Opinion
J-S14044-17 No. 1588 MDA 2016
05-03-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. JAMES ROBERT FAVINGER, JR., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
Appeal from the PCRA Order August 18, 2016 in the Court of Common Pleas of Berks County, Criminal Division, at No(s): CP-06-CR-0003176-1989 BEFORE: GANTMAN, P.J., SHOGAN, and STRASSBURGER, JJ MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court. --------
James Robert Favinger Jr. (Appellant) appeals pro se from the August 18, 2016 order which denied his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In its opinion, the trial court fully and correctly sets forth the factual and procedural history of this case. Trial Court Opinion, 10/14/2016, at 3. Therefore, we have no reason to restate it. Pertinent to this appeal, in 1990, following a jury trial, Appellant was convicted of, inter alia, first-degree murder and was sentenced to life imprisonment. Since then, Appellant has filed a direct appeal and several PCRA petitions.
Most recently, Appellant filed a pro se post-conviction petition, his fourth, on March 3, 2016. Therein, Appellant asked for, inter alia, declaratory judgment as ancillary relief, requesting the trial court hold that he, who was 18 at the time of the charged crime, is entitled to the same relief afforded to juvenile offenders pursuant to the United States Supreme Court's decision in Miller v. Alabama , 132 S.Ct. 2455 (2013) (holding unconstitutional mandatory sentences of life imprisonment without possibility of parole imposed upon individuals who were juveniles at the time they committed homicides). On July 14, 2016, the PCRA court filed a notice of intent to dismiss the petition as untimely pursuant to Pa.R.Crim.P. 907. Appellant responded, and the petition was dismissed by order of August 18, 2016.
Appellant timely filed a notice of appeal. Both Appellant and the PCRA court complied with Pa.R.A.P. 1925. Appellant presents two questions to this Court on appeal.
1. His claim not being one of Equal Protection/discrimination to be included in the [ Miller ] juvenile class, but rather to avoid expulsion from the said class of which he is already a member per Pennsylvania law; was it PCRA Court error to refuse to decide [Appellant's] status and standing via prayer for Declaratory Judgment as Ancillary Relief and then base denial of all [r]elief on lack of such standing/status, coupling same with an alternative denial based upon previous litigation?Appellant's Brief at 4 (suggested answers omitted).
2. As a challenge to the constitutionality of the specific effect of the Post-Conviction Relief Act upon [Appellant] did not ripen until the PCRA Court denied relief per the time-bar and previous litigation; was it PCRA Court error to fail to adjudicate such claim as stated in [Appellant's "objection to the court's order and notice of intent to dismiss"]?
The timeliness of a post-conviction petition is jurisdictional. See , e.g., Commonwealth v. Lewis , 63 A.3d 1274, 1280-81 (Pa. Super. 2013) (quoting Commonwealth v. Chester , 895 A.2d 520, 522 (Pa. 2006)) ("[I]f a PCRA petition is untimely, neither this Court nor the [PCRA] court has jurisdiction over the petition. Without jurisdiction, we simply do not have the legal authority to address the substantive claims.").
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 of sentence is final unless the petition alleges, and the petitioner proves, that one of the following exceptions to the time for filing the petition is met:
(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;42 Pa.C.S. § 9545(b)(1). Moreover, "[a]ny petition invoking an exception provided in [42 Pa.C.S. § 9545(b)(1)] shall be filed within 60 days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).
(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.
Upon our review of the certified record, the parties' briefs, and the relevant law, we conclude that the opinion of the Honorable Scott D. Keller thoroughly and correctly addresses and disposes of Appellant's issues and supporting arguments and evidences no abuse of discretion or errors of law. See Trial Court Opinion, 10/14/2016, at 3-7 (finding Appellant's petition was facially untimely and rejecting his argument that Miller satisfied a timeliness exception, when the Miller decision applied to those under the age of 18, and Appellant was 18 at the time of the events that led to his conviction).
Accordingly, we adopt the trial court's opinion, filed on October 14, 2016, as our own and hold, based upon the reasons stated therein, that the trial court committed neither an error of law nor an abuse of discretion in dismissing Appellant's PCRA petition. The parties shall attach a copy of the trial court's October 14, 2016 opinion to this memorandum in the event of future proceedings.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/3/2017
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