Com. v. Joseph, T. ( 2018 )

J-S85018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TROY GREGORY JOSEPH :
:
Appellant : No. 650 WDA 2017
Appeal from the PCRA Order March 15, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007436-1997
BEFORE: BOWES, J., PANELLA, J., and STABILE, J.
JUDGMENT ORDER BY PANELLA, J. FILED MAY 01, 2018
Appellant, Troy Gregory Joseph, was convicted of first-degree murder
and firearms offenses in 1998. He is serving a sentence of life imprisonment
without parole. Joseph raises a staggering 19 issues1 in his pro se appellate
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1Justice Robert H. Jackson warned of the dangers of this approach many years
ago:
Legal contentions, like the currency, depreciate through
overissue. The mind of an appellate judge is habitually receptive
to the suggestion that a lower court committed an error. But
receptiveness declines as the number of assigned errors
increases. Multiplicity hints at a lack of confidence in any one. …
But experience on the bench convinces me that multiplying
assignments of error will dilute and weaken a good case and will
not save a bad one.
Ruggero J. Aldisert, J. “Winning on Appeal: Better Briefs and Oral Argument,”
at 129 (2d ed. 2003) (quoting Robert H. Jackson, “Advocacy Before the United
States Supreme Court,” 37 Cornell L.Q. 1, 5 (1951)).
J-S85018-17
brief2 challenging the dismissal of his untimely fifth petition pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.3 We affirm.
The timing of a petition “is a threshold question implicating our subject
matter jurisdiction and ability to grant the requested relief.” Commonwealth
v. Whitney, 817 A.2d 473, 478 (Pa. 2003) (citations omitted). A petition must
be filed within one year of the date the judgment is final unless the petition
alleges, and the petitioner proves, an exception to the timeliness requirement.
See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition invoking one of these
statutory exceptions “shall be filed within 60 days of the date the claim could
have been presented[,]” 42 Pa.C.S.A. § 9545(b)(2), and exceptions to the
PCRA’s time bar must be pled in the petition, see Commonwealth v. Burton,
936 A.2d 521, 525 (Pa. Super. 2007). Notably, “[a] contention that a newly-
recognized constitutional right should be extended to others does not render
[a] petition [seeking such an expansion of the right] timely pursuant to section
9545(b)(1)(iii).” Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super.
2016) (citation omitted; brackets in original; emphasis in original).
Joseph was sentenced on March 16, 1998. He appealed to this Court,
which affirmed his judgment of sentence. See Commonwealth v. Joseph,
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2 The substantive portion of Appellant’s brief on appeal is 111 pages.
Therefore, Appellant was required to certify that his brief did not exceed
14,000 words. See Pa.R.A.P. 2135(a)(1). No such certification is present in
his brief.
3For reasons that are unclear, the PCRA court appointed counsel to assist
Appellant in litigating this petition. Counsel filed a no-merit letter and was
permitted to withdraw by the PCRA court.
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No. 718 WDA 1998, (Pa. Super., filed August 13, 1999) (unpublished
memorandum). Joseph’s judgment of sentence became final on September
12, 1999, when his time for filing a petition for allowance of appeal to the
Pennsylvania Supreme Court elapsed. See Pa.R.A.P. 1113(a); 42 Pa.C.S.A. §
9545(b)(3). This petition, filed over sixteen years later on March 14, 2016, is
patently untimely.
Joseph’s only cognizable argument addressing the PCRA’s jurisdictional
time-bar asserts he is entitled to relief under the newly recognized
constitutional right exception, 42 Pa.C.S.A. § 9545(b)(1)(iii). Joseph contends
the United States Supreme Court’s holding in Miller v. Alabama, 567 U.S.
460 (2012), establishes that a court may not impose mandatory life without
parole sentences on juvenile offenders. Joseph observes Montgomery v.
Louisiana, 136 S. Ct. 718 (2016), held that Miller retroactively applies to
cases on state collateral review. Because Joseph filed this PCRA petition within
sixty days of the announcement of Montgomery, he believes he has met the
exception and is therefore entitled to PCRA relief. He is wrong.
Miller and Montgomery are unambiguously limited to juvenile
offenders. See Miller, 567 U.S. at 465; Montgomery, 136 S. Ct. at 736. A
petitioner who was not a juvenile at the time of his crime may not invoke
these cases to establish an exception to the PCRA’s time-bar. See Furgess,
149 A.3d at 94; Commonwealth v. Woods, 179 A.3d 37, 44 (Pa. Super.
2017). At the time he shot his sister’s fiancée seven times and killed him,
Joseph was eighteen years old. Therefore, Miller is inapplicable to him.
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Consequently, we affirm the PCRA court’s order dismissing Joseph’s petition
as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2018
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