Com. v. Lawrence, F. ( 2017 )

J-A29038-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
FITZGERALD LAWRENCE, :
:
Appellant : No. 62 EDA 2017
Appeal from the PCRA Order December 20, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0408961-1978
BEFORE: LAZARUS, PLATT,* and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 05, 2017
Fitzgerald Lawrence (Appellant) appeals from the December 20, 2016
order dismissing his petition for relief filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
When he was 20 years old, Appellant participated in a shooting that
resulted in the death of Lamont Faison, a rival gang member. Following a
non-jury trial, Appellant was convicted of first-degree murder, criminal
conspiracy, and possession of an instrument of crime. In 1979, he was
sentenced to life imprisonment, and his sentence was affirmed by the
Pennsylvania Supreme Court in 1982. Commonwealth v. Lawrence, 442
A.2d 234 (Pa. 1982). Appellant did not seek certiorari in the United States
Supreme Court.
In the years following his conviction, Appellant filed a multitude of
petitions pursuant to the PCRA and its predecessor, but none merited relief.
*Retired Senior Judge assigned to the Superior Court.
J-A29038-17
On August 9, 2012, Appellant pro se filed the PCRA petition that is the
subject of this appeal.1 There was no activity by the PCRA court until April
20, 2016, when the court issued notice of its intent to dismiss the petition
without a hearing pursuant to Pa.R.Crim.P. 907.2 Appellant filed a response,
but on January 26, 2017, the PCRA court dismissed the petition as untimely
filed. Appellant pro se timely filed a notice of appeal, and both Appellant
and the PCRA court complied with Pa.R.A.P. 1925.
Our first task is to determine whether Appellant’s PCRA petition was
timely filed, as the timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super. 2011).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final unless the petition alleges, and the petitioner proves,
that an exception to the time for filing the petition is met. 42 Pa.C.S.
§ 9545. “[W]hen a PCRA petition is not filed within one year of the
expiration of direct review, or not eligible for one of the three limited
1
Appellant filed petitions on May 15, 2014, February 9, 2016, and March 22,
2016, purporting to amend his August 9, 2012 petition. Because Appellant
did not seek and obtain leave to amend his August 9, 2012 petition, his later
attempts to amend the petition had no legal effect. See Commonwealth v.
Baumhammers, 92 A.3d 708, 730 (Pa. 2014) (explaining that amendments
are not “self-authorizing;” Pa.R.Crim.P. 905 permits amendments only by
direction or leave of the PCRA court).
2
The certified record does not indicate why it took the PCRA court almost
four years to issue a Rule 907 notice. Such a long delay raises serious
questions about whether justice is being served.
-2-
J-A29038-17
exceptions, or entitled to one of the exceptions, but not filed within 60 days
of the date that the claim could have been first brought, the [PCRA] court
has no power to address the substantive merits of a petitioner’s PCRA
claims.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).
It is clear that Appellant’s petition is facially untimely: his judgment of
sentence became final in 1982. However, Appellant alleges that his petition,
filed within 60 days of the United States Supreme Court’s decision in Miller
v. Alabama, 567 U.S. 460 (2012), meets the following timeliness
exception: “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)(iii).
In Miller, the Court held “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.’” 567 U.S. at
465 (emphasis added). In Montgomery v. Louisiana, 136 S. Ct. 718
(2016), the Court determined that Miller announced a new substantive rule
of law that applies retroactively. Montgomery, 136 S. Ct. at 736.
Appellant was not under the age of 18 when he participated in the
murder of Faison. This Court has expressly held that “petitioners who were
older than 18 at the time they committed murder are not within the ambit of
the Miller decision and therefore may not rely on that decision to bring
-3-
J-A29038-17
themselves within the time-bar exception in [subs]ection 9545(b)(1)(iii).”
Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (citing
Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013)).
Because Appellant did not plead facts that would establish an
exception to the PCRA’s timeliness requirements, the PCRA court properly
dismissed Appellant’s petition without holding a hearing. See
Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming
dismissal of PCRA petition without a hearing because the appellant failed to
meet burden of establishing timeliness exception).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2017
-4-