Opinion
J-S28012-16 No. 2881 EDA 2015
04-25-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. ELIAS PAGAN, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order September 10, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0311151-1998 BEFORE: BOWES, LAZARUS AND PLATT, JJ. MEMORANDUM BY BOWES, J.:
Retired Senior Judge assigned to the Superior Court.
Elias Pagan appeals pro se from the PCRA court order entered on September 10, 2015, wherein the court dismissed his petition as untimely filed. We affirm.
On August 6, 1999, a jury convicted Appellant of two counts each of murder and aggravated assault and individual counts of possession of an instrument of crime, recklessly endangering another person, and conspiracy. The convictions stem from Appellant's role as the architect of the murders of a rival drug dealer and a pregnant bystander. When Appellant's cohorts committed the murders, Appellant was twenty-four years old.
Immediately after the jury verdict, in order to avoid a possible death sentence, Appellant waived his appellate rights in exchange for concurrent life sentences without the possibility of parole for the murders and concurrent sentences on the remaining offenses. That agreement was the functional equivalent of a guilty plea, which is valid so long as it is entered knowingly, voluntarily, and intelligently. See Commonwealth v. Barnes , 687 A.2d 1163, 1167 (Pa.Super. 1996). Following a colloquy, the trial court accepted the agreement and entered the agreed-upon sentence. Pursuant to the accord, Appellant did not appeal the judgment of sentence.
We summarize the remaining procedural history as follows. On September 22, 1999, Appellant filed a timely PCRA petition. Appointed counsel submitted a Turner /Finley no-merit letter and sought to withdraw. On November 16, 2000, the PCRA court dismissed the petition and permitted counsel to withdraw. Appellant filed a timely notice of appeal; however, that document was not entered on the trial court docket. Years of procedural wrangling ensued until the appeal finally was docketed in this Court on March 6, 2003. We dismissed the appeal approximately four and one-half months later due to Appellant's failure to file a brief. See Commonwealth v. Pagan , 677 EDA 2003 (Per curiam order, filed July 23, 2003). Appellant did not appeal that order.
Commonwealth v. Turner , 544 A.2d 927 (1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988) (en banc).
Appellant filed his second PCRA petition on October 5, 2005. Appellant challenged the waiver of his appellate rights as unknowing, involuntary, and unintelligent. The PCRA court denied the petition as untimely and lacking merit. We dismissed the ensuing appeal, again, based upon Appellant's failure to file a brief. See Commonwealth v. Pagan , 203 EDA 2006 (Per curiam order, filed June 22, 2006).
In his efforts to get the clerk of court and its appeals unit to recognize his timely filed first petition, Appellant filed an additional PCRA petition and a supplemental petition. As the trial court eventually reinstated his right to pursue the timely filed first-time petition, we do not include the interim petition and supplemental petition in our sequential enumeration.
On November 22, 2010, Appellant filed the instant PCRA petition. Appellant argued that trial counsel provided ineffective assistance by failing to file a post-sentence motion to withdraw his plea agreement. On August 13, 2012, he supplemented his petition to invoke the Unites States Supreme Court's holding in Miller v. Alabama , 567 U.S.___, 132 S.Ct. 2455 (June 25, 2012), that it is unconstitutional to sentence a juvenile homicide offender to an automatic sentence of life without parole. Counsel was appointed, but, he submitted a Turner/Finley no-merit letter and sought to withdraw from representation. Following proper notice pursuant to Pa.R.A.P. 907, on September 10, 2015, the PCRA court dismissed the petition and permitted counsel to withdraw. This timely appeal followed.
Proceeding pro se, Appellant filed a court-ordered Rule 1925(b) statement, wherein he argued in favor of the retroactive application of Miller , supra to the facts of his case. He reiterates this issue on appeal. Specifically, Appellant asserts both that Miller is retroactive and that the protections recognized therein should be extended to non-juvenile offenders. Appellant's brief at 2, 6-10.
Initially, we note, "[a]n appellate court reviews the PCRA court's findings of fact to determine whether they are supported by the record, and reviews its conclusions of law to determine whether they are free from legal error." Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa. 2014). "The 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 trial level." Id.
Herein, the PCRA court concluded that Appellant's petition was barred by the PCRA time requirements and that Appellant's attempt to invoke Miller failed because he was not a juvenile when the murders occurred and Miller had not been declared to be retroactive. For the following reasons, we agree that the petition is time barred.
The time limitations imposed by the PCRA implicate our jurisdiction and they may not be altered or disregarded in order to address the merits of a petition. See Commonwealth v. Monaco , 996 A.2d 1076, 1079 (Pa.Super. 2010) ("Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition."). Appellant's judgment of sentence became final on Monday, September, 6, 1999, upon the expiration of the thirty-day period to file a direct appeal. Accordingly, in order to comply with the time requirements, Appellant's petition had to be filed by September 6, 2000. Appellant filed the instant petition on November 22, 2010; thus, unless one of the exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies, the petition is barred as untimely.
Section 9545 provides the following three exceptions that allow for review of an untimely PCRA petition: (1) petitioner's inability to raise a claim as a result of governmental interference; (2) the discovery of previously unknown facts that could not have been ascertained by the exercise of due diligence; and (3) a newly-recognized constitutional right. 42 Pa.C.S. § 9545 (b)(1)(i)-(iii). To invoke an exception, the petitioner must plead it and satisfy the burden of proof. Commonwealth v. Beasley , 741 A.2d 1258, 1261-62 (Pa. 1999). In addition, any exception must be raised within sixty days of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).
Instantly, Appellant invoked the newly-recognized constitutional right outlined in Miller as a basis to circumvent the PCRA time bar under § 9545 (b)(1)(iii). When the PCRA court addressed Appellant's claim, our Supreme Court had determined that Miller was not retroactive. See Commonwealth v. Cunningham , 81 A.3d 1 (Pa. 2013) (denying retroactive application), overruled by Montgomery v . Louisiana , 136 S. Ct. 718 (2016). However, while this appeal was pending, the United States Supreme Court held in Montgomery , that state courts are required to apply Miller retroactively. Hence, as a threshold question, we must determine whether Appellant's reliance upon Miller was premature.
In Commonwealth v. Secreti , 2016 WL 513341, this Court addressed the application of Montgomery to PCRA appeals that had invoked the retroactivity of Miller as the basis for relief. We concluded that, since Miller applied retroactively, it could be relied upon to establish an exception to the PCRA time-bar under § 9545(b)(1)(iii). We further observed that the imposition of life imprisonment without parole for a defendant committing first-degree murder as a juvenile was unconstitutional under Miller. Accordingly, consistent with the dictates of our Supreme Court's decision in Commonwealth v. Batts , 66 A.3d 286 (Pa. 2013), we reversed the order denying PCRA relief, vacated the judgment of sentence, and remanded the case for a new sentencing hearing.
Nevertheless, even though PCRA petitioners now can successfully invoke the retroactive application of the newly recognized constitutional right announced in Miller as a basis to circumvent the PCRA's time bar, Appellant does not benefit from this new authority. Stated plainly, unlike a juvenile homicide offender who received an automatic sentence of life without parole, Appellant agreed to the imposition of life imprisonment without parole in order to foreclose capital punishment. More importantly, Appellant was twenty-four years old when the murders were committed and neither Miller nor Montgomery extended the newly recognized constitutional protections to non-juvenile offenders. Thus, regardless of the High Court's retroactivity analysis in Montgomery , for both of the foregoing reasons, the Miller Court's holding remains factually inapplicable to the case at bar. Consequently, Appellant failed to establish a § 9545 (b)(1)(i)-(iii) exception to the PCRA's time requirements.
Having found that Appellant's third PCRA petition was untimely filed and that no exceptions to the statutory time bar apply, we affirm the order dismissing his petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/25/2016