J-S50032-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
HENRY L. WILLIAMS,
Appellant No. 314 WDA 2014
Appeal from the PCRA Order entered January 27, 2014, in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP-02-CR-0009970-1972
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 11, 2014
petition for post-conviction relief filed pursuant to the Post Conviction Relief
S.A. §§ 9541-46. PCRA counsel has also filed a
petition to withdraw. We affirm.
The pertinent facts and procedural history are as follows: On October
28, 1972, police charged Appellant, then twenty-one years of age, with two
counts of criminal homicide and related charges, after he attempted to rob a
local pharmacy. On June 28, 1973, Appellant entered a general guilty plea
killings constituted first-degree murder. Thus, that same day, the trial court
sentenced Appellant to two concurrent terms of life imprisonment without
the possibility of parole. Appellant did not file a direct appeal. J-S50032-14
On January 26, 1979, Appellant filed his first petition for post-
conviction relief under the former Post-
The PCHA court appointed counsel, and after an evidentiary hearing, the
PCHA court denied relief. On April 25, 1980, our Supreme Court affirmed.
Commonwealth v. Williams, 413 A.2d 658 (Pa. 1980). Appellant filed
additional PCHA petitions on September 28 and October 22, 1982. The
PCHA court denied relief on November 8, 1982. Appellant filed yet another
post-conviction petition, this time under the PCRA, on June 5, 1990. The
PCRA court denied relief on August 8, 1990, and in an unpublished
memorandum filed on June 11, 1991, this Court affirmed. Commonwealth
v. Williams, 596 A.2d 255 (1991).
Appellant filed a pro se PCRA petition on or about August 24, 2012.
The PCRA court appointed counsel, and on October 4, 2013, PCRA counsel
filed an amended petition. The PCRA court issued Pa.R.Crim.P. 907 notice of
file a response. By order entered January 27, 2014, the PCRA court
dismissed A
Appellant failed to establish the applicability of an exception to the time bar.
This appeal followed. Both Appellant and the PCRA court have complied with
Pa.R.A.P. 1925.
-2- J-S50032-14
In lieu of an a Anders1
brief and a petition to withdraw. Compliance with Anders applies to counsel
who seeks to withdraw from representation on direct appeal. Anders
imposes stricter requirements than those imposed when counsel seeks to
withdraw during the post-conviction process pursuant to the dictates of
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super.
wishes to raise have no merit under a Turner/Finley analysis.
Our Supreme Court has explained:
These cases establish the procedure for withdrawal of court-appointed counsel in collateral attacks on criminal convictions. Independent review of the record by competent counsel is required before withdrawal is permitted. Such independent review requires proof of:
1) - el detailing the nature and extent of his [or her] review;
2) - the petitioner wished to have reviewed;
3) - meritless;
4) The PCRA court conducting its own independent review of the record; and ____________________________________________
1 Anders v. California, 386 U.S. 738 (1967).
-3- J-S50032-14
5) The PCRA court agreeing with counsel that the petition was meritless.
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1, (Pa. 2009) (citations
omitted). Here, counsel has complied with the mandates of Turner and
Finley, as summarized in Pitts, supra. We therefore must determine
was untimely filed, and whether Appellant can establish an exception to the
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
hearin
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011
(Pa. Super. 2001).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation
omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor
-4- J-S50032-14
the PCRA court has jurisdiction over the petition. Id t jurisdiction,
raised in an untimely petition. Id.
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
becomes final unless the petition alleges, and the petitioner proves, an
exception to the time for filing the petition. Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
these exceptions,
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
Gamboa-Taylor, 753
A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to
the time restrictions of the PCRA must be pled in the petition, and may not
be raised for the first time on appeal. Commonwealth v. Burton, 936
A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P.
raised before the lower court are waived and cannot be raised for the first
-5- J-S50032-14
Because Appellant did not file a direct appeal, for PCRA purposes,
or
about July 30, 1973.2 42 Pa.C.S.A. § 9545(b)(3). Appellant filed the instant
PCRA petition almost forty years later, such that it is patently untimely
unless he has satisfied his burden of pleading and proving that one of the
enumerated exceptions applies. See Commonwealth v. Beasley, 741
A.2d 1258, 1261 (Pa. 1999).
Appellant has failed to prove the applicability of any of the exceptions
under the exception of subsection 9545(b)(1)(iii) because the United States
Supreme Court recognized a new constitutional right in Miller v. Alabama,
132 S.Ct. 2455 (2012). In Miller, the high court held that mandatory
time of
Miller, 132 S.Ct.
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J-S50032-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
HENRY L. WILLIAMS,
Appellant No. 314 WDA 2014
Appeal from the PCRA Order entered January 27, 2014, in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP-02-CR-0009970-1972
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 11, 2014
petition for post-conviction relief filed pursuant to the Post Conviction Relief
S.A. §§ 9541-46. PCRA counsel has also filed a
petition to withdraw. We affirm.
The pertinent facts and procedural history are as follows: On October
28, 1972, police charged Appellant, then twenty-one years of age, with two
counts of criminal homicide and related charges, after he attempted to rob a
local pharmacy. On June 28, 1973, Appellant entered a general guilty plea
killings constituted first-degree murder. Thus, that same day, the trial court
sentenced Appellant to two concurrent terms of life imprisonment without
the possibility of parole. Appellant did not file a direct appeal. J-S50032-14
On January 26, 1979, Appellant filed his first petition for post-
conviction relief under the former Post-
The PCHA court appointed counsel, and after an evidentiary hearing, the
PCHA court denied relief. On April 25, 1980, our Supreme Court affirmed.
Commonwealth v. Williams, 413 A.2d 658 (Pa. 1980). Appellant filed
additional PCHA petitions on September 28 and October 22, 1982. The
PCHA court denied relief on November 8, 1982. Appellant filed yet another
post-conviction petition, this time under the PCRA, on June 5, 1990. The
PCRA court denied relief on August 8, 1990, and in an unpublished
memorandum filed on June 11, 1991, this Court affirmed. Commonwealth
v. Williams, 596 A.2d 255 (1991).
Appellant filed a pro se PCRA petition on or about August 24, 2012.
The PCRA court appointed counsel, and on October 4, 2013, PCRA counsel
filed an amended petition. The PCRA court issued Pa.R.Crim.P. 907 notice of
file a response. By order entered January 27, 2014, the PCRA court
dismissed A
Appellant failed to establish the applicability of an exception to the time bar.
This appeal followed. Both Appellant and the PCRA court have complied with
Pa.R.A.P. 1925.
-2- J-S50032-14
In lieu of an a Anders1
brief and a petition to withdraw. Compliance with Anders applies to counsel
who seeks to withdraw from representation on direct appeal. Anders
imposes stricter requirements than those imposed when counsel seeks to
withdraw during the post-conviction process pursuant to the dictates of
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super.
wishes to raise have no merit under a Turner/Finley analysis.
Our Supreme Court has explained:
These cases establish the procedure for withdrawal of court-appointed counsel in collateral attacks on criminal convictions. Independent review of the record by competent counsel is required before withdrawal is permitted. Such independent review requires proof of:
1) - el detailing the nature and extent of his [or her] review;
2) - the petitioner wished to have reviewed;
3) - meritless;
4) The PCRA court conducting its own independent review of the record; and ____________________________________________
1 Anders v. California, 386 U.S. 738 (1967).
-3- J-S50032-14
5) The PCRA court agreeing with counsel that the petition was meritless.
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1, (Pa. 2009) (citations
omitted). Here, counsel has complied with the mandates of Turner and
Finley, as summarized in Pitts, supra. We therefore must determine
was untimely filed, and whether Appellant can establish an exception to the
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
hearin
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011
(Pa. Super. 2001).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation
omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor
-4- J-S50032-14
the PCRA court has jurisdiction over the petition. Id t jurisdiction,
raised in an untimely petition. Id.
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
becomes final unless the petition alleges, and the petitioner proves, an
exception to the time for filing the petition. Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
these exceptions,
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
Gamboa-Taylor, 753
A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to
the time restrictions of the PCRA must be pled in the petition, and may not
be raised for the first time on appeal. Commonwealth v. Burton, 936
A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P.
raised before the lower court are waived and cannot be raised for the first
-5- J-S50032-14
Because Appellant did not file a direct appeal, for PCRA purposes,
or
about July 30, 1973.2 42 Pa.C.S.A. § 9545(b)(3). Appellant filed the instant
PCRA petition almost forty years later, such that it is patently untimely
unless he has satisfied his burden of pleading and proving that one of the
enumerated exceptions applies. See Commonwealth v. Beasley, 741
A.2d 1258, 1261 (Pa. 1999).
Appellant has failed to prove the applicability of any of the exceptions
under the exception of subsection 9545(b)(1)(iii) because the United States
Supreme Court recognized a new constitutional right in Miller v. Alabama,
132 S.Ct. 2455 (2012). In Miller, the high court held that mandatory
time of
Miller, 132 S.Ct. at 2460. Appellant asserts that the
Miller decision should be applied retroactively to his life sentence.
____________________________________________
2 Although the PCRA provided a one-year grace period for criminal defendants whose convictions pre-dated the 1995 amendments to the PCRA, this subsection applied only to the filing of a first petition for post-conviction relief. See generally Commonwealth v. Johnson, 732 A.2d 639 (Pa. Super. 1999). The grace period does not to subsequent petitions. Id.
-6- J-S50032-14
Initially, we note that Appellant was not a juvenile when he committed
the murders, rendering the Miller holding inapposite. Moreover, even had
Appellant been a juvenile at that time, our Supreme Court has determined
that the Miller decision should not be applied retroactively. See generally,
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). Thus, Appellant
Appellant, in the alternative, attempts to establish an exception to the
ing the scientific evidence discussed in Miller
present counsel, however, these same evidence was referenced in the
Roper v. Simmons, 543
U.S. 551 (2005) and Graham v. Florida, 560 U.S. 48 (2010). At best,
Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008); see
also Commonwealth v. Lark, 746 A.2d 585, 588 n.4 (explaining that
to meet his burden of proof with regard to any exception to the timeliness
-
withdraw.
-7- J-S50032-14
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/11/2014
-8-