Opinion
J-S07010-13 No. 3048 EDA 2011
04-22-2013
COMMONWEALTH OF PENNSYLVANIA, Appellee v. MALIK A. BEY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order entered October 21, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1206614-1993
BEFORE: OLSON, WECHT AND COLVILLE, JJ. MEMORANDUM BY OLSON, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Malik A. Bey, appeals pro se from the order entered on October 21, 2011, denying his second petition filed under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On September 3, 1993, when Appellant was 17-years old, he and three of his friends robbed a woman and then burned her to death. On May 29, 1996, Appellant entered a negotiated guilty plea, in the Court of Common Pleas of Philadelphia County Criminal Division, to first-degree murder, criminal conspiracy, arson, and robbery. That day, the trial court sentenced Appellant to the statutory mandatory term of life in prison (without the possibility of parole) for the first-degree murder conviction and a concurrent, aggregate term of ten to 20 years in prison for the remaining convictions. Appellant did not file a direct appeal from this judgment of sentence.
18 Pa.C.S.A. §§ 2502(a), 903(a), 3301, and 3701, respectively.
Over ten years later - on August 16, 2007 - Appellant filed a pro se PCRA petition and claimed that certain after-discovered evidence entitled him to withdraw his guilty plea. As this was Appellant's first PCRA petition, the PCRA court appointed counsel to represent Appellant. On June 3, 2009, however, appointed counsel filed a "no merit" letter pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc) and declared that, in his professional judgment, Appellant's attempt at post-conviction collateral relief was meritless. On July 10, 2009, the PCRA court issued Appellant notice that, in 20 days, it intended to dismiss the PCRA petition without a hearing, as the petition was manifestly untimely and Appellant did not plead an exception to the PCRA's one-year time-bar. See Pa.R.Crim.P. 907; 42 Pa.C.S.A. § 9545(b)(1). The PCRA court finally dismissed Appellant's first PCRA petition on August 7, 2009 and Appellant did not file a notice of appeal from the PCRA court's order.
Appellant filed the current PCRA petition - his second - on July 12, 2010. Within this pro se PCRA petition, Appellant acknowledged that his petition was manifestly untimely. Appellant's Second PCRA Petition, 7/12/10, at 3. Appellant, however, pleaded that, in Graham v. Florida , __ U.S. __, 130 S.Ct. 2011 (2010), the United States Supreme Court created a new constitutional right that entitled him to relief. Appellant's Second PCRA Petition, 7/12/10, at 3. Specifically, Appellant claimed that, in Graham , the United States Supreme Court created the new rule of law that it was "unconstitutional . . . to sentence a juvenile to life imprisonment without the possibility of parole." Appellant's Second PCRA Petition, 7/12/10, at 3. Since Appellant filed his PCRA petition within 60 days of the date Graham was decided, Appellant claimed that his PCRA petition was timely under the "newly recognized constitutional right" exception to the PCRA's one-year time-bar. Appellant's Second PCRA Petition, 7/12/10, at 3; 42 Pa.C.S.A. § 9545(b)(1)(iii) and (2).
Appellant later filed an amended PCRA petition on May 19, 2011. In this amended petition, Appellant reiterated his Graham claim and raised two additional claims. As phrased by Appellant, these supplemental claims were: "whether [] government obstruction entitles nunc pro tunc relief from the August 7, 2009 order dismissing [Appellant's first] PCRA petition" and "whether [Appellant's] conviction was unconstitutionally obtained as [an] incompetent individual was ill advised to enter a plea, which under the Eighth Amendment is cruel and unusual punishment[. A]lternatively, competency cannot be waived and [Appellant] is entitled to a procedural competency hearing [retroactively]." Appellant's Amended Second PCRA Petition, 5/19/11, at 2-11.
The PCRA court accepted Appellant's May 19, 2011 amendment. See PCRA Court Opinion, 3/13/12, at 1; Commonwealth v. Porter , 35 A.3d 4, 12 (Pa. 2012). Nevertheless, the PCRA court dismissed Appellant's second PCRA petition on October 21, 2011 and Appellant filed a timely notice of appeal to this Court. Now on appeal, Appellant raises the following claims:
In Porter, our Supreme Court held:
Our procedural Rules contemplate that amendments to pending PCRA petitions are to be "freely allowed to achieve substantial justice." Pa.R.Crim.P. 905(A). . . . However, [petitioner] is mistaken in arguing that Rule 905 amendments are self-authorizing, i.e., that a petitioner may simply "amend" a pending petition with a supplemental pleading. Rather, the Rule explicitly states that amendment is permitted only by direction or leave of the PCRA court.
The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).
[1.] Whether [ Miller v. Alabama , __ U.S. __, 132 S.Ct. 2455 (2012)], entitles [Appellant to] relief and renders the PCRA timely filed, insofar as the Eighth Amendment violation was preserved in the PCRA court through [ Graham v. Florida? ]Appellant's Brief at 3.
[2.] Whether a government obstruction entitles nunc pro tunc relief from the August 7, 2009 order dismissing the PCRA petition[?]
[3.] Whether the plea is invalid as an innocent individual was ill advised by counsel to enter a plea as counsel or the court or prosecution should have order[ed] a competency hearing[?]
We conclude that the PCRA court properly dismissed Appellant's untimely PCRA petition.
As our Supreme Court has held, we "review an order granting or denying PCRA relief to determine whether the PCRA court's decision is supported by evidence of record and whether its decision is free from legal error." Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003).
The PCRA contains a jurisdictional time-bar, which is subject to limited statutory exceptions. This time-bar demands that "any PCRA petition, including a second or subsequent petition, [] be filed within one year of the date that the petitioner's judgment of sentence becomes final, unless [the] petitioner pleads [and] proves that one of the [three] exceptions to the timeliness requirement . . . is applicable." Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further, since the time-bar implicates the subject matter jurisdiction of our courts, we are required to first determine the timeliness of a petition before we consider the underlying claims. Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999). Our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in nature and, accordingly, a PCRA court is precluded from considering untimely PCRA petitions. See, e.g., Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000) (stating that "given the fact that the PCRA's timeliness requirements are mandatory and jurisdictional in nature, no court may properly disregard or alter them in order to reach the merits of the claims raised in a PCRA petition that is filed in an untimely manner"); Commonwealth v. Fahy, 737 A.2d 214, 220 (Pa. 1999) (holding that where aCommonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).
petitioner fails to satisfy the PCRA time requirements, this Court has no jurisdiction to entertain the petition). [The Pennsylvania Supreme Court has] also held that even where the PCRA court does not address the applicability of the PCRA timing mandate, th[e court would] consider the issue sua sponte, as it is a threshold question implicating our subject matter jurisdiction and ability to grant the requested relief.
In the case at bar, since Appellant did not file a direct appeal, Appellant's judgment of sentence became final on June 28, 1996 - which was 30 days after Appellant's sentence was pronounced in open court and the time for filing a direct appeal to this Court expired. See Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). Appellant then had until Monday, June 30, 1997 to file a timely PCRA petition. 42 Pa.C.S.A. § 9545(b); 1 Pa.C.S.A. § 1908 (computation of time). As Appellant did not file his current petition until July 12, 2010, the current petition is manifestly untimely and the burden thus fell upon Appellant to plead and prove that one of the enumerated exceptions to the one-year time-bar applied to his case. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the one-year time-bar, the PCRA demands that the petitioner properly plead all required elements of the relied-upon exception).
Here, Appellant claims to invoke the "governmental interference" and the "newly recognized constitutional right" exceptions to the time-bar. These statutory exceptions provide:
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:42 Pa.C.S.A. § 9545(b).
(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;(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
. . .
(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.
. . .
Appellant first claims that the PCRA court erred in dismissing his petition as untimely, as his petition satisfies the "newly recognized constitutional right" exception to the PCRA's one-year time-bar. Within Appellant's brief to this Court, Appellant relies upon the United States Supreme Court's recent decision in Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012). In that case, the Supreme Court held that - even for homicide crimes - "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" Miller, __ U.S. at __, 132 S.Ct. at 2460. Appellant claims that "Miller [] entitles [him to] relief and renders [his] PCRA petition timely filed." Appellant's Brief at 8. Appellant did not (and could not) plead this claim within his current PCRA petition. As such, Appellant's claim on appeal fails.
According to the Commonwealth:
On August 20, 2012, during the pendency of the instant appeal . . . [Appellant] prematurely filed a document purporting to be his third [PCRA petition], arguing that because he "was under the age of 18 years old" when he committed the murder, [ Miller ] . . . rendered his sentence unconstitutional.Commonwealth's Brief at 3 (internal emphasis omitted). Appellant's third PCRA petition is not included in the certified record and is not at issue on this appeal. See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) ("when an appellant's PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review. . . . The subsequent petition must [] be filed within [60] days of the date of the order which finally resolves the previous PCRA petition, because this is the first 'date the claim could have been presented.' 42 Pa.C.S.A. § 9545(b)(2).") (internal footnote omitted).
The "newly recognized constitutional right" exception to the PCRA's time-bar is codified in 42 Pa.C.S.A. § 9545(b)(1)(iii). As our Supreme Court has explained:
Subsection (iii) of Section 9545(b)(1) has two requirements. First, it provides that 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 provided in this section. Second, it provides that the right "has been held" by "that court" to applyCommonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007), quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002) (internal corrections omitted). Moreover, since the plain statutory language of section 9545 demands that the PCRA petition "allege" all elements of the statutory exception, it is clear that - to properly invoke the "newly recognized constitutional right" exception - the petitioner must plead each of the above-stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1).
retroactively. Thus, a petitioner must prove that there is a "new" constitutional right and that the right "has been held" by that court to apply retroactively. The language "has been held" is in the past tense. These words mean that the action has already occurred, i.e., "that court" has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed.
Appellant filed his current PCRA petition on July 12, 2010 and amended the petition on May 19, 2011. Within this petition, Appellant claimed that, in Graham v. Florida, the United States Supreme Court created the new rule of law that it was "unconstitutional . . . to sentence a juvenile to life imprisonment without the possibility of parole." Appellant's Second PCRA Petition, 7/12/10, at 3. Appellant then claimed that he was entitled to relief under Graham's new constitutional ruling.
Appellant's understanding of Graham was, however, incomplete. Indeed, in Graham, the Supreme Court held only that it was unconstitutional to sentence a juvenile offender "to life in prison without parole for a nonhomicide crime." Graham, __ U.S. at __, 130 S.Ct. at 2017-2018 (emphasis added). This holding, obviously, does not apply to Appellant, as Appellant was convicted of first-degree murder. See also Commonwealth v. Knox, 50 A.3d 749, 768 (Pa. Super. 2012) (" Graham did not expressly create a new constitutional right for juveniles convicted of second-degree murder and sentenced to life imprisonment without the possibility of parole for PCRA timeliness purposes"). The PCRA court, therefore, dismissed Appellant's PCRA petition on October 21, 2011 and Appellant filed a timely notice of appeal on November 10, 2011.
On June 25, 2012 - while Appellant's appeal was pending in this Court - the United States Supreme Court decided Miller v. Alabama and, in that case, explicitly held that - even for a homicide crime - a sentence of "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" Miller, __ U.S. at __, 132 S.Ct. at 2460. As a result, within Appellant's brief to this Court, Appellant abandoned his reliance upon Graham and argued that he was entitled to relief under Miller's "newly recognized constitutional right." See Appellant's Brief at 8-11.
Appellant's revised claim cannot succeed at this time. To be sure, there are at least three independent reasons why Appellant's claim fails. First, within Appellant's second PCRA petition, Appellant did not plead (nor could Appellant have pleaded) the new constitutional right that was recognized in Miller. Indeed, Miller was decided after the PCRA court had dismissed Appellant's current PCRA petition and while the instant appeal was pending in this Court. See infra, *8 n.4; Lark, 746 A.2d at 588. Regardless, since Appellant did not plead his current claim, Appellant failed to satisfy the PCRA's statutory pleading requirements. See 42 Pa.C.S.A. § 9545(b)(1). Appellant's claim thus automatically fails. Appellant's claim also fails because we, as an appellate court, cannot consider issues that a litigant has first raised on appeal. Pa.R.A.P. 302(a). Moreover, Appellant's claim fails for a third reason. As our Supreme Court has held, an essential element of the PCRA's "newly recognized constitutional right" exception is that the "ruling on retroactivity of the new constitutional law must have been made prior to the filing of the petition for collateral review." Abdul-Salaam, 812 A.2d at 501. Since the constitutional right at issue was not even recognized until after the petition was dismissed, Appellant's claim fails for this independent reason also.
Within Appellant's "statement of question involved on appeal," Appellant declares that he raised his Miller claim in his PCRA petition by pleading the applicability of Graham v. Florida. See Appellant's Brief at 3. Appellant does not elaborate upon this declaration and Appellant does not explain how he could have pleaded a "newly recognized constitutional right" before the Supreme Court even recognized the right. We note that, if Appellant means to suggest that the rationale of Graham was extended in Miller - and that, as a result of citing to Graham, Appellant had somehow pleaded Miller's newly recognized constitutional right - Appellant's argument fails. See Commonwealth v. Chambers, 35 A.3d 34, 42-43 (Pa. Super. 2011) ("in order to fit under [the 'newly recognized constitutional right'] exception to the PCRA's time bar, a PCRA petitioner must assert relief based on a constitutional right that has been affirmatively recognized by either the United States Supreme Court or the Supreme Court of Pennsylvania. . . . [F]or the purpose of the timeliness exception to the PCRA, only the holding of the case is relevant . . . the rationale used by the [court] is irrelevant to the evaluation of a § 9545(b)(1)(iii) timeliness exception.") (emphasis in original).
To be clear, we do not mean to suggest that Appellant is foreclosed from obtaining relief on his substantive claim. Rather, we merely hold that Appellant cannot obtain relief at this time and in this petition.
For Appellant's second claim on appeal, Appellant contends that the PCRA court erred in dismissing his second PCRA petition, as Appellant properly pleaded the "governmental interference" exception to the PCRA's time-bar. Appellant's Brief at 11. According to Appellant, he did not receive the PCRA court's August 7, 2009 order, which finally dismissed Appellant's first PCRA petition. Appellant claims he learned that his first PCRA petition was dismissed on July 26, 2010, when he received correspondence from a law clerk in the Philadelphia County Court of Common Pleas, informing him of this fact. Appellant's Amended Second PCRA Petition, 5/19/11, at 2. Appellant further claims that, after learning of this fact, he filed an amended PCRA petition and pleaded that - as a result of this governmental interference - he was entitled to file a nunc pro tunc appeal from the dismissal of his first PCRA petition. Id. at 2; Appellant's Brief at 12. This claim fails.
The record contains a document entitled "Supplemental to PCRA Petition," which Appellant dated September 23, 2010 and the PCRA court docketed September 27, 2010. Within this document, Appellant asserted the above-referenced governmental interference claim. Appellant's "Supplemental to PCRA Petition," 9/27/10, at 2. We note that Appellant did not request - and the PCRA court did not grant - Appellant leave to amend his PCRA petition on September 23, 2010. See Porter, 35 A.3d at 12 (Pa.R.Crim.P. 905 "explicitly states that amendment is permitted only by direction or leave of the PCRA court"); PCRA Court Opinion, 3/13/12, at 1. Nevertheless, as was stated above, on May 19, 2011 Appellant filed an amended PCRA petition - which the PCRA court accepted - and, within this amended petition, Appellant again asserted the governmental interference claim. Appellant's Amended Second PCRA Petition, 5/19/11, at 2; PCRA Court Opinion, 3/13/12, at 1.
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To properly invoke the "governmental interference" exception to the PCRA's time-bar, the petitioner must file his petition "within 60 days of the date the claim could have been presented." 42 Pa.C.S.A. § 9545(b). Our Supreme Court has explained that - to satisfy this "60-day requirement" - a petitioner must plead facts demonstrating "when and how" he discovered the information upon which the claim is based and then plead facts explaining why "the information could not have been obtained earlier with the exercise of due diligence." Commonwealth v. Stokes, 959 A.2d 306, 310-311 (Pa. 2008); Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001). Moreover, because the "60-day requirement" of section 9545(b)(2) is a statutory mandate, the pleading rule is "strictly enforced." Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010); Commonwealth v. Vega, 754 A.2d 714, 718 (Pa. Super. 2000).
In the case at bar - even if we assume that Appellant raised his governmental interference claim in his "Supplement to PCRA Petition" and even if we assume that Appellant mailed his "Supplement to PCRA Petition" on September 23, 2010 - Appellant's claim still fails. This is because in none of Appellant's filings has Appellant ever explained why he could not have learned of the PCRA court's August 7, 2009 dismissal order "earlier with the exercise of due diligence." Stokes, 959 A.2d at 310-311.
At the outset, Appellant cannot deny that he received the PCRA court's Rule 907 notice. This notice was docketed on July 10, 2009 and, within the notice, the PCRA court informed Appellant that, in 20 days, the court intended to dismiss Appellant's PCRA petition without a hearing. PCRA Court's Rule 907 Notice, 7/10/09, at 1. Certainly, on August 3, 2009, Appellant filed a pro se response to the Rule 907 notice and requested that the PCRA court refrain from entering a final order until August 30, 2009. Appellant's "Motion for Extension to Reply to the Intent to Dismiss," 8/3/09, at 1. The PCRA court did not, however, grant Appellant's request and - in accordance with its Rule 907 notice - the PCRA court finally dismissed Appellant's petition on August 7, 2009.
Within Appellant's various court filings, Appellant has never explained (let alone plead) why it took him approximately one year to discover that, on August 7, 2009, the PCRA court dismissed his petition. Indeed, in this case, the omission is glaring, given that Appellant: was aware that the PCRA court intended to dismiss his PCRA petition on or around July 30, 2009; knew that the PCRA court did not grant his request for an extension of time; and could easily have learned that his PCRA petition had been dismissed by a cursory review of the docket. At any rate, Appellant's pleading deficiency is fatal to Appellant's claim, as Appellant failed his statutory obligation to plead facts explaining why "the information could not have been obtained earlier with the exercise of due diligence." Stokes, 959 A.2d at 310-311. Appellant's claim fails.
Finally, Appellant claims that his plea counsel was ineffective for allowing him to enter a plea of guilty. Appellant's Brief at 13. With respect to this claim, Appellant did not plead a statutory exception to the PCRA's time-bar. Thus, we do not have jurisdiction to consider Appellant's claim.
In conclusion, Appellant's PCRA petition is manifestly untimely and Appellant did not properly plead any of the statutory exceptions to the one-year time-bar. As our "courts are without jurisdiction to offer [Appellant] any form of relief," we affirm the PCRA court's order dismissing Appellant's second PCRA petition without a hearing. Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).
Order affirmed.
Porter, 35 A.3d at 12.