Com. v. Chambers, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MAURICE CHAMBERS
Appellant No. 852 MDA 2014
Appeal from the PCRA Order March 17, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000910-1997
BEFORE: OTT, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED OCTOBER 07, 2014
Maurice Chambers appeals pro se from the order entered on March 17,
2014, in the Court of Common Pleas of Luzerne County, dismissing, as
untimely, his fourth petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Chambers claims his petition satisfies a
9545(b)(1)(iii) (newly-recognized constitutional right exception), and in
support cites two United States Supreme Court cases, Alleyne v. United
States, 133 S. Ct. 2151 (2013), and Miller v. Alabama, 132 S. Ct. 2455(2012). Based upon the following, we affirm.
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On October 27, 1997, Chambers was found guilty by a jury of second
degree murder, robbery, and two counts of criminal conspiracy (robbery).1
On December 5, 1997, he was sentenced to a term of life imprisonment on
the count of second degree murder, and a concurrent term of five to ten
2
On direct appeal, this
Court affirmed the judgment of sentence, and the Pennsylvania Supreme
Commonwealth
v. Chambers, 742 A.2d 201 (Pa. Super. 1999) (unpublished memorandum),
appeal denied, 749 A.2d 466 (Pa. 2000). On October 2, 2000, the United
on for certiorari.
Commonwealth v. Chambers, 531 U.S. 853 (2000).
On February 5, 2001, Chambers filed his first pro se PCRA petition.
Counsel was appointed and an amended petition was filed on November 25,
2002. The PCRA court denied relief on June 12, 2003. Chambers filed a
timely appeal with this Court and, in a published opinion, filed on May 17,
2004, this Court affirmed the order of the PCRA court. Commonwealth v.
Chambers, 852 A.2d 1197 (Pa. Super. 2004). The Pennsylvania Supreme
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1
See 18 Pa.C.S §§ 2501(a), 3701(a)(1)(i), 903(a)(1), and 903(a)(2),
respectively.
2
The robbery count merged with the count for second degree murder, and
the two counts of conspiracy merged for purposes of sentencing.
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Court denied Chamb
Commonwealth v. Chambers, 871 A.2d 188 (Pa. 2005).
On October 12, 2007, Chambers filed his second pro se PCRA petition.
On October 20, 2009, the court dismissed the petition as untimely. On
appeal, this Court affirmed the denial of PCRA relief, and the Pennsylvania
Commonwealth v. Chambers, 11 A.3d 1026 (Pa. Super. 2010)
(unpublished opinion), appeal denied, 21 A.3d 1189 (Pa. 2011).
On April 24, 2012, Chambers filed a third PCRA petition, which was
dismissed by the PCRA court on December 10, 2012. This Court, by per
3
curiam
petition for
allowance of appeal on October 17, 2013. Commonwealth v. Chambers,
77 A.3d 1258 (Pa. 2013).
his third PCRA petition was still pending, Chambers filed the present petition,
citing Miller v. Alabama, supra. The PCRA court ordered that the petition
be held in abeyance until return of the record. See PCRA Court Order,
5/30/2013. On July 15, 2013, Chambers filed a petition to amend his PCRA
petition, citing Alleyne, supra. Subsequently, on January 29, 2014, the
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3
See Commonwealth v. Chambers, 288 MDA 2013.
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PCRA court issued notice of intention to dismiss pursuant to Pa.R.Crim.P.
907. Following the filing of objections by Chambers, the PCRA court
dismissed his PCRA petition on March 17, 2014. Chambers then filed this
timely appeal.
Commonwealth v.
Taylor, 67 A.3d 1245, 1248 (Pa. 2014) (quotations and citation omitted),
cert. denied, 134 S. Ct. 2695 (2014). PCRA timeliness requirement,
Id. (citation omitted).
All PCRA petitions must be filed within one year of the date the
judgment of sentence becomes final, unless the petition alleges, and the
petitioner proves, that one of the three enumerated exceptions to the time
for filing requirement is met. See 42 Pa.C.S. § 9545(b)(1). The PCRA
exceptions that allow for review of an untimely petition are as follows: (1)
governmental interference; (2) the discovery of previously unknown facts;
and (3) a newly-recognized constitutional right. See 42 Pa.C.S. § 9545
(b)(1)(i)-(iii). Furthermore, the statutory exceptions to the timeliness
requirements of the PCRA are subject to a separate time limitation, and any
petition invoking an exception must be filed within sixty (60) days of the
time the claim could first have been presented. See 42 Pa.C.S. §
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9545(b)(2).4 See also Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.
Super. 2011), appeal denied, 50 A.3d 121 (Pa. 2012).
2000, when the United States Supreme Court denied his petition for
certiorari. See 42 Pa.C.S. § 9545(b)(3) (judgment of sentence becomes
Supreme Court of the United States and the Supreme Court of Pennsylvania,
until October 2, 2001 to file a timely petition. Chambers does not dispute
that his petition, filed on April 24, 2013, is patently untimely. However,
Chambers invokes the newly-recognized constitutional right exception, set
forth at 42 Pa.C.S. § 9545(b)(1)(iii).
Initially, we note that Subsection 9545(b)(1)(iii) applies only where
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
added). This Court has reiterated:
Subsection (iii) of section 9545 has two requirements.
First, it provides that the right asserted is a constitutional
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provided in paragraph (1) shall be filed within 60 days of the date the claim
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right that was recognized by the Supreme Court of the
United States or th[e Pennsylvania] Supreme Court after
the time provided in this section. Second, it provides that
retroactively. Thus, a petitioner must prove that
retroactively. The language
the past tense. These words mean that the action
has already occurred, i.e.
held the new constitutional right to be retroactive
to 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. Abdul-Salaam, 571 Pa. 219, 226, 812 A.2d
497, 501 (2002). See Commonwealth v. Copenhefer, 596
Pa. 104, 941 A.2d 646 (2007).
Commonwealth v. Garcia, 23 A.3d 1059, 1063 (Pa. Super. 2011)
(emphasis added), appeal denied, 38 A.3d 823 (Pa. 2012).
First, Chambers cites Alleyne v. United States, supra, wherein the
es
Id. at 2155, citing Apprendi v.
New Jersey, 530 U.S. 466, 483, n.10, 490 (2000)).5 The relevance of
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5
As noted above, Chambers filed the instant PCRA petition on April 24,
2013, and filed a petition to amend his PCRA petition, citing Alleyne, on July
15, 2013. Because Alleyne was decided on June 17, 2013, Chambers did
comply with 42 Pa.C.S. § 9545(b)(2) by filing the amended PCRA petition
within 60 See 42 Pa.C.S. §
9545(b)(2).
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Alleyne but, in any event, no relief is due
since the Alleyne Court did not address whether the holding would apply
retroactively to cases on collateral appeal. Moreover, neither the
Pennsylvania Supreme Court nor the United States Supreme Court has
issued a decision giving Alleyne
argument that this Court should apply Alleyne retroactively is unpersuasive.
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Here, with regard to the charge of robbery, which requires that the
Chambers argues:
ly did not mention the essential
****
[Chambers] was charged, and because the fact of robbery
aggravates the legally prescribed range of allowable sentences
****
It is well settled that a jury cannot find the defendant guilty of
robbery unless satisfied beyond reasonable doubt that he
(committed a theft) or (attempted to commit a theft), both
which are elements of the charged offense.
****
theft is essential to the penalty, it was an element of
the offense. Alleyne would mean that the government cannot
force a judge to impose a sentence unless the jury finds the
requisite statutory factual predicate.
pro se Brief at 8, 10, 11.
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See United States v. Reyes, 755 F.3d 210 (3d Cir. 2014) (holding Alleyne
is not retroactively applicable to cases on collateral review); United States
v. Winkelman, et al., 746 F.3d 134 (3d Cir. 2014) (same).7 Accordingly,
Alleyne is unavailing, as he has failed to
Garcia, supra at 1063 (citations
and quotation marks omitted).
Secondly, Chambers cites Miller v. Alabama, supra, wherein the
for
those under the age of 18 at the time of their crimes violates the Eighth
Id., 132 S.
Ct. at 2460 (emphasis added). Miller, however, was decided by the United
States Supreme Court on June 25, 2012, and Chambers failed to raise his
claim within 60 days, as required by 42 Pa.C.S. § 9545(b)(2). 8 See
Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Supe
sixty-day period [of Section 9545(b)(2)] begins to run upon the date of the
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We recognize the holdings of federal circuit courts are not binding but may
serve as persuasive authority. Commonwealth v. Haskins, 60 A.3d 538,
48 n.9 (Pa. Super. 2012), appeal denied, 78 A.3d 1090 (Pa. 2013).
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It was not until April 24, 2013, when Chambers filed this fourth PCRA
petition, that he cited Miller. We note Chambers filed his third PCRA
petition on April 24, 2012, and he did not amend his petition to raise Miller
after the decision was issued on June 25, 2012. As mentioned above, the
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underlying judicial decision.
cannot satisfy the requirements of Section 9545(b)(1)(iii) since: (1) Miller
does not apply to Chambers because he was not under 18 years of age when
he committed the underlying murder;9 and (2) even if Chambers had been
under 18 years old when he committed the murder, the Pennsylvania
Supreme Court, in Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa.
2013), cert. denied, 134 S. Ct. 2724 (2014), held that Miller is not
retroactive and does not apply to those already serving sentences of life
imprisonment. See also Commonwealth v. Cintora, 69 A.3d 759 (Pa.
Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013) (holding a contention
that Miller applies to persons over 18 whose brains were immature at the
time of the crime does not bring the matter within the newly recognized
constitutional right exception).
Based upon our review, we agree with the PCRA court that the instant
PCRA petition was untimely and no exceptions apply. Accordingly, the PCRA
court properly dismissed this serial petition.
Order affirmed.
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9
Chambers states he was 19 years old at the time of the murder. See
Chambers was 20 years old at the time of the crimes. See PCRA Court
date of birth as December 15, 1976. The date of the offenses which resulted
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
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