Com. v. Buda, E.

J-S93018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD ALEXANDER BUDA
Appellant No. 2160 EDA 2016
Appeal from the PCRA Order dated June 28, 2016
In the Court of Common Pleas of Wayne County
Criminal Division at No(s): CP-64-CR-0000156-1997
BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED FEBRUARY 03, 2017
Appellant, Edward Alexander Buda, appeals from the order dismissing
his second petition filed under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. We affirm.
On January 28, 1998, Appellant pleaded guilty to and was sentenced
for murder of the first degree1 stemming from an incident on August 11,
1996, in which he and his co-defendants broke into the home of Charles
Gregg in Wayne County, subdued and duct-taped Mr. Gregg’s hands and
feet, and each fired a shot from a revolver into Mr. Gregg as he was lying on
the floor. N.T., 1/28/1998, at 3, 9, 11. It is undisputed that Appellant was
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2502(a).
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18 years old at the time of the crime. Appellant’s Brief at 4;
Commonwealth’s Brief at 2. Appellant did not file a direct appeal.
On November 20, 1998, Appellant filed his first PCRA petition, which
was dismissed by the lower court on August 28, 2001. On September 12,
2001, Appellant filed a notice of appeal to this Court, and we affirmed the
lower court’s order on August 26, 2002.2 On September 18, 2002, Appellant
filed a petition for allowance of appeal to the Supreme Court of
Pennsylvania, which was denied on January 13, 2003.
Appellant filed his current pro se PCRA petition on March 21, 2016,
asserting that, although Appellant was not under the age of 18 at the time of
his offense, the reasoning of the United States Supreme Court’s decision in
Miller v. Alabama, 132 S.Ct. 2455 (2012), should be applied to his case
and his sentence should be vacated. Miller 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.’” 132 S.Ct. at 2460.
On May 31, 2016, the PCRA court entered a notice of intent to dismiss
without a hearing if Appellant did not respond in writing to the proposed
dismissal within 20 days, pursuant to Pa. R. Crim. P. 907. In its notice of
intent to dismiss, the PCRA court stated that Appellant “was eighteen (18)
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2
Commonwealth v. Buda, No. 2878 EDA 2001 (Pa. Super. Aug. 26, 2002)
(unpublished memorandum).
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years old when he was convicted and sentenced to life imprisonment without
parole for Murder of the First Degree” and “therefore is not included in the
class of offenders explained in Miller.” Notice of Intent to Dismiss, dated
May 31, 2016, at 1.3 The trial court hence gave notice that it intended to
dismiss on the merits because Miller did not apply.
On June 22, 2016, having received no response from Appellant, the
PCRA court dismissed Appellant’s PCRA petition. On July 8, 2016, Appellant
filed a timely notice of appeal. Although Appellant’s appeal raises several
issues for our review,4 we do not reach those issues because Appellant’s
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3
The trial court’s statement of Appellant’s age at the time of his conviction
in 1998 was a factual error. There is no dispute between the parties that
Appellant was born in 1978 and was 18 years old when he committed the
murder in 1996 — not when he was convicted and sentenced in 1998.
Although we ultimately hold that the PCRA court properly dismissed
Appellant’s PCRA petition, we note that the PCRA court did so on the
incorrect basis that Appellant was 18 years old “when he was convicted
and sentenced to life imprisonment,” Notice of Intent to Dismiss,
5/31/2016, at 1, instead of “at the time of [his] crimes,” Miller, 132
S.Ct. at 2460. However, “[w]e can affirm the court's decision if there is any
basis to support it, even if we rely on different grounds to affirm.” In re
Payne, 129 A.3d 546, 571 (Pa. Super. 2015), appeal denied, 145 A.3d
167 (Pa. 2016); accord Commonwealth v. Pursell, 749 A.2d 911, 917
(Pa. 2000).
4
(1) Was the Court in Error when it dismissed Appellant's issues
without investigation?
(2) Did the Court deny Appellant Equal Protection as
guaranteed by both Constitutions of Pennsylvania, and the
United States of America and the many decisions of the United
States Supreme Court?
(Footnote Continued Next Page)
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PCRA petition was filed beyond the time limits set forth in the PCRA, and,
therefore, the PCRA court lacked jurisdiction to consider the petition.
The time limits in the PCRA are jurisdictional. Commonwealth v.
Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). A PCRA petition,
including a second or subsequent petition, must be filed within one year of
the date the underlying judgment of sentence becomes final. See 42
Pa.C.S. § 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
time for seeking review.” Id. § 9545(b)(3). Here, Appellant’s judgment of
sentence became final on February 27, 1998, upon the expiration of the time
_______________________
(Footnote Continued)
(3) Was the Commonwealth premature when dismissing
Appellant's Constitutional Protected Petition without a record of
the argument from a[n] Evidentiary Hearing?
(4) Is Cruel and Unusual Punishment in violation of the
Constitutions of Pennsylvania, and the United States of America?
(5) Does [Roper v. Simons, 543 U.S. 551 (2005), holding
that the imposition of capital punishment for crimes committed
when the perpetrator was under the age of 18 is
unconstitutional], [Graham v. Florida, 560 U.S. 48 (2010),
holding that juvenile offenders cannot be sentenced to life
imprisonment without parole for non-homicide offenses] and
Miller coupled with Dennis v. Secretary, PA Department of
Corrections, [834 F.3d 263] (3d Cir. 2016) [which addresses
the prosecution’s duty of disclosure under Brady v. Maryland,
373 U.S. 83 (1963)] Grant Appellant entitlement under the
Eighth Amendment to the Unites States Constitution[?]
Appellant’s Brief at 2.
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for filing a direct appeal to this Court. See id. § 9545(b)(3); Pa.R.A.P.
903(a) (“the notice of appeal required by Rule 902 . . . shall be filed within
30 days after the entry of the order from which the appeal is taken”). Thus,
Appellant had one year from that date, or until March 1, 1999,5 to file a
timely PCRA petition. See 42 Pa.C.S. § 9545(b). Appellant did not file the
instant petition until March 21, 2016, more than 17 years after his judgment
of sentence became final. Accordingly, the PCRA court had no jurisdiction to
entertain Appellant’s petition unless he pleaded and proved one of the three
statutory exceptions to the PCRA’s time bar. See id. § 9545(b)(1).6
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5
February 27, 1999, was a Saturday; Monday, March 1, 1999, was the first
business day thereafter.
6
Those exceptions 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.
(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.
A petition invoking one of the exceptions must be filed within sixty days of
the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).
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Appellant attempts to circumvent the time bar by asserting the “newly
discovered evidence” exception under subsection 9545(b)(1)(ii) and the
“new constitutional right” exception under subsection 9545(b)(1)(iii). PCRA
Pet., 3/21/16, at 1-2. Appellant does not explain how he qualifies for the
exception under subsection 9545(b)(1)(ii), and any claim under that
exception therefore was properly dismissed. Commonwealth v. Murray,
753 A.2d 201 (Pa. 2000) (holding court properly dismissed untimely PCRA
petition, where defendant did not plead and prove applicability of time-bar
exceptions); Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super.
2007) (an untimely PCRA petition is properly dismissed absent proof of
applicability of time-bar exceptions). With respect to subsection
9545(b)(1)(iii), Appellant invokes the United States Supreme Court’s holding
in Miller with respect to those under age 18 and argues:
[M]andatory life without parole for individual[s] under the age of
twenty-one violates state and federal equal protection clauses,
as well as Article 7 of the Universal Declaration of Human Rights.
. . . [Appellant] also points out that it was not until the United
States Supreme Court in [its] most recent case Montgomery v.
Louisiana, 577 U.S. ___[, 136 S.Ct. 718] (2016), where the
Court held that ‘Miller’s prohibition on mandatory life without
parole for juvenile offenders announced a new substantive rule,
that under the Constitution, is retroactive in cases on state
collateral review’, that [Appellant] was able to properly invoke
this Court’s jurisdiction to review these claims.
PCRA Pet., dated 3/21/16, at 2-3. In his brief to this Court, Appellant
justifies his assertion of rights under Miller for those under the age of 21
(rather than those under 18) on the ground that Pennsylvania law treats 21
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as the age of adulthood for some purposes and that those under 21
sometimes have the same lack of maturity as those under 18. See
Appellant’s Brief at 6-8.
The Supreme Court’s decision in Miller specifically applies only to
defendants who were under the age of 18 when they committed murder.
132 S.Ct. at 2460. It therefore did not create a “new constitutional right”
that may be invoked by those who were 18 or older at the time of their
crimes. Accordingly, Miller may not be used by such persons to extend the
PCRA’s time limits under Section 9545(b)(1)(iii) of the statute — even
where, as here, a defendant claims that his lack of maturity or intellectual
development should cause him to be treated as the equivalent of a juvenile.
As we explained in Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.
Super. 2016) (emphasis in original) (citation omitted):
Appellant argues that he . . . may invoke Miller because he was
a “technical juvenile,” and he relies on neuroscientific theories
regarding immature brain development to support his claim that
he is eligible for relief. But, rather than presenting an argument
that is within the scope of the Miller decision, this argument by
Appellant seeks an extension of Miller to persons convicted of
murder who were older at the time of their crimes than the class
of defendants subject to the Miller holding.
We rejected reliance on this same argument for purposes of
Section 9545(b)(1)(iii) in Commonwealth v. Cintora, 69 A.3d
759 (Pa.Super. 2013). The defendants in Cintora were 19 and
21 years old at the times of their crimes, but they argued that
Miller should apply to them and others “whose brains were not
fully developed at the time of their crimes.” Id. at 764. We
stated that “[a] contention that a newly-recognized
constitutional right should be extended to others does not
render [a] petition [seeking such an expansion of the right]
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timely pursuant to section 9545(b)(1)(iii).” Id. (emphasis in
original).
. . . Cintora remains controlling on this issue, and Appellant's
assertion of the time-bar exception at Section 9545(B)(1)(iii)
must be rejected.
Appellant’s reliance on Pennsylvania state laws setting 21 as the age of
adulthood for some purposes merely presents another argument for a
possible extension of Miller to a broader class of persons than those covered
by the Supreme Court’s decision. But the fact remains that the existing
constitutional right under Miller does not apply to Appellant and,
accordingly, it may not be used as a basis for extending the PCRA’s time bar
under Section 9545(b)(1)(iii).
Thus, under Furgess and Cintora, Miller is inapplicable to Appellant
and provides no exception to the PCRA’s time bar. The trial court therefore
was without jurisdiction, and Appellant’s PCRA petition was properly
dismissed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2017
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