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[U] Commonwealth v. Schaich

Superior Court of Pennsylvania

October 16, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
RICHARD A. SCHAICH Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order February 4, 2013 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0000804-1992

Joseph D. Seletyn, Esq.

BEFORE: PANELLA, MUNDY, AND MUSMANNO, JJ.

MEMORANDUM

PANELLA, J.

Appellant, Richard A. Schaich, appeals pro se from the order entered February 4, 2013, by the Honorable Scott D. Keller, Court of Common Pleas of Berks County, which denied his petition filed pursuant to the Post Conviction Relief Act (PCRA).[1] We affirm.

On September 4, 1992, Schaich entered a guilty plea to first degree murder. The trial court sentenced Schaich to life imprisonment on September 17, 1992. Schaich did not file a direct appeal.

On December 6, 1999, Schaich filed a pro se PCRA petition. Appointed counsel subsequently filed a petition to withdraw on January 31, 2000, which the trial court granted on February 1, 2000. The court dismissed Schaich's PCRA petition on February 29, 2000. Thereafter, on August 22, 2012, Schaich filed the instant pro se PCRA petition contending that his sentence of life imprisonment was unconstitutional under Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which held that mandatory life imprisonment 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. The PCRA court dismissed Schaich's petition on February 4, 2013. This timely appeal followed.

Preliminarily, we must determine whether we have jurisdiction to entertain Schaich's PCRA petition. It is axiomatic that a PCRA petition, including a second or subsequent petition, must be filed within one year of the date that the judgment of sentence becomes final. See 42 Pa.Cons.Stat.Ann. § 9545(b)(1). If a petition is filed after that one year date, the general rule is that the PCRA court lacks jurisdiction to hear the petition. However, section 9545(b) provides for three limited circumstances to the general rule in which such a petition may be filed beyond that one-year period:

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(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.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.

42 Pa.Cons.Stat.Ann. § 9545(b)(1)(i)-(iii), (2). See also Commonwealth v. Pursell, 561 Pa. 214, 220, 749 A.2d 911, 914-915 (2000) ("The courts have no jurisdiction to grant [a litigant] relief unless he can plead and prove that one of the exceptions to the time bar provided in 42 [Pa.Cons.Stat.Ann.] § 9545(b)(1)(i)-(iii) applies."); Commonwealth v. Wilson, 824 A.2d 331, 335 (Pa.Super. 2003) (en banc), appeal denied, 576 Pa. 712, 839 A.2d 352 (2003) ("Since Appellant's PCRA petition is untimely, our review focuses on whether Appellant has pled and proven that one of the three limited exceptions to the timeliness requirements of the PCRA apply.").[2]

When pleading one of the foregoing § 9545(b)(1) exceptions, a litigant is subject to a 60-day deadline for invoking an exception which commences from the date in which the claim could have been presented. See 42 Pa.Cons.Stat.Ann. § 9545(b)(2). Where the petition is untimely, the litigant bears the burden of pleading and proving in the petition that one of the exceptions to the one-year deadline for filing a PCRA petition applies. See Commonwealth v. Bretz, 830 A.2d 1273, 1275-76 (Pa.Super. 2003).

In the instant case, Schaich did not file a direct appeal from his judgment of sentence. As such, Schaich's judgment of sentence became final 30 days following the imposition of sentence when the time for filing a direct appeal expired, on October 17, 1992. See Pa.R.A.P. 903. As the instant petition was not filed until August 22, 2012, it is patently untimely, as it was filed twenty years after Schaich's judgment of sentence became final. As such, the PCRA court lacked jurisdiction to review Schaich's petition unless he pled and proved in his petition that one of the § 9545(b)(1) statutory exceptions was applicable.

As noted, Schaich claims that he benefits from the newly recognized constitutional right announced by the United States Supreme Court in Miller v. Alabama. The majority in Miller expressly held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Id., 132 S.Ct. at 2469 (emphasis added). Schaich, who was 21 years old at the time of his arrest[3]and, therefore, not a juvenile, cannot benefit from this newly announced constitutional rule. Accordingly, we find Schaich has not shown that a timeliness exception contained in subsection 9545(b)(1) applies.

As Schaich has failed to establish an applicable exception to the PCRA time bar, we find no error in the PCRA court's dismissal of his petition as untimely.

Order affirmed.

Judgment Entered.

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