Com. v. Lamore, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DORIAN LAMORE
Appellant No. 124 WDA 2014
Appeal from the Order Entered on December 9, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0011572-1993
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED OCTOBER 27, 2014
Dorian Lamore (“Lamore”) appeals, pro se, from the December 9,
2013 order dismissing his fifth petition for relief pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. Lamore’s PCRA
petition is untimely and he has failed to satisfy any of the exceptions to the
timeliness requirements of the PCRA. Therefore, the PCRA court lacked
jurisdiction over this petition, and we affirm the PCRA court’s order
dismissing Lamore’s PCRA petition.
A previous panel of this Court summarized the factual history of this
case on direct appeal as follows:
On September 9, 1993, the victims, Mr. Puhac [“Puhac”] and Mr.
Weiss [“Weiss”] attempted to deliver a pizza to 1016 Lamont
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*
Retired Senior Judge assigned to the Superior Court.
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Street. Puhac was driving the car, and Weiss was in the
passenger seat. As Puhac drove down Lamont Street, he noticed
a small group of people sitting on the front steps of a house. He
asked them if they had ordered a pizza. They replied that they
had not, but pointed to a house behind them. Puhac then began
to back up. As he did so, [Lamore and Phillip Foxx (“Foxx”), a
co-defendant] approached the car. Lamore went to the
passenger side of the car, and Foxx went to the driver’s side.
After demanding money and the pizza, Lamore shot Weiss in the
head. Foxx then forced Puhac out of the car and again
demanded his money. Puhac instructed Foxx that it was in his
pocket, and that he could have it. Foxx took the money and
began to walk away. He subsequently turned around and shot
Puhac in the arm stating, “Here this is for you. Take this.”
Puhac ran to a nearby post office and telephoned for help. He
was then taken to the hospital.
While at the hospital, Puhac gave police detailed descriptions of
both of the attackers. The police found Foxx in an abandoned
house, along with a pizza box and a loaded semi-automatic
pistol. Lamore was at the home of his mother, and he and his
mother agreed to go to police headquarters and answer
questions about the evening’s events. Both [Lamore and Foxx]
gave the police statements.
Commonwealth v. Lamore, 60 Pitts. 1995, slip op. at 2-3 (Pa. Super. April
24, 1996). A previous panel of this Court summarized the procedural history
of this case as follows:
On June 28, 1994, a jury returned a verdict finding [Lamore]
guilty of first-degree murder and two counts of robbery,
aggravated assault, violation of the Uniform Firearms Act,
firearms not to be carried without a license, criminal conspiracy,
and recklessly endangering another person.[1] Sentencing was
deferred to allow for a presentence investigation. On July 25,
1994, [Lamore] was sentenced to life imprisonment [without the
possibility of parole for first-degree murder and] he was
sentenced at robbery, to a term of imprisonment of ten to
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1
18 Pa.C.S. §§ 2501, 3701, 2072(a)(1), 6106, 903, 2705 respectively.
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twenty years, consecutive to the sentence at [first-degree
murder]; at aggravated assault, to [a] consecutive term of
imprisonment of ten to twenty years, and at criminal conspiracy,
to a consecutive term of imprisonment of five to ten years.
[Lamore] was not sentenced on the violation of Uniform Firearms
Act and the recklessly endangering another person convictions.
On July 29, 1994, [Lamore] filed a motion for a new trial and to
modify sentence. This motion was denied by operation of law on
November 26, 1994. On December 6, 1994, [Lamore’s] attorney
was permitted to withdraw, and the Office of the Public Defender
was appointed to represent [Lamore] on appeal. [The Public
Defender] filed a notice of appeal on December 23, 1994. This
Court affirmed the judgment of sentence by Order and
Memorandum Opinion. On November 15, 1996, the
Pennsylvania Supreme Court denied [Lamore’s] petition for
allocatur.
[Lamore] filed a pro se PCRA petition on September 25, 1997.
On August 17, 1998, [PCRA counsel] filed an amended PCRA
petition on behalf of [Lamore]. [The Honorable Robert E.] Dauer
sent a notice of intention to dismiss on July 21, 1999, and [PCRA
counsel] filed her response on August 17, 1999. The petition
was dismissed without a hearing on September 16, 1999.
[PCRA] counsel filed a notice of appeal on September 24, 1999,
and this Court affirmed the order. A petition for allowance of
appeal was filed on July 28, 2000 at 454 WAL 2000 and was
denied on November 9, 2000.
On January 18, 2001, [Lamore] filed a second pro se PCRA
petition. Judge Dauer sent a notice of intention to dismiss the
petition on March 22, 2001, and Judge Dauer dismissed the
petition without a hearing on July 30, 2001. Thereafter,
[Lamore] filed a pro se notice of appeal on August 16, 2001, and
this Court affirmed.
[O]n May 3, 2005, [Lamore] filed another collateral petition, and
the Honorable Jeffrey A. Manning filed a notice of intent to
dismiss PCRA on October 4, 2005. On March 2, 2006, the lower
court denied [Lamore’s] PCRA petition.
On October 23, 2006, [Lamore] filed a petition for writ of habeas
corpus and memorandum of law. By order dated December 28,
2006, the lower court denied the petition. [Lamore], pro se,
filed a notice of appeal on January 11, 2007. On February 2,
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2007, Judge Manning filed a second order denying the petition
for writ of habeas corpus relief and subsequently another notice
of appeal was filed on February 10, 2007 challenging the denial
of the petition for writ of habeas corpus. Judge Manning filed
statements pursuant to Pa.R.A.P. 1925(a) on March 28, 2007,
May 1, 2007, and July 31, 2007.
Commonwealth v. Lamore, 373 WDA 2007, slip op. at 1-4 (Pa. Super.
Jan. 23, 2008) (footnotes omitted; minor modifications to capitalization and
grammar). On January 23, 2008, this Court affirmed the denial of the writ
of habeas corpus.
On July 31, 2012, Lamore filed the instant PCRA petition. On
November 18, 2013, the PCRA court issued a notice of its intent to dismiss
Lamore’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907 and
dismissed the petition on December 9, 2013. On January 8, 2014, Lamore
filed a notice of appeal. Lamore filed a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) on February 13,
2014. On May 16, 2014, the PCRA court issued a memorandum opinion
pursuant to Pa.R.A.P. 1925(a).
Lamore raises the following issues on appeal:
1. Did the PCRA court commit an error of law by fail[ing] to
grant new proceedings that would determine a legal sentence
for Petitioner in accordance with retroactive principles of the
decision in Miller v. Alabama, [132 S. Ct. 2455 (2012)]
that held a state’s statute which imposed a mandatory life
sentence penalty without the option considered for parole
eligibility upon a juvenile offender violates the United States
Constitution’s Eighth and Fourteenth Amendments?
2. Has the PCRA court committed an error of law that denied
due process of equal protection under the law for the
Petitioner to seek redress from discriminated exercise under
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the United States Constitution’s Eighth and Fourteenth
Amendments, as well as his rights guaranteed under the
Pennsylvania Constitution, Article I, Sections 1, 9, 13, 14, and
26?
Lamore’s Brief at vi.
Our standard of review for PCRA claims is well settled:
Our standard of review of the denial of a PCRA petition is limited
to examining whether the court’s determination is supported by
the evidence of record and free of legal error. This Court grants
great deference to the findings of the PCRA court if the record
contains any support for those findings. Further, the PCRA
court’s credibility determinations are binding on this Court,
where there is record support for those determinations.
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)
(citations omitted).
Under the PCRA, a claim must be filed within one year after the
petitioner’s judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1).
“[A] judgment becomes final 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.” 42 Pa.C.S. § 9545(b)(3). Lamore’s judgment of sentence became
final on or about February 15, 1998. Therefore his PCRA petition is facially
untimely.
However, there are exceptions to the time bar:
(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;
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(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)(i-iii). A petitioner has sixty days from the date that
the claim could have been presented to file a PCRA petition. 42 Pa.C.S.
§ 9545(b)(2). In order to invoke an exception to the timeliness
requirements of the PCRA, a petitioner has the burden of proof to
demonstrate that an exception applies. 42 Pa.C.S. § 9545(b)(i). The
timeliness of a PCRA petition is jurisdictional, and courts are prohibited from
considering the merits of untimely PCRA petitions. Commonwealth v.
Murray, 753 A.2d 201, 203 (Pa. 2000), abrogated on other grounds,
Commonwealth v. Brown, 943 A.2d 264 (Pa. 2008).
Lamore argues in his petition that the new constitutional right
exception to the time bar applies. Lamore’s Brief at 2-3. Specifically,
Lamore alleges that his sentence is in violation of the United States Supreme
Court’s decision in Miller v. Alabama, and that his petition is timely based
upon Miller, itself. Our Supreme Court has stated that there are two
requirements that must be met in order for a petition to fall under this time
bar exception.
First, it provides that 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
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in [the PCRA]. Second, it provides that the right “has been held”
by “that court” to apply retroactively. Thus, a petitioner must
prove that there is a “new” constitutional right and that the right
“has been held” by that court to apply retroactively. The
language “has been held” is in the past tense. These words
mean that the action has already occurred, i.e. “that court” has
already held the new constitutional right to be retroactive in
cases on collateral review. By employing the past tense in
writing this provision, the legislature clearly intended that the
right was already recognized at the time the petition was filed.
Commonwealth v. Copenhefer, 941 A.2d 646, 649-50 (Pa. 2007).
In the present case, Lamore has failed to present a timely PCRA
petition based upon a constitutional right newly recognized either by the
Supreme Court of the United States or the Supreme Court of Pennsylvania.
Lamore bases the timeliness argument of his petition upon the United States
Supreme Court’s decision in Miller v. Alabama. In Miller, the Supreme
Court held that mandatory life sentences without the possibility of parole for
juvenile offenders are in violation of the Eighth Amendment prohibition
against cruel and unusual or excessive punishment. Miller, 132 S. Ct. at
2469. The Court declined to address whether its holding applied
retroactively to sentences administered prior to the Court’s ruling.
Nonetheless, our Supreme Court has held that Miller’s mandate does
not apply retroactively. Commonwealth v. Cunningham, 81 A.3d 1, 10-
11 (Pa. 2013). Indeed, as we explained in Commonwealth v. Seskey, 86
A.3d 237, 243 (Pa. Super. 2014):
Recently, in Cunningham, our Supreme Court held that the
constitutional right announced by the United States Supreme
Court in Miller does not apply retroactively. 81 A.3d at 10.
Consequently, [a]ppellant cannot rely upon Miller or subsection
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9545(b)(iii) to establish jurisdiction over his untimely PCRA
petition in any Pennsylvania court. Hence, we lack the
jurisdiction to review the merits of [a]ppellant’s issues . . . .
Id. at 243.
The same principle that applied to Seskey applies to Lamore. Because
Miller was decided long after Lamore’s judgment of sentence became final,
Lamore has failed to prove that subsection 9545(b)(1)(iii) applies to his
case. Therefore, the PCRA court lacked jurisdiction to entertain his petition,
and further review of the issues that he raised is unnecessary. We affirm
the PCRA court’s order dismissing Lamore’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2014
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