Com. v. Sessa, L.

J-S45015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LOUIS SESSA, III :
:
Appellant : No. 3266 EDA 2016
Appeal from the PCRA Order September 13, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005943-1992
BEFORE: GANTMAN, P.J., PANELLA, J., and STRASSBURGER, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED AUGUST 22, 2017
Appellant, Louis Sessa, III, appeals pro se from the order of the Bucks
County Court of Common Pleas, which dismissed as untimely his serial
petition filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.
§§ 9541-9546. On March 29, 1993, Appellant entered an open guilty plea to
homicide (generally), conspiracy to commit murder, robbery, and related
offenses. The court immediately proceeded to a degree of guilt hearing and
found Appellant guilty of second-degree murder. Immediately thereafter,
the court sentenced Appellant to life imprisonment for the murder
conviction, plus a concurrent term of 5 to 10 years’ imprisonment. Appellant
did not seek direct review. From 1994 to 2014, Appellant filed numerous
unsuccessful petitions for collateral relief.
Appellant filed the current pro se PCRA petition on March 3, 2016,
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*Retired Senior Judge assigned to the Superior Court.
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seeking relief under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183
L.Ed.2d 407 (2012) and Montgomery v. Louisiana, ___ U.S. ___, 136
S.Ct. 718, 193 L.Ed.2d 599 (2016). The court issued Pa.R.Crim.P. 907
notice on July 7, 2016; Appellant responded pro se on August 10, 2016. On
September 15, 2016, the court dismissed Appellant’s petition as untimely.
Appellant timely filed a pro se notice of appeal on September 29, 2016. On
October 6, 2016, the court ordered Appellant to file a concise statement per
Pa.R.A.P. 1925(b); Appellant timely complied on October 17, 2016, and for
the first time, claimed the trial judge labored under a conflict of interest and
should have recused himself from Appellant’s initial PCRA hearing.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA
petition, including a second or subsequent petition, shall be filed within one
year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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 the review.” 42 Pa.C.S.A. § 9545(b)(3). The
statutory exceptions to the PCRA time-bar allow for very limited
circumstances which excuse the late filing of a petition. See 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii). Additionally, a petitioner must plead and prove, inter
alia, his allegations of error were not previously litigated or waived. 42
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Pa.C.S.A. § 9543(a)(3). “[A]n issue is waived if the petitioner could have
raised it but failed to do so before trial, at trial, during unitary review, on
appeal or in a prior state post-conviction proceeding.” 42 Pa.C.S.A. §
9544(b). Likewise, the failure to raise an issue before the PCRA court deems
the claim presented waived. Commonwealth v. Bond, 572 Pa. 588, 819
A.2d 33 (2002). See also Pa.R.A.P. 302(a) (stating issues not raised in
lower court are waived and cannot be raised for first time on appeal).
Instantly, Appellant’s judgment of sentence became final on April 28,
1993, upon expiration of the 30 days for filing a direct appeal with this
Court. See Pa.R.A.P. 903(a). Appellant filed the current pro se PCRA serial
petition on March 3, 2016, which is patently untimely. See 42 Pa.C.S.A. §
9545(b)(1). Appellant attempts to invoke the “new constitutional right”
exception per Section 9545(b)(1)(iii), insisting Miller/Montgomery afford
him relief. Nevertheless, Appellant admits he was 19 years old at the time
of his offenses. Thus, Miller/Montgomery relief does not apply to
Appellant.1 Moreover, this Court has rejected the argument that
Miller/Montgomery relief should be extended to offenders under 25 years
old because the brain is not developed fully until that age. See
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1
Appellant also cites the U.S. Supreme Court decisions in Roper v.
Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (dealing
with juveniles and death penalties), filed on March 1, 2005, and Graham v.
Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (dealing with
juveniles and life sentences for non-homicide offenses), filed on May 17,
2010. Neither case is apposite.
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Commonwealth v. Furgess, 149 A.3d 90 (Pa.Super. 2016) (holding 19-
year-old appellant was not entitled to relief under Miller/Montgomery on
collateral review, rejecting “technical juvenile” argument). Finally, Appellant
waived any conflict of interest claim, because he did not raise it before the
PCRA court. See Pa.R.A.P. 302(a). Thus, Appellant’s current petition
remains untimely. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2017
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