Com. v. Fernsler, M. ( 2016 )

J-S72015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL DAVID FERNSLER
Appellant No. 858 MDA 2016
Appeal from the PCRA Order May 11, 2016
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0002434-2007
BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 06, 2016
Appellant, Michael David Fernsler, appeals from the order entered in
the Lebanon County Court of Common Pleas, which denied his third petition
brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
In its opinions, the PCRA court fully and correctly sets forth the
relevant facts and procedural history of this case.2 Therefore, we have no
reason to restate them.
Appellant raises the following issues for our review:
____________________________________________
1
42 Pa.C.S.A. §§ 9541-9546.
2
Nothing in the certified record on appeal indicates that the court ordered a
concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b),
or that Appellant filed one.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S72015-16
WHETHER THE [PCRA] COURT ERRED IN FINDING
[APPELLANT’S] PCRA AS UNTIMELY WHERE THE UNITED
STATES SUPREME COURT IN MONTGOMERY V.
LOUISIANA HELD THAT ANY CASES OUT OF THEIR
COURT THAT WERE SUBSTANTIVE IN NATURE WERE
RETROACTIVELY APPLICABLE TO ALL THE STATES AND IN
DOING SO CAUSED ALLEYNE V. U.S. TO BECOME
RETROACTIVELY APPLICABLE TO [APPELLANT].
WHETHER THE [PCRA] COURT ERRED IN FINDING
[APPELLANT’S] PCRA AS UNTIMELY WHERE THE UNITED
STATES SUPREME COURT IN MONTGOMERY V.
LOUISIANA HELD THAT ANY CASES OUT OF THEIR
COURT THAT WERE SUBSTANTIVE IN NATURE WERE
RETROACTIVELY APPLICABLE TO ALL THE STATES AND IN
DOING SO CAUSED LAFLER V. COOPER, MISSOURI V.
FRYE, FERRI V. ACKERMAN, AND STRICKLAND V.
WASHINGTON TO BECOME RETROACTIVELY APPLICABLE
TO [APPELLANT].
WHETHER THE [PCRA] COURT ERRED IN FINDING
[APPELLANT’S] PCRA AS UNTIMELY WHERE THE UNITED
STATES SUPREME COURT IN MONTGOMERY V.
LOUISIANA HELD THAT ANY CASES OUT OF THEIR
COURT THAT WERE SUBSTANTIVE IN NATURE WERE
RETROACTIVELY APPLICABLE TO ALL THE STATES AND IN
DOING SO CAUSED MIRANDA V. ARIZONA, MICHIGAN
V. MOSLEY, ARIZONA V. ROBERSON, MINNICK V.
MISSISSIPPI, EDWARDS V. ARIZONA TO BECOME
RETROACTIVELY APPLICABLE TO [APPELLANT].
(Appellant’s Brief at vi).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal
denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference
to the findings of the PCRA court if the record contains any support for those
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J-S72015-16
findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007),
appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such
deference, however, to the court’s legal conclusions. Commonwealth v.
Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012). The PCRA court findings will
not be disturbed unless the certified record provides no support for the
findings. Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa.Super.
2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008). There is no right
to a PCRA hearing; a hearing is unnecessary where the PCRA court can
determine from the record that there are no genuine issues of material fact.
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008), appeal
denied, 598 Pa. 764, 956 A.2d 433 (2008). The timeliness of a PCRA
petition is a jurisdictional requisite. Commonwealth v. Hackett, 598 Pa.
350, 956 A.2d 978 (2008).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinions of the Honorable Robert J.
Eby, we conclude Appellant’s issues merit no relief. The trial court opinions
comprehensively discuss and properly dispose of the questions presented.
(See PCRA Court Opinions, filed April 4, 2016 and May 11, 2016) (finding:
Appellant’s third PCRA petition was untimely and no timeliness exception
applied; all cases Appellant cited in attempt to invoke “new constitutional
right” exception were either inapplicable to his case, did not announce “new”
constitutional right, announced new right years before Appellant’s deadline
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J-S72015-16
to file timely PCRA petition expired, and/or related to claims Appellant
already litigated in previous PCRA petitions). We agree with the court’s
assessment.
Furthermore, neither the U.S. Supreme Court nor the Pennsylvania
Supreme Court has held that Alleyne v. U.S., ___ U.S. ___, 133 S.Ct.
2151, 186 L.Ed.2d 314 (2013), or its state progeny apply retroactively. See
Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014) (holding that
even if Alleyne announced new constitutional right, neither our Supreme
Court nor United States Supreme Court has held that Alleyne applies
retroactively, which is fatal to appellant’s attempt to satisfy “new
constitutional right” exception to timeliness requirements of PCRA). See
also Commonwealth v. Washington, ___ A.3d ___, 2016 WL 3909088(Pa. filed July 19, 2016) (holding Alleyne does not apply retroactively on
collateral review to challenge mandatory minimum sentence as “illegal”).
Additionally, the certified record makes clear Appellant was not subjected to
any mandatory minimum sentences. Therefore, Appellant’s petition remains
time barred; and the PCRA court lacked jurisdiction to review it. See
Hackett, supra. Accordingly, we affirm.
Order affirmed.
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J-S72015-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2016
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\fJJHViAGE
OR\G\NAL, EtHEf(:D 2, Fl!...ED
CLERK OF COURTS
IN THE COURT OF COMMON PLEAS LEBM.J.HL PA
. ~·· . : """ ...
CRIMINAL DIVISION
COMMONWEAL TH OF
PENNSYLVANIA
No. CP-38-CR-0002434-2007
v.
.
Ill •. •
a'·
MICHAEL. D. FERNSLE:R.
ORDER OF COURT
AND NOW, to wit, this# day of April, 2016, upon careful consideration of
Defendant's "Motion for Post Conviction Collateral Relief' and the Commonwealth's
Response thereto, the Defendant is hereby notified that .it is the inte~ntion of the Court to
dismiss his claim for relief without a hearing for the reasons set forth below:
1. The Defendant filed a Motion for for Post Conviction Collateral Relief on March 2,
2016, arguing he is entitled to relief based upon the holding of the United States
Supreme Court in Montgomery v. Louisiana.
2. In response to a Rule issued by this Court, the· Commonwealthfiled a· response on
March-14, .2016 alleging that Defendant's motion is untimely, is a_ second or
sulrniqcre-nt-p'etitiorr,and-seeks-to-relitigate-issues-previously-litigated~r-waived-.·----
3. A petition filed pursuant to the PCRA must be filed within one (1) year of the date that
the judgment becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment becomes final at
the conclusion of direct review or at the expiration of time for seeking the review.
§9545(b)(3).
4. "The PCRA's timeliness requirements are jurisdictional in nature and must be strictly
construed; courts may not address the merits of the issues raised in a petition if it is not
timely filed." Commonwealth v. Abu-Jamal, 596 Pa. 219, 941 A.2d 1263, 1267-68 (2004).
5. The Defendant was sentenced by this Court at the above action number on May 14,
2008. The Defendant had 30 days-until June 13, 2008-- to appeal that judgment of
sentence to the Superior Court. He did not do so.
6. Defendant's Judgement of Sentence thus became final on June 13, 2008, and under
the one year time limitation prescribed by§ 9545(b)(1), he had until June 13, 2009 to file
for relief under the PCRA.
7. Defendant's Motion for Post Conviction Collateral Relief filed on March 2, 2016 is
therefore untimely.
8. 42 Pa.C.S. §9545(b) (1) provides for specific exceptions to the timeliness requirements
of the Act. To avail himself of one of these exceptions, the Defendant must plead and
prove one or more of the following:
(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 lhe Supreme Court of Pennsylvania after the time
period provided in this section and has been held by that Court to apply
retroactively.
9. Citing the recent Supreme Court case of Montgomery v. Louisiana, 136 S.Ct. 718(2016), the Defendant attempts to plead the third exception, a new constitutional right
recognized by the Supreme Court of the United States held to apply retroactively.
10. In Montgomery v. Louisiana, the Court held that its 2012 decision in Miller v. Alabama
(which prohibited mandatory life sentences without parole for juvenile offenders)
announced a substantive rule of constitutional law that therefore must be applied
retroactively on state collateral review.
11. Substantively, Montgomery v, Louisiana and Miller v. Alabama are in apposite to the
Defendant's claims of error in his Motion for Post Conviction Relief. Defendant was not a
juvenile at the time of his sentence. Nor was the Defendant sentenced to mandatory life
imprisonment without the possibility of parole.
12. The Defendant has failed to plead a new1 substantive constitutional rule entitling him
to relief on the claims asserted:
13. As a result, the Defendant has failed to specifically plead and prove any of the above
exceptions to timeliness under the Act.
1 The PCRA requires that any petition invoking an exception to the timeliness requirements of
the Act shall be filed within 60 days of the date the claim could have been presented. 42
Pa.C.S.A. § 9545(2). The Defendant has attempted to bootstrap other decisions of the Supreme
Court to his claim for relief, including Miranda v. Arizona, Missouri v. Frye, and Lafler v.
Cooper. All of ffiese cases- are outside the 60-day window provided b-y ihe--Act: . .
14. Therefore, this Court is without jurisdiction to consider Defendant's claims for relief.
Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157, 1161 (2008)
8. Second or Subsequent Petition
15. A second or subsequent petition for post-conviction relief will not be entertained unless
a strong prima facie showing is offered to demonstrate that a miscarriage of justice may
have occurred. Commonwealth v. Allen, 557 Pa. 135, 141, 732 A.2d 582, 586 (1999). A
prima facie showing of entitlement to relief is made only by demonstrating either that the
proceedings which resulted in conviction were so unfair that a miscarriage of justice
occurred which no civilized society could tolerate, or the defendant's innocence of the
crimes for which he was charged. Commonwealth v. Ali, 86 A.3d 176-77 (Pa. February
18, 2014}.
16. Defendant's March 2, 2016 Motion for PCRA relief constitutes his third PCRA action
at the instant action number.
17. The Defendant filed his first PCRA Petition at this action number on May 15, 2009.
The Defendant's first Petition raised issues surrounding his guilty plea, the effectiveness
of his counsel, and various issues concerning his constitutional rights and police conduct.
18. This Court dismissed Defendant's first PCRA Petition on September 24, 2009, and
that dismissal was upheld by the Superior Court on rvl~ 22, 2010.
19. On June 1q, 2012, the Defendant filed a second PCRA Petition challenging the
ineffectiveness of plea counsel, violations of his constitutional rights by police, and the
----length-of-his-seritenGe-.----- - ------·---··-··
20. This court dismissed Defendant's second PCRA Petition on September 2,G,, 2012, and
that dismissal was upheld by the Superior Court on September 17, 2013. The Supreme
Court denied Defendant's Petition for Allowance of Appeal on February 19, 2014.
21. Defendant's third PCRA Petition fails to allege or make a strong prima facie showing
demonstrating that a miscarriage of justice may have occurred as required by Ali, supra.
22. This Court, therefore, cannot entertain the March 2, 2016 Petition.
C. Claim of error previously litigated
23. The Act states, in pertinent part, "To be eligible for relief under [the PCRA], the
petitioner must plead and prove by a preponderance of the evidence . . . [t]hat the
allegation of error has not been previously litigated or waived." 42 Pa.C.S.A. §9543(a){3)
24. Defendant's third PCRA Petition once again attempts to impermissibly relitigate the
issue of the ineffectiveness of his plea counsel, constitutional violations by the police, and
the length of his sentence.
25. We therefore find that several of the issues raised by Defendant in his third PCRA
have already been "raised and decided in a proceeding collaterally attacking the
conviction or sentence." 42 Pa.C.S.A. § 9544.
For the foregoing reasons, we are satisfied from our review of the Defendant's
motion and the record that there are no genuine issues concerning any material fact, that
the defendant is not entitled to post-conviction collateral relief, and that no purpose would
be served by any further proceedings. Therefore, under Pa.R.Crim.P. 907(1), the
Defendant is given notice that it is the intention of the Court to dismiss his Motion to
Amend, which we have treated as a Petition for Post-Conviction Collateral Relief, without
a hearing. Defendant is afforded twenty (20) days from the date of this Order to file a
response to our proposed dismissal without a hearing sufficiently pleading the factual and
Defendant is given notice that it is the intention of the Court to dismiss his Motion to
Amend, which we have treated as a Petition for Post-Conviction Collateral Relief,
without a hearing. Defendant is afforded twenty (20) days from the date of this Order to
file a response to our proposed dismissal without a hearing sufficiently pleading the
factual and legal bases upon which he is entitled to relief. The Defendant is directed to
serve a copy of any response filed upon the undersigned jurist.
BY THE COURT:
,S.J.
~\ RobertJ.E
RJE/kw
pc: District Attorney (ln.teroff~Mail)
Michael D. Fernsler (~ertified Mail at SCI Ret,reat, Inmate No. HO e.7y,
PURSUANT
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114
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Circulated 09/20/2016 03:42 PM
ORIGINAL
IN THE COURT OF COMMON PLEAS
OF LEBANON COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEAL TH OF
PENNSYLVANIA
No. CP-38-CR-0002434-2007
v.
MICHAEL D. FERNSLER
ORDER OF COURT
AND NOW, to wit, this ~ay of May, 2016, upon careful considerationof
Defendant's Petition for Post-Conviction Collateral Relief filed on March 2, 2016, the
Commonwealth's Response thereto, our Order of April 4, 2016, wherein we expressed our
intention to dismiss Defendant's Petition without a hearing and afforded Defer-dant twenty (20)
days to file a Response to the proposed dismissal, indicating an intention to dismiss Defendant's
claim, and the Defendant's Response to the Proposed Dismissal,
we hereby deny the relief sought by Defendant and order dismissal of his Petition filed March 2,
2016.
The Defendant is advised that he has the right to appeal the denial of re'lef and dismissal
of his Petition to the Superior Court of Pennsylvania. An appeal must be filed in writing no later
than thirty days from the date of this Order.
BY THE COURT:
RJE/kw
pc: District Attorney (Interoffice Mail) :;t;J--
Michael D. Fernsler (Certified Mail at SCI Retreat, Inmate No. HQ0102, 660 State Route
11, Hunlock Creek, PA 18621)~ 1t:Df J5tDO(X)3 ~l/SOOB&0-Me,.t.A£·6
PURSUANT TO Pa.R.Crim. P.114
this date: I .yred
All parties are here~
S::· 4 ,
Clerk of Courts, Lebanon, PA
IN THE COURT OF COMMON-PLEAS LE3n:r· .; U,
OF LEBANON COUNTY, PENNSYL't'-~N1P.( 13 S:111 C2
CRIMINAL DIVISION
COMMONWEAL TH OF
PENNSYLVANIA
No. CP-38-CR-0002434-2007
v.
MICHAEL D. FERNSLER
OPINION BY EBY, S.J. May 11, 2016
Before the Court is the Defendant's third petition for Post-Conviction Collateral
Relief, in which the Defendant argues he is entitled to relief from his 2008 convictions
for sexual assault and kidnapping based upon the recent holding of the United States
Supreme Court in Montgomery vs. Alabama. For the reasons that follow, we will deny
the relief sought and dismiss the Defendant's Petition.
Procedural and Factual History
Members of the Lebanon County Detective Bureau filed a Criminal Complaint
against the Defendant on November 13, 2007, following his apprehension for the
kidnapping and sexual assault of a 14-year-old girl, C.G .. The Affidavit of Probable Cause
indicates that, on that date, the Defendant grabbed C.G. as she walked to her residence
after being dropped off by a school bus. The Defendant bound C.G.'s hands and eyes
and led her at knifepoint into a wooded area, threatening her with bodily harm if she
resisted. Once in the wooded area, the Defendant fondled C.G.'s breasts and penetrated
her vaginal area with his hand. He then removed his pants and exposed himself. C.G.
was able to remove the tape covering her mouth and began to scream and fight with the
1
Defendant. After managing to. free herself from her bindings, C.G. fled and called the
police. Although the Defendant had been wearing a mask, C.G. recognized the Defendant
as someone she knew by his eyes and voice, and responding police were able to
apprehend him a short distance from the assault scene.
The Commonwealth filed a Criminal Information against the Defendant on January
4, 2008, charging him with two counts of Kidnapping and one count each of Criminal
Attempt to Commit Rape, Aggravated Indecent Assault, Indecent Assault, Terroristic
Threats, Unlawful Restraint, Indecent Exposure, and Recklessly Endangering Another
Person. On March 20, 2008, the Defendant initialed and signed a guilty plea colloquy
form, which included the terms of a Negotiated Plea Agreement with the Commonwealth.
Under that Agreement, the Defendant agreed to plead guilty to all charges. In exchange
for his guilty plea, the Defendant was to receive a minimum sentence of five (5) years on
the Criminal Attempt Rape charge, three and one half years (3 %) years on the
Kidnapping charge, and three and one half years (3 %) years on the Aggravated Indecent
Assault charge. The sentences were to run consecutively for an aggregate minimum
sentence of twelve (12) years, with the Court to set a maximum sentence. The remaining
charges were to either merge or run concurrently. That colloquy form was filed on March
26, 2008, after the Defendant entered his guilty plea in open court.
On May 14, 2008, this Court sentenced the Defendant, pursuant to the Negotiated
Plea Agreement, to an aggregate sentence of 12 to 35 years of imprisonment. The Court's
2
aggregate sentence was to run consecutively to any other sentence the Defendant was
currently serving.1 The Defendant did not file post-sentence motions or a direct appeal.
On May 15, 2009, the Defendant filed his first PCRA Petition. The Defendant's pro
se Petition asserted plea counsel was ineffective with regard to Defendant's entry of a
guilty plea because counsel did not meet with him or take into account case law the
Defendant had located. Defendant's Petition also asserted that his constitutional rights
were violated when law enforcement officers questioned him after he had requested an
attorney.
Following the appointment of counsel for the Defendant and a Motion to Dismiss
filed by the Commonwealth, this Court filed an Order and Opinion on September 1, 2009,
indicating our intention to dismiss Defendant's Petition without a hearing and affording
him twenty (20) days in which to file a Response. The Defendant did not file a Response,
and on September 24, 2009, this Court denied the relief sought and dismissed
Defendant's Petition without a hearing.
On October 26, 2009, the Defendant filed a Notice of Appeal to the Pennsylvania
Superior Court from our denial of PCRA relief. On July 22, 2010, the Superior Court
affirmed the denial of PCRA relief. See Commonwealth v. Fems/er, 1852 MDA 2009
(unpublished memorandum) (Pa. Super. July 22, 2010).
On June 15, 2012, the Defendant filed a second PCRA Petition. The claims raised
by Defendant in that Petition included another challenge to the effectiveness of counsel
during the plea bargaining process. Specifically, the Defendant argued that, though
1
Atthe time of his Lebanon County sentencing on March 26, 2008, the Defendant was currently serving a
25-50 year aggregate sentence imposed in Dauphin County on January 25, 2008 on convictions resulting
in his designation as a Sexually Violent Predator.
3
untimely on its face, his Petition fell within the§ 9545(b)(1)(iii) exception to the timeliness
requirements of the Act, because the Lafler v. Cooper, 132 S.Ct. 1376 (2012) and
Missouri v. Frye, 132 S.Ct. 13_99 (2012) decisions of the United States Supreme Court
announced a new constitutional right of effective assistance of counsel during the plea
bargaining process. The Defendant argued that he was entitled to relief on the claims that
trial counsel failed to negotiate a reasonable plea agreement and that this Court had
imposed an illegal aggravated sentence without challenge from plea counsel. Finally,
Defendant argued that trial counsel was ineffective for failing to question the charge of
indecent assault-mentat disease/defect.
On August 29, 2012, this Court issued a Pa.R.Crim.P. 907(1) Notice of Intent to
Dismiss and ultimately dismissed the Defendant's second PCRA Petition on September
26, 2012. On September 17, 2013, the Superior Court affirmed that dismissal, holding
specifically that "Appellant cannot rely on Frye and Cooper because neither case
announces a newly recognized constitutional right.. .. both cases clarify conduct
constituting ineffective assistance of counsel during the plea bargaining process and do
not create a newly recognized constitutional right. The right to effective assistance of
counsel during plea bargaining has been recognized since Strickland v. Washington, 466
U.S. 668 (1984) and Hill v. Lockhart, 474 U.S. 52 (1985)." Commonwealth v. Fernsler,
1894 MDA 2012 (unpublished memorandum) (Pa. Super. September 17, 2013) at 7-8.
The Defendant filed a Petition for Allocator on October 17, 2013, which the
Supreme Court denied on February 19, 2014.
The Defendant filed the instant PCRA action on March 2, 2016 expressly relying
upon the United States Supreme Court's January 27, 2016 decision in Montgomery v.
4
Alabama. Following a Rule issued by this Court, the Commonwealth filed a Response on
March 14, 2016. On April 5, 2016, we entered a detailed Order pursuant to Pa.R.Crim.P.
907(1), indicating an intention to deny relief and dismiss the Defendant's Petition without
a hearing. Our Order indicated that the Defendant's Petition was an untimely second or
subsequent petition which failed to plead an applicable exception to the timeliness
. requirements of the Act and sought to relitigate issues previously litigated or waived. Our
Order further afforded the Defendant twenty (20) days to file a Response. The Defendant
filed his Response to our proposed dismissal on April 12, 2016, and the matter is now
ripe for our disposition.
Discussion
1. Timeliness
Our Rule 907(1) Order indicated an intention to dismiss Defendant's Petition
because it was untimely. Defendant's Response to that Order does not convince us
otherwise.
As noted above, the Defendant was sentenced by this Court at the above action
number on May 14, 2008. The Defendant had thirty (30) days to appeal that judgment of
sentence to the Superior Court. He did not do so. Because a judgment of sentence
becomes final at the conclusion of direct review or at the expiration of time for seeking
review, the Defendant's judgment became final on June 13, 2008. 42 Pa.C.S.A.
§9545(b)(3). Since petitions filed pursuant to the PCRA must be filed within one (1) year
of the date that the judgment becomes final, the Defendant had until June 13, 2009 to file
for relief under the Act. 42 Pa.C.S.A. §9545(b)(1). The Petition filed with this Court on
5
March 2, 2016, nearly seven years past the deadline for filing a timely PCRA Petition, is
clearly untimely.
"The PCRA's timeliness requirements are jurisdictional in nature and must be
\ strictly construed; courts may not address the merits of the issues raised in a petition if it
is not timely filed. Commonwealth v. Abu-Jamal, 596 Pa. 219, 941 A.2d 1263, 1267-68
(2004). Thus, we do not have jurisdiction to consider the merits of Defendant's Petition
currently before the Court unless it meets an exception to the timeliness requirements of
the Act.
The PCRA provides for three specific exceptions to the timeliness requirements of
the Act. To avail himself of one of these exceptions, the Defendant must plead and prove
one or more of the following:
(l). 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 the Court to apply
retroactively.
42 Pa.C.S.A. §9545(b)(1). Citing the recent Supreme Court decision of Montgomery v.
Louisiana, 136 S.Ct. 718 (2016), both the Defendant's Petition and his Response to our
907(1) Order attempt to plead the third exception, a new constitutional right recognized
by the Supreme Court of the United States held to apply retroactively. We believe the
Defendant misapprehends the import and scope of the Montgomery v. Louisiana, which
held that the Court's 2012 decision in Mil/erv. Alabama, 132 S.C. 2455 (2012) announced
6
a new substantive rule of constitutional law that therefore must be applied retroactively
on state collateral review.
We begin by noting that, substantively, Montgomery v. Louisiana and Miller v.
Alabama are inapposite to the Defendant's claims of error in his Motion for Post
Conviction Relief. The Defendant was not a juvenile at the time of his sentence. Nor was
the Defendant sentenced to mandatory life imprisonment without the possibility of parole.
The specific new constitutional right announced by Miller (the right of juvenile defendants
to not face mandatory life sentences), as made retroactive by Montgomery, clearly
provides no basis for relief for the Defendant.
The Defendant appears to base his claim for relief on the broader principle of the
Montgomery decision, particularly the following language: The Court now holds that
11
when a new substantive rule of constitutional law controls the outcome of a case, the
Constitution requires state collateral review courts to give retroactive effect to that rule."
Montgomery, 136 S.Ct. at 729. Relying upon that language, the Defendant asserts:
"Montgomery ruled that any case based on Constitutional premises is retroactive to
collateral review; ... " Defendant's Response to Proposed Dismissal at 2, 11117,11. Based
upon that incorrect interpretation, the Defendant then erroneously concludes that
"Miranda, Frye, Cooper, and Alleyne are retroactively applicable." Id. at 1J11.
We begin our analysis by correcting the Defendant's misinterpretation of the
'
Montgomery decision as implicating all Constitutional decisions of the Supreme Court.
Of particular note for the instant case, Montgomery does not make those decisions
clarifying existing constitutional rights retroactive. It certainly does not, as asserted by the
Defendant, make a// previous decisions of the United States Supreme Court resting on
7
constitutional grounds retroactive. Instead, as explicitly stated in its holding, Montgomery
makes retroactive only those decisions which announce a new substantive rule of
'
constitutional law that controls the outcome of a case. For a variety of reasons, the
Defendant's attempt to bootstrap the Court's decisions in Miranda v. Arizona, Missouri v.
Frye, Lafler v. Cooper, and Alleyne v. United States decisions to that specific holding of
Montgomery v. Alabama in order to satisfy the §9545(b)(1)(iii) exception to timeliness is
unpersuasive. We will analyze ·each of those reasons in turn.
With respect to the Supreme Court decisions of Missouri v. Frye, 132 S.Ct. 1399(2012) and Lafler v. Cooper, 132 S.Ct. 1376 (2012), the Pennsylvania Superior Court
specifically ruled in the context of Defendant's second PCRA Petition that those 2012
cases did not announce a newly recognized constitutional right. Rather, they clarified
conduct constituting ineffective assistance of counsel during the plea bargaining process.
Commonwealth v. Fernsler, 1894 MDA 2012 (unpublished memorandum) (Pa. Super.
September 17, 2013) at 7-8. Because the right to effective assistance of counsel had
been recognized since Strickland v. Washington, 466 U.S. 668 (1984) and Hill v.
Lockhart, 474 U.S. 52 (1985), the Superior Court held thatthe Missouri v. Frye and Lafler
v. Cooper decisions could not provide the basis for a §9545(b)(1)(iii) exception to the
timeliness requirements of the PCRA for the Defendant's claims. Id. We are persuaded
that the United States Supreme Court's decision in Montgomery v. Alabama does nothing
to change that analysis.
With regard to the Alleyne v. United States decision, a brief review of the facts of
that case dispels any suggestion that it can provide, via the retroactivity train of
Montgomery v. Alabama, relief to the Defendant. Simply put, the issue in Alleyne has no
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parallel to the issues of the instant case. Alleyne v. United States, 133 S.Ct. 2151 (2013),
addressed the propriety of judicial fact-finding which increased the mandatory minimum
sentence of a crime in excess of that specifically authorized by a jury in reaching its verdict
on the elements of an offense. The Supreme Court held that the sentencing judge could
not enhance, based upon the trial judge's own fact finding at trial, a mandatory minimum
sentence not substantiated by the verdict of the jury. when the jury refused to find the
defendant had committed the enhancing element. In the instant case, there was no jury
trial. There were no jury findings that this Court superseded with its own fact-finding.
Rather, the Defendant pleaded guilty pursuant to a Negotiated Plea Agreement, in which
his minimum sentence on each offense was negotiated and agreed upon. Any right
established by Alleyne, whether made retroactive by Montgomery v. Alabama or not, does
not apply to Defendant's case.
Finally, Defendant's attempts to challenge his questioning by a detective after he
requested an attorney based upon the retroactivity of Miranda v. Arizona similarly does
not satisfy the §9545(b)(1)(iii) exception to timeliness. Miranda v. Arizona, 384 U.S. 436(1966) was decided by the Supreme Court in 1966, decades before the Defendant was
charged and pleaded guilty to the charges at issue in this case. The Defendant cannot do
an end-run around the timeliness requirements of the PCRA by attempting to argue the
retroactive application of a right that was firmly rooted in American jurisprudence even
before he was born.2 The express language of the §9545(b)(1)(iii) exception-- a
2
We adopt as well the reasoning and language of the Superior Court in resolving a similar claim for relief
in Defendant's first PCRA. "To be eligible for relief, appellant is required to plead and prove that the
allegations of error he raises have not been previously litigated or waived .... '[A]n issue is waived if the
petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal, or in
prior state post-conviction proceedings.' 42 Pa.C.S.A. §9544(b). As appellant never raised these
disputes before his plea, at the time of his plea, at sentencing, in a post-sentence motion, or on direct
appeal, the PCRA court properly found them to be waived .... [l]t is well settled that a plea of guilty
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constitutional right recognized by the Supreme Court of the United States "after the time
period provided in this section"-- precludes such an argument.
Because the Defendant has failed to specifically plead and prove any of the
exceptions to timeliness under the Act, we are without jurisdiction to consider his claims
for relief. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157 (2008).
2. Second or subsequent decision
We also note that the PCRA Petition currently pending before the Court represents
the Defendant's third at this action number. A second or subsequent petition for post-
conviction relief will not be entertained unless a strong prima facie showing is offered to
demonstrate that a miscarriage of justice may have occurred. Commonwealth v. Allen,
557 Pa. 135, 141, 732 A.2d 582, 586 (1999). Aprima facieshowing of entitlement to relief
is made only by demonstrating either that the proceedings which resulted in conviction
were so unfair that a miscarriage of justice occurred which no civilized society could
tolerate, or the defendant's innocence of the crimes for which he was charged.
Commonwealth v. Ali, 624 Pa. 309, 315, 86 A.3d 173, 176-77 (February 18, 2014).
The Defendant has not pleaded or proven his innocence of the crimes for which
he was charged and sentenced. Indeed, he cannot do so, as he pleaded guilty, pursuant
to a negotiated plea agreement, to all charges. Moreover, we do not find that any of the
issues he has raised resulted in a conviction that was so unfair that a miscarriage of
amounts to a waiver of all defects and defenses except those concerning jurisdiction of the court, the
validity of the plea, or the legality of the sentence imposed ... As appellant's contentions fall outside these
three narrow categories, we may not address them." Commonwealth v. Fernsler, 1852 M.D. 2009
(memorandum opinion) (Pa. Super. July 22, 2010) at 8-9 (citations omitted).
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justice occurred that no civilized society could tolerate. This Court, therefore, has no basis
to entertain the Defendant's third PCRA Petition at this action number.
3. Claim of error previously litigated
The PCRA states, in pertinent part, "To be eligible for relief under [the PCRA], the
petitioner must plead and prove by a preponderance of the evidence . . . [t]hat the
allegation of error has not been previously litigated or waived." 42 Pa.C.S.A. §9543(a)(3).
Defendant's third PCRA Petition attempts to impermissibly relitigate the issue of the
ineffectiveness of his plea counsel, constitutional violations by the police, and the length
of his sentence, all issues raised in his previous PCRAs. Therefore, in addition to finding,
as noted above, that the Defendant has waived the claims for relief currently before this
Court, we also find that the issues raised by Defendant in his third PCRA, including the
ineffectiveness of his plea counsel, alleged Miranda violations by the police, and the
length of his sentence, have already been "raised and decided in a proceeding collaterally
attacking the conviction or sentence." 42 Pa.C.S.A. § 9544.
For these reasons, we are satisfied from our review of the Defendant's Petition
and the record of this case that there are no genuine issues of material fact, that the
Defendant is not entitled to post-conviction collateral relief, and that no purpose would be
served by any further proceedings. Therefore, consistent with the stated intentions of our
Order of April 4, 2016, we will enter an Order dismissing the Defendant's Petition and
denying his claims for relief.
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