Com. v. Henry, A. ( 2018 )

J-S76033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ANTHONY HENRY,
Appellant No. 824 EDA 2017
Appeal from the PCRA Order February 17, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1000081-1996
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 09, 2018
Appellant, Anthony Henry, appeals pro se from the order dismissing his
fourth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
We take the following facts and procedural history of this case from our
independent review of the certified record. On February 26, 1999, Appellant
was convicted by a jury of first-degree murder and abuse of a corpse. The
charges arose from Appellant’s strangulation of his then-girlfriend to death
with a telephone cord in March of 1994. Appellant was twenty-five years old
at the time of the murder. The trial court sentenced Appellant to an aggregate
term of life imprisonment.
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* Retired Senior Judge assigned to the Superior Court.
J-S76033-17
This Court affirmed the judgment of sentence on July 18, 2001. (See
Commonwealth v. Henry, 782 A.2d 1054 (Pa. Super. 2001) (unpublished
memorandum)). Our Supreme Court denied Appellant’s petition for allowance
of appeal on December 4, 2001. (See Commonwealth v. Henry, 793 A.2d
905 (Pa. 2001)). Appellant litigated three unsuccessful PCRA petitions
thereafter, filed on June 3, 2002, October 27, 2008, and October 11, 2011.
On March 14, 2016, Appellant filed the instant pro se PCRA petition,
claiming a right to relief predicated on the United States Supreme Court’s
decision in Miller v. Alabama, 132 S. Ct. 2455 (2012).1 (See PCRA Petition,
3/14/16, at 3-4, 8 (arguing that mandatory sentences of life without parole
for individuals over the age of seventeen are also unconstitutional)). The
PCRA court issued notice of its intent to dismiss the petition without further
proceedings on January 6, 2017. See Pa.R.Crim.P. 907(1). It entered its
order dismissing Appellant’s PCRA petition on February 17, 2017. This timely
appeal followed.2
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1 The Miller Court held that it is unconstitutional for states to sentence
juvenile homicide defendants to mandatory sentences of life imprisonment
without the possibility of parole. See Miller, supra at 2460. In Montgomery
v. Louisiana, 136 S. Ct. 718 (2016), the Court determined that its Miller
holding constituted a new substantive rule of constitutional law that must be
applied retroactively to cases on collateral review. See Montgomery, supra
at 736.
2 Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on May 1, 2017. The PCRA court entered an opinion
on June 22, 2017. See Pa.R.A.P. 1925.
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On appeal, Appellant argues for an extension of the precepts set forth
in Miller to adult offenders. (See Appellant’s Brief, at 3, 10-18).3
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court’s determination, and
whether the PCRA court’s determination is free of legal error. The
PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.
Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations
omitted).
We begin by addressing the timeliness of Appellant’s petition.
The PCRA provides eligibility for relief in conjunction with
cognizable claims, . . . and requires petitioners to comply with the
timeliness restrictions. . . . [A] PCRA petition, including a second
or subsequent petition, must be filed within one year of the date
that judgment becomes final. A judgment becomes final for
purposes of the PCRA 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 review.
It is well-settled that the PCRA’s time restrictions are
jurisdictional in nature. As such, this statutory time-bar implicates
the court’s very power to adjudicate a controversy and prohibits
a court from extending filing periods except as the statute
permits. Accordingly, the period for filing a PCRA petition is not
subject to the doctrine of equitable tolling; instead, the time for
filing a PCRA petition can be extended only by operation of one of
the statutorily enumerated exceptions to the PCRA time-bar.
The exceptions to the PCRA time-bar are found in Section
9545(b)(1)(i)–(iii) (relating to governmental interference, newly
discovered facts, and newly recognized constitutional rights), and
it is the petitioner’s burden to allege and prove that one of the
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3 We have summarized Appellant’s issues for ease of disposition; his brief is
difficult to follow and nearly unintelligible. However, it is clear that the crux
of his claim is that Miller must be applied in this case.
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timeliness exceptions applies. Whether a petitioner has carried
his burden is a threshold inquiry that must be resolved prior to
considering the merits of any claim. . . .
Commonwealth v. Robinson, 139 A.3d 178, 185–86 (Pa. 2016) (quotation
marks and citations omitted).
Here, Appellant’s judgment of sentence became final on March 4, 2002,
ninety days after our Supreme Court denied allowance of appeal. See U.S.
Sup.Ct. R. 13; 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had until
March 4, 2003, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1).
Because Appellant filed the instant petition on March 14, 2016, it is untimely
on its face, and the PCRA court lacked jurisdiction to review it unless he
pleaded and proved one of the statutory exceptions to the time-bar. See 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Section 9545 of the PCRA provides only three limited exceptions that
allow for review of an untimely PCRA petition:
(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.
Id.
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Any petition invoking an exception must “be filed within 60 days of the
date the claim could have been presented.” Id. at § 9545(b)(2). “If the
[PCRA] petition is determined to be untimely, and no exception has been pled
and proven, the petition must be dismissed without a hearing because
Pennsylvania courts are without jurisdiction to consider the merits of the
petition.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super. 2011),
appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).
Here, Appellant invokes the newly recognized and retroactively applied
constitutional right exception at 42 Pa.C.S.A. § 9545(b)(1)(iii), by arguing
that his life sentence should be considered unconstitutional pursuant to Miller
and Montgomery. (See Appellant’s Brief, at 10-16; see also PCRA Petition,
at 3-4, 8). We disagree.
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 themselves within
the time-bar exception in Section 9545(b)(1)(iii).” Commonwealth v.
Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (case citation omitted).
Therefore, Appellant, as an adult offender, falls outside the ambit of Miller,
and his arguments predicated on an extension of Miller and Montgomery
fail. See id.
In sum, we conclude Appellant has not met his burden of proving that
his untimely PCRA petition fits within one of the three exceptions to the PCRA’s
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time-bar. See Robinson, supra at 185-86. Accordingly, we affirm the order
of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/18
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