Com. v. Walton, M. (memorandum)

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J-S43013-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. MARCUS M. WALTON Appellant No. 2399 EDA 2013 Appeal from the PCRA Order July 8, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0334691-1989 BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.* MEMORANDUM BY GANTMAN, P.J.: FILED JULY 16, 2014 Appellant, Marcus M. Walton, appeals from the order entered in the Philadelphia County Court of Common Pleas, dismissing his serial petition 1 We affirm. The relevant facts and procedural history of this case are as follows. On February 9, 1989, Appellant entered a house where a man known as gave Appellant a gun; shortly thereafter, Appellant coerced an individual living in the house into a bathroom, shot, and killed him. On March 6, 1990, a jury convicted Appellant of first-degree murder and possessing an ____________________________________________ 1 42 Pa.C.S.A. §§ 9541-9546. _____________________________________________ *Former Justice specially assigned to the Superior Court. J-S43013-14 instrument of crime. The court sentenced Appellant to life imprisonment on October 22, 1990. On July 10, 1992, this Court affirmed the judgment of sentence, and our Supreme Court denied allowance of appeal on December 8, 1992. See Commonwealth v. Walton, 616 A.2d 721 (Pa.Super. 1992), appeal denied, 533 Pa. 610, 618 A.2d 401 (1992). On January 2, 1997, Appellant filed his first PCRA petition, which the PCRA court denied, and this Court affirmed on September 19, 2000. Between 2000 and 2012, Appellant filed several additional PCRA petitions, all of which were unsuccessful. Appellant filed the current petition pro se on May 21, 2012. Additionally, Appellant filed supplemental petitions pro se on August 21, 2012 and August 24, 2012. The PCRA court issued notice on May 28, 2013, of its intent to on without a hearing pursuant to Pa.R.A.P. 907; Appellant did not respond. The PCRA court subsequently dismissed the petition on July 8, 2013. Under the prisoner mailbox rule, Appellant timely filed a pro se notice of appeal on August 5, 2013. The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant filed none. Appellant raises the following issues for our review: DID THE PCRA COURT ERRONEOUSLY DENY MEANINGFUL REVIEW ON THE MERITS UNDER A STATUTORY [EXCEPTION] OF NEWLY/AFTER-DISCOVERED EVIDENCE, WHEREIN, TRIAL COUNSEL FAILED TO DISCLOSE A PLEA OFFER [AND] THE ISSUE IS NOT PREVIOUSLY LITIGATED NOR UNTIMELY FILED[?] -2- J-S43013-14 DID THE PCRA COURT ERRONEOUSLY DENY MEANINGFUL REVIEW ON THE MERITS BASED ON THE MISCONCEPTION THAT THE MAY 24, 2012 DATE ON THE PCRA PETITION WAS OVER THE REQUIRED SIXTY DAYS OF THE MARCH 20, 2012, JUDICIAL DECISION RENDERED IN MARTINEZ V. RYAN, 132 S.Ct. 1309 (2012), AND NEGATING THE PRISON[ER] MAIL-BOX RULE[?] DID THE PCRA COURT ERRONEOUSLY DENY MEANINGFUL MARTINEZ, THE COURT GRANTED APPELLANTS AN OPPORTUNITY TO RAISE FIRST-TIER CONSTITUTIONAL STANDARD OF THE SIXTH AMENDMENT OF THE UNITED STATES[?] DID THE PCRA COURT ERRONEOUSLY DENY MEANINGFUL REVIEW UNDER THE 8TH AND 14TH AMENDMENTS OF THE UNITED STATES CONSTITUTION BASED ON A NEW SCIENTIFIC STUDY THAT SUGGESTS A LESSER GRADE OF HOMICIDE, AND RELIED UPON BY THE UNITED STATES SUPREME COURT RULING RENDERED IN MILLER V. ALABAMA, No.10-9646[?] As a preliminary matter, we must determine whether Appellant timely filed his current PCRA petition. Commonwealth v. Harris, 972 A.2d 1196 (Pa.Super. 2009), appeal denied, 603 Pa. 684, 982 A.2d 1227 (2009). Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157 (2003). The most recent amendments to the PCRA, effective January 16, 1996, provide that a PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Bretz, 830 -3- J-S43013-14 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 The three statutory exceptions to the timeliness provisions in the PCRA allow for very limited circumstances under which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition must allege and the petitioner must prove: (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.A. § 9545(b)(1)(i)-(iii). Additionally, a petitioner asserting a timeliness exception must file a petition within sixty (60) days of the date the claim could have been prese when a PCRA petition is not filed within one year of the expiration of direct review, or not eligible for one of the three limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date that the claim -4- J-S43013-14 could have been first brought, the trial court has no power to address the Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000). ent of sentence became final on or about March 8, 1993, upon expiration of the time to seek certiorari with the United States Supreme Court. Appellant filed his current PCRA petition on May 21, 2012, more than nineteen (19) years after his judgment of sentence became See 42 Pa.C.S.A. § 9545(b)(1). In his current petition, Appellant argues the second and third statutory exceptions serve to excuse the untimeliness of his current PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1)(ii)-(iii). Appellant maintains that on April 19, 2012, he learned the specifics of a plea offer that trial counsel failed to disclose to Appellant at trial. See § 9545(b)(1)(ii). Appellant claims Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) and Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) set forth newly recognized constitutional rights as they require trial counsel to disclose any plea offers to a defendant prior to trial. Appellant contends these new constitutional rights apply retroactively, and the newly discovered fact of the plea offer excuses his otherwise untimely petition. Appellant also attempts to invoke a newly recognized constitutional right pursuant to Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), -5- J-S43013-14 which Appellant claims applies retroactively.2 See § 9545(b)(1)(iii). Specifically, Appellant argues PCRA counsel from his first petition failed to agreement between the Commonwealth and a witness for the Commonwealth. Appellant argues Martinez permits him to raise his claim of ineffective assistance of initial PCRA counsel in his current petition. Additionally, Appellant attempts to invoke a newly recognized constitutional right pursuant to Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 retroactively.3 L.Ed.2d 407 (2012), which Appellant See 42 Pa.C.S.A. § 9545(b)(1)(iii). alleges applies Specifically, Appellant contends that under Miller his life imprisonment is a violation of the Eight and Fourteenth Amendments of the United States Constitution. Appellant acknowledges he was over eighteen years old at the time of the offenses, but claims he is similarly situated to individuals under the age of eighteen ____________________________________________ 2 In Martinez, the United States Supreme Court held that a procedural default will not bar a federal habeas court from hearing ineffective assistance of counsel claims that state law requires be raised in an initial-review Martinez, supra at ___, 132 S.Ct. at 1320, 182 L.Ed.2d ___. 3 In Miller, the United States Supreme Court held that a sentence of mandatory life imprisonment without the possibility of parole for those under the age of eighteen (18) at the time of their crimes violates the Eighth nusual punishments. See Miller, supra at ___, 132 S.Ct. at 2469, 183 L.Ed.2d at ___. -6- J-S43013-14 juvenile reaches his mid-twenties. Appellant invokes the Fourteenth amendment to argue Miller should be extended to include individuals between eighteen and twenty-five years old. Appellant concludes this Court should vacate his sentence and release him from custody on these grounds. We disagree. Instantly, this Court has specifically held that neither Lafler nor Frye created a new constitutional right. See Commonwealth v. Feliciano, 69 A.3d 1270 (Pa.Super. 2013) (explaining Lafler and Frye simply applied Sixth Amendment right to counsel and ineffectiveness test to circumstances Moreover, the PCRA court determined Appellant was aware of the plea offer See PCRA Court Order, filed June 28, 2012, at n. 1.) Moreover, the United States Supreme Court filed Martinez on March 20, 2012. Thus, any petition alleging a newly recognized constitutional right had to be filed by Saturday, May 19, 2012. See Commonwealth v. Brandon, 51 A.3d 231 (Pa.Super. 2012) (explaining 60-day period runs from date of underlying judicial decision for purposes of Section current PCRA petition was entered on the -7- J-S43013-14 docket on Monday, May 21, 2012. Therefore, Appellant arguably submitted Martinez. Nevertheless, Martinez affords Appellant no relief. See Commonwealth v. Saunders, 60 A.3d 162 (Pa.Super. 2013), appeal denied, ___ Pa. ___, 72 A.3d 603 (2013) (explaining Martinez applies in context of federal habeas corpus law and is of no moment to timeliness analysis under PCRA). Additionally, Appellant filed a second supplemental PCRA petition on decision in Miller on June 25, 2012. Nevertheless, Appellant was twentythree (23) years old when he committed the underlying crimes. Thus, Miller does not apply to Appellant. See 42 Pa.C.S.A. § 9545(b)(1)(iii); Commonwealth A.3d v. Cintora, 69 759, 764 (Pa.Super. 2013) (explaining Miller did not create newly-recognized constitutional right that serves as exception to PCRA time restrictions, where petitioners were twenty-one (21) and nineteen (19) years old, respectively, when they committed underlying crimes). Moreover, on October 30, 2013, our Supreme Court decided that Miller does not apply retroactively to judgments of sentence which became final before the filing date of Miller (June 25, 2012). See Commonwealth v. Cunningham, ___ Pa. ___, 81 A.3d 1 (2013). The U.S. Supreme Court has denied certiorari in Cunningham. See Cunningham v. Pennsylvania, 2014 WL 797250 (filed -8- J-S43013-14 June 9, 2014). petition.4 Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/16/2014 ____________________________________________ 4 -9-

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