Com. v. Edwards, O. ( 2019 )

J-S38036-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OMAR EDWARDS :
:
Appellant : No. 312 EDA 2019
Appeal from the PCRA Order Entered January 2, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0209372-1995
BEFORE: OTT, J., DUBOW, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED AUGUST 06, 2019
Appellant, Omar Edwards, appeals pro se from the order of the Court of
Common Pleas of Philadelphia County that dismissed his fourth petition filed
under the Post Conviction Relief Act (PCRA)1 as untimely. We affirm.
Appellant was convicted by a jury on June 13, 1996 of first-degree
murder2 for killing a man in a drive-by shooting on October 28, 1994. At the
time that he committed this crime, Appellant was 19 years old. On January
27, 1997, the court sentenced Appellant to life imprisonment without parole
for this murder conviction.
Appellant filed a direct appeal in February of 1997. A panel of this Court
dismissed the appeal on January 8, 1998, and Appellant did not seek
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1 42 Pa.C.S. §§ 9541–9546.
2 18 Pa.C.S. § 2502(a).
* Retired Senior Judge assigned to the Superior Court.
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allowance of appeal in the Supreme Court of Pennsylvania. Appellant filed a
timely first PCRA petition on October 7, 1998, which was denied by the PCRA
court. This Court affirmed the denial of that first PCRA petition on September
11, 2000 and the Pennsylvania Supreme Court denied allowance of appeal on
February 6, 2001. In 2002 and 2015, Appellant filed two more unsuccessful
PCRA petitions.
On February 26, 2016, Appellant filed the instant, pro se fourth PCRA
petition asserting that his sentence of life imprisonment without parole is
unconstitutional under the United States Supreme Court’s decision in Miller
v. Alabama, 567 U.S. 460 (2012), and the Equal Protection Clause, because
the rationale on which Miller held that mandatory sentences of life without
parole are unconstitutional for defendants under the age of 18 is equally
applicable to him. In the PCRA petition, Appellant asserted that he satisfied
exceptions to the PCRA’s time limits because Miller was held retroactive by
the United States Supreme Court in Montgomery v. Louisiana, 136 S.Ct.
718 (2016), on January 25, 2016.
On September 17, 2018, the PCRA court issued a notice pursuant to
Pa.R.Crim.P. 907 of its intent to dismiss Appellant's petition without a hearing
on the ground that it was untimely.3 Appellant submitted a letter in response
to the notice in which he argued the merits of the PCRA petition and requested
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3Neither Appellant nor the Commonwealth explains why no action was taken
with respect to the PCRA petition for over two years.
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a hearing. On January 2, 2019, the PCRA court dismissed Appellant’s PCRA
petition without a hearing. Appellant timely appealed this order to this Court.
Appellant argues that the trial court erred in dismissing his PCRA petition
as untimely because his sentence of life imprisonment without parole is
allegedly unconstitutional under Miller. This argument is without merit.
The PCRA provides that “[a]ny petition under this subchapter, including
a second or subsequent petition, shall be filed within one year of the date the
judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A PCRA petition may be
filed beyond the one-year time period only if the convicted defendant pleads
and proves one of the following three exceptions:
(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 the Supreme Court
of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
Id. The PCRA’s time limit is mandatory and jurisdictional, and a court may
not ignore it and reach the merits of the PCRA petition, even where the
convicted defendant claims that his sentence is unconstitutional and illegal.
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999); Commonwealth
v. Lee, 206 A.3d 1, 6, 11 (Pa. Super. 2019) (en banc); Commonwealth v.
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Pew, 189 A.3d 486, 488 (Pa. Super. 2018); Commonwealth v. Woods, 179
A.3d 37, 42-43 (Pa. Super. 2017).
Appellant’s judgment of sentence became final on February 9, 1998,
upon the expiration of the thirty-day period within which to file a petition for
allowance of appeal. 42 Pa.C.S. § 9545(b)(3). His time limit for filing any
PCRA petition was therefore February 9, 1999. The instant PCRA petition,
filed more than 17 years beyond that deadline, is patently untimely unless
Appellant alleged and proved one of the three limited exceptions set forth in
Sections 9545(b)(1)(i)-(iii).
Appellant did not show that his PCRA petition was timely under any of
these exceptions. Appellant’s PCRA petition asserted a claim that his sentence
of life imprisonment without parole was unconstitutional under a new
constitutional right established by Miller. Section 9545(b)(1)(iii)’s exception
for newly recognized constitutional rights, however, applies only where the
defendant is entitled to relief under the holding of a United States or
Pennsylvania Supreme Court decision. 42 Pa.C.S. § 9545(b)(1)(iii); Lee, 206
A.3d at 10-11; Commonwealth v. Furgess, 149 A.3d 90, 93-94 (Pa. Super.
2016). While Miller recognized a new constitutional right and that right was
ruled retroactive by the United States Supreme Court in Montgomery v.
Louisiana, 136 S.Ct. at 732-37, those decisions and the decisions of our
Supreme Court have held only that mandatory life imprisonment without
parole is unconstitutional where the defendant was under the age of 18 at the
time of the crime. Montgomery v. Louisiana, 136 S.Ct. at 725, 736
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(defendant was 17 years old); Miller, 567 U.S. at 465 (defendants were 14
years old, Court stated its holding as “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 unusual punishments’”);
Commonwealth v. Machicote, 206 A.3d 1110, 1112 (Pa. 2019) (defendant
was 17 years old); Commonwealth v. Batts, 163 A.3d 410, 415 (Pa. 2017)
(defendant was 14 years old). Indeed, our Supreme Court has specifically
declined to apply Miller to defendants who were 18 or older. See
Commonwealth v. Towles, 208 A.3d 988, 1008-09 (Pa. 2019) (rejecting
argument that death sentence for 20-year-old was unconstitutional under
Miller and Roper v. Simmons, 543 U.S. 551 (2005)). Because Appellant
was 19 when he killed the victim, he is not entitled to relief under Miller or
any other decision of the United States or Pennsylvania Supreme Court and
cannot satisfy Section 9545(b)(1)(iii)’s timeliness exception.
Rather, Appellant’s claim is that Miller must be extended to 19-year-
old defendants based on its rationale and because failure to extend the
decision would violate the Equal Protection Clause. Such arguments that a
decision of the United States or Pennsylvania Supreme Court must be
extended to an additional group of defendants, however, do not satisfy the
requirements of Section 9545(b)(1)(iii) of the PCRA. Lee, 206 A.3d at 7-11;
Commonwealth v. Montgomery, 181 A.3d 359, 366-67 (Pa. Super. 2018)
(en banc); Furgess, 149 A.3d at 94. This Court has repeatedly held that
claims indistinguishable from those asserted in Appellant’s PCRA petition do
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not satisfy any exceptions to PCRA’s one-year time limit. See, e.g., Lee, 206
A.3d at 7-11 (18-year-old defendant’s PCRA petition based on Miller and its
rationale dismissed as untimely); Pew, 189 A.3d at 490-91 (18-year-old
defendant’s PCRA petition based on Miller dismissed as untimely);
Commonwealth v. Montgomery, 181 A.3d at 366-67 (22-year-old
defendant’s PCRA petition based on Miller and Equal Protection Clause
dismissed as untimely); Woods, 179 A.3d at 43-44 (18-year-old defendant’s
claim under Miller dismissed as untimely); Furgess, 149 A.3d at 94 (19-
year-old defendant’s PCRA petition based on Miller and claim that “he was a
‘technical juvenile’” based on “neuroscientific theories regarding immature
brain development” dismissed as untimely).
To the extent that Appellant has also asserted that his PCRA petition is
timely under the Section 9545(b)(1)(ii) for petitions based on newly
discovered facts, see PCRA Petition at 1 ¶2; Appellant’s Brief at 7, this
argument likewise fails. The issue raised that Appellant raised in the PCRA
petition was a claim that his sentence is unconstitutional based the United
States Supreme Court’s Miller decision. Judicial decisions do not constitute
new facts for purposes of Section 9545(b)(1)(ii). Commonwealth v. Watts,
23 A.3d 980, 986-87 (Pa. 2011); Commonwealth v. Kretchmar, 189 A.3d
459, 467 (Pa. Super. 2018). The only potentially applicable exception to the
PCRA’s time limits is thus the exception for newly recognized constitutional
rights, Section 9545(b)(1)(iii), which he cannot satisfy, and the exception for
newly discovered facts has no applicability to this PCRA petition.
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Moreover, even if Section 9545(b)(1)(ii) were relevant, the PCRA
petition would still be untimely because the alleged facts are not new. In
addition to satisfying the requirements of an exception under Sections
9545(b)(1)(i)-(iii), the convicted defendant must show that he filed the PCRA
petition within the time limit for these exceptions set by Section 9545(b)(2)
of the PCRA. Lee, 206 A.3d at 6; Commonwealth v. Sanchez, 204 A.3d
524, 526-27 (Pa. Super. 2019). At the time that Appellant filed this PCRA
petition in February 2016, Section 9545(b)(2) required that a PCRA petition
invoking an exception “be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2) (in effect January 16, 1996 to
December 23, 2018).4
The only alleged facts asserted by Appellant are scientific studies
concerning brain development on which Miller, Montgomery v. Louisiana,
Graham v. Florida, 560 U.S. 48 (2010), and Roper, were based. Appellant’s
Brief at 7-9. Those scientific studies were in existence and referenced in the
Miller, Graham, and Roper decisions issued in 2012, 2010, and 2005, years
before Appellant filed this PCRA Petition in 2016.5 Appellant’s attempted
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4 While Appellant’s PCRA petition was pending, Section 9545(b)(2) was
amended to provide that “[a]ny petition invoking an exception provided in
paragraph (1) shall be filed within one year of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2); Act of October 24, 2018, P.L. 894,
No. 146, § 2. This amendment has no applicability here, as it applies only to
claims arising on or after December 24, 2017, Act of October 24, 2018, P.L.
894, No. 146, §§ 3, 4, over a year after this PCRA petition was filed.
5Although Montgomery v. Louisiana was issued less than 60 days before
Appellant’s PCRA Petition, it does not cite any scientific studies.
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invocation of the exception for newly discovered facts would therefore be
barred by Section 9545(b)(2) of the PCRA.
Because Appellant’s PCRA petition was untimely, we affirm the PCRA
court’s order dismissing Appellant’s PCRA petition.
Order affirmed.
Judge Ott joins in the memorandum.
Judge Dubow concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/19
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