Opinion
1122 WDA 2021 1125 WDA 2021
04-19-2022
COMMONWEALTH OF PENNSYLVANIA v. ROBERT MICKENS Appellant COMMONWEALTH OF PENNSYLVANIA v. ROBERT MICKENS Appellant
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered September 14, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002554-1995, CP-02-CR-0015959-1994
Joseph D. Seletyn, Esq.
BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J. [*]
JUDGMENT ORDER
LAZARUS, J.
Robert Mickens appeals, pro se, from the orders entered in the Court of Common Pleas of Allegheny County, dismissing as untimely his fifth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We note that Mickens has filed two separate notices of appeal with one docket number on each notice, and has, therefore, complied with the dictates of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (holding that "where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each of those cases."). See also Pa.R.A.P. 341(a). On October 18, 2021, this Court sua sponte consolidated Mickens' appeals at Nos. 1122 WDA 2021 and 1125 WDA 2021. See Pa.R.A.P. 513; Pa.R.A.P. 2138.
This Court has previously summarized the underlying factual and procedural history of this action in: Commonwealth v. Mickens, 1961 PGH 1995 (Pa. Super. filed July 22, 1998) (unpublished memorandum), at 1-2; Commonwealth v. Mickens, 1777 WDA 2000 (Pa. Super. filed October 30, 2000) (unpublished memorandum), at 1-3; Commonwealth v. Mickens, 259 WDA 2007 (Pa. Super. filed December 27, 2007) (unpublished memorandum), at 1-2; and Commonwealth v. Mickens, 1662 WDA 2016, (Pa. Super filed June 23, 2017) (unpublished memorandum), at 1-2. Briefly, on May 11, 1995, a jury convicted Mickens of murder in the first degree and related offenses in connection with the shooting death of John Williams. On May 15, 1995, the court sentenced Mickens to life imprisonment. On direct appeal, this Court affirmed Mickens' judgment of sentence. Commonwealth v. Mickens, 1961 PGH 1995 (Pa. Super. filed July 22, 1998) (unpublished memorandum). Mickens did not file a petition for allowance of appeal in the Supreme Court of Pennsylvania. Mickens subsequently filed four unsuccessful PCRA petitions. On July 13, 2021, Mickens filed the instant PCRA petition, his fifth, challenging the legality of his sentence. On August 2, 2021, the PCRA court dismissed Mickens' petition without a hearing.
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 an exception to the time for filing the petition is met. 42 Pa.C.S.A. § 9545. It is clear that Mickens' petition is facially untimely. Mickens did not file a petition for allowance of appeal in the Supreme Court of Pennsylvania, and therefore, his judgment of sentence became final on August 22, 1998, thirty days after the entry of his judgment of sentence. See Pa.R.A.P. 1113(a) ("[A] petition for allowance of appeal shall be filed with the Prothonotary of the Supreme Court within 30 days after the entry of the order of the Superior Court or the Commonwealth Court sought to be reviewed.").
To obtain merits review of a PCRA petition filed more than one year after the judgment of sentence becomes final, a petitioner must plead and prove at least one of the following three 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 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). A petition invoking one of these exceptions must have been filed within one year from the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).
In his petition, Mickens claims his mandatory life sentence for first-degree murder is unlawful. In his attempt to establish the newly-discovered fact exception, Mickens states his claim "was only discovered after reading the opinion in [Scott, et al. v. Pennsylvania Board of Probation and Parole, 256 A.3d 483 (Cmwlth. Ct. 2021).]" See PCRA Petition, 1/13/21, at 3. Not only is this claim specious, but the case he cites does not stand for the proposition that mandatory life imprisonment sentence for first-degree murder is illegal. In any event, "subsequent decisional law does not amount to a new 'fact' under section 9545(b)(1)(ii) of the PCRA[.]" Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011). See also Commonwealth v. Reid, 235 A.3d 1124, 1138 (Pa. Super. 2020) (judicial decisions cannot satisfy newly discovered fact exception to PCRA timeliness analysis).
Because Mickens did not plead facts that would establish an exception to the PCRA's timeliness requirements, the PCRA court properly dismissed his petition. See Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming dismissal of PCRA petition without hearing for failure to meet burden of establishing timeliness exception).
Order affirmed.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.