Com. v. Ricketts, C. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES RICKETTS
Appellant No. 2820 EDA 2016
Appeal from the PCRA Order dated July 21, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0025181-1993
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
MEMORANDUM BY SOLANO, J.: FILED MAY 09, 2017
Appellant Charles Ricketts appeals pro se from the order dismissing as
untimely his second petition filed pursuant to the Post Conviction Relief Act,
42 Pa.C.S. §§ 9541-46. We affirm.
On March 14, 1994, Appellant pleaded guilty to second-degree murder
and was sentenced to life imprisonment without parole. Appellant was
twenty years old at the time of the murder.
Appellant did not file a direct appeal. On August 22, 2012, Appellant
filed an untimely pro se PCRA petition in which he relied on Miller v.
Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012) (holding that sentences of
mandatory life imprisonment without parole imposed upon juveniles who
were under the age of 18 at the time they committed murder are
unconstitutional). The PCRA court appointed counsel, who filed a
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Turner/Finley' "no merit" letter and motion to withdraw. On January 9,
2013, the court dismissed Appellant's PCRA petition and granted counsel's
motion to withdraw. This Court affirmed, agreeing with the PCRA court that
Appellant's petition was untimely and that Appellant failed to properly plead
an exception to the PCRA's time bar. See Commonwealth v. Ricketts,
588 EDA 2013, at 4 (Pa. Super. Sept. 5, 2013) (unpublished memorandum),
appeal denied, 85 A.3d 483 (Pa. Feb. 12, 2014). We explained that
Appellant could not rely on the newly -recognized constitutional right
exception, 42 Pa.C.S. § 9545(b)(1)(iii):
[T]he Miller Court recognized a constitutional right for juveniles
under the age of eighteen, 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 unusable punishments.' Miller, [132 S. Ct.] at 2460
(emphasis added). Here, Appellant concedes that he was twenty
years old at the time he committed the crime of second-degree
murder. . . Therefore, the holding in Miller does not create a
.
newly -recognized constitutional right that can serve as the basis
for relief for Appellant. See 42 Pa.C.S.A. § 9545(b)(1)(iii);
Miller, supra at 2460.
Id. at 7-8 (footnote omitted).2 The Supreme Court of Pennsylvania denied
Appellant's petition for allowance of appeal.
1 Commonwealth v. Turner,
See 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2
In a footnote, we also noted that at that time, Miller had not been held to
apply retroactively. See 588 EDA 2013 at 8 n.7. However, this was not the
primary rationale for our decision.
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On March 25, 2016, Appellant filed the pro se petition before us,
seeking relief under Montgomery v. Louisiana, 136 S. Ct. 718 (2016), in
which the Supreme Court held that Miller v. Alabama applied retroactively
to cases on collateral review. On May 25, 2016, the Commonwealth filed an
Answer and Motion to Dismiss Appellant's Petition. On June 9, 2016, the
PCRA court sent Appellant a notice pursuant to Pa.R.Crim.P. 907, stating its
intent to dismiss his petition without a hearing.3 Appellant did not file a
response to the Rule 907 notice. On July 21, 2016, the PCRA court
dismissed the petition.
Appellant filed a notice of appeal that was docketed on August 26,
2016. By order entered October 18, 2016, this Court directed Appellant to
show cause why his appeal should not be quashed as untimely. Appellant
filed a response asserting that his appeal was timely filed on August 18,
2016. On December 1, 2016, this Court discharged the show -cause order
and deferred resolution of the timeliness issue to this panel.
On December 9, 2016, Appellant filed his brief, in which he raises the
following issues:
I. the lower court err in not granting a hearing to
Did
Appellant to determine if mandatory life -without -parole terms for
individuals 18 to 25 years of age in homicide cases violates the
Equal Protection Clauses under the United States Constitution
3 The PCRA court initially sent the Rule 907 notice to Appellant on June 1,
2016, using the wrong inmate number. After the notice was returned to the
court, a new notice, with the proper inmate number, was mailed to Appellant
on June 9, 2016. PCRA Ct. Op., 10/20/16, at 2 n.1.
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Fourteenth Amendment and the Pennsylvania Constitution's
Article Section 25?
II. Did the lower court err in not granting a hearing to
Appellant to determine if mandatory life -without -parole terms for
individuals 18 to 25 years of age in homicide cases violates the
Cruel and Unusual Punishment Clauses under the United States
Constitution's Eighth Amendment and Pennsylvania
Constitution's Article I Section 13?
III. Did the lower court err when it did not grant a hearing to
Appellant to determine if mandatory life -without -parole terms for
individuals 18 to 25 years of age in homicide cases violates the
United States Constitution Fourteenth Amendment's Due Process
rights when the fact finders were not allowed to consider age as
an element of the crime for sentencing purposes?
Appellant's Brief at 2 (excess capitalization removed).
Timeliness of this Appeal
Before we address Appellant's issues, we must determine whether
Appellant timely filed his notice of appeal. See Commonwealth v. Cooper,
710 A.2d 76, 78 (Pa. Super. 1998) (holding this Court must address
timeliness of appeal sua sponte because it implicates our jurisdiction).
In order for this Court to have jurisdiction, Appellant's notice of appeal
must have been filed within thirty days of the PCRA court's order disposing
of Appellant's PCRA petition. See Pa.R.A.P. 903(a) (time for appeal);
Cooper, 710 A.2d at 78 (court lacks jurisdiction if notice of appeal is not
timely filed). Under the "prisoner mailbox rule," a pro se prisoner's notice of
appeal is deemed filed "on the date that the appellant deposits the appeal
with prison authorities and/or places it in the prison mailbox."
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997). Where the facts
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concerning the timeliness of a notice of appeal are in dispute, a remand for
an evidentiary hearing may be necessary. Id. at 426 n.3. "Where,
however, the opposing party does not challenge the timeliness of the appeal
and the prisoner's assertion of timeliness is plausible, we may find the
appeal timely without remand." Cooper, 710 A.2d at 79 (citing Jones, 700
A.2d at 426 n.3).
In Cooper, the proof of service for the notice of appeal stated that the
notice was timely filed, and the court received the notice two days after the
thirty -day period expired. Cooper, 710 A.2d at 79. Further, neither party
raised the issue of the timeliness of the appeal. Id. This Court held that,
under those circumstances, there was "plausible" evidence that the notice
was timely, and we therefore could address the merits of the appeal. Id.;
see also Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa. Super.
2007) (deeming appeal timely based on the date on the notice of appeal and
the fact that the court received it three days after the thirty -day period
expired).
In this case, the PCRA court's order dismissing Appellant's petition was
docketed on July 21, 2016. Because the 30th day fell on Saturday,
August 20, 2016, Appellant had until Monday, August 22, 2016, to file a
timely notice of appeal. See 1 Pa.C.S. § 1908 ("Whenever the last day of
any [period of time referred to in any statute] shall fall on Saturday or
Sunday . . . such day shall be omitted from the computation"). According to
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the trial court docket, Appellant's notice of appeal was filed on August 26,
2016, four days late. However, the Commonwealth does not challenge the
timeliness of this appeal. The notice of appeal and accompanying certificate
of service are dated August 18, 2016, which is within the thirty -day filing
period. Moreover, in his response to our rule to show cause, Appellant
provided evidence of a deduction from his prison account for postage on
August 18, 2016. Under these circumstances, we hold that there is
"plausible" evidence that Appellant timely mailed his notice of appeal. See
Jones, 700 A.2d at 426; Cooper, 710 A.2d at 79. We therefore will not
quash the appeal on that basis.
Timeliness of Appellant's PCRA Petition
The PCRA court dismissed Appellant's petition as untimely.
This Court's standard of review regarding an order dismissing a
petition under the PCRA is to determine whether the
determination of the PCRA court is supported by the evidence of
record and 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. Hill, 149 A.3d 362, 364-65 (Pa. Super. 2016) (citation
and internal quotation marks omitted).
We have explained:
The timeliness of a post -conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.
2013). 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 is final unless the petition alleges and the
petitioner proves one of the three exceptions to the time
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limitations for filing the petition set forth in Section 9545(b)(1)
of the statute. See 42 Pa.C.S. § 9545(b).
Commonwealth v. Furgess, 149 A.3d 90, 92 (Pa. Super. 2016) (footnote
omitted).
Appellant's judgment of sentence became final on April 13, 1994 See
Ricketts, 588 EDA 2013 at 4. The instant petition is therefore untimely,
unless Appellant can satisfy an exception to the PCRA's time bar. In his
petition, Appellant relied on Section 9545(b)(1)(iii), which applies when "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).
Appellant asserts that Miller v. Alabama, made retroactive by
Montgomery v. Louisiana, recognized a new constitutional right sufficient
to overcome the PCRA's time bar. He avers that, although he was twenty
years old when he committed murder, and "although the United States
Supreme Court dealt with the diminished culpability of those under 18 years
of age[,] it is evident that the Court's rationales and conclusions should be
equally applied in this case." Appellant's Brief at 5.
We have already held that because Appellant was twenty years old
when he committed the murder, "the holding in Miller does not create a
newly -recognized constitutional right that can serve as the basis for relief for
Appellant." Ricketts, 588 EDA 2013 at 7.
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Montgomery, which was decided after our consideration of
Appellant's first PCRA petition, does not change the fact 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)." Furgess, 149 A.3d at 94. Thus, the PCRA court correctly
dismissed Appellant's PCRA petition as untimely.
Order affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/9/2017
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