Com. v. Garcia, M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MIGUEL A. GARCIA,
Appellant No. 2600 EDA 2014
Appeal from the PCRA Order entered September 5, 2014,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0502041-2001
BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.
MEMORANDUM BY ALLEN, J.: FILED APRIL 13, 2015
Miguel A. Garcia (“Appellant”) appeals from the order denying his
second petition for post-conviction relief filed pursuant to the Post Conviction
Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. Appellant has also filed an
application to stay his appeal. For the reasons discussed below, we deny
Appellant’s application to stay, and affirm the PCRA court’s order denying
relief.
The pertinent facts have been summarized as follows:
Appellant, his co-defendant Antonio Lambert and Anthony
Cheatam were in Appellant’s car all afternoon on the date
in question. Appellant and Cheatam smoked marijuana.
Lambert told Appellant he wanted to get high and he
directed Appellant to drive to an area where they
purchased some Xanax pills, which they subsequently
ingested. They stopped at a gas station and got gas.
Upon leaving the gas station, Lambert told Appellant to
pull over. Both Appellant and Lambert exited the car and
attempted to steal the purse of a woman pushing a
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shopping cart. When the woman resisted, Lambert shot
her, fatally wounding her. Both men returned to the car.
Lambert, still holding the gun, told Appellant to drive
away. Cheatam insisted on being let out of the car and he
was. Appellant and Lambert remained together the rest of
the evening. Early the next morning, still in Appellant’s
car, they were pulled over for a traffic violation. Appellant
drove away before the police officer exited his car and a
pursuit ensued. Appellant’s car crashed; the occupants
exited and fled on foot. Appellant, Lambert, and a third
companion were apprehended; Appellant discarded the
murder weapon during the foot chase.
Commonwealth v. Garcia, 847 A.2d 67, 70 (Pa. Super. 2004) (footnote
omitted).
The PCRA court summarized the protracted procedural history that
followed Appellant’s arrest:
On June 10, 2002, following a jury trial before this
[c]ourt, [Appellant] was found guilty of murder of the
second degree, robbery, and criminal conspiracy. Also on
June 10, 2002, [Appellant] was sentenced to a term of life
imprisonment on the murder conviction, with the robbery
bill merging, and a concurrent sentence of five (5) to ten
(10) years of imprisonment for conspiracy. At trial,
[Appellant] was represented by Attorney A. Charles
Peruto, Jr.[]
[Appellant] filed a timely notice of appeal, and on March
11, 2004, [Appellant’s] judgment of sentence was
affirmed. [Garcia, supra.] [Appellant] then sought
allowance of appeal. On September 17, 2004, the
Pennsylvania Supreme granted allowance of appeal as to
one issue. During the direct appeal proceedings,
[Appellant] was represented by Mitchell S. Strutin, Esquire.
On December 27, 2005, the Supreme Court affirmed the
judgment of sentence. [Commonwealth v. Garcia, 888
A.2d 633 (Pa. 2005).] [Appellant] did not seek certiorari.
On September 18, 2006, [Appellant] filed a pro se
[PCRA petition]. On March 18, 2008, Daniel Rendine,
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Esquire, who was appointed to represent [Appellant], filed
an amended petition on [Appellant’s] behalf. On July 3,
2008, the Commonwealth filed a Motion to Dismiss
[Appellant’s] amended petition. On July 17, 2008, this
court granted the Commonwealth’s Motion to Dismiss. On
July 23, 2008, this court sent a notice of intent to dismiss
pursuant to Pennsylvania Rule of Criminal Procedure 907.
On August 21, 2008, [Appellant] filed a motion to
proceed pro se. On September 22, 2008, following a
Grazier hearing, this court granted [Appellant’s] request
to proceed pro se and directed him to file a supplemental
pro se petition. Attorney David Rudenstein was appointed
by this court as backup counsel. On March 4, 2009,
[Appellant] filed pro se an Amended [PCRA Petition] with
Attached Memorandum of Law. On May 7, 2009,
[Appellant] filed a supplement to his PCRA petition. On
June 10, 2009, this court issued a second notice of its
intent to dismiss pursuant to Pennsylvania Rule of Criminal
Procedure 907. On July 8, 2009, this [c]ourt denied
[Appellant’s] PCRA petition.
[Appellant] appealed the denial of PCRA relief. On
December 15, 2010, the Superior Court affirmed.
[Commonwealth v. Garcia, 23 A.3d 582 (Pa. Super.
2010).] On September 26, 2011, allocatur was denied.
[Commonwealth v. Garcia, 29 A.3d 795 (Pa. 2011).]
[Appellant] is seeking relief for a second time. On or
about July 6, 2012, [Appellant], represented by Daniel
Silverman, Esquire, filed his second [PCRA petition] and/or
Motion for Re-Sentencing under the authority of Miller v.
Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)
(holding that a mandatory sentence of life imprisonment
without parole for juvenile offenders is unconstitutional).
On August 14, 2012, [Appellant] filed a supplemental
petition alleging that under Miller, his conviction is
unconstitutional “as applied to children like him who had
no homicidal malice and neither killed nor intend to kill the
victim of a robbery. . . .” Supplemental [PCRA Petition,
8/14/12, at 1]. [Appellant was 17½ years old at the time
the crime was committed.] He argued that his conviction,
therefore, must be vacated.
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On August 24, 2012, [Appellant] filed a Second
Supplemental [PCRA Petition] and/or Second Supplemental
Motion for Re-sentencing. On September 4, 2012,
[Appellant] filed a Memorandum of Law in Support of
[PCRA] Relief.
On September 18, 2013, the Commonwealth asked this
court to permit the Commonwealth to refrain from
responding to [Appellant’s] pleadings until the
Pennsylvania Supreme Court decides Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013) cert. denied, 134
S.Ct. 2724 (U.S. 2014) (considering whether Miller
applies retroactively to juvenile offenders sentenced to life
imprisonment without the possibility of parole).
On December 5, 2013, [Appellant] filed a Motion for
Leave to Amend Petition for Habeas Corpus Relief under
Article [1], Section 14 of the Pennsylvania Constitution and
for Post-Conviction Relief under the [PCRA]. Also on
December 5, 2013, [Appellant] filed his Third
Supplemental [PCRA Petition] and/or Amended Petition for
Habeas Corpus Relief under Article [1], Section 14 of the
Pennsylvania Constitution.
On June 26, 2014, the Commonwealth filed a Motion to
Dismiss [Appellant’s] Second PCRA Petition. On July 1,
2014, [Appellant] filed a Reply to the Commonwealth’s
Motion to Dismiss.
After conducting a review of the record, this court
dismissed [Appellant’s] PCRA petition on September 5,
2014.
PCRA Court Opinion, 10/31/14, at 1-4 (footnotes omitted). This timely
appeal followed. The PCRA court did not require Pa.R.A.P. 1925 compliance.
Appellant raises the following issues:
1. Should this Court stay these proceedings pending the
United States Supreme Court’s decision in Toca v.
Louisiana?
2. Did the PCRA court err in dismissing [Appellant’s] PCRA
petition in which he alleged that under the authority of
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Miller v. Alabama, 132 S.Ct. 2455 (2012) and the
Pennsylvania Constitution his sentence of mandatory life
imprisonment is unconstitutional since he was a child at
the time he participated as the non-shooting accomplice in
a robbery in which his adult co-defendant killed the victim?
(a) Did the PCRA court err in refusing to apply Miller
retroactively on the basis that the United States Supreme
Court has already applied Miller retroactively?
(b) Did the PCRA court err in refusing to apply Miller
retroactively on the basis that Miller announced a new
watershed rule of substantive law?
(c) Did the PCRA court err in refusing to apply Miller
retroactively on the broader principles of retroactivity
based in Pennsylvania law as suggested by the majority
and concurring opinions in Cunningham itself?
[3]. Did the PCRA court err in failing to find under the
authority of Graham v. Florida and its progeny that
applying the felony murder rule is unconstitutional as
applied to children like him who had no homicidal malice
and neither killed nor intended to kill the robbery victim?
Appellant’s Brief at 3-4 (footnote omitted).1
Our standard of review regarding an order dismissing a petition under
the PCRA is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Commonwealth v. Halley,
870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
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1
In the omitted footnote, Appellant asserted, “All claims raised in this
appeal are based on both the United States Constitution and the
Pennsylvania Constitution.” Appellant’s Brief at 3, n.1.
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Moreover, a PCRA court may decline to hold a hearing on the petition if the
PCRA court determines that the petitioner’s claim is patently frivolous and is
without a trace of support either in the record or from other evidence.
Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001).
We address Appellant’s first issue, the subject of which Appellant has
also raised in a separately filed motion. According to Appellant:
This Court should stay these proceedings until the
United States Supreme Court’s decision in Toca v.
Louisiana, [135 S.Ct. 781 (2014),] expected no later than
June 2015. If the Court in Toca rules that Miller v.
Alabama is retroactive, [Appellant] will be entitled to a
resentencing hearing. This hearing would need to take
place before the issues in this appeal are addressed and
would moot most if not all of the present claims.
Appellant’s Brief at 13.
In Toca, supra, the United States Supreme Court issued the following
order on December 12, 2014:
Motion of petitioner for leave to proceed in forma pauperis
granted. Petition for writ of certiorari to the Supreme
Court of Louisiana granted limited to the following
questions: 1) Does the rule announced in Miller v.
Alabama, 567 U.S. ____, 132 S.Ct. 2455, 183 L.Ed.2d
407 (2012), apply retroactively to this case? 2) Is a
federal question raised by a claim that a state collateral
review court erroneously failed to find a Teague exception
[to the general principles of retroactivity]?
Toca, 135 S.Ct. at 781-82. On February 3, 2015, however, the United
States Supreme Court ruled: “The writ of certiorari was dismissed today
pursuant to Rule 46.1 of the Rules of this Court.” Toca, 135 S.Ct. 1197-6-
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(2015). Thus, as Toca is no longer pending, Appellant’s first issue is
meritless, and we deny his separate motion to stay his appeal.2
In his second issue and its subparts, Appellant challenges the PCRA
court’s determination that his second PCRA petition was untimely. The
timeliness of a post-conviction petition is jurisdictional. Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation omitted). Thus, if a
PCRA petition is untimely, neither an appellate court nor the PCRA court has
jurisdiction over the petition. Id. “Without jurisdiction, we simply do not
have the legal authority to address the substantive claims” raised in an
untimely petition. Id.Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, an
exception to the time for filing the petition. Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
these exceptions, the petitioner must plead and prove that: “(1) there has
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
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2
We recognize that in Montgomery v. Louisiana, 2015 U.S. LEXIS 1942,
the high court granted the petition for writ of certiorari to address the
following question: “Do we have jurisdiction to decide whether the Supreme
Court of Louisiana correctly refused to give retroactive effect in this case to
our decision in Miller v. Alabama?” Id. (citation omitted).
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constitutional right has been recognized.” Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
invoking one of these statutory exceptions must “be filed within sixty days of
the date the claim first could have been presented.” Gamboa-Taylor, 753
A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to
the time restrictions of the PCRA must be pled in the petition, and may not
be raised for the first time on appeal. Commonwealth v. Burton, 936
A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not
raised before the lower court are waived and cannot be raised for the first
time on appeal.”).
Because Appellant did not file a petition for writ of certiorari with the
United States Supreme Court following our Supreme Court’s denial of his
allocatur petition, for PCRA purposes, Appellant’s judgment of sentence
became final ninety (90) days thereafter, on March 27, 2006. 42 Pa.C.S.A.
§ 9545(b)(3); U.S.Sup.Ct.R. 13. Thus, in order to be timely, Appellant had
to file his PCRA petition by March 27, 2007. Appellant filed the instant PCRA
petition over five years later. As a result, his PCRA petition is patently
untimely unless he has satisfied his burden of pleading and proving that one
of the enumerated exceptions applies. See Commonwealth v. Beasley,
741 A.2d 1258, 1261 (Pa. 1999).
Appellant has failed to prove the applicability of any of the exceptions
to the PCRA’s time restrictions. Appellant contends that his PCRA falls under
the exception of subsection 9545(b)(1)(iii) because the United States
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Supreme Court recognized a new constitutional right in Miller v. Alabama,
132 S.Ct. 2455 (2012). In Miller, the high court held that mandatory
sentences of life without parole “for those under the age of 18 at the time of
their crimes violates the Eighth Amendment’s prohibition against ‘cruel and
unusual punishment.’” Miller, 132 S.Ct. at 2460. Appellant asserts that the
Miller decision should be applied retroactively to his life sentence. As
recognized by the PCRA court, Appellant’s claim fails.
Our Supreme Court has determined that the Miller decision should not
be applied retroactively. See generally, Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013). Thus, Appellant cannot avoid the
PCRA’s time bar pursuant to Section 9545(b)(iii). As an intermediate
appellate court, we are bound by the Cunningham decision. To the extent
Appellant argues that Cunningham was wrongly decided, it is not our
province to address this claim further.3
With regard to Appellant’s argument seeking habeas corpus relief, we
agree with the following observations of the PCRA court:
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3
Appellant also cites to the federal court’s decision in Songster v. Beard,
35 F.Supp.3d 657 (E.D.Pa. 2014), in which the district court held that Miller
applied retroactively to cases on collateral review. He also suggests that we
stay consideration of his appeal until the Third Circuit addresses the
decision. Appellant’s Brief at 19. Because federal decisions that construe
Pennsylvania law are not binding precedent, Commonwealth v. Bennett,
57 A.3d 1185, 1203 (Pa. 2012), we decline to do so.
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Relying on Chief Justice Castille’s concurring opinion in
Cunningham, [Appellant] argues that to the extent his
federal or state constitutional claims are not cognizable
under the PCRA, he has a remedy under Pennsylvania’s
habeas corpus statute, 42 Pa.C.S. §6501 et seq.
[Appellant’s] claim is meritless and must fail.
In his [concurring] opinion in Cunningham, Chief
Justice Castille offered several “thoughts upon the
prospects of other methods of remedying the seeming
inequity arising in the post-Miller landscape.”
Cunningham, 81 A.3d at 14. He reflected, inter alia, on a
possibility of the post-Miller inequity being resolved
through a petition under Pennsylvania’s habeas corpus
statute. Id. at 11-14.
As a preliminary matter, despite [Appellant’s] claim that
he is entitled to habeas corpus sentencing relief, Chief
Justice Castille’s concurring statement does not represent
the view of the majority of the court and is, therefore, not
precedential. [Moreover, Chief Justice Castille indicated in
his concurrence that he joined “the well-reasoned Majority
Opinion in its entirety.” Id. at 11 (emphasis added).]
Furthermore, pursuant to Pennsylvania law, the PCRA
subsumes the remedy of habeas corpus unless the claim
does not fall within the ambit of the PCRA statute.
[Appellant] cannot avoid the PCRA time-bar by titling his
petition or motion as a writ of habeas corpus.
Here, [Appellant’s] claims involving alleged violations of
his constitutional rights are cognizable under the PCRA.
[Appellant] must, therefore, comply with the timeliness
requirements of the PCRA. [Appellant] cannot avoid the
PCRA timeliness requirements by claiming that he has a
remedy under the Pennsylvania habeas corpus statute.
[Appellant’s] habeas corpus petition should, therefore, be
dismissed as an untimely PCRA claim.
PCRA Court Opinion, 10/31/14, at 13-14 (footnote and citations omitted).
In his final issue, Appellant asserts that the PCRA court erred in
“completely failing to address [his] claim that based on Miller his conviction
for second degree murder under the felony murder rule is unconstitutional
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as applied to children like him who had no homicidal malice and neither
killed nor intended to kill the victim of the robbery.” Appellant’s Brief at 14.
This claim fails, because even if Miller established such a “new
constitutional right,” as we stated above, we are bound by our Supreme
Court’s determination that Miller is not retroactive. Cunningham, supra.
In sum, Appellant’s PCRA petition is facially untimely, and he has failed
to meet his burden of proof with regard to any exception to the timeliness
requirements of the PCRA. We therefore affirm the PCRA court’s denial of
Appellant’s petition for post-conviction relief.
Application to stay denied. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2015
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