Com. v. Hart, T. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYREE HART,
Appellant No. 1162 EDA 2014
Appeal from the PCRA Order entered March 6, 2014,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0905971-1995
BEFORE: ALLEN, LAZARUS, and MUNDY, JJ.
MEMORANDUM BY ALLEN, J.: FILED DECEMBER 01, 2014
Tyree Hart (“Appellant”) appeals pro se from the order denying his
second petition for post-conviction relief filed pursuant to the Post Conviction
Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent facts and procedural history are as follows: On August
2, 1995, Appellant, then eighteen years of age, approached the victim on a
street corner in Philadelphia, shot him to death, and stole his wallet. On
March 17, 1997, he pled guilty to murder generally, and waived his right to
a jury trial on the charge of robbery. Thereafter, the trial court held a
degree of guilt hearing for the murder charge and a bench trial for the
robbery charge. The trial court found Appellant guilty of second-degree
murder and robbery.
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Prior to sentencing, Appellant filed a pro se motion to withdraw his
guilty plea asserting that he was innocent. Following an evidentiary hearing
on September 19, 1997, the trial court entered an order denying Appellant’s
motion to withdraw his guilty plea. That same day, the trial court sentenced
Appellant to life in prison without the possibility of parole for his murder
conviction.
Appellant filed a timely appeal to this Court, in which he argued that
the trial court abused its discretion in denying his motion to withdraw his
guilty plea. In an unpublished memorandum filed on January 25, 1999, we
rejected Appellant’s claim, and affirmed his judgment of sentence.
Commonwealth v. Hart, 736 A.2d 681 (Pa. Super. 1999). On August 12,
1999, our Supreme Court denied Appellant’s petition for allowance of appeal.
Commownealth v. Hart, 742 A.2d 672 (Pa. 1999). Appellant did not file a
petition for writ of certiorari to the United States Supreme Court.
On May 2, 2001, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel, and PCRA counsel filed a “no-merit” letter and
petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). By order entered June 24, 2002, the trial court permitted
counsel to withdraw, and dismissed Appellant’s PCRA petition. Appellant
filed a timely appeal to this Court. In an unpublished memorandum filed on
July 9, 2003, this Court affirmed the PCRA court’s denial of post-conviction
relief. Commonwealth v. Hart, 832 A.2d 537 (Pa. Super. 2003).
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Appellant did not file a petition for allowance of appeal to our Supreme
Court.
On August 10, 2012, Appellant filed a second pro se PCRA petition. By
order entered March 6, 2014, the PCRA court dismissed Appellant’s petition
as untimely filed. This appeal followed.
Our standard of review regarding an order dismissing a petition under
the PCRA is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Commonwealth v. Halley,
870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
Moreover, a PCRA court may decline to hold a hearing on the petition if the
PCRA court determines that the petitioner’s claim is patently frivolous and is
without a trace of support in either the record or from other evidence.
Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation
omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor
the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction,
we simply do not have the legal authority to address the substantive claims”
raised in an untimely petition. Id.
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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
becomes final unless the petition alleges, and the petitioner proves, an
exception to the time for filing the petition. Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
these exceptions, the petitioner must plead and prove that: “(1) there has
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
constitutional right has been recognized.” Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
invoking one of these statutory exceptions must “be filed within sixty days of
the date the claim first could have been presented.” Gamboa-Taylor, 753
A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to
the time restrictions of the PCRA must be pled in the petition, and may not
be raised for the first time on appeal. Commonwealth v. Burton, 936
A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not
raised before the lower court are waived and cannot be raised for the first
time on appeal.”).
Because Appellant did not file a petition for writ of certiorari with the
United States Supreme Court following our Supreme Court’s denial of his
allocatur petition, for PCRA purposes, Appellant’s judgment of sentence
became final ninety (90) days thereafter, on November 10, 1999. 42
Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13. Appellant filed the instant PCRA
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petition over twelve years later. As a result, his PCRA petition is patently
untimely unless he has satisfied his burden of pleading and proving that one
of the enumerated exceptions applies. See Commonwealth v. Beasley,
741 A.2d 1258, 1261 (Pa. 1999).
Appellant has failed to prove the applicability of any of the exceptions
to the PCRA’s time restrictions. Appellant contends that his PCRA falls under
the exception of subsection 9545(b)(1)(iii) because the United States
Supreme Court recognized a new constitutional right in Miller v. Alabama,
132 S. Ct. 2455 (2012). In Miller, the high court held that mandatory
sentences of life without parole “for those under the age of 18 at the time of
their crimes violates the Eighth Amendment’s prohibition against ‘cruel and
unusual punishment.’” Miller, 132 S. Ct. at 2460. Appellant asserts that the
Miller decision should be applied retroactively to his life sentence. As
recognized by the PCRA court, Appellant’s claim fails for two reasons.
First, we note that the Miller holding is inapposite because Appellant
was not a juvenile when he robbed and killed the victim. Second, even had
Appellant been a juvenile at the time, our Supreme Court has determined
that the Miller decision should not be applied retroactively. See generally,
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). Thus, Appellant
cannot avoid the PCRA’s time bar pursuant to Section 9545(b)(iii).
In sum, Appellant’s PCRA petition is facially untimely, and he has failed
to meet his burden of proof with regard to any exception to the timeliness
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requirements of the PCRA. We therefore affirm the PCRA court’s denial of
Appellant’s petition for post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2014
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