Com. v. Sourbeer, G.

• Court: Superior Court of Pennsylvania
• Decided: May 8, 2015
• Docket: 1514 MDA 2014
• Status: Unpublished

Opinion

J-S26037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

GREGORY SCOTT SOURBEER

Appellant No. 1514 MDA 2014

Appeal from the PCRA Order August 11, 2014 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-933-1976

BEFORE: OTT, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED MAY 08, 2015

Appellant Gregory Sourbeer appeals from the order of the Lancaster

County Court of Common Pleas dismissing as untimely his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et

seq. We affirm.

On October 6, 1976, a jury convicted Appellant, who was fourteen at

the time of the crime, of first-degree murder1 following the death of his

mother. On October 28, 1977, the court sentenced Appellant to life

imprisonment without the possibility of parole. On November 15, 1977,

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1 18 Pa.C.S. § 2502(a). J-S26037-15

Appellant filed a notice appeal to the Supreme Court of Pennsylvania, which

affirmed the judgment of sentence on February 1, 1980.2

On August 2, 2012, Appellant filed a pro se PCRA petition, alleging his

sentence was unconstitutional pursuant to Miller v. Alabama, 132 S.Ct.

2455 (U.S.2012). The PCRA court appointed counsel, who filed an amended

petition on August 20, 2012. The PCRA court held the petition in abeyance

pending the decision of the Supreme Court of the United States as to

whether it would grant a writ of certiorari in Commonwealth v.

Cunningham, 81 A.3d 1 (Pa.2013). On June 19, 2014, the Commonwealth

filed a supplemental answer to the amended petition, informing the court the

Supreme Court of the United States denied the petition for a writ of

certiorari in Cunningham.

On August 11, 2014, the PCRA court denied Appellant’s PCRA petition

as untimely. On September 10, 2014, Appellant filed a timely notice of

appeal. Both Appellant and the trial court complied with Pennsylvania Rule

of Appellate Procedure 1925.

Appellant raises the following issue on appeal:

Does [Miller] apply on collateral review to juveniles serving life sentences for homicide by creating a newly recognized [c]onstitutional [r]ight and an exception to the ____________________________________________

2 In 1977, the Supreme Court of Pennsylvania had exclusive jurisdiction of “felonious homicide” convictions. See Com. ex rel. Colcough v. Aytch, 323 A.2d 359, 361 (Pa.Super.1974) (citing 17 P.S. § 211.202(1)); Com. ex rel. Reyes v. Aytch, 369 A.2d 1325, 1326 n.2 (Pa.Super.1977).

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one year filing requirement under Pennsylvania’s [PCRA] Statute? 42 [Pa. C.S. §] 9545(b)(1)(iii).

Appellant’s Brief at 2.

Pursuant to Pennsylvania law, no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa.Super.2010) (citing Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa.2003)). The PCRA provides that a petition, “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Monaco, 996 A.2d at

1079; Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). A

judgment is 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. § 9545(b)(3).

Three exceptions to the PCRA’s time-bar exist. The exceptions allow

for limited circumstances under which a court may excuse the late filing of a

PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. The

late filing of a petition will be excused if a petitioner alleges and proves:

(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

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(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)(i)-(iii). When invoking a time-bar exception, the

petition must “be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

On February 1, 1980, the Supreme Court of Pennsylvania affirmed

Appellant’s judgment of sentence. Appellant’s judgment of sentence

became final when the time to seek review in the Supreme Court of the

United States expired. 42 Pa.C.S. § 9545(b)(3). Therefore, his current

petition, filed on August 2, 2012, more than thirty-two years later, is facially

untimely. See 42 Pa.C.S. § 9545(b)(1).

Appellant claims the new constitutional right exception to the PCRA

time-bar applies because the Supreme Court of the United States recognized

a new constitutional right made retroactive to cases on collateral review in

Miller. Appellant’s Brief at 10-13. We disagree.

In Miller, the Supreme Court of the United States found mandatory

life imprisonment without parole for juvenile offenders unconstitutional. 132

S.Ct. at 2469. On October 30, 2013, the Supreme Court of Pennsylvania

found Miller was not retroactive and did not apply to defendants whose

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judgments of sentence were final prior to the issuance of the Miller

opinion.3 Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa.2013).

Because the Supreme Court of Pennsylvania has found Miller is not

retroactive, it does not apply to Appellant and the trial court did not err in

denying Appellant’s PCRA petition. See Cunningham 81 A.3d at 11.4

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/8/2015

3 Appellant filed his August 2, 2012 PCRA petition within 60 days of the issuance of the Miller opinion on June 25, 2012. 4 The Supreme Court of the United States granted a writ of certiorari in Montgomery v. Louisiana, ___ U.S. ___, 190 L.Ed.2d 649, 135 S.Ct.781 (U.S.2014), which addresses the retroactivity of Miller v. Alabama, 567 U.S. ––––, 135 S.Ct. 1546, (2012). If the Supreme Court determines Miller applies retroactively to cases on collateral review, Appellant would have sixty days from that opinion to file his PCRA petition seeking relief.

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