Com. v. Bailey, D.

J-S03021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEMETRIUS BAILEY
Appellant No. 764 WDA 2016
Appeal from the PCRA Order dated April 20, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006409-1994
CP-02-CR-0008102-1994
BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY SOLANO, J.: FILED APRIL 7, 2017
Appellant, Demetrius Bailey, appeals pro se from the order dismissing
as untimely his sixth petition filed pursuant to the Post Conviction Relief Act.
42 Pa.C.S. §§ 9541-46. We affirm.
On December 20, 1994, a jury convicted Appellant of second-degree
murder in the shooting death of Michael Sayles. That same day, the trial
court sentenced Appellant to mandatory life imprisonment. Appellant filed a
direct appeal. This Court affirmed Appellant’s judgment of sentence on
November 20, 1995. Commonwealth v. Bailey, 673 A.2d 398 (Pa. Super.
1995) (unpublished memorandum). Appellant filed a petition for allowance
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*
Retired Senior Judge assigned to the Superior Court.
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of appeal, which the Supreme Court denied on April 23, 1996.
Commonwealth v. Bailey, 675 A.2d 1241 (Pa. 1996).
Thereafter, Appellant filed several petitions in which he sought post-
conviction relief. Most recently, on November 5, 2014, Appellant filed the
pro se PCRA petition presently before us. The PCRA court issued notice of its
intention to dismiss this petition pursuant to Pa.R.Crim.P. 907, and
dismissed the petition on April 20, 2016. This timely appeal followed.
Appellant presents three issues for review:
1. Whether the abandonment of petition by state appellate
counsel in the first PCRA violated petitioner’s constitutional
right to effective assistance of counsel on PCRA, thus,
warranting a reinstatement of his appellate rights?
2. Did the imposition of petitioner’s life without parole sentence
for a homicide offense violate the Eighth and Fourteenth
Amendments prohibition against cruel and unusual
punishments under the United States Constitution and Article
1 § 13 of the Pennsylvania Constitution?
3. Whether the lower court is in violation of petitioner’s due
process and equal protection rights for failure to send a copy
of notice of intent to dismiss so petitioner can respond and
failure to address supplemental amended PCRA and failure to
furnish the Superior Court with complete record making
petitioner’s appeal process ineffective.
Appellant’s Brief at 3.
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determinations are supported by the record and are free of legal
error.” Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013) (quoting
Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)). The PCRA court’s
findings will not be disturbed unless there is no support for the findings in
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the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.
Super. 2001). Moreover, a PCRA court may decline to hold a hearing on the
petition if the PCRA court determines that petitioner’s claim is frivolous and
without support in either the record or from other evidence.
Commonwealth v. Jordan, 772 A.2d 1011, 1104 (Pa. Super. 2001).
To be eligible for post-conviction relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from one or more of the enumerated errors or defects in 42 Pa.C.S.
§ 9543(a)(2). Commonwealth v. Carpenter, 725 A.2d 154, 160 (Pa.
1999). In addition, the petition must be timely, as the timeliness of a post-
conviction petition is jurisdictional. Commonwealth v. Hernandez, 79
A.3d 649, 651 (Pa. Super. 2013). 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 is final unless the petition alleges, and the
petitioner proves, that an exception to the time for filing the petition, set
forth at 42 Pa.C.S. Sections 9545(b)(1)(i), (ii), and (iii), is met. 42 Pa.C.S.
§ 9545.1 A PCRA petition invoking one of these statutory exceptions must
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1
The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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.
(Footnote Continued Next Page)
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“be filed within 60 days of the date the claims could have been presented.”
See Hernandez, 79 A.3d 651-652 (citations omitted); see also 42 Pa.C.S.
§ 9545(b)(2). The petitioner seeking to file an untimely PCRA petition bears
the burden to allege and prove that one of the timeliness exceptions applies.
Commonwealth v. Whitehawk, 146 A.3d 266 (Pa. Super. 2016).
Relative to the underlying appeal, this Court, in a prior decision,
determined that Appellant’s judgment of sentence became final on July 22,
1996, and Appellant “had one year from this date to file any petition for
collateral relief unless he pleaded and proved a timing exception applied.”
Commonwealth v. Bailey, 984 A.2d 1006 (Pa. Super. 2009) (unpublished
judgment order). Because Appellant did not file the petition at issue until
December 4, 2014, it is untimely unless he has satisfied his burden of
pleading and proving that one of the enumerated exceptions applies. See
Hernandez, 79 A.3d at 651.
_______________________
(Footnote Continued)
(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).
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In his petition, Appellant fails to explain why his untimely PCRA
petition should be exempted from the one-year filing period. Within his
brief, Appellant summarizes his argument as follows:
Appella[nt] is challenging that the abandonment of appellate
counsel violated his constitutional rights to counsel in his first
PCRA denying him ineffective assistance of counsel in which he is
entitled to reinstatement of his appellate rights. The court
sentence[d] petitioner to an illegal sentence base[d] on
unconstitutional statutes and laws and that the Juvenile Act
applies to his LWOP [that is, his sentence of life without parole]
in violation of the Eighth Amendment that a child under (21)
years is a delinquent and entitled to a hearing in juvenile court
before adult court under a new substantial rule of constitutional
law made retroactive.
Appellant’s Brief at 6.
In the body of his argument, Appellant generally claims that he is
invoking the exceptions to the time bar of the PCRA at Section 9545(b)(ii)
(newly discovered evidence), and (iii) (newly recognized constitutional
right). Appellant’s Brief at 7. He also states that his “Nunc Pro Tunc
[petition] was filed within the statutory time restraints of (60) days set forth
in §9545(b)(2).” Id. Appellant then references Montgomery v.
Louisiana, 136 S. Ct. 718 (2016),2 and claims that his life-without-parole
sentence is unconstitutionally invalid. Appellant’s Brief at 8. Finally,
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2
Miller v. Alabama, 132 S. Ct. 2455 (2012), held that sentences of
mandatory life imprisonment without parole imposed upon juveniles who
were under the age of 18 at the time they committed murder were
unconstitutional; Montgomery v. Louisiana held that the application of
Miller v. Alabama is retroactive.
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Appellant contends that the PCRA court erred by failing to send him a copy
of the Rule 907 notice of intent to dismiss Appellant’s petition and failure to
file a Rule of Appellate Procedure 1925(a) opinion. Id. at 16.
Appellant’s argument is undeveloped and meritless. First, he fails to
articulate or specify how and when, within the statutorily prescribed 60
days, he learned that he was entitled to relief which fell within an exception
to the PCRA’s time bar. We note that allegations of ineffective assistance of
counsel will not overcome the jurisdictional timeliness requirements of the
PCRA. Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).
With regard to Appellant’s reference to Montgomery v. Louisiana and his
life without parole sentence, Appellant was 20 years old when he committed
murder.3 The right of juveniles not to be sentenced to lifetime incarceration
that was at issue in Montgomery does not apply to individuals who were 18
or older at the time they committed murder. See Commonwealth v.
Furgess, 149 A.3d 90 (Pa. Super. 2016). Further, any deficiencies in the
PCRA court’s service of a Rule 907 notice or failure to file a Pa.R.A.P.
1925(a) opinion are not reversible error when the record is clear that the
petition is untimely. See, e.g., Commonwealth v. Ziegler, 148 A.3d 849
(Pa. Super. 2016).
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3
Appellant was born on July 9, 1973, and fatally shot Michael Sayles on
May 5, 1994. Criminal Complaint, 5/5/94.
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Because Appellant’s most recent petition is untimely and fails
sufficiently to plead and prove an exception to the PCRA time bar, Appellant
is not entitled to relief. We therefore affirm the order dismissing Appellant’s
PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2017
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