Opinion
J-S22026-18 No. 3749 EDA 2017
08-14-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. JORDANA L. ELEY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order entered October 23, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0000714-1998 BEFORE: BENDER, P.J.E., STABILE, and PLATT, JJ. MEMORANDUM BY STABILE, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Jordana L. Eley, appeals pro se from the October 23, 2017 order dismissing her petition pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. We affirm.
A previous panel of this Court summarized the facts:
On December 12, 1997, [Appellant] was seventeen years old when she punched and knifed two young women, ages fourteen and seventeen, in a movie theater during an altercation that arose when theater management responded to audience rowdiness by stopping the film. Appellant was tried as an adult at a bench trial before the Honorable Paul W. Tressler who on July 21, 1998, found Appellant guilty of three counts of aggravated assault, two counts of simple assault, and a single count each of possessing an instrument of crime and recklessly endangering another person. Judge Tressler sentenced Appellant to consecutive terms of imprisonment of seven to fifteen years and two to ten years on two aggravated assault counts and five years'
probation for possessing an instrument of crime. Sentencing was suspended on the remaining convictions.Commonwealth v. Eley , 3749 EDA 2017 (Pa. Super. August 29, 2017), unpublished memorandum, at 1-2.
This Court affirmed the judgment of sentence on June 7, 1999. Appellant filed a timely first PCRA petition on May 5, 2000 asserting, among other things, that she was improperly tried as an adult. The PCRA court denied relief on June 25, 2001. Appellant filed a second PCRA petition on August 30, 2007. The PCRA court dismissed the petition as untimely on October 2, 2007. Appellant filed her third PCRA petition on February 8, 2016, claiming a Sixth Amendment violation and that her conviction was based in part on inadmissible evidence. The PCRA court denied the petition as untimely on June 9, 2016. Appellant filed the instant pro se petition, her fourth, on March 24, 2016. On September 22, 2017, the PCRA court filed its notice of intent to dismiss the petition without a hearing. See Pa.R.Crim.P. 907(1). On October 23, 2017, the PCRA court entered the order on appeal. Appellant filed this timely pro se appeal on November 14, 2018.
The petition is time-stamped March 29, 2016, but the record reflects that she mailed it on March 24. Pursuant to the prisoner mailbox rule, we treat the petition as filed on March 24, 2016. Commonwealth v. Patterson , 931 A.2d 710, 714 (Pa. Super. 2007).
On review, we must determine whether the record supports the PCRA court's findings and whether the court's ruling is free of legal error. Commonwealth v. Edmiston , 65 A.3d 339, 345 (Pa. 2013), cert. denied , 571 U.S. 1026 (2013). Appellant's petition is facially untimely, as she filed it well past the one-year deadline of 42 Pa.C.S.A. § 9545(b)(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[.]"). In order to overcome the one-year time bar, Appellant bears the burden of pleading and prove the applicability of one the timeliness exceptions set forth in § 9545(b)(1)(i-iii). Commonwealth v. Dickerson , 900 A.2d 407, 410 (Pa. Super. 2006), appeal denied , 911 A.2d 933 (Pa. 2006). Here the trial court found Appellant's petition timely under 42 Pa.C.S.A. § 9545(b)(1)(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"). We agree.
Appellant argues her sentence is illegal pursuant to Miller v. Alabama , 567 U.S. 460, 465 (2012), in which the Supreme Court held that mandatory sentences of life in prison without parole, as applied to persons under 18 years old at the time of the offense, violate the Eighth Amendment's protection against cruel and unusual punishment. In Montgomery v. Louisiana , 136 S. Ct. 718, 736-37 (2016), the Supreme Court held that Miller applies retroactively to cases pending on state collateral review. In Commonwealth v. Secreti , 134 A.3d 77, 82 (Pa. Super. 2016), this Court held that PCRA petitioners asserting a Miller claim have 60 days (pursuant to 42 Pa.C.S.A. § 9545(b)(2)) from the date of Montgomery to file their petition. Montgomery was filed on January 25, 2016. Appellant's March 24, 2016 petition was timely pursuant to this Court's analysis in Secreti.
As the PCRA court noted, however, Appellant cannot obtain relief under Miller because she is not serving a life sentence without the possibility of parole. The PCRA court therefore did not err in denying Appellant's petition.
Appellant asserts various other claims, but they are not based on newly recognized constitutional rights and therefore are not timely under § 9545(b)(1)(iii). Nor does Appellant assert any other basis on which her remaining claims are timely.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/14/18