Com. v. Sayles, K.

J-S53039-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENON SAYLES,
Appellant No. 616 WDA 2014
Appeal from the PCRA Order February 19, 2014
in the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0007659-1993
BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 25, 2014
Appellant, Kenon Sayles, appeals pro se from the order dismissing his
fourth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546.1 We affirm.
A previous panel of this Court set forth the procedural and factual
history of this case as follows:
On August 18, 1993, Appellant was charged with one
count of homicide, two counts of conspiracy, and one count of
possessing an instrument of a crime. [The charges stem from
Appellant’s participation in the beating death of Michael Martin
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*
Retired Senior Judge assigned to the Superior Court.
1
The order appealed from was dated February 12, 2014, but was not
entered on the docket until February 19, 2014. We have amended the
caption accordingly.
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with baseball bats during a fight between two rival gangs, when
Appellant was seventeen years old.] On November 3, 1994,
after a three-day bench trial, the court found Appellant guilty of
first degree murder and the remaining charges and sentenced
him to life imprisonment.
Appellant filed a notice of appeal on April 13, 1995, and on
May 10, 1996, this Court affirmed his judgment of sentence.
[(See Commonwealth v. Sayles, 679 A.2d 850 (Pa. Super.
1996) (unpublished memorandum))]. Nearly three years later,
on February 2, 1999, Appellant attempted to file a pro se
petition for allowance of appeal nunc pro tunc in the
Pennsylvania Supreme Court. The Court returned the filing to
Appellant the following day. The Court also returned a second
pro se petition for allowance of appeal nunc pro tunc filed by
Appellant May 3, 1999. The trial court eventually appointed
counsel to represent Appellant, who filed a petition for leave to
file a petition for allowance of appeal nunc pro tunc with the
Supreme Court on June 7, 2000. The Court denied the petition
on August 25, 2000.
On August 31, 2001, Appellant filed a counseled PCRA
petition. On September 29, 2003, the PCRA court dismissed the
petitioned as time-barred. A pro se appeal to this Court
followed. On July 20, 2004, this Court remanded the instant
case to the trial court for appointment of counsel and the filing of
a counseled appellate brief. The trial court appointed Appellant
[counsel] on August 9, 2004. On September 8, 2004, Appellant
simultaneously filed with this Court an appellate brief and a
[motion to withdraw as counsel]. Commonwealth v. Sayles,
No. 1924 EDA 2003, unpublished memorandum at 1-3 (Pa.
Super. filed November 9, 2004). On November 9, 2004, this
Court affirmed the PCRA court’s order dismissing Appellant’s
petition as untimely and granted counsel’s petition for leave to
withdraw. On May 4, 2005, Appellant filed a second PCRA
petition, which was dismissed as untimely by the PCRA court on
February 3, 2006. On March 2, 2006, Appellant filed a pro se
notice of appeal. Subsequently, we dismissed Appellant’s appeal
for failure to file a brief.
On August 23, 2006, Appellant filed a pro se “Petition for
Writ of Habeas Corpus Ad Subjiciendum.” The court treated
Appellant’s petition for writ of habeas corpus as a third PCRA
petition and, pursuant to Pa.R.Crim.P. 907, advised Appellant of
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its intent to dismiss the petition without a hearing on the basis
that it was untimely filed and without merit. Following
Appellant’s response to the notice, the PCRA court dismissed
Appellant’s petition as untimely on January 8, 2007. . . .
(Commonwealth v. Sayles, No. 807 WDA 2007, unpublished
memorandum at 1-2 (Pa. Super. filed January 4, 2008)). Appellant
appealed from the PCRA court’s order, and this Court affirmed on January 4,
2008. (See id.).
On July 13, 2012, Appellant, acting pro se, filed the instant PCRA
petition claiming that his life sentence is unconstitutional based on the
United States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct.
2455 (2012).2 The Commonwealth filed an answer on November 1, 2013,
requesting that the court dismiss the PCRA petition pursuant to the
Pennsylvania Supreme Court’s decision in Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013), cert. denied, 134 S.Ct. 2724 (2014).3
On November 20, 2013, Appellant filed a pro se response, requesting that
the court stay the proceedings pending the United States Supreme Court’s
review of the Cunningham decision. On December 9, 2013, the PCRA court
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2
The Miller Court recognized a constitutional right for juveniles under the
age of eighteen, and 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,
supra at 2460.
3
In Cunningham, the Pennsylvania Supreme Court held that the Miller
holding will not be applied retroactively to cases on collateral review. See
Cunningham, supra at 11.
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issued notice of its intent to dismiss the petition without a hearing. See
Pa.R.Crim.P. 907(1). Appellant filed a response on January 3, 2014, and the
court entered another Rule 907 notice on January 23, 2014. On February
19, 2014, the court entered its order dismissing the petition. Appellant filed
a timely notice of appeal.4 On March 20, 2014, the PCRA court ordered
Appellant to file a Rule 1925(b) statement of errors, and he timely complied.
See Pa.R.A.P. 1925(b).5 The court filed a Rule 1925(a) opinion on May 6,
2014. See Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
1. Whether the [PCRA] court erred in dismissing [Appellant’s]
Post Conviction Relief Act Petition without reason in the interest
of justice, judicial economy[?]
2. Whether the [PCRA] court erred in not adopting the
reasoning of the United States Supreme Court’s ruling[?]
(Appellant’s Brief, at 4).
Our standard of review of a trial court order granting or denying
relief under the PCRA calls upon us to determine whether the
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4
Appellant’s notice of appeal was time-stamped and docketed on March 26,
2014. However, pursuant to the prisoner mailbox rule, we consider his pro
se notice filed on the date he handed it to prison officials for mailing, on
March 11, 2014. See Commonwealth v. Robinson, 12 A.3d 477, 479 n.2
(Pa. Super. 2011); (see also Appellant’s pro se Notice of Appeal,
postmarked March 11, 2014).
5
Appellant’s Rule 1925(b) statement was time-stamped and docketed on
April 23, 2014. However, pursuant to the prisoner mailbox rule, we consider
his pro se statement filed on the date he handed it to prison officials for
mailing, on April 8, 2014. See Robinson, supra at 479 n.2; (see also
Appellant’s pro se Rule 1925(b) Statement, postmarked April 8, 2014).
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determination of the PCRA court is supported by the evidence of
record and is free of legal error. The PCRA court’s findings will
not be disturbed unless there is no support for the findings in the
certified record.
Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)
(citations and quotation marks omitted).
Before we may consider the merits of Appellant’s claims, we must
consider whether this appeal is properly before us.
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration
of the time for seeking such review. 42 Pa.C.S.[A.] §
9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional; therefore, a court may not address the merits of
the issues raised if the petition was not timely filed. The
timeliness requirements apply to all PCRA petitions, regardless of
the nature of the individual claims raised therein. The PCRA
squarely places upon the petitioner the burden of proving an
untimely petition fits within one of the three exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations
and footnote omitted).
In this case, Appellant’s judgment of sentence became final on June
10, 1996, when his time to file a petition for allowance of appeal with our
Supreme Court expired. See Pa.R.A.P. 1113(a); 42 Pa.C.S.A. §
9545(b)(3).6 Therefore, he had one year from that date to file a petition for
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6
The last day of the appeal period, June 9, 1996, fell on a Sunday.
Therefore, Appellant had until that Monday to file the petition. See 1
Pa.C.S.A. § 1908.
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collateral relief, specifically, until June 10, 1997. See id. at § 9545(b)(1).
Because Appellant filed the instant petition on July 13, 2012, it is untimely
on its face, and the PCRA court lacked jurisdiction to review it unless he
pleaded and proved one of the statutory exceptions to the time-bar. See 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Section 9545 of the PCRA provides only three limited exceptions that
allow for review of an untimely PCRA petition:
(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.
Id. at § 9545(b)(1)(i)-(iii). “If the [PCRA] petition is determined to be
untimely, and no exception has been pled and proven, the petition must be
dismissed without a hearing because Pennsylvania courts are without
jurisdiction to consider the merits of the petition.” Commonwealth v.
Jackson, 30 A.3d 516, 519 (Pa. Super. 2011), appeal denied, 47 A.3d 845(Pa. 2012) (citation omitted). In addition, a PCRA petition invoking one of
these statutory exceptions must “be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S.A. at § 9545(b)(2).
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Here, Appellant claims the benefit of the exception at 42 Pa.C.S.A. §
9545(b)(1)(iii), alleging a newly-recognized, retroactively-applied
constitutional right to relief predicated on the United States Supreme Court’s
decision in Miller, supra. (See Appellant’s Brief, at 7-8; PCRA Petition,
7/13/12, at 1-3). Appellant asserts that his petition is timely because he
filed it within sixty days of publication of the Miller decision.7 (See PCRA
Petition, 7/13/12, at 2). Appellant acknowledges that, in Cunningham,
supra, the Pennsylvania Supreme Court held that the constitutional right
announced in Miller does not apply retroactively. (See Appellant’s
Response to Notice of Intention to Dismiss, 11/20/13, at 1). He nonetheless
contends that the PCRA court erred by dismissing his PCRA petition before
the Cunningham decision was fully resolved. (See Appellant’s Brief, at 8;
Rule 1925(b) Statement, 4/08/14, at 1-2). We disagree.
First, the United States Supreme Court recently denied the petition for
writ of certiorari filed in the Cunningham case. See Cunningham, supra.
Second, in Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014), a
panel of this Court considered the Miller decision in light of Cunningham in
the context of a facially untimely PCRA petition and explained:
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7
The Supreme Court decided Miller on June 25, 2012, and Appellant filed
the instant petition eighteen days later, on July 13, 2012. See 42 Pa.C.S.A.
§ 9545(b)(2).
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Subsection (iii) of Section 9545[(b)(1)] has two
requirements. First, it provides that 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
provided in this section. Second, it provides that the
right “has been held” by “that court” to apply
retroactively. Thus, a petitioner must prove that
there is a “new” constitutional right and that the
right “has been held” by that court to apply
retroactively. The language “has been held” is in the
past tense. These words mean that the action has
already occurred, i.e., “that court” has already held
the new constitutional right to be retroactive to
cases on collateral review. By employing the past
tense in writing this provision, the legislature clearly
intended that the right was already recognized at the
time the petition was filed.
. . . [I]n Cunningham, our Supreme Court held that the
constitutional right announced by the United States Supreme
Court in Miller does not apply retroactively. Consequently,
[a]ppellant cannot rely upon Miller or subsection 9545(b)(iii) to
establish jurisdiction over his untimely PCRA petition in any
Pennsylvania court.
Seskey, supra at 242-43 (some case citations omitted).
Here, Appellant attempts to circumvent the effect of Cunningham on
this Court’s jurisdiction by asserting that the United States Supreme Court
has not had the opportunity to review Cunningham. (See Appellant’s Brief,
at 8; Rule 1925(b) Statement, 4/08/14, at 1-2). This argument is now
moot. Moreover, Appellant “cannot rely upon Miller or subsection
9545(b)(iii) to establish jurisdiction over his untimely PCRA petition in any
Pennsylvania court.” Seskey, supra at 243.
Accordingly, Appellant failed to meet his burden of proving his
untimely petition fits within one of the three exceptions to the PCRA’s time-
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bar, and the PCRA court properly dismissed his petition. See Seskey,
supra at 243; Cunningham, supra at 11; Jones, supra at 17.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2014
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