Opinion
J. S42034/15 No. 2676 EDA 2014
08-05-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. BRYANT HUDGINS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order August 22, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0908541-1999
BEFORE: SHOGAN, MUNDY, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Bryant Hudgins, appeals from the order entered in the Philadelphia County Court of Common Pleas dismissing as untimely his third Post Conviction Relief Act ("PCRA") petition. Appellant claims he is serving an unconstitutional mandatory sentence of life without the possibility of parole pursuant to Miller v. Alabama , 132 S. Ct. 2455 (2012). Counsel has filed a petition for leave to withdraw with this Court. Appellant filed a response to the petition to withdraw. He contends the PCRA court erred in dismissing his petition by failing to accept his request that it be considered a petition for writ of habeas corpus. We affirm the order and grant counsel's petition to withdraw.
On September 8, 2000, Appellant was found guilty of murder of the first degree and other related charges. He was sentenced on November 22, 2000, to a mandatory sentence of life imprisonment for the murder conviction, with additional consecutive terms of six to twelve years' imprisonment for attempted murder, and one to two years' imprisonment for possession of instruments of crime. Appellant filed a direct appeal and this Court affirmed the judgment of sentence. Commonwealth v. Hudgins , 738 EDA 2001 (unpublished memorandum) (Pa. Super. Apr. 16, 2002). On October 16, 2002, the Pennsylvania Supreme Court denied his petition for allowance of appeal. Commonwealth v. Hudgins , 809 A.2d 902 (Pa. 2002).
On March 10, 2005, this Court affirmed the denial of Appellant's first PCRA petition. Commonwealth v. Hudgins , 1635 EDA 2004 (unpublished memorandum) (Pa. Super. Mar. 10, 2005). Appellant did not file a petition for allowance of appeal in the Pennsylvania Supreme Court. On September 11, 2007, Appellant filed a pro se PCRA petition and present counsel was appointed to represent him. On September 9, 2011, the petition was dismissed as untimely. This Court affirmed the denial of his PCRA petition. Commonwealth v. Hudgins , 2660 EDA 2011 (unpublished memorandum) (Pa. Super. Nov. 5, 2012). On November 13, 2012, Appellant filed a petition for allowance of appeal. On January 3, 2013, Appellant filed an amended PCRA petition. On March 27, 2013, the Pennsylvania Supreme Court denied his petition for allowance of appeal. Commonwealth v. Hudgins , 63 A.3d 1244 (Pa. 2013).
On December 23, 2013, Appellant filed an amended petition for habeas corpus relief under Article 1, Section 14 of the Pennsylvania Constitution and for PCRA relief pursuant to Miller. On August 22, 2014, the PCRA court dismissed the PCRA petition as untimely. This timely appeal followed. Appellant filed a timely court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and the trial court filed a responsive opinion. On February 20, 2015, counsel filed a petition to withdraw. Appellant filed a response to the Anders brief.
In the direct appeal, this Court stated "[o]n the date of the shooting, [Appellant] was seventeen . . . ." Hudgins , 738 EDA 2001 (unpublished memorandum at 2). We note counsel avers in the petition to withdraw that while drafting the brief for this case, she discovered that Appellant was born on June 10, 1981. Pet. to Withdraw as Counsel, 2/20/15, at 4 (unpaginated). The decedent was shot on September 6, 1999. Id.; N.T., 9/25/2000, at 18. The docket indicates Appellant's date of birth as June 10, 1981. See Docket at 3.
Appellant avers he "seeks to have his claim fairly reviewed under habeas corpus . . . ." Appellant's Response to Anders Brief for Appellant, 3/25/15, at 9. We note:
The PCRA provides:
The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis. This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, to provide a means for raising issues waived in prior proceedings or to provide relief from collateral consequences of a criminal conviction.
Commonwealth v. Wyatt , 115 A.3d 876, 879 (Pa. Super. 2015).
42 [Pa.C.S.] § 9542. Accordingly, if the PCRA offers a remedy for an appellant's claim, it is the sole avenue of relief and the PCRA time limitations apply. Commonwealth v. Taylor , 65 A.3d 462, 466 (Pa. Super. 2013).
Instantly, counsel has filed a petition to withdraw pursuant to Anders v. California , 386 U.S. 738 (1967). Because the instant case involves a petition for post-conviction relief, counsel should follow the procedures of Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc) to withdraw as counsel. See Commonwealth v. Fusselman , 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004). "However, because an Anders brief provides greater protection to the defendant, we may accept an Anders brief in lieu of a Turner/Finley brief." Id.
Prior to reviewing the merits of this appeal, we first decide whether counsel has fulfilled the procedural requirements for withdrawing as counsel. As we have explained:
Commonwealth v. Doty , 48 A.3d 451, 454 (Pa. Super. 2012) (citations omitted).Counsel petitioning to withdraw from PCRA representation must proceed . . . under [ Turner , supra and Finley , supra and] must review the case zealously. Turner/Finley counsel must then submit
a "no-merit" letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the "no merit" letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.
Upon review of the instant petition to withdraw and brief filed with this Court, we conclude that counsel has complied with the requirements necessary to withdraw as counsel. "[W]e now undertake our own review of the case to consider whether the PCRA court erred in dismissing Appellant's petition." Id.
As a prefatory matter, we consider whether the PCRA court had jurisdiction to entertain the underlying PCRA petition. Before examining the merits of Appellant's claims, we consider whether the PCRA court had jurisdiction to entertain the underlying PCRA petition.
As noted above, on April 16, 2002, this Court affirmed his judgment of sentence. On October 16, 2002, the Pennsylvania Supreme Court denied his petition for allowance of appeal. Appellant's judgment of sentence became final on January 14, 2003, ninety days after the Pennsylvania Supreme Court denied his petition for allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (providing "a judgment becomes final at the conclusion 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 time for seeking the review[ ]"). Appellant had until January 14, 2004, to file his PCRA petition. See 42 Pa.C.S. § 9545(b)(1) (providing PCRA petition must be filed within one year of the date judgment becomes final). Therefore, because he filed his amended PCRA petition on December 23, 2013, his petition is patently untimely.
We . . . turn to the time limits imposed by the PCRA, as they implicate our jurisdiction to address any and all of Appellant's claims. To be timely, a PCRA petition must be filed within one year of the date that the petitioner's judgment of sentence became final, unless the petition alleges and the petitioner proves one or more of the following statutory exceptions:
(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.
Commonwealth v. Marshall , 947 A.2d 714, 719-20 (Pa. 2008) (some citations omitted) (emphasis added). Our Supreme Court has stated:
42 Pa.C.S. § 9545(b)(1).
We emphasize that it is the petitioner who bears the burden to allege and prove that one of the timeliness exceptions applies. In addition, a petition invoking any of the timeliness exceptions must be filed within 60 days of the date the claim first could have been presented. 42 Pa.C.S. § 9545(b)(2). . . .
[T]he PCRA timeliness requirements are jurisdictional in nature and, accordingly, a PCRA court cannot hear untimely PCRA petitions. In addition, we have noted that the PCRA confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar in addition to those exceptions expressly delineated in the Act. We have also recognized that the PCRA's time restriction is constitutionally valid.Commonwealth v. Robinson , 837 A.2d 1157, 1161 (Pa. 2003) (citations and quotation marks omitted).
Under the PCRA, "all petitions, including second and subsequent ones, must be filed within one year of the date on which the judgement becomes final, unless one of the statutory exception . . . applies." Commonwealth v. Yarris , 731 A.2d 581, 586 (Pa. 1999). Appellant argues his petition is timely pursuant to Miller. In Commonwealth v. Cunningham , 81 A.3d 1 (Pa. 2013), cert. denied, 132 S. Ct. 2724 (2014), our Supreme Court held that Miller was not retroactive and opined:
In Cunningham , the "[a]ppellant timely filed a post-conviction petition claiming, inter alia, that the life-without-parole sentence violated his rights under the Eighth Amendment to the United States Constitution, as extended to the States via the Fourteenth Amendment." Id. at 2.
Here, applying settled principles of appellate review, nothing in Appellant's arguments persuades us that Miller's proscription of the imposition of mandatory life-without-parole sentences upon offenders under the age of eighteen at the time their crimes were committed must be extended to those whose judgments of sentence were final as of the time of Miller's announcement.Id. at 11.
Instantly, Appellant was eighteen at the time of the offenses; thus, he cannot invoke Miller. But even if Appellant had been under the age of eighteen and had filed his petition within sixty days of the date Miller was handed down, he still would have had the burden of establishing that the PCRA court had jurisdiction to address his petition because our Pennsylvania Supreme Court held Miller did not apply retroactively. See Cunningham , 81 A.3d at 11. Therefore, the Section 9545(b)(1)(iii) exception to the PCRA's time restrictions is unavailing. Thus, the PCRA court lacked jurisdiction to consider Appellant's claims. See Robinson , 837 A.2d at 1161. Accordingly, the PCRA court's ruling is free of legal error. See Marshall , 947 A.2d at 719.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2015