Com. v. Veltre, J.

• Court: Superior Court of Pennsylvania
• Decided: October 14, 2015
• Docket: 1989 WDA 2014
• Status: Unpublished

Opinion

J-A29025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOHN J. VELTRE, JR.,

Appellant No. 1989 WDA 2014

Appeal from the Order October 29, 2014 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-MD-0000002-1973

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.

JUDGMENT ORDER BY BOWES, J.: FILED OCTOBER 14, 2015

John J. Veltre, Jr., appeals from the order denying him PCRA relief.

We affirm.

On February 14, 1973, when he was sixteen years old, Appellant raped

Alys Morgan, stomped on her head, and threw her against a wall. Appellant

proceeded to kill Ms. Morgan’s two-month old daughter and two-year old

daughter. Ms. Morgan, who had known Appellant for two months prior to

the murders, survived and identified him as the perpetrator of the crimes,

and he confessed. A jury convicted Appellant of two counts of first degree

murder and one count of rape and assault with intent to kill. Appellant

received a sentence of life imprisonment without parole (“LWOP”), which our J-A29025-15

Supreme Court affirmed on December 3, 1980. Commonwealth v. Veltre,

424 A.2d 486 (Pa. 1980).

Appellant litigated an unsuccessful PCRA petition in 2010. Appellant

filed the present PCRA petition in 2012 averring that his LWOP sentence was

unconstitutional. See Miller v. Alabama, 132 S.Ct. 2455 (2012)

(mandatory sentence of LWOP cannot be imposed upon juvenile homicide

offenders under Eighth Amendment). Counsel was appointed. The PCRA

court stayed the PCRA proceeding until the Pennsylvania Supreme Court

ruled on whether Miller would be given full retroactive effect to PCRA

petitioners. Our Supreme Court decided that Miller would not be so applied

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

Accordingly, the PCRA court dismissed the present PCRA petition as

untimely. This appeal followed. Any PCRA petition must be filed within one

year of when the PCRA petitioner’s judgment of sentence became final. 42

Pa.C.S. § 9545(b)(1). A judgment of sentence becomes final at the

conclusion of direct review or the time for seeking direct review. 42 Pa.C.S.

§ 9545(b)(3). Appellant’s ability to pursue direct review expired in 1981,

and the present, 2012 petition is obviously untimely. There are three

exceptions to this one-year time bar, and the one invoked by Appellant was

the third one: “the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States or the Supreme Court

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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)(iii).

Miller recognized a new Eighth Amendment constitutional right for

juveniles. However, the second aspect of this exception cannot be satisfied

by Appellant because that right has not been held by either the United

States Supreme Court or the Pennsylvania Supreme Court to apply

retroactively. Indeed, Cunningham ruled to the contrary. As we

articulated in Commonwealth v. Seskey, 86 A.3d 237 (Pa.Super. 2014),

only a decision by the United States Supreme Court or the Pennsylvania

Supreme Court to render a new constitutional right retroactive is sufficient to

invoke the third exception contained in § 9545((b)(1)(iii) to the one-year

filing deadline for a PCRA petition. The PCRA court correctly dismissed the

present PCRA petition as untimely because Miller has not yet received full

retroactive effect by the appropriate court. Sesky, supra.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/14/2015

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