Com. v. Nesbit, D. ( 2014 )

J.A22041/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
DARON NESBIT, :
:
Appellant : No. 2162 MDA 2013
Appeal from the PCRA Order November 4, 2013
In the Court of Common Pleas of York County
Criminal Division No(s).: CP-67-CR-0002131-1997
BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 29, 2014
Appellant, Daron l. Nesbit, takes this counseled appeal from the order
entered in the York County Court of Common Pleas denying his third petition
filed pursuant to the Post Conviction Relief Act1
contends the PCRA court erred in denying his petition without a hearing
because his sentence of life without the possibility of parole was
unconstitutional under Miller v. Alabama, 132 S. Ct. 2455 (2012), and
under Article I, Section 13 of the Pennsylvania Constitution. We affirm.
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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A prior panel of this Court stated the facts and procedural posture of
this case as follows:
On March 8, 1997, Paul Smith went out with some friends
going to a bar, the group proceeded to the Majestic
Restaurant, where Smith went inside to purchase some
beer. As Smith left the restaurant, he encountered Melisha
Grimes, and the two stopped to talk. They returned to the
restaurant so that Grimes could write down her pager
number for Smith and, while inside, Appellant, then 16
years old, approached them and a verbal altercation
occurred. Soon, the confrontation moved out into the
parking lot and Appellant and Smith began to fight.
Appellant pulled out a gun and fired two shots at Smith,
killing him, and then fled.
Appellant was charged with first-degree murder, third-
degree murder, voluntary manslaughter, and involuntary
manslaughter. On November 13, 1997, he was convicted
of first-degree murder. On December 29, 1997, he was
sentenced to life imprisonment without parole. His
judgment of sentence was affirmed by this Court on March
31, 1999 and his petition for allowance of appeal to our
Supreme Court was denied on October 5, 1999.
On December 21, 2000, Appellant filed a PCRA petition
and the PCRA court granted a new trial. On November 20,
2001, following a second jury trial, Appellant was again
convicted of first-degree murder and sentenced on that
date by the trial court to a term of life imprisonment.
Appellant filed a direct appeal to this Court on December
nt of sentence
on November 12, 2002. On June 26, 2003, our Supreme
On February 5, 2004, Appellant filed a pro se PCRA
petition and JoAnne Floyd, Esquire, was appointed to
represent him. On March 26, 2004, [she] filed an
amended PCRA petition and the PCRA court conducted an
evidentiary hearing on July 19, 2004. On September 17,
Court affirmed that order on August 8, 2005. On January
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20,
for allowance of appeal.
That same day, Appellant filed a second pro se PCRA
petition in which he alleged that Attorney Floyd was
ineffective for failing to call trial counsel, Mark S.
Greenberg, and Brian A. March, Ph.D., to testify at the July
19, 2004 PCRA evidentiary hearing. On March 13, 2006,
Judge Blackwell, sitting as the PCRA court, appointed Heidi
R. Freese, Esquire as PCRA counsel. On April 11, 2006,
Judge Blackwell issued notice pursuant to Rule 907 of the
Pennsylvania Rules of Criminal Procedure of her intention
June 16, 2006, [the PCRA court] entered an order
Appellant timely appealed pro se . . .
Commonwealth v. Nesbit, 1351 MDA 2006, 1365 MDA 2006 (unpublished
memorandum at 2-5) (Pa. Super. Sept. 26, 2007).
This Court affirmed on September 26, 2007. Id. at 7. On July 18,
etition for
allowance of appeal. Commonwealth v. Nesbit, 953 A.2d 541 (Pa. 2008).
On August 1, 2012, Appellant filed the instant pro se PCRA petition.
On August 28, 2012, present counsel entered his appearance. On October
9, 2012, and December 12, 2012, the PCRA court stayed the matter pending
the decisions by the Pennsylvania Supreme Court in Commonwealth v.
Batts, 66 A.3d 286 (Pa. 2013), and Commonwealth v. Cunningham, 81
A.3d 1 (Pa. 2013). On November 4, 2013, the PCRA court denied the
petition. On
for reconsideration. This timely counseled appeal followed. Appellant filed a
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timely court-ordered Pa.R.A.P. 1025(b) statement of errors complained of on
appeal. On March 17, 2013 the PCRA court filed a Pa.R.A.P. 1925(a)
opinion.
On appeal, Appellant raises the following issue for our review:
Whether the PCRA court erred by dismissing the petition
without a hearing because one of the issues raised,
namely, the constitutionality of sentencing juvenile to life
without the possibility of parole under Article I, Section 13
of the Pennsylvania Constitution, was of merit and requires
factual development and/or credibility determinations to be
properly adjudicated?
2
Before exam
whether the PCRA court had jurisdiction to entertain the underlying PCRA
2
We note in Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014),
the appellant argued
that his life sentence, which was imposed upon him when
he was a juvenile, violates his right to be free from cruel
and unusual punishment. It is well-established that such a
claim constitutes a nonwaivable challenge to the legality of
the sentence. . . .
However, the fact that these claims are not waived
does not mean that we have jurisdiction to review them.
technically waivable, a legality [of sentence] claim may
nevertheless be lost should it be raised for the first time in
an untimely PCRA petition for which no time-bar exception
applies, thus depriving the court of jurisdiction over the
Id. at 241 (citations omitted).
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Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (citation
omitted).
We . . . turn to the time limits imposed by the PCRA,
as they implicate our jurisdiction to address any and all of
tion must be
judgment of sentence became final, unless the petition
alleges and the petitioner proves one or more of the
following statutory 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).
We emphasize that it is the petitioner who bears the
burden to allege and prove that one of the timeliness
exceptions applies. In addition, a petition invoking any of
the timeliness exceptions must be filed within 60 days of
the date the claim first could have been presented. 42
Pa.C.S. § 9545(b)(2). . . .
Id. at 719-20 (some citations omitted) (emphasis added).
Our Supreme Court has stated:
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This Court has repeatedly stated that the PCRA timeliness
requirements are jurisdictional in nature and, accordingly,
a PCRA court cannot hear untimely PCRA petitions. In
addition, we have noted that the PCRA confers no
authority upon this Court to fashion ad hoc equitable
exceptions to the PCRA time-bar in addition to those
exceptions expressly delineated in the Act. We have also
constitutionally valid.
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations
and quotation marks omitted).
In the instant case, Appellant was sentenced on November 20, 2001.
This Court affirmed his judgment of sentence on November 12, 2002. On
n for allowance
2003, ninety days after the Pennsylvania Supreme Court denied his petition
for allowance of appeal. See
judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
writ of certiorari
seeking review of a judgment of a lower state court that is subject to
discretionary review by the state court of last resort is timely when it is filed
with the Clerk within 90 days after entry of the order denying discretionary
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3
review[ to file a PCRA
petition. See 42 Pa.C.S. § 9545(b)(1) (providing that PCRA petition must be
filed within one year of date judgment becomes final). Appellant filed the
instant petition on August 1, 2012; therefore, it is patently untimely. Thus,
we review whether his petition alleges and proves, as Appellant contends,
the exception at Section 9545(b)(1)(iii). See 42 Pa.C.S. § 9545(b)(1)(iii);
Robinson, 837 A.2d at 1161.
Appellant avers that his PCRA petition was timely filed on August 1,
2012, because it was filed within sixty days of the United States Supreme
Miller
In Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), cert.
den., ___ S. Ct. ___, 2014 WL 797250 (Jun. 9, 2014), our Supreme Court
held that Miller was not retroactive and opined:
Here, applying settled principles of appellate review,
proscription of the imposition of mandatory life-
without-parole sentences upon offenders under the age of
eighteen at the time their crimes were committed must be
extended to those whose judgments of sentence were final
as of the time of announcement.
Id. at 11.
The PCRA court reasoned tha
Pennsylvania decision in Commonwealth v. Cunningham, this Court must
3
September 24, 2004 fell on a Sunday. Therefore, Appellant had until
September 25, 2004 to file his PCRA petition. See 1 Pa.C.S. § 1908.
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Op., 11/4/13, at 2. We agree.
Our Pennsylvania Supreme Court specifically held that Miller did not
apply retroactively. See Cunningham, 81 A.3d at 11. Therefore, the
claims. See Robinson
of legal error. See Marshall, 947 A.2d at 719.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2014
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