Com. v. Pierce, A. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ALAN PIERCE, : No. 2008 MDA 2016
:
Appellant :
Appeal from the PCRA Order, November 4, 2016,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0000080-1974
BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 06, 2017
Alan Pierce, pro se, appeals the order of November 4, 2016, by the
Court of Common Pleas of York County that dismissed his second PCRA1
petition as untimely without a hearing. After careful review, we affirm.
The factual history of this matter as recounted by the PCRA court is as
follows:
On May 24, 1974, [appellant] was found guilty
of First Degree Murder. On May 24, 1974,
[appellant] was sentenced to life imprisonment
without the possibility of parole. [Appellant] did not
file an appeal with the Superior Court. Therefore,
[u]nder the PCRA, [appellant’s] judgment of
sentence became final on June 24, 197[4].[2]
[Appellant] filed a PCRA petition on January 7, 1997,
1
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
The 30-day appeal period is extended one day because the 30th day fell on
Sunday, June 23, 1974. 1 Pa.C.S.A. § 1908.
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which petition was denied by the Court of Common
Pleas on December 31, 1997. [Appellant] then filed
an appeal with the Superior Court. This appeal was
denied by the Superior Court. [Appellant] filed the
instant Petition, his second PCRA, on March 28,
2016.
PCRA court opinion, 11/4/16 at 1.
On October 3, 2016, pursuant to Pa.R.Crim.P. 907(1), the PCRA court
issued a notice of its intention to dismiss without a hearing. Appellant did
not respond to the notice. On November 4, 2016, the PCRA court dismissed
appellant’s petition. Appellant filed a notice of appeal which was dated
November 28, 2016, but filed on December 6, 2016.3 On December 19,
2016, the PCRA court issued an order pursuant to Pa.R.A.P. 1925(b) and
directed appellant to file a concise statement of errors complained of on
appeal.
On March 15, 2017, the PCRA court issued a statement pursuant to
Rule 1925(a) to the effect that appellant failed to respond to its Rule 1925
order and requested this court to dismiss the appeal.
In 1998, our Supreme Court held that “in order
to preserve their claims for appellate review,
Appellants must comply whenever the trial court
orders them to file a Statement of Matters
Complained of on Appeal pursuant to Rule 1925.”
Commonwealth v. Lord, 553 Pa. 415, 719 A.2d
306, 309 (1998). Subsequently, in Commonwealth
v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005), the
3
Under the prisoner mailbox rule, a petition filed by a prisoner is deemed
“filed” on the date it is deposited with prison authorities for mailing.
Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997). Under this rule the
appeal was timely.
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Supreme Court affirmed its holding in Lord, ruling
that a failure to file a 1925(b) statement within
14 days[Footnote 8] after entry of an order
requesting the statement, regardless of the length of
the delay, results in automatic waiver.
[Footnote 8] Lord and Castillo
examined the application of the previous
version of Pa.R.A.P. 1925. Under that
version, when the trial court entered an
order directing the appellant to file a
concise statement, the appellant had
only 14 days to file the statement.
Pa.R.A.P. 1925(b) (2007).
Commonwealth v. Thompson, 39 A.3d 335, 338 (Pa.Super. 2012)
(additional footnotes omitted).
Instantly, the record clearly indicates that appellant failed to comply
with the trial court’s Rule 1925(b) order. The statement does not appear
anywhere in the certified record, nor did he attach any such statement to his
brief as required by Pa.R.A.P. 2111(d). As such, appellant has waived all
issues on appeal. See Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in
the Statement and/or not raised in accordance with the provisions of this
paragraph are waived.”). Moreover, even if we were to address appellant’s
appeal, we would affirm the PCRA court’s denial of relief on the Miller v.
Alabama, 567 U.S. 460 (2012), issue in that appellant was 19 years old at
the time he committed the murder.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2017
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