Com. v. Casiano-Fernandez, A.

J-S20022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ABIMAEL CASIANO-FERNANDEZ :
:
Appellant : No. 1596 MDA 2017
Appeal from the PCRA Order September 27, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0006385-2003
BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY OTT, J.: FILED JUNE 20, 2018
Abimael Casiano-Fernandez appeals pro se1 from the order entered
September 27, 2017, in the Court of Common Pleas of Berks County, that
dismissed, as untimely, his petition for writ of habeas corpus, which was
deemed a second petition filed pursuant to the Pennsylvania Post Conviction
Relief Act (PCRA).2 Casiano-Fernandez contends he is entitled to PCRA relief
“based on newly discovered mitigating evidence regarding Brain Science and
Social Science Study.” Casiano-Fernandez’s Brief at 3. In support, Casiano-
Fernandez cites the United States Supreme Court decisions in Miller v.
Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012), issued June 25, 2012, and
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1 The PCRA court conducted a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998), and determined Casiano-Fernandez was not
entitled to appointed counsel. See PCRA Court Opinion, 12/12/2017, at 1.
2 42 Pa.C.S. §§ 9541-9546.
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Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718 (2016), issued
January 25, 2016. Based upon the following, we affirm.
On July 22, 2005, Casiano-Fernandez was convicted by a jury of murder
in the first degree. See 18 Pa.C.S. § 2502(a). He was 21 years old when he
committed the crime.3 On September 19, 2005, the trial court sentenced him
to life imprisonment without the possibility of parole. On October 24, 2006,
this Court affirmed the judgment of sentence and, on May 10, 2007, the
Pennsylvania Supreme Court denied allowance of appeal. See
Commonwealth v. Casiano-Fernandez, 913 A.2d 939 (Pa. Super. 2006)
(unpublished memorandum), appeal denied, 923 A.2d 1172 (Pa. 2007).
Thereafter, on November 30, 2007, Casiano-Fernandez filed a timely PCRA
petition that was unsuccessful. See Commonwealth v. Casiano-
Fernandez, 55 A.3d 126 (Pa. Super. 2012) (unpublished memorandum),
appeal denied, 83 A.3d 413 (Pa. 2014).
On March 28, 2016, Casiano-Fernandez filed the instant pro se petition
for writ of habeas corpus, citing Miller, supra, in which the United States
Supreme Court held that “mandatory life without parole for those under the
age of 18 at the time of their crimes violates the Eighth Amendment's
prohibition on cruel and unusual punishments.” Miller, 567 U.S. at 465(emphasis added). On August 4, 2016, Casiano-Fernandez filed a
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3The record reflects Casiano-Fernandez was born in August of 1978 and the
murder occurred in May of 2000.
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supplemental petition, citing Montgomery, supra, wherein the United States
Supreme Court decided that the Miller holding was a new substantive right
that, under the United States Constitution, must be applied retroactively in
cases on state collateral review. Montgomery, 136 S.Ct. at 736.
The PCRA court treated the habeas corpus petition as a PCRA petition
and, on June 16, 2017, held a hearing on the merits. Thereafter, the PCRA
court issued a Pa.R.Crim.P. 907 notice of intent to dismiss, to which Casiano-
Fernandez filed a response. A final order of dismissal was entered on
September 27, 2017. This appeal followed.4
In reviewing an order denying post-conviction relief, we examine
whether the trial court’s determination is supported by evidence of record and
whether it is free of legal error. Commonwealth v. Robinson, 139 A.3d 178,
185 (Pa. 2016). Preliminarily, we address the timeliness of the instant
petition.
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
became final unless the petition alleges and the petitioner proves one of the
three exceptions to the time limitations for filing the petition. 42 Pa.C.S. §
9545(b)(1). Specifically, the PCRA provides:
(b) Time for filing petition.—
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4 Casiano-Fernandez timely complied with the order of the PCRA court to file
a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
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(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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the
claim could have been presented.
(3) For purposes of this subchapter, a judgment becomes
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 time for seeking the review.
42 Pa.C.S. § 9545(b).
Here, Casiano-Fernandez’s judgment of sentence became final on
August 8, 2007, following the Pennsylvania Supreme Court’s denial of his
petition for allowance of appeal on May 10, 2007, and the expiration of the
90-day period for filing a petition for writ of certiorari. See 42 Pa.C.S. §
9545(b)(3); U.S. Sup. Ct. R. 13. Therefore, under the PCRA one-year time
limitation, any PCRA petition was required to be filed by August 8, 2008. See
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42 Pa.C.S. § 9545(b)(1). Casiano-Fernandez filed his petition on March 28,
2016, and filed a supplemental petition on August 4, 2016. As such, the
petition is facially untimely.
Casiano-Fernandez contends, however, that based upon the recent
United States Supreme Court decisions in Miller and Montgomery, he is
entitled to review pursuant to the PCRA’s exception set forth at 42 Pa.C.S. §
9545(b)(1)(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”). Casiano-Fernandez attempts to extend the holdings of Miller and
Montgomery based upon the brain studies and data discussed in Miller. He
maintains he suffered from “a lessened culpability at 22 [sic] years of age due
to his mental infirmities and was no different than a 17 year old offender.”
Casiano-Fernandez’s Brief at 8.
Initially, we note that Montgomery was decided on January 25, 2016,
and Casiano-Fernandez’s present petition was filed 63 days later, on March
28, 2016. Applying the “prisoner mailbox rule,” we find Casiano-Fernandez
has complied with the threshold 60-day filing requirement of Section
9545(b)(2), supra, because the mailing envelope bears a postmark of March
23, 2016. See Commonwealth v. Little, 716 A.2d 1287, 1288 (Pa. Super.
1998) (“The prisoner mailbox rule provides that the date of delivery of the
PCRA petition by the defendant to the proper prison authority or to a prison
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mailbox is considered the date of filing the petition.”). Nonetheless, no relief
is due.
Casiano-Fernandez’s “brain science and social science study” argument
was rejected in Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super.
2016), albeit with respect to the retroactively applied constitutional right
exception, 42 Pa.C.S. § 9545(b)(1)(iii).
In Furgess, the nineteen-year-old defendant convicted of homicide
claimed he was a “technical juvenile” and relied on neuroscientific theories
pertaining to immature brain development to support his claim. The Furgess
Court rejected this argument. Specifically, the Furgess Court relied on the
holding in Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013),
“that petitioners who were older than 18 at the time they committed murder
are not within the ambit of the Miller decision and therefore may not rely on
that decision to bring themselves within the time-bar exception in Section
9545(b)(1)(iii).” Furgess, supra, 149 A.3d at 94. Moreover, the Furgess
Court found “nothing in Montgomery undermines” this holding in Cintora.
Id. at 94. In the recent decision of Commonwealth v. Montgomery, ___
A.3d ___ [2018 Pa. Super. LEXIS 221 at *15] (Pa. Super. 2018) (en banc),
this Court declined to overrule Furgess.
While Furgess concerned a claim brought under Section 9545(b)(1)(iii),
we believe the same rationale is equally applicable to a claim brought under
Section 9545(b)(1)(ii). See id. Simply put, the holdings in Montgomery and
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Miller have no relevance to individuals who were over the age eighteen at the
time they committed murder. Therefore, Casiano-Fernandez cannot rely on
these decisions to satisfy Section 9545(b)(1)(ii).
Moreover, we note Casiano-Fernandez’s discussion regarding the
applicability of the Pennsylvania Mental Health and Mental Retardation Act of
1966 (“MHMRA”), 50 P.S. § 4101, et seq., is more akin to a defense assertion
(diminished capacity, guilty but mentally ill, and insanity). We reiterate the
Miller and Montgomery decisions held that imposition of a mandatory
sentence of life without parole upon a defendant who was under the age of
eighteen when he/she committed murder violates the Eighth Amendment's
prohibition on cruel and unusual punishments. See Miller, 567 U.S. at 479(“We therefore hold that the Eighth Amendment forbids a sentencing scheme
that mandates life in prison without possibility of parole for juvenile
offenders.”) (emphasis added). Miller and Montgomery did not analyze
whether their holdings extend to the MHMRA, and we decline to do so.
Finally, Casiano-Fernandez’s argument that the PCRA court erred in
treating his petition as a PCRA petition, and not a petition for writ of habeas
corpus, warrants no relief. In his petition filed March 28, 2016, Casiano-
Fernandez challenged the legality of his life sentence based upon Miller,
supra. This Court has held that such a claim is properly construed as a PCRA
petition subject to timeliness requirements. See Commonwealth v.
Montgomery, supra, 2018 Pa. Super. LEXIS 221 at *16 (finding petition for
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writ of habeas corpus that relied upon Miller to assert it is illegal to sentence
an individual to life imprisonment if he/she does not have a fully developed
brain was cognizable under the PCRA and properly construed as a PCRA
petition).
In sum, we conclude the present petition was properly treated as
Casiano-Fernandez’s second PCRA petition, and further conclude the petition
is untimely and does not satisfy any PCRA timeliness exception. Accordingly,
we affirm the PCRA court’s order of dismissal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/20/2018
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