Com. v. Palmer, S.

J-S51038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEPHEN PALMER :
:
Appellant : No. 517 EDA 2017
Appeal from the PCRA Order January 18, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1204301-2000
BEFORE: BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 18, 2017
Appellant Stephen Palmer appeals pro se from the January 18, 2017,
order entered in the Court of Common Pleas of Philadelphia County
dismissing his serial petition filed under the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, on the basis it was untimely filed.
After a careful review, we affirm.
The relevant facts and procedural history underlying this appeal have
been aptly set forth previously by this Court as follows:
On November 2, 2001, Appellant was sentenced to life
imprisonment without the possibility of parole after the trial
court convicted him of one count of first-degree murder, and two
counts each of recklessly endangering another person and
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S51038-17
possession of an instrument of crime.1 This Court affirmed the
judgment of sentence on January 10, 2003. Commonwealth v.
Palmer, 3490 EDA 2001 (Pa.Super. 2003) (unpublished
memorandum). Appellant did not file a petition for allowance of
appeal with our Supreme Court.
On February 6, 2004, Appellant filed a timely counseled
PCRA petition, which the PCRA court dismissed on October 25,
2005. This Court affirmed that order on August 20, 2007.
Commonwealth v. Palmer, 3289 EDA 2005 (Pa.Super. 2007)
(unpublished memorandum)....On February 13, 2008, our
Supreme Court denied Appellant’s petition for allowance of
appeal.
Appellant filed [a] pro se PCRA petition on April 25, 2012.
Appellant retained private counsel, who filed an amended
petition on December 10, 2013....On September 17, 2014, the
PCRA court entered an order dismissing Appellant’s PCRA
petition. [This Court affirmed that order on December 28,
2015.]
Commonwealth v. Palmer, 2968 EDA 2014, at 1-3 (Pa.Super. 2015)
(unpublished memorandum) (footnote in original).
On March 18, 2016, Appellant filed the instant pro se PCRA petition,
and on November 28, 2016, the PCRA court provided notice of its intent to
dismiss without an evidentiary hearing. Appellant filed a response, and by
order entered on January 18, 2017, the PCRA court dismissed Appellant’s
PCRA petition on the basis it was untimely filed. This timely appeal
followed.2
____________________________________________
1
18 Pa.C.S.A. §§ 2502(a), 2705, and 907(a), respectively.
2
The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)
statement; however, on February 22, 2017, the PCRA court filed a Pa.R.A.P.
(Footnote Continued Next Page)
-2-
J-S51038-17
Preliminarily, we must determine whether Appellant’s instant PCRA
petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50
(Pa.Super. 2000). “Our standard of review of the denial of PCRA relief is
clear; we are limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and
quotation marks omitted).
The most recent amendments to the PCRA, effective January 19, 1996,
provide that a PCRA petition, including a second or subsequent petition, shall
be filed within one year of the date the underlying judgment becomes final.
42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final “at the conclusion of
direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a claim previously was the result of
interference by government officials with the
presentation of the claim in violation of the Constitution
_______________________
(Footnote Continued)
1925(a) opinion setting forth its reasons for dismissing Appellant’s PCRA
petition as untimely.
-3-
J-S51038-17
or the law of this Commonwealth or the Constitution or
law 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 Pennsylvania after
the time period provided in this section and has been
held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
“We emphasize that it is the petitioner who bears the burden to allege
and prove that one of the timeliness exceptions applies.” Commonwealth
v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).
Further, a petitioner asserting a timeliness exception must file a petition
within sixty days of the date the claim could have been presented. 42
Pa.C.S.A. § 9545(b)(2).
In the case before us, as the PCRA court aptly found, Appellant was
sentenced on November 2, 2001, and this Court affirmed his judgment of
sentence on January 10, 2003. Appellant did not file a petition for allowance
of appeal with our Supreme Court. Accordingly, his judgment of sentence
became final on February 10, 2003, when the thirty-day time period for
filing a petition for allowance of appeal with our Supreme Court expired.
See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113. Appellant had one year
from that date, or until February 10, 2004, to file a timely PCRA petition.
See 42 Pa.C.S.A. § 9545(b). However, Appellant did not file the instant
-4-
J-S51038-17
PCRA petition until March 18, 2016, and thus, it is patently untimely. See
42 Pa.C.S.A. § 9545(b)(1).
This does not end our inquiry; however, as Appellant contends that he
is entitled to the “newly-discovered facts” exception as delineated by Section
9545(b)(1)(ii). In this vein, Appellant specifically alleges “the Brain Science
and Social Science revealed in Miller v. Alabama[3] constitutes [newly]
discovered evidence.” Appellant’s Brief at 8 (footnote added). Appellant
asserts he is entitled to be resentenced in light of “the scientific facts
presented in Miller and those defined as a class or category of individuals
that were included within the context of developing adolescence in Miller[.]”
Appellant’s Brief at 8.
Assuming, arguendo, Appellant met the initial sixty day threshold, we
find Appellant is not entitled to Section 9545(b)(1)(ii)’s timeliness exception.
Our appellate courts have expressly rejected the notion that judicial
decisions can be considered “newly-discovered facts” which would invoke the
protections afforded by Section 9545(b)(1)(ii). See Commonwealth v.
Watts, 611 Pa. 80, 23 A.3d 980, 986 (2011) (holding a judicial opinion does
not qualify as a previously unknown “fact” capable of triggering the
timeliness exception set forth in section 9545(b)(1)(ii) of the PCRA).
____________________________________________
3
Miller v. Alabama, 132 S. Ct. 2455 (2012).
-5-
J-S51038-17
Appellant also asserts that he is entitled to the timeliness exception of
Section 9545(b)(1)(iii) relating to a new constitutional right that applies
retroactively. Specifically, Appellant asserts that his sentence is illegal under
Miller, supra, and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).
Assuming, arguendo, Appellant met the initial sixty day threshold, we
agree with the PCRA court that the dictates of Miller/Montgomery are
inapplicable to Appellant. In Miller, the High Court held that sentencing a
juvenile convicted of a homicide offense to mandatory life imprisonment
without parole violates the Eight Amendment’s prohibition to cruel and
unusual punishment. Accordingly, such sentences cannot be handed down
unless a judge or jury first considers mitigating circumstances. In
Montgomery, the High Court held that its ruling in Miller is to be given
retroactive effect on collateral review.
However, the Miller decision applies to only those defendants who
were “under the age of 18 at the time of their crimes.” Miller, 132 S. Ct. at
2460. Here, as Appellant admits, and the PCRA court found, Appellant was
twenty-five years old at the time he committed the instant murder. See
Appellant’s Brief at 6, 8; PCRA Court Opinion, filed 2/22/17, at 5 n.2.
Therefore, we agree with the PCRA court that the holdings in
Miller/Montgomery are inapplicable to Appellant.
Appellant argues, nevertheless, that he may invoke
Miller/Montgomery because his immature and/or diminished brain was not
-6-
J-S51038-17
fully developed at the time of the murder. Thus, Appellant seeks an
extension of Miller/Montgomery to persons convicted of murder who were
older at the time of their crimes than the class of defendants subject to the
Miller holding. However, this Court has previously rejected such an
argument. See Commonwealth v. Furgess, 149 A.3d 90 (Pa.Super.
2016) (holding the nineteen-year-old appellant was not entitled to relief
under Miller/Montgomery on collateral review; rejecting argument that he
should be considered a “technical juvenile”).
Finally, to the extent Appellant contends generally that his sentence is
illegal and that such a claim is non-waivable, we note that that “[a]lthough
legality of sentence is always subject to review within the PCRA, claims must
still first satisfy the PCRA’s time limits or one of the exceptions thereto.”
Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa.Super. 2007)
(quotation marks, quotations, and citations omitted).
For all of the aforementioned reasons, we agree with the PCRA court
that Appellant’s instant PCRA petition is untimely, and he has failed to
invoke successfully any of the timeliness exceptions. Thus, we affirm.
Affirmed.
-7-
J-S51038-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2017
-8-