Com. v. Anthony, R.

J-S39025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROBERT MORRIS ANTHONY
Appellant No. 1670 WDA 2016
Appeal from the PCRA Order September 22, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0016531-2002
BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 22, 2017
Robert Morris Anthony appeals from the order denying his fourth PCRA
petition as untimely. We affirm.
We previously set forth the factual history in our memorandum
denying Appellant’s pursuit of direct appeal relief. Briefly stated, Appellant
was at the home of Derriah Baker. Appellant announced that he needed
some money, and Baker lured Paul Pusic to her home by asking him to bring
over some milk. Appellant indicated that he would rob Pusic. Once Pusic
arrived in his vehicle, Appellant approached Pusic and the two men began to
struggle. During this incident, Appellant fired his gun, hitting Pusic in the
torso. Appellant then pulled Pusic from the vehicle and left him to die on the
sidewalk. He then stole Pusic’s vehicle and fled the scene. See
* Retired Senior Judge assigned to the Superior Court.
J-S39025-17
Commonwealth v. Anthony, 915 A.2d 138 (Pa.Super. 2006) (unpublished
memorandum). Following a non-jury trial, Appellant was convicted of, inter
alia, second-degree homicide, robbery, and carrying a firearm without a
license. He received the mandatory sentence of life imprisonment without
the possibility of parole.
Appellant sought relief with this Court on direct appeal, which was
denied by unpublished memorandum. Id. Our Supreme Court denied
further review. He then sought timely PCRA relief, the denial of which was
affirmed on appeal. Commonwealth v. Anthony, 981 A.2d 911 (Pa.Super.
2009) (unpublished memorandum). He filed two additional PCRA petitions,
both of which were denied by the trial court. The first was dismissed on
appeal for failing to file a brief. The second petition unsuccessfully sought
relief pursuant to Miller v. Alabama, 567 U.S. 460 (2012) (mandatory life
imprisonment without parole for persons under the age of eighteen at time
of crimes), a decision we affirmed. Commonwealth v. Anthony, 82 A.3d
469 (Pa.Super. 2013) (unpublished memorandum).
The instant petition seeking PCRA relief was docketed on March 16,
2016. The PCRA court appointed counsel, who was later permitted to
withdraw, and dismissed the petition as untimely. Appellant and the PCRA
court complied with Pa.R.A.P. 1925 and the matter is ready for our review.
Appellant presents three issues for our consideration.
-2-
J-S39025-17
I. Did the lower court err in denying [the] PCRA petition
without a hearing since the petitioner presented a newly-
recognized right by the United States Supreme Court concerning
retroactivity being applicable to new substantive rules of
constitutional law asserted within Montgomery v. Louisiana by
way of presenting Alleyne claim?
II. Did the lower court err in denying [the] PCRA petition
without a hearing by not accepting petitioner[’]s Alleyne v.
United States claim concerning Sixth Amendment jury trial
right applying facts that trigger or increase a mandatory
minimum sentence?
III. Did the lower court err in denying [the] PCRA petition
without a hearing by not recognizing mandatory life without
parole is a disproportionate punishment for youth homicide
offenders under the age of twenty-five (25) as it violates the
Eighth Amendment prohibition on cruel and unusual
punishment?
Appellant’s brief at 3 (some capitalization omitted).
It is well-settled that all PCRA petitions must be filed within one year
of the date a defendant’s judgment of sentence becomes final, unless an
exception applies. 42 Pa.C.S. § 9545(b)(1). The time-bar is jurisdictional in
nature; therefore, “when a PCRA petition is untimely, neither this Court nor
the trial court has jurisdiction over the petition.” Commonwealth v.
Miller, 102 A.3d 988, 992 (Pa.Super. 2014) (citation and quotation marks
omitted). Timeliness presents a question of law, which we review de novo,
and our scope of review is plenary. Commonwealth v. Hudson, 156 A.3d
1194, 1197 (Pa.Super. 2017).
-3-
J-S39025-17
Appellant’s conviction became final long ago. This attempt to
circumvent the time bar relied upon § 9545(b)(1)(iii), which confers
jurisdiction when the Supreme Courts of the United States or Pennsylvania
have recognized the retroactive application of a new constitutional right, and
the petition is filed within sixty days of the relevant decision. Appellant filed
the instant petition within sixty days of Louisiana v. Montgomery, 136
S. Ct. 718 (2016), which he claims qualifies pursuant to that statute.
Montgomery did indeed announce a new retroactive right, but its
holding is limited to Miller v. Alabama, 567 U.S. 460 (2012), which
determined that it is unconstitutional to impose a mandatory sentence of life
imprisonment without the possibility of parole for crimes committed while
the defendant was a juvenile. Miller has no applicability herein, as
Appellant was not a juvenile when he committed his crimes. Instead,
Appellant is asking this Court to extend Miller to classes beyond juveniles,
something we cannot do. See Commonwealth v. Furgess, 149 A.3d 90
(Pa.Super. 2016).
Appellant further seeks to apply Montgomery to all claims arising
under Alleyne v. United States, 133 S. Ct. 2151 (2013), which held that a
jury must find beyond a reasonable doubt any facts that increase a
mandatory minimum sentence. Presently, Appellant complains that his
mandatory sentence of life imprisonment without the possibility of parole
violates Alleyne. As we have stated, Montgomery is limited to actual
-4-
J-S39025-17
Miller claims and it does not extend to Alleyne. In any case, Alleyne does
not apply retroactively. Commonwealth v. Washington, 142 A.3d 810,
818 (Pa. 2016).1 Therefore, the PCRA court correctly determined that it
lacked jurisdiction to address Appellant’s petition.
Appellant’s third ground on appeal is a substantive claim regarding the
proportionality of his sentence. Since the PCRA court lacked jurisdiction to
entertain the merits of any claim unless one of the exceptions applied, there
is no further need to address this assertion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2017
____________________________________________
1
Furthermore, while we cannot address the merits of Appellant’s claim, we
note that Appellant’s mandatory sentence does not run afoul of Alleyne, as
he was not subjected to a mandatory minimum sentence based on
impermissible fact-finding but because the General Assembly determined
that mandatory life imprisonment was the required penalty for persons
convicted of felony homicide.
-5-