Opinion
J-S65029-17 No. 1758 EDA 2016
01-16-2018
COMMONWEALTH OF PENNSYLVANIA v. TYREEM RIVERS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order May 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0703221-1996 BEFORE: OLSON, J., OTT, J., and MUSMANNO, J. MEMORANDUM BY OTT, J.:
Tyreem Rivers appeals, pro se, from the order dismissing, as untimely filed, his third petition for collateral relief filed pursuant to the Post Conviction Relief Act ("PCRA"). Rivers seeks relief from the judgment of sentence of a term of life imprisonment imposed on September 16, 1997, following his non-jury conviction of second-degree murder, robbery, theft and receiving stolen property. On appeal, Rivers contends the PCRA court erred in dismissing his petition as untimely when he established two exceptions to the time-for-filing requirements. For the reasons below, we affirm.
See 42 Pa.C.S. §§ 9541-9546.
See 18 Pa.C.S. §§ 2502, 2701, 3921, and 3925, respectively.
The pertinent facts and procedural history underlying this appeal are well-known to the parties, and aptly summarized in the PCRA court's opinion. See PCRA Court Opinion, 10/5/2016, at 1-7. Accordingly, we need not reiterate them herein. We note only that the present petition, filed on January 14, 2013, and supplemented on January 16, 2015, is Rivers' third request for collateral relief. After providing proper notice of its intent to dismiss the petition without first conducting an evidentiary hearing, the PCRA court entered an order on May 4, 2016, dismissing the petition as untimely filed. Thereafter, on May 26, 2016, Rivers filed this appeal, accompanied by a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
"In reviewing the denial of PCRA relief, we examine whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Mitchell , 141 A.3d 1277, 1283-1284 (Pa. 2016) (internal punctuation and citation omitted). Further, a PCRA court may dismiss a petition "without an evidentiary hearing if there are no genuine issues of material fact and the petitioner is not entitled to relief." Id. at 1284 (citations omitted).
The PCRA court concluded Rivers' petition was untimely filed, and Rivers failed to establish the applicability of one of the time-for-filing exceptions. See PCRA Court Opinion, 10/5/2016, at 7-12.
A PCRA petition must be filed within one year of the date the underlying judgment becomes final. See 42 Pa.C.S. § 9545(b)(1).
The PCRA timeliness requirement ... is mandatory and jurisdictional in nature. Commonwealth v. Taylor , 933 A.2d 1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
A.2d 1163 (2008) (citing Commonwealth v. Murray , 562 Pa. 1, 753 A.2d 201, 203 (2000)). The court cannot ignore a petition's untimeliness and reach the merits of the petition. Id.Commonwealth v. Taylor , 67 A.3d 1245, 1248 (Pa. 2013), cert. denied, 134 S.Ct. 2695 (U.S. 2014).
Here, Rivers' judgment of sentence was final on April 3, 2000, 90 days after the Pennsylvania Supreme Court denied his petition for allowance of appeal from his direct appeal, and he failed to petition for a writ of certiorari in the United States Supreme Court. See id. at § 9545(b)(3); United States Supreme Court Rule 13. Therefore, he had until April 3, 2001, to file a timely petition, and the one before us, filed nearly 12 years later, is patently untimely.
Nevertheless, an untimely PCRA petition may still be considered if one of the three time-for-filing exceptions applies. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). A PCRA petition alleging any of the exceptions under Section 9545(b)(1) must be filed within 60 days of when the PCRA claim could have first been brought. 42 Pa.C.S. § 9545(b)(2).
Rivers contends his claims meet two of the time-for-filing exceptions. First, he argues the United States Supreme Court's decision in Miller v. Alabama , 567 U.S. 460 (2012), made retroactive by the Court's subsequent decision in Montgomery v. Louisiana , ___ U.S. ___, 136 S.Ct. 718 (2016), constitutes a newly recognized constitutional right pursuant to Section 9545(b)(iii). In Miller , the Supreme Court held that "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 , supra , 567 U.S. at 465 (emphasis supplied). Although Rivers acknowledges that he was 18 years old at the time of the crime, he insists "it is 'equally unconstitutional' to sentence an 18 year old teenage child/minor to the same cruel and unsual (sic) punishment of [life without parole] as banned by the 8th Amendment of the U.S. Constitution." Rivers' Brief at 6.
Rivers was born on November 27, 1977, and the crime occurred on May 3, 1996. Accordingly, Rivers was approximately 18 and one-half years old at the time he committed the offense.
Second, Rivers asserts he met the "newly discovered facts" exception codified at Section 9545(b)(ii). Specifically, he claims he learned from a November 2014 newspaper article that his first PCRA attorney, James Bruno, was suspended from the practice of law after being "diagnosed with multiple mental health problems ... which ultimately caused counsel to be extremely neglectful improperly handling homicide appeals." Rivers' Brief at 11. Within 60 days of reading the newspaper article, Rivers filed a supplement to his January 2013 petition. He maintains that, before he read the article, it would have been "impossible" for him to discover Bruno suffered from mental illness that caused him to negligently handle Rivers' first petition. Id. at 13. Accordingly, Rivers contends the PCRA court erred in dismissing his petition as untimely filed.
Upon our independent review of the record, the parties' briefs, and the relevant statutory and case law, we conclude the PCRA court thoroughly discussed and properly disposed of Rivers' claims in its opinion. See PCRA Court Opinion, 10/5/2016, at 7-12 (finding (1) Rivers' petition was facially untimely; (2) Rivers did not establish the newly discovered fact exception because (a) his claim is essentially an allegation of the ineffective assistance of prior PCRA counsel, (b) prior counsel was suspended for actions unrelated to Rivers' case, and (c) prior counsel's disciplinary history was "publicly available for years," including when Rivers was represented by different counsel; and (3) Rivers did not establish the newly recognized constitutional right exception because he was 18-years-old at the time of the offense, and the " Miller holding is specifically limited to juveniles under eighteen years of age at the time they committed murder."). Accordingly, we rest upon the PCRA Court's well-reasoned opinion.
Prior counsel represented Rivers from June of 2000 until June of 2004, during which time counsel filed an amended PCRA petition on Rivers' behalf. See PCRA Court Opinion, 10/5/2006, at 3-4. The news article, from which Rivers learned of counsel's temporary suspension, stated that counsel was suspended for two years, retroactive to February of 2013. Supplemental PCRA petition, 1/16/2015, Exhibit A. Furthermore, the article did not provide any basis for Rivers to conclude counsel's recently diagnosed psychological disorders affected his representation of Rivers many years earlier. See id. ("Before a psychologist identified the disorders in a 2011 diagnosis, they caused Bruno to forget to file pleadings, petitions, and appeal notices, as well as provide his clients with updates. None of the clients' proceedings suffered irreparable harm from Bruno's mistakes the ruling states.").
PCRA Court Opinion, 10/5/2016, at 11.
Id. at 12. --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/16/2018
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