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[U] Commonwealth v. McFerren

Superior Court of Pennsylvania

October 3, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ANTHONY McFERREN Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ANTHONY McFERREN Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order September 14, 2012 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000115-1979

Appeal from the PCRA Order August 24, 2012 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000115-1979 CP-20-CR-0000116-1979

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM

LAZARUS, J.

Anthony McFerren appeals, pro se, from the trial court's order[1]denying his third petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.[2] In 1979, McFerren was convicted, after a jury trial, of first-degree murder and robbery. The court sentenced McFerren to life in prison without the possibility of parole.[3] McFerren was 19 years old at the time he committed the offenses. After careful review, we affirm.

McFerren raises several issues on appeal. All but two of his issues have either been waived or previously litigated in his prior PCRA petitions. Accordingly, those issue are not eligible for relief under the PCRA. See 42 Pa.C.S.A. § 9543(a)(3).

McFerren claims that his sentence is illegal because the "oral pronouncement of sentence [was in]valid pursuant to any known Pennsylvania Constitutional Statute as required by the Eighth and Fourteenth Amendments to the Constitution of the United States." Appellant's Brief, at 7. Specifically, he asserts that the Commonwealth's murder statute, under which he was convicted, was invalid at the time of his sentencing. Therefore, he claims, his judgment of sentence is "without legal authorization."

Legality of sentence claims are not subject to the waiver provision of the PCRA. Commonwealth v. Brown, 872 A.2d 1139, 1154 (Pa. 2005). However, when a petitioner files an untimely PCRA petition raising a legality of sentence claim, the jurisdictional limits of the PCRA itself render the claim incapable of review. Commonwealth v. Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). Here, McFerren's judgment of sentence became final, for purposes of the PCRA, on December 29, 2004, when the time expired for him to seek discretionary review in the United States Supreme Court. This petition, his third, was filed on August 22, 2012 – well beyond the one-year time limit set forth in section 9545(b) of the PCRA. Moreover, McFerren has alleged no section 9545(b)(1) exception that would save his untimely petition.

McFerren's remaining issue, which is ripe for our review, concerns whether the PCRA court erred by failing to conclude that his mandatory sentence of life without parole is unconstitutional under the Eighth Amendment to the United States Constitution as expressed in Miller v. Alabama, 132 S.Ct. 2455 (2012).

In Miller, 132 S.Ct. at 2464, the United States Supreme Court held that sentencing a juvenile convicted of a homicide offense to mandatory life imprisonment without parole violates the Eighth Amendment's prohibition on cruel and unusual punishment. Accordingly, such sentences cannot be imposed unless a judge or jury first considers mitigating circumstances. Id. at 2475. The holding in Miller, however, was limited to those offenders who were under the age of 18 at the time they committed their crimes.[4] Id. at 2460.

Because McFerren was 19 years old at the time he committed the underlying offenses, Miller is inapplicable and he is not entitled to relief.[5]Van Horn, supra.

To the extent that McFerren claims that he should benefit from the Miller holding due to the fact that he was only 11 days past his 19thbirthday and it is "unclear what mental deficiencies or culpability should have been considered by the trier of facts in []his case, " he is entitled to no relief. Neither federal nor state case law deems a life sentence without parole unconstitutional for individuals who may have had a diminished mental capacity when they committed the offenses. See also Commonwealth v. Lesko, 15 A.3d 345, 408 n.31 (Pa. 2011) (noting U.S. Supreme Court has chosen "strictly chronological, hard lines" in cases involving age as disqualifying constitutional factor for eligibility of life without parole sentences; those over defined-age get no benefit from constitutional decisions, irrespective of subjective "psychological and emotional age and level of maturity.").

Order affirmed.[6]

Judgment Entered.


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