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[U] Commonwealth v. Sasanko

Superior Court of Pennsylvania

February 6, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DEAN SASANKO, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order entered May 16, 2013, in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP-02-CR-0000654-1984.

BEFORE: BOWES, ALLEN, and MUSMANNO, JJ.

MEMORANDUM

ALLEN, J.

Dean Sasanko ("Appellant") appeals pro se from the order denying his third 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: On June 27, 1984, a jury convicted Appellant of two counts of first-degree murder. On February 27, 1985, the trial court sentenced Appellant to two consecutive life sentences. Appellant filed a timely appeal to this Court. In an unpublished memorandum filed on January 17, 1986, we affirmed Appellant's judgment of sentence. Commonwealth v. Sasanko, 508 A.2d 343 (Pa.Super. 1986). On October 7, 1986, our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Sasanko, ___A.2d ___(Pa. 1986).

Appellant filed his first pro se PCRA petition on May 27, 1997, and the PCRA court appointed counsel. Thereafter, PCRA counsel filed an amended petition, as well as a supplement thereto. By order entered April 26, 1999, the PCRA court dismissed Appellant's petition as untimely filed. Appellant filed a timely appeal to this Court. In an unpublished memorandum filed on May 30, 2000, we affirmed the PCRA court's order denying post-conviction relief. Commonwealth v. Sasanko, 760 A.2d 432 (Pa.Super. 2000). Appellant did not file a timely petition for allowance of appeal to our Supreme Court.

On November 20, 2003, Appellant filed a document, which he designated a writ of habeas corpus. The PCRA court correctly considered this filing as a subsequent PCRA petition. See Commonwealth v. Peterkin, 722 A.2d 638, 639 n.1 (Pa. 1998) (stating that the PCRA subsumes other post-conviction remedies). By order entered January 14, 2003, the PCRA court dismissed Appellant's petition as untimely filed. In an unpublished memorandum filed on October 16, 2003, we affirmed the PCRA court's order denying post-conviction relief. Commonwealth v. Sasanko, 839 A.2d 1162 (Pa.Super. 2003). On May 18, 2004, our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Sasanko, 849 A.2d 1204 (Pa. 2004).

On August 23, 2012, Appellant filed the PCRA petition at issue, and the PCRA court appointed counsel. On February 8, 2013, 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), opining that Appellant's latest PCRA petition was untimely, and Appellant was unable to establish any exception to the PCRA's time bar. Agreeing with this assessment, the PCRA court issued, on March 9, 2013, Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition without a hearing because it was untimely.[1] Appellant filed a response on April 2, 2013. By order entered May 14, 2013, the PCRA court denied Appellant's latest PCRA petition. This timely appeal followed. The PCRA court did not require Pa.R.A.P. 1925 compliance.

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). Because this is Appellant's third petition for post- conviction relief, he must meet a more stringent standard. "A second or any subsequent post-conviction request for relief will not be entertained unless a strong prime facie showing is offered to demonstrate that a miscarriage of justice may have occurred." Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa.Super. 2003) (en banc) (citations omitted). "A petitioner makes a prime facie showing if he demonstrates that either the proceedings which resulted in his conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or that he was innocent of the crimes for which he was charged." Id.

Before addressing the issues Appellant presents on appeal, we must first consider whether the PCRA court properly determined that Appellant's latest petition for post-conviction relief was untimely. 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.").

This Court previously determined that Appellant's judgment of sentence became final on January 5, 1989. See Sasanko, 760 A.2d 432 (Pa.Super. 2000), unpublished memorandum at 4. Because Appellant filed the instant petition over twenty 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 for two reasons. First, 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 murders. See Pa.R.Crim.P. 907 Notice, 3/8/13 at 1. Within his reply brief, Appellant argues that the Miller decision should encompass those whose brains were "immature" at the time of the murders, even though chronologically over the age of eighteen. Response to 'Brief of Appellee', at 6. Citing various Pennsylvania statutes and constitutional provisions, Appellant further asserts that the "Pennsylvania Legislators have yet to apply or describe what the citizens of this Commonwealth determine to be a specific age between a minor and an adult." Id. at 7. Appellant therefore asks this Court to place his PCRA "in abeyance until such time as when a final determination becomes the Rule of Law." Id.

Recently, this Court addressed Appellant's issue and explained:
Appellants, in their second issue, 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). The same holds true in Appellant's case.

Second, our Supreme Court has recently determined that the Miller decision should not be applied 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 murders, the Miller holding would not apply to him, since his judgment of sentence became final over twenty years ago.

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

Order affirmed.

Judgment Entered.


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