Com. v. Chhoeum, S. ( 2018 )

J-A21027-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SAVONG CHHOEUM :
:
Appellant : No. 2888 EDA 2017
Appeal from the PCRA Order August 21, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0637121-1992
BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 21, 2018
Appellant, Savong Chhoeum, appeals pro se from the order entered on
August 21, 2017, dismissing his third petition for relief filed under the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm.
The PCRA court aptly summarized the facts and procedural history in
this case as follows:
[Appellant] was arrested and subsequently charged in connection
with the shooting death of Luis Perez on July 27, 1991 in the city
and county of Philadelphia. On September 20, 1993, following a
bench trial[, Appellant] was convicted of first-degree murder,
aggravated assault, possession of an instrument of crime (PIC),
and criminal conspiracy. On that same date, the trial court
sentenced [Appellant] to a mandatory term of life imprisonment
without parole for the first-degree murder bill and deferred
sentencing on the remaining bills. On June 13, 1994, [Appellant]
was sentenced to [concurrent terms] of five to ten years [in
prison] for the aggravated assault bill, two and one-half to five
years [in prison] on the PIC bill[, and] five to ten years[‘
incarceration] on the criminal conspiracy bill. [Appellant did not]
file a direct appeal.
J-A21027-18
On December 3, 1996, [Appellant] filed his first pro se PCRA
petition. Counsel was appointed and subsequently filed [a
no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213
(Pa. Super. 1988) (en banc)] on February 23, 1998. The PCRA
court formally dismissed the petition on April 20, 1998 [and this
Court affirmed the dismissal of Appellant’s petition on July 9,
1999. Commonwealth v. Chhoeum, 742 A.2d A.2d 1141 (Pa.
Super. 1999) (table).]
[Appellant filed a second PCRA petition in June 2000, which the
PCRA court dismissed as untimely on July 26, 2000. This Court
affirmed the dismissal order on September 11, 2001. See
Commonwealth v. Chhoeum, 788 A.2d 1026 (Pa. Super. 2001)
(table). Additionally, Appellant, on October 10, 2001, filed an
unsuccessful petition for habeas corpus relief in federal court.]
On June 29, 2012, [Appellant] filed the instant pro se PCRA
petition, his [third]. [Appellant] also submitted numerous
supplemental filings which were reviewed jointly with his 2012
petition. Pursuant to Pennsylvania Rule of Civil Procedure 907,
[Appellant received] notice of the PCRA court’s intention to
dismiss his petition on June 15, 2017. [Appellant] submitted a
response to the Rule 907 notice on June 29, 2017. On August 21,
2017, the PCRA court dismissed his PCRA petition as untimely. On
August 26, 2017, the instant notice of appeal was timely filed[.
The PCRA court issued its opinion on October 24, 2017.]
PCRA Court Opinion, 10/24/17, at 1-2 (footnotes omitted).
Appellant’s brief to this Court omits a statement of questions involved,
in derogation of our appellate rules. See Pa.R.A.P. 2111(a)(4) (brief of
appellant shall include, among other things, statement of questions involved);
see also Pa.R.A.P. 2116 (“No question will be considered unless it is stated
in the statement of questions involved or is fairly suggested thereby.”). In
our discretion, however, we shall overlook Appellant’s omission as it does not
hamper our consideration of his claims. See Pa.R.A.P. 2101 (appeals subject
-2-
J-A21027-18
to quashal or dismissal where nonconformity of briefing materials is
substantial).
Appellant’s opening claim is that the PCRA court erred in dismissing his
third PCRA petition as untimely. Specifically, Appellant asserts that he
properly invoked the timeliness exception found at 42 Pa.C.S.A.
§ 9546(b)(1)(iii) based upon the decisions of the United States Supreme Court
in Miller v. Alabama, 567 U.S. 460 (2012), which held that the Eighth
Amendment of the United States Constitution proscribed mandatory life
sentences without parole for individuals who commit homicide offenses while
under 18 years of age, and Montgomery v. Louisiana, 136 S. Ct. 718 (2016),
which applied Miller’s holding retroactively to sentences that had become final
prior to that ruling. Appellant’s position is that, while he was 18 years old at
the time of Perez’ murder, “[h]e was developmentally an adolescent and
possessed the age-related characteristics of youth that the [United States]
Supreme Court has recognized must be taken into consideration prior to
imposing a sentence of life without parole.” Appellant’s Brief at 2.
“As a general proposition, we review a denial of PCRA relief to determine
whether the findings of the PCRA court are supported by the record and free
of legal error.” Commonwealth v. Eichinger, 108 A.3d 821, 830 (Pa. 2014).
The timeliness of a PCRA petition is a jurisdictional concern which we
address as a threshold matter.
-3-
J-A21027-18
[The PCRA requires] a petitioner to file any PCRA petition
within one year of the date the judgment of sentence
becomes final. A judgment of sentence becomes final at the
conclusion of direct review . . . or at the expiration of time
for seeking review.
...
However, an untimely petition may be received when the
petition alleges, and the petitioner proves, that any of the
three limited exceptions to the time for filing the petition, set
forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.
A petition invoking one of these exceptions must be filed
within [60] days of the date the claim could first have been
presented. In order to be entitled to the exceptions to the
PCRA’s one-year filing deadline, the petitioner must plead
and prove specific facts that demonstrate his claim was raised
within the [60]-day timeframe.
Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (some internal
citations omitted) (internal quotations omitted).
In the present case, the PCRA court found Appellant’s petition to be
untimely filed. PCRA Court Order, 6/5/17, at 3. We agree. Appellant’s
judgment of sentence became final on July 13, 1994 when the period for filing
a direct appeal from his judgment of sentence expired. See Pa.R.A.P. 903;
see also 42 Pa.C.S.A. § 9545(b)(3). Appellant then had until July 13, 1995
to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1) (PCRA petition
must be filed “within one year of the date the judgment becomes final”). Since
Appellant did not file his current petition until June 29, 2012, the petition is
facially untimely and the burden fell upon Appellant to plead and prove that
one of the enumerated exceptions to the one-year time-bar applied to his
case. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d
-4-
J-A21027-18
1284, 1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the
one-year time-bar, the PCRA demands that the petitioner properly plead all
required elements of the relied-upon exception).
Here, Appellant purports to invoke the “newly recognized constitutional
right” exception to the time-bar. This statutory exception provides:
(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:
...
(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).
As our Supreme Court explained:
Subsection (iii) of Section 9545(b)(1) has two requirements.
First, it provides that 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
provided in this section. Second, it provides that the right
“has been held” by “that court” to apply retroactively. Thus,
a petitioner must prove that there is a “new” constitutional
right and that the right “has been held” by that court to apply
retroactively. The language “has been held” is in the past
tense. These words mean that the action has already
occurred, i.e., “that court” has already held the new
-5-
J-A21027-18
constitutional right to be retroactive to cases on collateral
review. By employing the past tense in writing this provision,
the legislature clearly intended that the right was already
recognized at the time the petition was filed.
Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007), quoting
Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002) (internal
corrections omitted). Moreover, since the plain statutory language of section
9545 demands that the PCRA petition “allege” all elements of the statutory
exception, it is clear that – to properly invoke the “newly recognized
constitutional right” exception – the petitioner must plead each of the
above-stated elements in the petition. 42 Pa.C.S.A. § 9545(b)(1).
In this case, the record establishes that Appellant was born on October
21, 1972 and was thus 18 years of age when he murdered Perez on July 27,
1991. Hence, Appellant is not eligible for relief under the timeliness exception
found at § 9545(b)(1)(iii) since he was not under the age of 18 at the time of
the offense.1 The PCRA court reasoned as follows:
[T]he Miller holding specifically limited itself to juveniles under
the age of [18] years at the time of the offense who are sentenced
to a mandatory term of life imprisonment without parole. Miller,
[567 U.S. at 465 (“We therefore hold 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.”).] Although [Appellant] was sentenced to
[a mandatory life sentence without the possibility of parole], he
was [18 years of age] at the time of the offense, placing his
sentence outside the reach of the Supreme Court’s Miller
____________________________________________
1 While our conclusion that Appellant is ineligible for relief under
§ 9545(b)(1)(iii) is dispositive in this case, we note that Appellant appears to
have complied with § 9545(b)(2) since the instant petition was filed on June
29, 2012, which is within 60 days of Miller’s June 25, 2012 date of issuance.
-6-
J-A21027-18
decision. Thus, [Appellant] failed to satisfy his burden of proof
under 42 Pa.C.S.A. § 9545(b)(1)(iii).
PCRA Court Opinion, 10/24/17, at 4 (bracketed text and emphasis added).
Thus, neither Montgomery nor Miller applies to the case at bar. See
Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (rejecting
extension of Miller to petitioner who was 19 years old at time of killing where
petitioner alleged he was “technical juvenile” based upon neuroscientific
theories); Commonwealth v. Montgomery, 181 A.3d 359, 366 (Pa. Super.
2018) (en banc) (rejecting virtually identical claim advanced by petitioner who
was 22 years old at time of offense and noting that “a contention that a
newly-recognized constitutional right should be extended to others does not
satisfy the new constitutional rule exception to the PCRA's timeliness
requirement”).2
Appellant’s second claim asserts that a sentencing scheme which treats
offenders who are 17 years-of-age differently than those who are 18
years-of-age runs afoul of the Equal Protection clause of the United States
Constitution. See Appellant’s Brief at 14-17. Because Appellant’s petition is
untimely and not subject to any exception to the PCRA’s time bar, we lack
jurisdiction to consider this claim.
____________________________________________
2Another claim seeking a similar extension of the holding in Miller is currently
pending before an en banc panel of this Court. See Commonwealth v. Lee,
1891 WDA 2016 (defendant 18 years old at time of murder).
-7-
J-A21027-18
Finally, we conclude that Appellant’s passing claim based upon
Martinez v. Ryan, 566 U.S. 1 (2012) is unavailing. This Court has held that,
“[w]hile Martinez represents a significant development in federal habeas
corpus law, it is of no moment with respect to the way Pennsylvania courts
apply the plain language of the time bar set forth in [§] 9545(b)(1) of the
PCRA. Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa. Super. 2013),
appeal denied, Commonwealth v. Saunders, 72 A.3d 603 (Pa. 2013), cert.
denied, Saunders v. Pennsylvania, 571 U.S. 1144 (2014). Thus,
Appellant’s alternate timeliness contention merits no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/18
-8-