Commonwealth v. Wilson

Full title: COMMONWEALTH OF PENNSYLVANIA Appellee v. ANTHONY RAY WILSON Appellant

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Apr 9, 2014

No. J-S22036-14 (Pa. Super. Ct. Apr. 9, 2014)

Opinion

J-S22036-14 No. 1864 MDA 2013

04-09-2014

COMMONWEALTH OF PENNSYLVANIA Appellee v. ANTHONY RAY WILSON Appellant

MUNDY

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order September 25, 2013

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0001585-1979

BEFORE: PANELLA, J., DONOHUE, J., and MUNDY, J. MEMORANDUM BY MUNDY, J.:

Appellant, Anthony Ray Wilson, appeals pro se from the September 25, 2013 order dismissing his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The PCRA court set forth the relevant facts and procedural history as follows.

Following a jury trial, on March 20, 1980, [Appellant] was convicted of second degree murder. Before disposition of [p]ost-trial motions, [Appellant] escaped from the Dauphin County Prison. On April 1, 1981, in absentia, the [trial] court imposed a mandatory sentence of life imprisonment. In the spring of 1983, [Appellant] was located and returned to custody. [Appellant] petitioned the Superior Court of Pennsylvania to appeal nunc pro tunc on June 3, 1983, which the Superior Court denied on July 6, 1983.
On June 15, 1984, [Appellant] filed his first petition for collateral relief under the Post Conviction Hearing Act (PCHA).¹ The PCHA court dismissed the petition on March 21, 1985. [Appellant] appealed the dismissal, and on November 8, 1985, the Superior Court of Pennsylvania affirmed the dismissal. [Appellant] filed a petition for allowance of appeal in the Pennsylvania Supreme Court, which the court denied on May 21, 1986.
On December 10, 1987, [Appellant] filed a Petition for Writ of Habeas Corpus with the United States District Court for the Middle District of Pennsylvania, which that [c]ourt denied on April 20, 1988.
On November 10, 1988, [Appellant] filed a second petition under the PCHA, denied by [PCHA] court on December 1, 1988.
On February 24, 2000, [Appellant] filed his third PCRA petition. [The PCRA] court dismissed the petition on August 7, 2000. [Appellant] appealed the dismissal, and on February 20, 2002, the Superior Court of Pennsylvania affirmed the dismissal.
On August 7, 2012, [Appellant] filed a fourth PCRA petition, in which he asserted entitlement to post conviction relief based upon Miller v. Alabama , 132 S. Ct. 2455 (2012). On August 10, 2012, [the PCRA] court issued an order staying proceedings pending the Pennsylvania Supreme Court's ruling in Commonwealth v. Cunningham , [81 A.3d 1 (Pa. 2013)]. [The PCRA] court appointed counsel. On October 26, 2012, counsel filed a Memorandum of Law in Support of "No Merit Letter." [The PCRA] court granted counsel permission to withdraw representation on October 31, 2012 based upon the standards set forth in Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988).
On October 31, 2012, [the PCRA] court issued a[] Memorandum Opinion finding Miller v. Alabama, inapplicable, an Order allowing appointed counsel to withdraw, and a Notice of Intent to Dismiss PCRA. [Appellant] filed a Response to Notice of Intent to Dismiss on November 19, 2012.
On December 14, 2012, [the PCRA] court dismissed [Appellant]'s PCRA by Final Order, [and Appellant] filed no appeal.
On January 7, 2013, [Appellant] filed a Motion to Proceed In Forma Pauperis, which [the PCRA] court granted on January 23, 2013.
On June 19, 2013, [Appellant] filed the instant Petition for Writ of Habeas Corpus. [Appellant] claims he is entitled to relief based on the decision in Miller v. Alabama.
¹ The Post Conviction Hearing Act was modified in part, repealed in part, and renamed the Post Conviction Relief Act, effective April 13, 1988.

PCRA Court Opinion, 8/29/13, at 1-3.¹

1 We note the PCRA court's opinion does not contain pagination. For purposes of our review we have elected to assign each page a corresponding page number in the order they appear.

On August 29, 2013, the PCRA court filed the above referenced opinion in support of its notice to Appellant of its intent to dismiss his petition. Id. at 1. Appellant did not file a response. Thereafter, on September 25, 2013, the PCRA court dismissed Appellant's petition. On October 21, 2013, Appellant filed a timely pro se notice of appeal.²

2 Appellant and the PCRA court have complied with Pa.R.A.P. 1925. In lieu of a 1925(a) opinion, the PCRA court has adopted the reasoning set forth in its August 29, 2013 opinion accompanying its notice of its intent to dismiss Appellant's appeal.

On appeal, Appellant raises the following issues for our review.

1. Was court-appointed counsel ineffective for asserting that the United States Supreme Court's ruling noted in Miller v. Alabama, 132 S.Ct. 2455 (2012) in conjunction to this Court's ruling in [ Commonwealth v. ] Brown , [] 26 A.3d 485 [(Pa. Super. 2011)], doesn't apply to Appellant, and that the petition was untimely and thus time-barred - when knowing an unconstitutional sentence challenge cannot be waived nor time-barred?
2. Was the [PCRA] court in error to agree to not only counsel's ineffective assistance assertions, but the Commonwealth's assertions made by counsel?
3. Was the [trial] court's ruling, that a non-emancipated juvenile tried; convicted and sentenced as an adult under the age of 25; without first being emancipated, is legal error - when knowing the case should have been decertified?
4. Was the [trial] court's ignoring the fact that Appellant's challenging an unconstitutional and illegal sentence imposed upon a juvenile at age 20, which the court[s] are now responsible for rectifying pursuant to the ruling in Schnor v. Summerlin , 542 U.S. 348, 352 [(2007)], in legal error in violation of 42 Pa.C.S.A. § 6355(a)(4)(iii)?

Appellant's Brief at 2.

We must first address whether the PCRA court properly treated Appellant's petition for writ of habeas corpus as a PCRA petition.

[I]t is well established that pursuant to Pennsylvania law, the PCRA subsumes the writ of habeas corpus unless the claim does not fall within the ambit of the PCRA statute.
Our Supreme Court has consistently held that the PCRA statute and its eligibility requirements are to be broadly construed. Nevertheless, the Pennsylvania Supreme Court also has recognized that certain unique claims do not give rise to a cognizable claim under the PCRA statute. In those rare instances that a post-conviction claim does not fit within the statutory scheme of the PCRA, a writ of habeas corpus may be appropriate.

Commonwealth v. Burkett , 5 A.3d 1260, 1274 (Pa. Super. 2010) (citations omitted). "Only if neither the PCRA nor any other remedy is available for the condition alleged may the writ of habeas corpus then issue." Commonwealth v. O'Brian , 811 A.2d 1068, 1070 (Pa. Super. 2002).

The following relief is encompassed by the PCRA.

§ 9543. Eligibility for relief
(a) General rule.--To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:

(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:

(i) currently serving a sentence of imprisonment, probation or parole for the crime;
(ii) awaiting execution of a sentence of death for the crime; or
(iii) serving a sentence which must expire before the person may commence serving the disputed sentence.

(2) That the conviction or sentence resulted from one or more of the following:

(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.
(iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
(v) Deleted.

(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.

(3) That the allegation of error has not been previously litigated or waived.
(4) That the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.

42 Pa.C.S.A. § 9543(a).

The sole issue raised in Appellant's petition for writ of habeas corpus, and therefore the only issue preserved on appeal, is "that a mandatory life-without-parole sentence for [a] juvenile violates the Eighth Amendment to the United States Constitution." Appellant's pro se Petition for Writ of Habeas Corpus, 6/19/13, at 1. Appellant's claim is therefore encompassed within the PCRA, and as such, the PCRA is the proper and sole avenue for obtaining relief. See 42 Pa.C.S.A. § 9543(a)(2)(i). As a result, the trial court properly treated Appellant's petition as a subsequent PCRA petition, making this his fifth PCRA petition, and we may review it as such. Burkett , supra .

"On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error. " Commonwealth v. Edmiston , 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania , 134 S. Ct. 639 (2013). "[Our] scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level." Commonwealth v. Koehler , 36 A.3d 121, 131 (Pa. 2012) (citation omitted). In order to be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues must be neither previously litigated nor waived. 42 Pa.C.S.A. § 9543(a)(3). "[T]his Court applies a de novo standard of review to the PCRA court's legal conclusions." Commonwealth v. Spotz , 18 A.3d 244, 259 (Pa. 2011) (citation omitted).

Before we may address the merits of a PCRA petition, we must first consider the petition's timeliness because it implicates the jurisdiction of both this Court and the PCRA court. Commonwealth v. Williams , 35 A.3d 44, 52 (Pa. Super. 2011) (citation omitted), appeal denied, 50 A.3d 121 (Pa. 2012). We may raise issues concerning our appellate jurisdiction sua sponte. Commonwealth v. Patterson , 940 A.2d 493, 497 (Pa. Super. 2007), appeal denied, 960 A.2d 838 (Pa. 2008). "Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition." Id. The PCRA "confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]" Commonwealth v. Watts , 23 A.3d 980, 983 (Pa. 2011) (citation omitted). This is to "accord finality to the collateral review process." Id. "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, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met." Commonwealth v. Harris , 972 A.2d 1196, 1199-1200 (Pa. Super. 2009), appeal denied, 982 A.2d 1227 (Pa. 2009).

Section 9545 provides, in relevant part, as follows.

§ 9545. Jurisdiction and proceedings




...



(b) Time for filing petition.—

(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, unless the petition alleges and the petitioner proves that:

(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.

(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.

...

42 Pa.C.S.A. § 9545(b).

In the instant matter, Appellant's fifth petition is patently untimely. Therefore, Appellant must plead and prove one of the three enumerated statutory exceptions to the time-bar. Appellant asserts that Miller should apply because "[a]t the time of the offense, [Appellant] was twenty (20) years old, which is not a juvenile, but still a minor." Appellant's Pro Se Petition for Writ of Habeas Corpus, 6/19/13, at 2. Additionally, Appellant notes that at the time he filed his fourth PCRA petition, "the question of the retroactivity of the Miller decision ha[d] yet to be decided by the Pennsylvania courts." Id. at 3. For the following reasons, we conclude that Appellant is not entitled to relief.

In Miller, the 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 at 2460 (emphasis added). Therefore, Miller applies only to those under 18 years of age who received mandatory life sentences without the possibility of parole. Id. Instantly, Appellant acknowledges that he was 20 years old at the time of his crimes. Appellant's Pro Se Petition for Writ of Habeas Corpus, 6/19/13, at 2. As a result, Miller could not apply to Appellant, and Appellant cannot satisfy the time-bar exception. See Commonwealth v. Cintora , 69 A.3d 759, 764 (Pa. Super. 2013) (holding there is no exception under section 9545(b)(1)(iii) extending Miller to those over 18 at the time of their crimes), appeal denied, 81 A.3d 75 (Pa. 2013). Furthermore, on October 30, 2013, our Supreme Court held that Miller does not apply retroactively to those whose judgments of sentence were final at the time Miller was decided. Cunningham , supra at 11. Therefore, Appellant has not pled or proven an exception to the PCRA time-bar. See Commonwealth v. Perrin , 947 A.2d 1284, 1285 (Pa. Super. 2008) (holding that without a pled and successfully proven exception to the time-bar, this Court is without jurisdiction to address the merits of the arguments raised).

Based on the foregoing, we conclude the PCRA court properly dismissed Appellant's fifth PCRA petition as untimely. Accordingly, the PCRA court's September 25, 2013 order is affirmed.

Order affirmed.

Judge Donohue concurs in the result. Judgment Entered. ____________________
Joseph D. Seletyn, Esq.
Prothonotary