Com. v. Stringer, R. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROBERT STRINGER
Appellant No. 937 WDA 2016
Appeal from the PCRA Order May 11, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001070-2004
BEFORE: OLSON, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED MAY 08, 2017
Appellant, Robert Stringer, appeals from the May 11, 2016 order
denying, as untimely, his petition filed under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On June 13, 2005, Appellant was convicted by a jury of one count each
of first -degree murder, kidnapping, robbery, robbery of a motor vehicle,
criminal conspiracy, theft, receiving stolen property, and access device
fraud.' On September 1, 2005, Appellant received a mandatory life
sentence. See PCRA Court Opinion (PCO), 08/23/2016, at 3.
' 18 Pa.C.S. §§ 2502(a), 2901(a), 3701(a)(i)-(ii), 3702, 903(a)(1),
3921(a), 3925, 4106(a)(1) respectively.
* Former Justice specially assigned to the Superior Court.
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Appellant timely filed a notice of appeal. On May 23, 2008, this Court
affirmed his judgment of sentence, and the Supreme Court denied his
subsequent petition for allowance of appeal. See Commonwealth v.
Stringer, 954 A.2d 43 (Pa. Super. 2008) (unpublished memorandum),
appeal denied, 960 A.2d 456 (Pa. 2008).
Appellant timely filed pro se a PCRA petition, and counsel was
appointed to represent him. Counsel submitted a Turner/Finley2 letter and
petition to withdraw. After proper notice pursuant to Pa.R.Crim.P. 907, the
PCRA court granted counsel's petition and dismissed Appellant's petition.
Appellant timely appealed, and this Court affirmed the dismissal of his
petition. See Commonwealth v. Stringer, 40 A.3d 205 (Pa. Super. 2011)
(unpublished memorandum), appeal denied, 50 A.3d 692 (Pa. 2012).
Appellant untimely filed a second petition seeking PCRA relief, alleging
that his life sentence without the possibility of parole was illegal under
Miller.3 See PCRA petition, 7/26/12, at 1-6. The PCRA court dismissed the
petition, and this Court affirmed. See Commonwealth v. Stringer, 87
A.3d 880 (Pa. Super. 2013) (unpublished memorandum).
2 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998);
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
3 Miller
v. Alabama, 132 S. Ct. 2455 (2012) (holding unconstitutional the
mandatory life imprisonment without parole for juvenile offenders).
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Between July 2013 and October 2013, Appellant filed numerous pro se
petitions seeking habeas corpus relief. These petitions were summarily
dismissed and no appellate decisions rendered.
Appellant untimely filed this instant petition, his third, on March 7,
2016, asserting that his sentence is illegal.4 He argued that Miller
established a constitutional right which has been held to apply retroactively.
See PCO at 2. After proper notice pursuant to Pa.R.Crim.P. 907, the PCRA
court dismissed Appellant's petition. Appellant timely appealed and filed a
court -ordered Pa.R.A.P. 1925(b) statement of errors complained of on
appeal. The PCRA court issued a responsive opinion.
Herein, Appellant presents three issues for our review:
I. Whether Appellant is entitled to Miller/Montgomery5 relief
under the equal protection clause.
II. Whether Appellant is similarly situated as those in Miller under
Pennsylvania law and Constitution.
III. Whether the [trial] court erred by failing to reconsider
Appellant's notice of intent response.
Appellant's Brief at iv (unnecessary capitalization omitted).
4
Appellant's PCRA petition does not appear of record, despite being
docketed on March 10, 2016. However, as the PCRA court addressed his
petition in its opinion, we are able to discern the issues Appellant raises.
See PCRA Court Opinion (PCO), 08/23/16, at 3-4.
5 Montgomery Louisiana, 136 S. Ct. 718 (2016), as revised (Jan. 27,
v.
2016) (holding that the constitutional right recognized in Miller was
substantive and, thus, applicable retroactively).
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Our standard when reviewing an order denying a PCRA petition is
whether the PCRA Court's determination is supported by the evidence of
record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,
1170 (Pa. 2007).
We begin by addressing the timeliness of Appellant's petition, as the
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded in order to address the merits of his claims. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for relief, including second and subsequent petitions,
must be filed within one year of the date on which the judgment of sentence
becomes final. Id. There are three exceptions:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke these
exceptions "shall be filed within 60 days of the date the claim could have
been presented." 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). An appellant attempting
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to invoke an exception must plead and prove the exception in his petition.
See Bennett, 930 A.2d at 1267.
Appellant acknowledges that his petition is untimely.6 Nevertheless,
Appellant asserts that he has qualified for the constitutional right exception
to the PCRA timeliness requirement. In his brief, he avers that due process
was violated when he was refused a hearing to make his case that he was a
"juvenile" under Miller! See Appellant's Brief at 11. This Court has
previously considered and rejected the argument that offenders over the age
of eighteen may be considered "juveniles" under Miller. See, e.g.,
Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016).
Accordingly, Appellant is not entitled to relief under Miller, he is not
similarly situated to the defendants in Miller; and the trial court did not err
in denying him relief. See Ragan, 923 A.2d at 1170.
6 Appellant's judgment of sentence became final on January 22, 2009 at the
expiration of the ninety -day time period for seeking review with the United
States Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (a judgment of
sentence becomes final at the conclusion of direct review or the expiration of
the time for seeking the review); Commonwealth v. Owens, 718 A.2d
330, 331 (Pa. Super. 1998) (noting that Sup.Ct.R. 13 grants an Appellant
ninety days to seek review with the United States Supreme Court).
Appellant filed this instant petition almost seven years too late.
Appellant concedes that he was over the age of eighteen but argues that
he was a "technical" juvenile, as he was approximately twenty years old at
the time of the crime. See Appellant's Brief at 8, 11.
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Accordingly, the PCRA court's determination that Appellant's petition is
untimely and meets no timeliness exception is supported by the record and
free of legal error. Ragan, 923 A.2d at 1170.
Order affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/8/2017
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