Com. v. Billa, L. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LOUIS BILLA :
:
Appellant : No. 2605 EDA 2019
Appeal from the PCRA Order Entered July 29, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0136311-1987
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 8, 2020
Appellant, Louis Billa, appeals pro se from the post-conviction court’s
July 29, 2019 order denying, as untimely, his petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,
we affirm.
The facts of Appellant’s underlying convictions are not pertinent to his
present appeal. The PCRA court summarized the procedural history of his
case, as follows:
On June 11, 1987, a jury found [Appellant] guilty of [first-
degree] murder, escape, theft and [possessing an instrument of
crime (PIC)]. On November 18, 1987, [the trial court] sentenced
[Appellant] to death. [Appellant] appealed his judgment of
sentence. On April 18, 1988, the Supreme Court of Pennsylvania
vacated the judgment of sentence and remanded the matter for a
new trial. Commonwealth v. Billa, 555 A.2d 835 (Pa. 1988).
On January 11, 1990, [Appellant] appeared before [the trial
court] and pled guilty to first[-]degree murder, PIC, and escape.
[The court] sentenced him to life in prison[, without the possibility
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of parole,] plus 3½ to 7 years[’] incarceration on the remaining
charges. [Appellant] did not file a direct appeal.
On June 13, 2012, [Appellant] filed a [pro se] PCRA petition.
On August 20, 2015 and March 23, 2016, [Appellant] filed
supplemental [pro se] PCRA petitions. In these petitions,
[Appellant] claimed that he received ineffective assistance of
counsel [in regard to his] guilty plea[, relying on Lafler v.
Cooper, 566 U.S. 460 (2012), and Missouri v. Frye, 566 U.S.
134 (2012). Appellant also claimed] that he was due relief under
Miller [v. Alabama, 567 U.S. 460 (2012),] as a “technical
juvenile,”[1] and that he was due relief under Obergefell [v.
Hodges, 576 U.S. 644 (2015),] based upon an equal protection
argument. On August 25, 2017, this matter was reassigned to
this [c]ourt. On July 11, 2018, Louis Savino, Esquire[,] was
appointed as PCRA counsel. On June 17, 2019, counsel filed a no-
merit letter,[2] arguing that [Appellant’s] petition was untimely
and that his Lafler/Frye, Miller, and Obergefell claims were
without merit. On June 25, 2019, this [c]ourt sent [Appellant] a
Notice of Intent to Dismiss Pursuant to [Pa.R.Crim.P.] 907. On
July 18, 2019, [Appellant] replied to this [Rule] 907 notice. On
July 30, 2019, this [c]ourt dismissed [Appellant’s] petition based
upon counsel’s [Turner/]Finley letter. On August 26, 2019,
[Appellant] filed a [pro se] Notice of Appeal….
PCRA Court Opinion (PCO), 12/16/19, at 2.
The court did not order Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The court filed a Rule 1925(a)
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1Appellant concedes that he was 21 years old at the time of the offense. See
Appellant’s Brief at 12.
2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(setting forth the requirements counsel must meet to withdraw from
representing a PCRA petitioner, including the filing of a ‘no-merit’ letter
detailing why the claims the petitioner seeks to raise lack merit).
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opinion on December 16, 2019. Herein, Appellant states five issues for our
review:
[I.] Appellant is entitled to relief pursuant to Lafler … and Frye,
constituting ineffective assistance of all prior counsel of record[.]
[II.] Mandatory life-without-parole terms for adults in non-
homicide and homicide cases violate[] state and federal equal
protection clauses, as well as Art. 7 of the Universal Declaration
of Human Rights[.]
[III.] Mandatory life-without-parole terms for individuals over 17
but below age 25 violate the Eighth Amendment, Art. 5 of the
Universal Declaration of Human Rights, as well as Art. 1, § 13 of
the Pennsylvania Constitution[.]
[IV.] A new trial with a “life qualified” jury must be awarded
because [Appellant’s] age changes the possible punishment for
first/second degree murder[.]
[V.] The trial court’s alleged sentence of life without the possibility
of parole is unconstitutional because it violates [Appellant’s] right
to equal protection of the law pursuant to Obergefell…[.]
Appellant’s Brief at 1-2 (unnecessary capitalization omitted).
This Court’s standard of review regarding an order denying 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.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007). Under the PCRA, any petition for post-conviction relief, including
a second or subsequent one, must be filed within one year of the date the
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judgment of sentence becomes final, unless one of the following exceptions
set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, at the time Appellant’s petition
was filed, section 9545(b)(2) required that any petition attempting to invoke
one of these exceptions “be filed within sixty days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).3
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3An amendment to section 9545(b)(2), which became effective on December
24, 2018, changed the language to require that a petition “be filed within one
year of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2). That amendment applies to any claims arising on or after
December 24, 2017.
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Here, Appellant’s judgment of sentence became final in February of
1990, thus making his present petition, filed in 2012, patently untimely.
Consequently, for this Court to have jurisdiction to review the merits thereof,
Appellant must prove that he meets one of the exceptions to the timeliness
requirements set forth in 42 Pa.C.S. § 9545(b).
Appellant first argues that he meets the newly-recognized constitutional
right exception of section 9545(b)(1)(iii) based on the Lafler/Frye decisions,
in which the United States Supreme Court discussed conduct that constitutes
ineffective assistance of counsel during the plea bargaining process. However,
this Court has held that neither Lafler nor Frye created a new constitutional
right; instead, those cases merely clarified the scope of the well-established
right to effective representation during the plea negotiation process. See
Commonwealth v. Feliciano, 69 A.3d 1270, 1276-77 (Pa. Super. 2013).
Therefore, Appellant cannot rely on Lafler/Frye in an attempt to satisfy a
timeliness exception.
We also reject Appellant’s attempt to meet the newly-recognized
constitutional right exception based on Miller. There, the United States
Supreme Court held that “the Eighth Amendment forbids a sentencing scheme
that mandates life in prison without possibility of parole for juvenile
offenders.” Miller, 567 U.S. at 479. Appellant concedes that he was 21 years
old at the time of his crime, but argues that the rationale of Miller must apply,
under equal protection principles, because he was a ‘technical juvenile’ at the
time of his crimes. Appellant’s argument has already been rejected by this
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Court, which has made clear that “[t]he Miller decision applies only to those
defendants who were ‘under the age of 18 at the time of their crimes.’”
Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (quoting
Miller, 567 U.S. at 465). We have also found meritless the ‘technical juvenile’
argument, explaining that “a contention that a newly-recognized
constitutional right should be extended to others does not render a petition
seeking such an expansion of the right timely pursuant to section
9545(b)(1)(iii).” Id. (brackets omitted; emphasis in original) (quoting
Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013)).
Consequently, Appellant cannot rely on Miller to meet a timeliness
requirement.
Finally, Appellant argues that he must be afforded the opportunity for
parole under the equal protection principles espoused in Obergefell. In that
case, the United States Supreme Court held “that the right to marry is a
fundamental right inherent in the liberty of the person, and under the Due
Process and Equal Protection Clauses of the Fourteenth Amendment[,] couples
of the same-sex may not be deprived of that right and that liberty.”
Obergefell, 576 U.S. at 675. The Court also directed that states must
recognize lawful, same-sex marriages performed in other states. Id. at 681.
Here, Appellant claims that the equal protection and due process
rationale underlying the Obergefell decision leads to the conclusion that
Pennsylvania cannot impose a sentence of life imprisonment, without the
possibility of parole, when other states do not allow such sentences. However,
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as the PCRA court observes, the Obergefell Court “did not recognize an
inherent[,] fundamental right to parole eligibility; its holding was limited to
same-sex couples and their right to marry.” PCO at 7. The court is correct.
Nothing in the Obergefell decision indicates that the Supreme Court intended
to recognize a new principle of constitutional law that is to be retroactively
applied to criminal cases on PCRA review. Therefore, Appellant has failed to
meet a timeliness exception.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/08/2020
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