Opinion
No. 1336 EDA 2021
04-06-2022
COMMONWEALTH of Pennsylvania v. Hayward MILLER, Appellant
MEMORANDUM BY KUNSELMAN, J.:
Hayward Miller appeals from the order denying his third petition pursuant to the Post Conviction Relief Act ("PCRA") as untimely filed. 42 Pa.C.S.A. §§ 9541 -46. We affirm.
The pertinent facts and procedural history are as follows: Almost thirty years ago, Miller was charged with first-degree murder and related charges after he and Raheem Speaks sought to retaliate against the victim who had previously stolen Speaks' gold chain. Although originally a co-defendant, after jury selection began Speaks reached an agreement with the Commonwealth to testify against Miller. On October 16, 1992, the jury convicted Miller. Thereafter, the trial court sentenced him to an aggregate term of life in prison.
Miller appealed to this Court. On April 16, 1994, this Court affirmed Miller's judgment of sentence, and our Supreme Court denied his petition for allowance of appeal on September 19, 1995. Commonwealth v. Miller , 660 A.2d 123 (Pa. Super. 1995) (non-precedential decision), appeal denied , 666 A.2d 1053 (Pa. 1995).
On October 28, 1998, Miller filed his first PCRA petition. Following the appointment of counsel and a hearing, the PCRA court dismissed the petition as untimely filed, and establishing no time-bar exception. On appeal, this Court affirmed the dismissal of that petition on April 2, 2002, and, on August 13, 2002, our Supreme Court denied his petition for allowance of appeal. Commonwealth v. Miller , 803 A.2d 795 (Pa. Super. 2002) (non-precedential decision), appeal denied , 806 A.2d 859 (Pa. 2002).
Miller filed his second PCRA petition on January 30, 2006. The PCRA court appointed counsel. Thereafter, PCRA counsel filed an amended petition in which Miller alleged he possessed newly discovered evidence in the form of testimony from five witnesses. As proof of his claims, Miller included a January 3, 2006, affidavit from Speaks which "evince[d] perjury, fraud and misconduct which [Miller] could not have uncovered otherwise." Miller , 82 A.3d 461 (Pa. Super. 2013), non-precedential decision at 1-2 (Strassburger, J. Concurring). Despite being granted funds to hire a private investigator, Miller failed to produce any of his alleged witnesses at an evidentiary hearing ultimately held on December 2, 2010. That same day the PCRA court entered an order dismissing Miller's second petition as untimely filed.
Miller appealed to this Court. On June 14, 2013, this Court affirmed the PCRA court's order denying relief because "[d]espite the numerous continuances the PCRA court granted Miller in order to secure the presence of the witnesses at an evidentiary hearing, Miller was repeatedly unable to do so." Miller , non-precedential decision at 5.
On September 25, 2014, Miller filed the pro se PCRA petition at issue, his third. Although the PCRA court appointed counsel, PCRA counsel was permitted to withdraw on July 7, 2017, based upon Miller's desire to proceed pro se. Thereafter, Miller filed a pro se motion for the appointment of new counsel, which the PCRA court denied. The Commonwealth filed its response on December 19, 2017. On March 23, 2018, the PCRA court granted motions Miller filed to amend his third PCRA petition but denied Miller's motion for recusal.
Miller filed interlocutory appeals to this Court from both the PCRA court's denial of the appointment of counsel and recusal. This Court quashed both appeals as interlocutory. Thereafter, Miller filed a series of pro se motions, as well as a petition for extraordinary relief to our Supreme Court.
On April 1, 2021, the PCRA court issued a Pa.R.A.P. 907 notice of its intent to dismiss Miller's amended PCRA petition without a hearing. Miller did not file a response. By order entered May 27, 2021, the PCRA court denied Miller's PCRA petition. This timely appeal followed.
Although the PCRA court ordered Miller to file a Pa.R.A.P. 1925(b) statement, and Miller filed the statements late, there is no notation on the PCRA docket regarding service of the Rule 1925(b) order on him. See Pa.R.Crim.P. 114(C)(2)(c). Thus, we decline to find waiver on this basis. See generally , Commonwealth v. Hess , 810 A.2d 1249 (Pa. 2002). Additionally, we note that the PCRA court addressed the timeliness issue in an opinion that accompanied its dismissal order but did not file a separate Rule 1925(a) opinion.
Miller raises the following four issues:
I. Did the PCRA court err, and commit reversible error when it dismissed [Miller's PCRA] petition without the benefit of a properly conducted evidentiary hearing to determine the credibility of the presented affidavits that led to the filing of said petition and therefore being able to render a fully informed opinion?
II. Did the Commonwealth's attorney perpetrate a knowing fraud upon the [trial] court when they failed to disclose discoverable material to the defense when they knowingly withheld or suppressed the Hahnemann University report of the victim?
III. Did the Commonwealth's prosecuting attorney err, and commit reversible error when he permitted known false testimony to remain on the records [sic] uncorrected, when it was presented at a criminal trial, and at a post-sentencing hearing, therefore, impeding justice and perpetrating a knowing fraud upon the judiciary?
IV. Did the PCRA court err, and commit reversible error, when it appeared on the record that the PCRA court had appointed counsel for [Miller], then counsel was permitted to withdraw, as counsel for [Miller], without following the dictates of ‘Turner/Finley’, and negating the on-the-record colloquy as outlined in ‘Commonwealth v. Grazier’, resulting in an unknowing, unintelligent waiver of [Miller's] right to counsel under the Sixth Amendment to United States Constitution and Article I, Section 9 of the Pennsylvania Constitution ?
Miller's Brief at 1 (excess capitalization omitted).
Before addressing these issues, we must first consider the PCRA court's conclusion that his third PCRA petition was untimely filed, and that he failed to establish a time-bar exception. The timeliness of a post-conviction petition is jurisdictional. Commonwealth v. Hernandez , 79 A.3d 649, 651 (Pa. Super. 2013). 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 becomes final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition is met.
The three narrow statutory exceptions to the one-year time bar are as follows: "(1) interference by government officials in the presentation of the claim; (2) newly discovered facts; and (3) an after-recognized constitutional right." Commonwealth v. Brandon , 51 A.3d 231, 233-34 (Pa. Super. 2012) (citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii) ). Here, Miller was required to file his PCRA petition invoking one of these statutory exceptions within 60 days of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2). In addition, exceptions to the PCRA's time bar must be pled in the petition and may not be raised for the first time on appeal. Commonwealth v. Burton , 936 A.2d 521, 525 (Pa. Super. 2007) ; see also Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are waived and cannot be raised for the first time on appeal).
Miller was required to file his PCRA petition within 60 days because his underlying claim arose prior to December 24. 2017. For claims arising after that date, the current statutory subsection extends the period to one year.
Finally, if a PCRA petition is untimely and the petitioner has not pled and proven an exception "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." Commonwealth v. Derrickson , 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).
Here, our Supreme Court denied Miller's petition for allowance of appeal on September 19, 1995, Miller's judgment of sentence December 18, 1995, ninety days after our Supreme Court denied his petition for allowance of appeal, and the time for filing a writ of certiorari to the United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Therefore, Miller had until January 15, 1997, to file a timely petition. Because Miller filed his third PCRA petition in 2014, it is patently untimely unless he has satisfied his burden of pleading and proving that one of the enumerated exceptions applies. See Hernandez , supra .
Because Miller's judgment of sentence became final before January 16, 1996, the effective date of the 1995 amendments to the PCRA, his first petition would be considered timely if filed within one year of the effective date. See 42 Pa.C.S.A. § 9545, Historical Notes.
Miller has failed to prove an exception to the PCRA's time bar. In his petition, which he twice amended, Miller asserted he could establish the newly discovered fact exception. As this Court has previously summarized:
Within his amendments to his petition, Miller also argued that the Commonwealth's failure to disclose the actual deal it made with Speaks, as well as the failure to disclose the victim's medical records, amount to a violation of Brady v. Maryland , 373 U.S. 83 (1963). The PCRA court did not address this claim, and the Commonwealth contends that Miller is raising it for the first time on appeal. See Commonwealth's Brief at 13.
Nevertheless, although a Brady violation might fall within the governmental interference exception to the PCRA's time bar, the statute nevertheless requires a petitioner to plead and prove: (1) the failure to previously raise the claim was the result of interference by government officials, and (2) the information on which he relies could not have been obtained earlier with the exercise of due diligence. Commonwealth v. Williams , 105 A.3d 1234 (Pa. Super. 2014). Like Miller's claim of newly-discovered facts, this claim fails for lack of due diligence.
The newly-discovered fact exception has two components, which must be alleged and proved. Namely, the petitioner must establish that: 1) the facts upon which the claim was predicated were unknown and 2) could not have been ascertained by the exercise of due diligence. If the petitioner alleges and proves these two components, then the PCRA Court has jurisdiction over the claim under this subsection.
Commonwealth v. Brown , 141 A.3d 491, 500 (Pa. Super. 2016) (citation omitted).
Here, Miller claims he recently discovered the actual plea agreement Speaks made with the Commonwealth. The PCRA court found no merit to this claim because Miller could not establish due diligence regarding the newly discovered fact, i.e. , Speaks actual plea agreement. The court explained:
[Miller failed] to demonstrate that this information was previously unascertainable with the exercise of due diligence prior to 2014. To the contrary, in his supplemental PCRA petition filed on October 18, 2017, [Miller] acknowledged that he was aware of the issue of [Speaks'] testimony and credibility as early as 1992, his trial counsel having raised it in a motion to suppress [Speaks'] statement, as well as [Speaks'] plea colloquy. The focus of the newly discovered-facts exception is on the newly discovered facts, not on a newly discovered or newly willing source for previously known facts. Commonwealth v. Ward-Green , 141 A.3d 527, 533 (Pa. Super. 2016). Therefore, [Miller] has not met his burden to show that he could not have learned of these facts earlier. As [Miller] has failed to plead and prove one of the exceptions to the PCRA time-bar, [the PCRA court] is without jurisdiction to consider the merits of his claims or offer any form of relief. Accordingly, [the court] is constrained to dismiss this petition as untimely without exception.
PCRA Court Opinion, 5/27/21, at 2 (unnumbered).
Our review of the record supports the PCRA court's conclusions. As noted above, Miller unsuccessfully sought to challenge Speaks credibility in his 2006 PCRA petition. Moreover, as noted by the PCRA court, Miller acknowledged that he was aware of Speaks' agreement prior to his 1992 to trial. Thus, the PCRA court correctly determined that he could not meet the newly discovered fact exception to the PCRA's time bar. As such, we lack jurisdiction to address the merits of Miller's four issues. Derrickson , supra .
Order affirmed.