Com. v. Buli, R. ( 2015 )

J-S54023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
BULI, ROBERT RUSSELL
Appellant No. 3438 EDA 2014
Appeal from the PCRA Order November 7, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001294-1978
BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED OCTOBER 21, 2015
Appellant, Robert Russell Buli, appeals from the order dismissing as
untimely his petition pursuant to the Post Conviction Relief Act (“PCRA”). As
we conclude that none of the arguments raised by Buli fall outside the ambit
of existing Pennsylvania case law, we affirm.
On November 15, 1979, the trial court sentenced Buli to a mandatory
term of life in prison without possibility of parole after he was convicted of
first degree murder and conspiracy.1 It is undisputed that at the time of the
murder, Buli was under 18 years old.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Buli had pled guilty to an open charge of homicide, and was convicted of
first degree murder after a degree of guilt hearing.
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In 2010, Buli filed a PCRA petition asserting that his sentence was
illegal under Graham v. Florida, 130 S. Ct. 2011 (U.S. 2010). The PCRA
court dismissed Buli’s petition as untimely on December 23, 2010. This
Court affirmed the PCRA court on December 5, 2011.
On July 18, 2012, Buli filed the instant PCRA petition. Buli once again
argued that his sentence was illegal, this time under Miller v. Alabama,
132 S. Ct. 2455 (U.S. 2012) (holding that automatic sentences of life without
parole imposed upon juveniles are unconstitutional). Counsel was appointed
to represent Buli and, by agreement of the parties, the PCRA court deferred
addressing Buli’s petition pending the decision of the Supreme Court of
Pennsylvania in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013),
which addressed the retroactivity of the Miller decision.
After the Supreme Court of Pennsylvania held that Miller is not
retroactive, the PCRA court dismissed Buli’s petition as untimely. This timely
appeal followed.
It is undisputed on appeal that the instant petition is facially untimely.
“PCRA timeliness requirements are jurisdictional in nature and, accordingly,
a court cannot hear untimely PCRA petitions.” Commonwealth v.
Flanagan, 854 A.2d 489, 509 (Pa. 2004) (citations omitted). Thus, Buli
was required to plead and prove that an exception to the PCRA time-bar
applied. See Commonwealth v. Pursell, 749 A.2d 911, 914-915 (Pa.
2000).
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Buli contends that he successfully pled the existence of a newly
recognized and retroactively applied constitutional right. The PCRA provides
an exception to the one-year filing requirement 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 provided in
this section [has expired, and] ‘has been held’ by that court to apply
retroactively.” Commonwealth. v. Abdul-Salaam, 812 A.2d 497, 501
(2002). He asserts that Miller created a newly recognized constitutional
right against mandatory sentences of life in prison held by minors.
Furthermore, he asserts that this right is retroactive in nature.
In support of these assertions, Buli raises several arguments on
appeal. First, he argues that in Jackson v. Hobbs, a companion case to
Miller and disposed of in the Miller opinion, establishes that the right
announced in Miller is retroactive in nature. The Supreme Court of
Pennsylvania has explicitly rejected this argument. See Cunningham, 81
A.3d at 9 (“we reject Appellant’s position that the Miller Court’s reversal of
the state appellate court decision affirming the denial of post-conviction
relief in the Jackson case compels the conclusion that Miller is
retroactive”). We therefore conclude that this argument merits no relief.
Next, Buli contends that the Supreme Court of Pennsylvania erred in
Cunningham. We, however, are bound by the decisions of the Supreme
Court of Pennsylvania and cannot overrule the explicit holding of
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Cunningham, even if we disagreed with its reasoning. See Eckman v.
Erie Ins. Exchange, 21 A.3d 1203, 1207 (Pa. Super. 2011) (Superior Court
is bound by existing precedent). Buli is free to seek review of this issue
before the Pennsylvania Supreme Court and present this argument there.
Buli also argues that the United States District Court for Eastern
District of Pennsylvania has held that the right announced in Miller is
retroactive in nature. See Songster v. Beard, 35 F.Supp.3d. 657 (E.D. Pa.
2014). We are “not bound by decisions of federal courts, other than the
United States Supreme Court[.]” Eckman, 21 A.3d at 1207 (citation
omitted). Furthermore, as noted above, the PCRA specifically provides that
the only forums that can establish retroactivity are the Supreme Court of the
United States and the Supreme Court of Pennsylvania. As the United States
Supreme Court has not explicitly addressed the issue, and the Pennsylvania
Supreme Court has explicitly held to the contrary, Songster cannot satisfy
the requirement of retroactivity under the PCRA.
Finally, Buli argues that the Cunningham Court left open the question
of whether Miller is retroactive under Pennsylvania law as opposed to
federal law. While the Cunningham Court refused to address this issue as
the appellant had failed to brief it in detail, the Court emphasized the value
of finality of judgments to the court system. See Cunningham, 81 A.3d at
9. In any event, as noted above, under the PCRA this Court cannot
recognize a right as retroactive in the first instance; we must await for such
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a pronouncement from either United States Supreme Court or the
Pennsylvania Supreme Court. We therefore conclude that Buli’s final
argument merits no relief.
As Buli has failed to establish that the PCRA court erred in concluding
that the timeliness exception contained in section 9545(b)(iii) did not apply,
we affirm the order of the PCRA court.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2015
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