Com. v. Pritchard, A. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ALPHONSE JOHN PRITCHARD,
Appellant No. 1265 EDA 2016
Appeal from the PCRA Order Entered June 2, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005339-1976
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 20, 2017
Appellant, Alphonse John Pritchard, appeals pro se from the order
dismissing, as untimely, his petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we
affirm.
Appellant’s conviction for first-degree murder and related offenses
stems from a homicide he committed with the assistance of two co-
conspirators on August 12, 1976. Pursuant to a scheme to capitalize on a
life insurance policy, Appellant
struck the victim twice about the head with an ax, strangled the
victim with electrical cord, and then continued his strangulation
efforts with a heavier type cord after the thinner electrical cord
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*
Former Justice specially assigned to the Superior Court.
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broke. [Appellant] [and one of his co-conspirators,] after
making efforts to clean the scene of the murder[,] transported
and discarded the victim's body in the state of Delaware along a
rural road.
PCRA Court Opinion (“PCO”), 10/18/16, at 1 n.2.
A jury trial was held in January and February of 1977. On February 5,
1977, the jury found Appellant guilty of first-degree murder, possessing an
instrument of crime, and criminal conspiracy.1 On February 2, 1978, the
trial court sentenced Appellant to a mandatory term of life imprisonment
without the possibility of parole (“LWOP”) for first-degree murder. The trial
court also sentenced Appellant to a concurrent, aggregate term of 5-10
years’ incarceration for the remaining offenses, which has long since
expired.
Appellant filed an unsuccessful direct appeal, the procedural history of
which is not germane to the current matter.2 Appellant then filed his first
post-conviction collateral petition on March 17, 1981.3 That petition was
dismissed by the PCHA court in 1982. See Opinion and Order, 2/8/82, at 4.
This Court affirmed that order on August 10, 1984. See Commonwealth v.
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1
See 18 Pa.C.S. §§ 2502(a), 907, and 903, respectively.
2
See Commonwealth v. Pritchard, 411 A.2d 810 (Pa. Super. 1979).
Although the record indicates that Appellant’s subsequent allocatur petition
to our Supreme Court was denied in 1980, we are unable to locate a citation
for that decision.
3
Appellant’s first collateral petition was filed pursuant to the Pennsylvania
Post Conviction Hearing Act (“PCHA”), the predecessor to the PCRA.
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Pritchard, No. 538 Philadelphia 1982 (Pa. Super. 1983) (unpublished
memorandum). Our Supreme Court denied Appellant’s subsequent allocatur
petition on February 15, 1985. See Commonwealth v. Pritchard, No. 530
ED Allocatur Docket 1984 (Pa. 1985).
The instant matter began when Appellant filed a pro se PCRA petition
on August 15, 2012. Appellant was initially appointed PCRA counsel,
Stephen D. Molineux, Esq., but Attorney Molineux sought to withdraw his
appearance pursuant to Commonwealth v. Finley, 481 U.S. 551 (1987),
and Commonwealth v. Turner, 544 A.2d 927 (1988), by filing a no-merit
letter with the PCRA court. By order dated January 13, 2014, the PCRA
court both granted Attorney Molineux’s petition to withdraw pursuant to
Turner/Finley, and notified Appellant of its intent to dismiss his petition
without a hearing pursuant to Pa.R.Crim.P. 907. Appellant filed a timely
response to the court’s Rule 907 notice, but the court ultimately denied his
PCRA petition on June 2, 2014. See Order, 6/2/14, at 1-2. Appellant filed a
pro se notice of appeal from that order on April 22, 2016.4 Appellant then
filed a timely, court-ordered Pa.R.A.P. 1925(b) statement on May 25, 2016.
The PCRA court issued its Rule 1925(a) opinion on October 18, 2016.
Appellant now presents the following questions/issues for our review:
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4
The timeliness of this filing is discussed, infra.
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I. Did Appellant’s filing of [his PCRA petition] meet the
burden of … pleading and proving exceptions to the
[PCRA’s] time bar rule of 60 days?
II. Appellant argues Fourteenth Amendment equal protection
rights of first impression. Should Appellant receive the
benefit of the change in the new law like other similarly-
situated individuals when the repealed statute enacted a
lesser sentence [than] life imprisonment?
III. Miller v. Alabama[, 132 S. Ct. 2455 (2012),] is now ruled
to be retroactive.
Appellant’s Brief at 3 (unnecessary capitalization, quotation marks, and
emphasis omitted).
We begin by addressing the timeliness of Appellant’s notice of appeal,
filed nearly two years after the denial of his petition. This Court issued an
order directing Appellant “to show cause, within ten days of the date that
this Order is filed, why this appeal should not be quashed as untimely filed
on April 22, 2016 from the denial of the petition for post-conviction relief on
June 2, 2014. See Pa.R.A.P. 105(b); Pa.R.A.P. 903(a).” See Order to Show
Cause, 5/4/16, at 1 (single page). Rule 903(a) provides that, “[e]xcept as
otherwise prescribed by this rule, the notice of appeal required by Rule 902
(manner of taking appeal) shall be filed within 30 days after the entry of the
order from which the appeal is taken.” Pa.R.A.P. 903(a). Rule 105(b)
provides that:
An appellate court for good cause shown may upon application
enlarge the time prescribed by these rules or by its order for
doing any act, or may permit an act to be done after the
expiration of such time, but the court may not enlarge the time
for filing a notice of appeal, a petition for allowance of appeal, a
petition for permission to appeal, or a petition for review.
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Pa.R.A.P. 105(b).
Appellant filed a timely pro se response to the order to show cause on
May 9, 2016. See Response to Order to Show Cause, 5/9/16, at 1-2. In
that filing, Appellant argued that his failure to file a timely appeal from the
PCRA court’s order was excusable because he never received a copy of the
PCRA court’s June 2014 order denying his petition.
In its opinion, the PCRA court acknowledges that it was court error
that led to Appellant’s failure to initially file a timely notice of appeal:
On June 2, 2014, this court entered an order dismissing
[Appellant]'s PCRA action. See Order dated June 2, 2014. A
review of the record at bar reveals that this order (June 2, 2014)
was docketed on June 3, 2014, by the Delaware County Office of
Judicial Support. See AOPC Docket[;] See Pa.R.Crim.P.
114(A)(1). Although the docket reveals that the judicial support
office timely forwarded a copy of this court's June 2, 2014,
dismissal order20 to [Appellant] on June 3, 2016, through first
class United States mail, a review of the order's corresponding
"File Recipient List" details that the dismissal order was not sent
to [Appellant]'s correct address. See Dismissal Order dated
June 2, 2014, and Attached File Recipient List. Even though
[Appellant] was previously sentenced to life without parole and
incarcerated at SCI Graterford, the Delaware County Office of
Judicial Support forwarded this court's June 2, 2014, dismissal
order to [Appellant]'s residential Illinois address listed on the
docket from 1975. (Such confusion surrounding [Appellant]'s
mailing address at this court's urging has since been remedied.)
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Although not this court's direct obligation, it did
promptly forward [Appellant] copies of the dismissal order
on June 2, 2016, by both regular mail and prepaid certified
mail. On the certified mail's confirmation card being
returned to this court, the same evidenced [Appellant] did
not receive a copy of the order as SCI Graterford mailroom
staff refused to accept such correspondence due to
[Appellant]'s inmate number being incorrectly listed.
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Recognizing [Appellant] was neither properly nor timely
advised this court had entered an order dismissing his collateral
motion, the time period for his lodging of a notice of appeal from
this dismissal order should not be seen as then having
commenced. Therefore, [Appellant]'s present appeal should be
deemed "timely" filed as the otherwise inexplicable actions of the
Delaware County Judicial Support Office in "serving" [Appellant]
with the June 2014 dismissal order by mailing it to a residential
address noted of-record in 1976, although the same record
unquestionably reflects his first degree murder conviction and
related life imprisonment sentence, is the type of systematic
breakdown warranting the pending appeal proceeding nunc pro
tunc.
PCO at 10-11 (some footnotes omitted).
We agree with the PCRA court. Generally speaking, “the [C]ourt may
not enlarge the time for filing a notice of appeal[.]” Pa.R.A.P. 105(b).
However, we will we “address[] an untimely appeal [if] it [is] shown that [a]
breakdown of the processes of the trial court caused the appeal to be
untimely.” Commonwealth v. Khalil, 806 A.2d 415, 420 (Pa. Super.
2002). As conceded by the PCRA court, and through no fault of Appellant,
the Delaware County Office of Judicial Support failed to serve Appellant with
a copy of the June 2014 order. Instead, it sent one copy of that document
to the location of Appellant’s residence in 1975. It sent the other copy to
the prison where Appellant currently resides, but it used an incorrect inmate
number for Appellant, causing the prison to reject the mail. This breakdown
directly led to Appellant’s failure to comply with Rule 903(a). The first time
Appellant became aware of the June 2014 order was in the PCRA court’s
February 16, 2016 response to Appellant’s subsequently filed supplemental
motions. However, that correspondence “did not provide [Appellant] with
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the requisite recitation of his appeal rights[.]” PCO at 11 n.22. Accordingly,
the PCRA court advises that Appellant’s April 22, 2016 notice of appeal was
“dutiful[ly]” filed in light of the circumstances. We also agree with the PCRA
court in this regard.
Consequently, we conclude that Appellant’s failure to file a timely
appeal from the June 2, 2014 order dismissing his PCRA petition was directly
caused by a “breakdown of the processes of the [PCRA] court[,]” and that
Appellant filed his notice of appeal with due diligence after first learning of
that order. Khalil, 806 A.2d at 420. As such, we will address Appellant’s
appeal despite its untimely filing. Id.
Thus, we now turn to consider the dismissal of Appellant’s PCRA
petition. This Court's standard of review regarding an order denying 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. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). Our first
consideration is the timeliness of Appellant's petition, because the PCRA time
limitations implicate our jurisdiction and may not be altered or disregarded
in order to address the merits of a petition. Commonwealth v. Bennett,
930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-
conviction relief, including a second or subsequent one, must be filed within
one year of the date the judgment of sentence becomes final, unless one of
the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
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(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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 one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant’s PCRA petition is patently untimely – his sentence became
final in 1980, 37 years ago. Accordingly, Appellant must avail himself of one
of the Section 9545(b)(1) timeliness exceptions to be entitled to
consideration of the merits of the claim(s) raised in his petition. Here,
Appellant concedes the untimeliness of his petition, but argues that he
meets the new retroactive right exception set forth in Section
9545(b)(1)(iii), and that he satisfied the 60-day rule of Section 9545(b)(2).
As to the latter, Appellant is correct. Appellant’s claim relies on the
Miller decision, which was decided on June 25, 2012. Appellant filed his
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current PCRA petition on August 15, 2012, well within 60 days of the Miller
decision. Accordingly, Appellant’s Miller-based retroactivity claim satisfied
Section 9545(b)(2).
We must now turn to Section 9545(b)(1)(iii), to determine if the
Miller decision is retroactive, and whether it applies to Appellant. The
Supreme Court of the United States (“SCOTUS”) established a new
constitutional right in Miller by holding “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.’” Miller, 132
S. Ct. at 1260. Moreover, in Montgomery v. Louisiana, 136 S. Ct. 718,
735–36 (2016), SCOTUS clarified that Miller applies retroactively. The only
remaining question, therefore, is whether Appellant is in the class of
individuals entitled to relief under Miller.
By the nature of his arguments, Appellant implicitly concedes that he
was not under the age of 18 at the time of his crime. Appellant’s Brief at 12.
Indeed, the PCRA court indicates that Appellant was 26 years old when he
murdered the victim. PCO at 16 n.25. Nevertheless, Appellant asserts that
he is being denied equal protection of the law. Specifically, Appellant
believes he is a member of a distinct class (prisoners serving LWOP
sentences), and that “to give parole to part of the ‘class’ and not to all the
‘class,’ is a violation of the Equal Protection Clause.” Appellant’s Brief at 19.
It is therefore clear that Appellant is not seeking direct application of Miller
to his case, as Miller, by its own terms, applies only to juveniles sentenced
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to LWOP. Instead, Appellant is attempting to extend the holding in Miller to
an entirely different class of prisoners with LWOP sentences and,
particularly, to the very same class excluded by the Miller decision – adults
sentenced to LWOP.
Appellant’s argument appears even weaker than those made by the
petitioners in Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super.
2013). In Cintora, the co-appellants, who were 19 and 21 years old at the
time of their crimes, argued that Miller applied to them because a human
brain does not fully develop until the age of 25, and because “it would be a
violation of equal protection for the courts to treat them[,] or anyone else
with immature brains, as adults.” Cintora, 69 A.3d at 764. This Court
rejected these claims, stressing that the co-appellants' “contention that a
newly-recognized constitutional right should be extended to others does not
render their petition timely pursuant to section 9545(b)(1)(iii).” Id.
We recently reaffirmed Cintora's holding in Commonwealth v.
Furgess, 149 A.3d 90 (Pa. Super. 2016). There, the appellant, who was 19
years old when he committed his crimes, argued that he “may invoke Miller
because he was a ‘technical juvenile’” based on “neuroscientific theories
regarding immature brain development….” Furgess, 149 A.2d at 94.
Relying on Cintora, we reiterated 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).” Id.
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Here, Appellant does not even attempt to allege that he is similarly
situated with respect to the class of juvenile LWOP offenders affected by
Miller beyond the sentence itself, reflecting a severe misunderstanding of
the import of Miller, which was justified exclusively on issues pertaining to
the immaturity of juveniles in relation to the permanence of LWOP
sentences. The Miller Court did not rule that LWOP sentences, generally,
violate the Eighth Amendment; indeed, the Miller Court did not even hold
that mandatory LWOP sentences violate the Eighth Amendment. Instead,
the Miller Court ruled that it was cruel and unusual punishment to impose
mandatory LWOP sentences on juveniles. It is by definition, then, that
Appellant is not entitled to relief under Miller. Therefore, like the petitioners
in Cintora and Furgess, Appellant cannot satisfy the time-bar exception set
forth in Section 9545(b)(1)(iii). Accordingly, we conclude that the PCRA
court did not err when it dismissed Appellant’s PCRA petition as being time-
barred.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2017
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