Com. v. Richardson, O.

J-S77029-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OMAR RICHARDSON :
:
Appellant : No. 1857 EDA 2018
Appeal from the PCRA Order Entered June 5, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0109031-2000
BEFORE: OTT, J., DUBOW, J., and STRASSBURGER*, J.
MEMORANDUM BY DUBOW, J.: FILED MAY 03, 2019
Appellant, Omar Richardson, appeals pro se from the June 5, 2018 Order
dismissing as untimely his second Petition filed under the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
On March 13, 2001, a jury convicted Appellant of First-Degree Murder,
Possessing Instruments of Crime, and Criminal Conspiracy for the shooting
death of Jose McDuffy on September 11, 1999.1 On May 18, 2001, the trial
court imposed a sentence of life imprisonment for First-Degree Murder
followed by an aggregate term of 15 to 30 years’ incarceration for the other
convictions. On October 16, 2002, this Court affirmed Appellant’s Judgment
of Sentence, and on September 16, 2003, the Pennsylvania Supreme Court
denied Appellant’s Petition for Allowance of Appeal. See Commonwealth v.
____________________________________________
1Appellant’s date of birth is January 2, 1979 and Appellant was 20 years old
when he committed the crime.
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* Retired Senior Judge assigned to the Superior Court.
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Richardson, 815 A.2d 1130 (Pa. Super. 2002) (unpublished memorandum),
appeal denied, 833 A.2d 142 (Pa. 2003). Appellant did not seek review by
the United States Supreme Court. Appellant’s Judgement of Sentence,
therefore, became final on December 15, 2003. See 42 Pa.C.S. § 9545(b)(3);
U.S. Sup. Ct. R. 13.
On March 25, 2016, more than twelve years after his Judgment of
Sentence became final, Appellant filed the instant pro se PCRA Petition, his
second, raising a claim that his sentence is illegal under Montgomery v.
Louisiana, 136 S. Ct. 718 (2016)2, and Alleyne v. United States, 570 U.S.
99 (2013).3 On April 3, 2018, the PCRA court issued a Pa.R.Crim.P. 907 Notice
advising Appellant of its intent to dismiss his Petition without a hearing.
Appellant filed a timely pro se Response raising an additional claim that his
sentence is illegal under Miller v. Alabama, 567 U.S. 460 (2012).4 On June
5, 2018, after considering Appellant’s Response, the PCRA court dismissed
Appellant’s Petition as untimely. This pro se appeal followed.
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2 In Montgomery, the U.S. Supreme Court held that its decision in Miller,
infra, applies retroactively. Montgomery, 136 S. Ct. at 732.
3In Alleyne, the U.S. Supreme Court held that, other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory minimum must be submitted to a jury and proved beyond
a reasonable doubt. Alleyne, 570 U.S. at 112-13.
4 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
courts to impose an automatic life sentence without possibility of parole upon
a homicide defendant for a murder committed while the defendant was under
eighteen years old. Miller, 567 U.S. at 470.
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Appellant raises the following issues on appeal:
1. Newly Recognized Right: Whether the United States
Supreme Court case Montgomery v. Louisiana, [supra], has
rendered a new executive decision that applies to all case[s] of
substantive rules of constitutional law, thereby, making it
“constitutionally” permissible, by due process of law, for a
defendant to raise said claim where application applies under
U.S.C.A. 5th, 8th, and 14th.
2. Alleyne Claim being Retroactively Applicable as a
Substantive Rule: Whether the ruling within Montgomery,
[supra], gives retroactive effect to the Alleyne, [supra],
case when involving new watershed procedural rules and
substantive rules of constitutional law of which applies to a
defendant.
3. Disproportionate Punishment for Youth Offenders Under
25 Yrs. Old: Whether according to Montgomery v.
Lousiana, [supra], citing Miller v. Alabama, [supra],
[Appellant]’s sentence is a disproportionate punishment as a
mandatory life-without-parole for a youth homicide offender,
though not a juvenile, violates the Eighth Amendment’s
(U.S.C.A. 8) prohibition on [“]cruel and unusual punishment”
for the undisputable reasoning of a youth offender between the
age of 18 to 25 suffering from the same or similar irresponsible
characteristics and immature traits as those described in
association with juvenile offenders.
4. Entitlement To Equal Protection Rights Must Award
Similarly Situated Defendants Under U.S.C.A. 8: The
scientific research that supported the decision in Montgomery
v. Louisiana, [supra], to make Miller v. Alabama, [supra],
retroactive, definitely concluded that such scientific/medical
research substantiating transient immaturity that diminishes
culpability extends to the age of 25, thereby, entitling a
defendant who was under the age of 25 when committing
homicide of the first or second degree to the Equal Protection
Rights governed under U.S.C.A. 14 and Article 7 of the
Universal Declaration of Human Rights as well as Due
Process under U.S.C.A. 5 as a defendant in this regard is
similarly situated to that of a juvenile concerning immaturity
research and should therefore be awarded the ”same”
treatment as a juvenile offender.
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Appellant’s Brief at 3-4 (numbered for ease of disposition).
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its Order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if they are
supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.
Super. 2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012).
In order to obtain relief under the PCRA, a petition must be timely filed.
See 42 Pa.C.S. § 9545 (providing jurisdictional requirements for the timely
filing of a petition for post-conviction relief). A petition must be filed within
one year from the date the judgment of sentence became final. 42 Pa.C.S. §
9545(b)(1). Appellant’s Petition, filed more than twelve years after his
Judgment of Sentence became final, is facially untimely.
Pennsylvania courts may consider an untimely PCRA petition, however,
if an appellant pleads and proves one of the three exceptions set forth in
Section 9545(b)(1). Any petition invoking a timeliness exception must be filed
within 60 days of the date the claim could have been presented. 42 Pa.C.S §
9545(b)(2).5
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5 Effective December 24, 2018, Section 9545(b)(2) now provides that “[a]ny
petition invoking an exception . . . shall be filed within one year of the date
the claim could have been presented.”
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Here, Appellant attempts to invoke the timeliness exception under
Section 9545(b)(1)(iii), alleging that his sentence is illegal based on newly
recognized constitutional rights under both Alleyne and Miller, which, he
argues, are both retroactive in their application pursuant to Montgomery.
See Appellant’s Brief at 3-4; 42 Pa.C.S. § 9545(b)(1)(iii).
As long as this court has jurisdiction over the matter, a legality of
sentence issue is reviewable and cannot be waived. Commonwealth v.
Jones, 932 A.2d 179, 182 (Pa. Super. 2007). However, a legality of
sentencing issue must be raised in a timely filed PCRA Petition over which we
have jurisdiction. See 42 Pa.C.S. § 9545(b); Commonwealth v. Fahy, 737
A.2d 214, 223 (Pa. 1999) (“Although 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.”). Appellant filed the instant PCRA Petition on
March 25, 2016, which was within 60 days of the issuance of the Montgomery
decision (decided January 25, 2016).
To support his Alleyne challenge, Appellant erroneously argues that
Alleyne announced a new substantive rule made retroactive by
Montgomery. However, the Pennsylvania Supreme Court has concluded that
the constitutional rule announced in Alleyne is procedural, not substantive,
and unequivocally held that “Alleyne does not apply retroactively to cases
pending on collateral review[.]” Commonwealth v. Washington, 142 A.3d
810, 818-20 (Pa. 2016). Accordingly, Appellant’s reliance on Montgomery
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is misplaced and his Alleyne claim does not fall under the Section §
9545(b)(1)(iii) timeliness exceptions.
Appellant’s Miller claim also fails. Appellant correctly asserts that the
holding in Montgomery is that the rule announced in Miller, supra, holding
juveniles cannot automatically be sentenced to life in prison without parole, is
substantive for purposes of retroactivity. However, because Appellant was 20
years old at the time he committed the instant murder, Miller is inapplicable.
See Commonwealth v. Lee, ___ A.3d ___, 2019 Pa. Super. 64, *9 (filed
March 1, 2019) (en banc) (holding that appellant, who was over the age of 18
at the time of offense, could not invoke Miller to overcome the PCRA time-
bar); Commonwealth v. Lawson, 90 A.3d 1, 6 (Pa. Super. 2014) (stating
that the holding in Miller is limited to those offenders who were juveniles at
the time they committed their crimes). Further, this Court has previously
refused to render relief on the brain science argument that Appellant raises in
his PCRA Petition. See Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.
Super. 2016) (rejecting the 19-year-old appellant’s argument based on
neuroscientific theories of brain development that he is entitled to PCRA relief
because he was a “technical juvenile” at the time he committed his crimes).
In conclusion, Appellant failed to plead and prove any of the timeliness
exceptions provided in 42 Pa.C.S. § 9545(b)(1), and the PCRA court properly
dismissed Appellant’s Petition as untimely. The record supports the PCRA
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court’s findings and its Order is free of legal error. We, thus, affirm the denial
of PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/19
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