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[U] Commonwealth v. Grant

Superior Court of Pennsylvania

February 4, 2014

PAUL GRANT, Appellant


Appeal from the PCRA Order entered May 30, 2013, in the Court of Common Pleas of Erie County, Criminal Division, at No(s): CP-25-CR-0001708-1993.




Paul Grant ("Appellant") appeals pro se from the order denying his petition for post-conviction relief filed pursuant to the Post Conviction Relief Act ("PCRA"). 42 Pa.C.S.A. §§ 9541-46. We affirm.

The pertinent facts and procedural history are as follows: In March 1994, a jury convicted Appellant of second-degree murder and related charges. At the time he committed the murder, Appellant was nineteen years of age. On May 9, 1994, the trial court sentenced Appellant to a life sentence without parole for his murder conviction. Appellant filed a timely appeal to this Court. In an unpublished memorandum filed on November 22, 1995, we affirmed Appellant's judgment of sentence. Commonwealth v. Grant, __ A.2d___ (Pa.Super. 1995). Appellant did not file a petition for allowance of appeal to our Supreme Court.

On August 2, 2012, Appellant filed the PCRA petition at issue, and the PCRA court appointed counsel. On December 9, 2012, PCRA counsel filed a motion to withdraw and a "no-merit" letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). PCRA counsel did not address the timeliness of Appellant's petition, but informed the PCRA court that the United States Supreme Court's recent decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), did not entitle Appellant to post-conviction relief. Agreeing with PCRA counsel's assessment, the PCRA court issued, on March 11, 2013, Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition without a hearing. Appellant filed a response on April 4, 2013. By order entered May 30, 2013, the PCRA court denied Appellant's PCRA petition. Within this same order, the PCRA court further stated that Appellant "shall continue to have the benefit of [PCRA counsel] and shall be granted in forma pauperis status for the purpose of his appeal, should he choose to take one." This timely appeal followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.[1]

This Court's standard of review regarding an order dismissing a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001). Moreover, a PCRA court may decline to hold a hearing on the petition if the PCRA court determines that the petitioner's claim is patently frivolous and is without a trace of support in either the record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011 (Pa.Super. 2001).

Before addressing the issues Appellant presents on appeal, we must first consider whether Appellant's petition for post-conviction relief was timely filed. The timeliness of a post-conviction petition is jurisdictional. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor the PCRA court has jurisdiction over the petition. Id. "Without jurisdiction, we simply do not have the legal authority to address the substantive claims" raised in an untimely petition. Id.

Generally, a petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final unless the petition alleges, and the petitioner proves, an exception to the time for filing the petition. Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under these exceptions, the petitioner must plead and prove that: "(1) there has been interference by government officials in the presentation of the claim; or (2) there exists after-discovered facts or evidence; or (3) a new constitutional right has been recognized." Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa.Super. 2007) (citations omitted). A PCRA petition invoking one of these statutory exceptions must "be filed within sixty days of the date the claim first could have been presented." Id. at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to the time restrictions of the PCRA must be pled in the petition, and may not be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super. 2007); see also Pa.R.A.P. 302(a) ("Issues not raised before the lower court are waived and cannot be raised for the first time on appeal.").

Appellant's judgment of sentence became final in 1996. Because Appellant filed the instant petition over fifteen years later, it is patently untimely unless he has satisfied his burden of pleading and proving that one of the enumerated exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).

Appellant has failed to prove the applicability of any of the exceptions to the PCRA's time restrictions. Appellant contends that his PCRA falls under the exception of subsection 9545(b)(1)(iii) because the United States Supreme Court recognized a new constitutional right in Miller v. Alabama, 132 S.Ct. 2455 (2012). In Miller, the high court held that mandatory sentences of life without parole "for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition against 'cruel and unusual punishment.'" Miller, 132 S.Ct. at 2460. Appellant asserts that the Miller decision should be applied retroactively to his life sentence.

Appellant's claim fails. Our review of the record supports the PCRA court's conclusion that Miller is inapplicable to Appellant's case because Appellant was not a juvenile when he committed the murder. See Pa.R.Crim.P. 907 Notice, 3/11/13 at 1. Within his brief, Appellant argues that Miller applies to his case because mandatory sentences of life without parole are "cruel for defendants with immature brains, not just juvenile defendants." Appellant's Brief at 4. According to Appellant, "it would [be] a violation of equal Protection [sic] for the courts to treat anyone with an immature brain as an adult, whether their brain is immature because they are 17, 24, or if their maturity has been delayed beyond age 25 by chronic traumatic abuse." Id.

Recently, this Court addressed Appellant's concerns and explained:
Appellants … contend that because Miller created a new Eighth Amendment right, that those whose brains were not fully developed at the time of their crimes are free from mandatory life without parole sentences, and because research indicates that the human mind does not fully develop or mature until the age of 25, it would be a violation of equal protection for the courts to treat them or anyone else with an immature brain, as adults. Thus, [Appellants] conclude that the holding in Miller should be extended to them as they were under the age of 25 at the time of the murder and, as such, had immature brains. Appellants' Briefs at 13-16. However, we need not reach the merits of Appellants' argument, as their contention that a newly-recognized right should be extended to others does not render their petition timely pursuant to section 9545(b)(1)(iii).

Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super. 2013). We apply this reasoning to Appellant's PCRA claim.

We further note that our Supreme Court recently determined that the Miller decision does not apply retroactively. See generally, Commonwealth v. Cunningham, 2013 Pa. LEXIS 2546, A.3d(Pa. 2013). Thus, even if Appellant was a juvenile at the time he committed the murder, the Miller holding would not apply to him, since his judgment of sentence became final over fifteen years ago.

In sum, Appellant's PCRA petition is facially untimely, and he has failed to meet his burden of proof with regard to an exception to the timeliness requirements of the PCRA. The PCRA court properly dismissed Appellant's petition for post-conviction relief.

Order affirmed.

Judgment Entered.

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