Com. v. Thomas, D. (memorandum)

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J-S02013-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DERRICK THOMAS Appellant No. 633 EDA 2013 Appeal from the PCRA Order January 28, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1126921-1991 BEFORE: GANTMAN, J., OLSON, J., and PLATT, J.* MEMORANDUM BY GANTMAN, J.: FILED APRIL 8, 2014 Appellant, Derrick Thomas, appeals pro se from the order entered in the Philadelphia County Court of Common Pleas, dismissing as untimely his serial petition filed per the Post Convic Pa.C.S.A. §§ 9541-9546. We affirm. The relevant facts and procedural history of this case are as follows. On February 7, 1990, Appellant and co-defendants lured the victim to one of co- been a witness to a murder and - time after arriving at the home, Appellant and co-defendants hit the victim in the head with a baseball bat, tied his hands behind his back, and repea ______________________ * Retired Senior Judge assigned to the Superior Court. Enter party name from February 25, 1993 to March 16, 1993. The jury convicted Appellant of first-degree murder, retaliation against a witness, criminal conspiracy, and possessing an instrument of crime. Appellant filed post-trial motions, which the court denied. On April 20, 1994, the court sentenced Appellant to life imprisonment for the murder conviction, and a concurrent sentence of four victions. Appellant did not file a direct appeal. On April 28, 1995, Appellant filed a PCRA petition to reinstate his direct appeal rights nunc pro tunc. The court reversed App crime and affirmed the remaining judgments of sentence. Appellant filed a petition for allowance of appeal, which the Supreme Court denied on December 9, 1997. Appellant timely filed pro se his first PCRA petition on April 21, 1998. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On April 7, 199 petition without a hearing pursuant to Pa.R.Crim.P. 907. After receiving no response from Appellant, the court dismissed the petition on May 20, 1999. On April 27, 2000, this Court determine -2- - Enter party name remanded for appointment of new counsel. The PCRA court appointed new Appell 2003. On October 3, 2003, Appellant filed a second PCRA petition. The PCRA court dismissed the petition as untimely on November 17, 2003, and this Court affirmed the dismissal on December 10, 2004. Appellant filed a third PCRA petition on January 10, 2008, which the court dismissed as untimely on December 4, 2009. Appellant appealed the dismissal but filed a praecipe for discontinuance on March 10, 2010. Appellant filed pro se the current PCRA petition on June 27, 2012, and a pro se amended petition on August 20, 2012. The court issued Rule 907 notice on January 3, 2013, and dismissed the petition as untimely on January 28, 2013. Appellant timely filed a notice of appeal on February 21, 2013. A review of the record reveals the court did not order a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant did not file a voluntary Rule 1925(b) statement. 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, -3- Enter party name 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 A.2d 1273 (Pa.Super. 2003). A judgment is 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 -4- Enter party name 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 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). March 8, 1998, upon expiration of the time to seek certiorari with the United States Supreme Court. Appellant filed his current PCRA petition on June 27, 2012, more than fourteen (14) years after his judgment of sentence became See 42 Pa.C.S.A. § 9545(b)(1). In his current petition, Appellant argues all three exceptions excuse the untimeliness of his PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Nevertheless, Appellant primarily asserts new constitutional rights recently recognized by the Supreme Court of the United States in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012).1 ____________________________________________ 1 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 nishments. See Miller, supra at ___, 132 S.Ct. at 2469, 183 L.Ed.2d at ___. In Martinez, the (Footnote Continued Next Page) -5- Enter party name See 42 Pa.C.S.A. § 9545(b)(1)(iii). Specifically, Appellant contends that, under Miller, his life imprisonment sentence is a violation of the Eighth and Fourteenth Amendments of the United States Constitution. Appellant acknowledges he was over eighteen (18) years-old at the time of the offenses, but he claims he is similarly situated to individuals under the age incomplete until the juvenile reaches his mid-twenties.2 Appellant also maintains that the ineffective assistance of counsel claims Appellant raised in his current PCRA petition should be addressed because, under Martinez, should be granted a new trial or resentenced in accordance with Miller, and he should be granted the right to appeal his ineffectiveness claims nunc pro tunc as part of his direct appeal. We disagree. In the present case, Appellant filed the current PCRA petition on June 27, 2012, within sixty (60) days of the Miller decision on June 25, 2012, but (Footnote Continued) _______________________ 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 collateral proceeding if Martinez, supra at ___, 132 S.Ct. at 1320, 182 L.Ed.2d ___. 2 Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) in further support of this argument. Nevertheless, Appellant did not file his current PCRA petition within sixty (60) days of those decisions. See 42 Pa.C.S.A. § 9545(b)(2). -6- Enter party name not of the Martinez decision on March 20, 2012. Thus, Appellant has Miller. See 42 Pa.C.S.A. § 9545(b)(2); Gamboa-Taylor, supra. Nevertheless, Appellant was nineteen (19) years-old when he committed the underlying crimes. Therefore, Miller does not apply to Appellant. Commonwealth v. Cintora, See 42 Pa.C.S.A. § 9545(b)(1)(iii); 69 A.3d 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 years old (19), respectively, when they committed underlying crimes).3 Accordingly, the PCRA court properly dismissed the petition as untimely. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/8/2014 ____________________________________________ 3 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). -7-

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