.3d
185, 191-92 (Pa. Super. 2013) (citations and internal quotation marks
omitted).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final, unless the petition alleges and the petitioner proves one
-3- J-S02034-18
of the three exceptions to the time limitations for filing the petition set forth
in Section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b).1
Here, the PCRA court concluded that it lacked jurisdiction over
Appellant’s fourth petition, because the petition was untimely and Appellant
failed to satisfy an exception to the PCRA’s time bar. The PCRA court
explained:
There is no question that Appellant’s fourth (4[th]) PCRA petition is untimely. Appellant argues that because he was eighteen (18) at the time of the offense he should receive the benefit of the Miller decision. Unfortunately for Appellant’s cause, the Miller decision applies to those defendants who were under the age of 18 at the time of the offense, not over the age of 18. Appellant having reached his eighteenth birthday on July 4, 1984, over four (4) months prior to the incident means he is not within the ambit of Miller and cannot rely on that decision to overcome the
____________________________________________
1 The three exceptions to the timeliness requirement are:
(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.
42 Pa.C.S. § 9545(b)(1).
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PCRA time bar. See Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013). . . .
Appellant’s PCRA petition is untimely and this Court is without jurisdiction to entertain the merits. Consequently, the Order denying PCRA relief and dismissing the PCRA Petition should be affirmed.
PCRA Ct. Op., 5/17/17, at 6.
We agree that Appellant fails to meet any exceptions to the PCRA’s
jurisdictional time-bar. Appellant did not file the instant petition until
March 24, 2016, more than a quarter of a century after his judgment of
sentence became final. Appellant attempts to circumvent the time-bar by
asserting the “new constitutional right” exception under subsection
9545(b)(1)(iii). Appellant’s Brief at 2. Specifically, Appellant claims that:
Appellant concedes that his current PCRA petition is not filed within one year of the date his judgment of sentence became final; nonetheless, Appellant’s claim fulfills the exception of 42 Pa.C.S. §9545(b)(1)(iii).
Appellant claims the United States Supreme Court’s decision in Montgomery [v. Louisiana, 136 S. Ct. 718 (2016)], that held the Supreme Courts previous ruling in Miller applied retroactively, “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 the court to apply retroactively.” See also, Commonwealth v. Copenhefer, 941 A.2d 646, 649-50 (Pa.2007)(holding that language “has been held,” means that the court that recognized the new right has held the right to be retroactive to cases on collateral review at the time the petition is filed); and Commonwealth v. Miller, 888 A.2d 624 (Pa.2005)(new substantive rule of constitutional law that execution of mentally retarded defendants violates the Eighth Amendment applied retroactively).
Appellant asserts the Montgomery Court has recognized a new right held to be retroactive to cases on collateral review.
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* * * As a result of the Montgomery Court’s retroactive application of [its] previous decision announced in Miller, Appellant’s instant PCRA petition is timely filed, as Appellant has met the requirements of 42 Pa.C.S. §9545(b)(1)(iii) and has filed the instant PCRA petition within sixty (60) days of United States Supreme Court’s decision in Montgomery, thus, complying with the requirements of 42 Pa.C.S. §9545(b)(2).
Thus, the PCRA Court’s analysis, which found Appellant’s instant PCRA petition untimely filed, is incorrect and not supported by the record in this case.
Id. at 8-9.
Initially, we observe that Appellant is correct that the United States
Supreme Court in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), held
that Miller v. Alabama, 567 U.S. 460 (2012), applies retroactively; Miller
held “that mandatory life without parole for those under the age of 18 at the
time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel
and unusual punishments.’” Id. at 465. Petitioners, such as Appellant, who
were at least 18 years old at the time of their crimes “are not within the
ambit of the Miller decision [and its corollary, Montgomery,] and therefore
may not rely on that decision to bring themselves within the time-bar
exception in Section 9545(b)(1)(iii).” Commonwealth v. Furgess, 149
A.3d 90 (Pa. Super. 2016). Hence, Miller and Montgomery are
inapplicable to Appellant. Having discerned no abuse of discretion or error
of law, we affirm the order below.
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/27/18
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