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[U] Commonwealth v. Foxx

Superior Court of Pennsylvania

February 26, 2014

COMMONWEALTH OF PENNSYLVANIA
v.
PHILLIP FOXX, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order, April 23, 2012, in the Court of Common Pleas of Allegheny County Criminal Division at Nos. CP-02-CR-0011573-1993, CP-02-CR-0013472-1993

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND WECHT, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

Appellant appeals the order denying his third petition brought pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Finding no error, we affirm.

On June 28, 1994, a jury found appellant guilty of second degree murder and related charges. The charges arose from an incident that occurred on September 9, 1993 on Lamont Street in the Northside section of Pittsburgh. At that time, appellant and an accomplice lured two pizza deliverymen in order to rob them. Although the deliverymen did not resist, appellant and his accomplice nevertheless mercilessly attempted to execute both men, killing one and wounding the other. Appellant was a juvenile at the time of the crime.

On July 25, 1994, appellant was sentenced to an aggregate term of life plus 25 to 50 years' imprisonment. On April 24, 1996, this court affirmed the judgment of sentence; and on November 15, 1996, our supreme court denied appeal. Commonwealth v. Foxx, 679 A.2d 251 (Pa.Super. 1996), appeal denied, Commonwealth v. Lamore, 546 Pa. 677, 686 A.2d 1309 (1996).[1]

On March 15, 1999, appellant filed his first PCRA petition, pro se. Although counsel was appointed, counsel was subsequently permitted to withdraw according to Turner-Finley practice. See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On October 12, 2000, the court issued notice, pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its intent to dismiss the petition without hearing. On January 22, 2001, the petition was denied and dismissed and no appeal was taken.

On November 12, 2003, appellant filed his second PCRA petition, pro se. Counsel was again appointed and again petitioned to withdraw. Rule 907 notice was issued on September 16, 2005, and the PCRA petition was denied and dismissed. No appeal was taken.

On July 13, 2010, appellant filed the instant PCRA petition, pro se. In the pro se petition, appellant specifically raised the recently decided (May 17, 2010) case of Graham v. Florida, 560 U.S. 48 (2010), as applying to his situation. Counsel was appointed, and on January 7, 2011, an amended petition was filed. On March 26, 2012, the PCRA court issued Rule 907 notice, and on April 26, 2012, denied the petition. This timely appeal followed.

Our standard of review for an order denying post-conviction relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id.

A PCRA petition must be filed within one year of the date that the judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). This time requirement is mandatory and jurisdictional in nature, and the court may not ignore it in order to reach the merits of the petition. Commonwealth v. Taylor, 933 A.2d 1035, 1038 (Pa.Super. 2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008).

Appellant's judgment of sentence became final on February 13, 1997, when the time for filing a petition for writ of certiorari with the United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); Rule 13, Rules of the United States Supreme Court. The instant petition, filed July 13, 2010, is manifestly untimely and cannot be reviewed unless appellant invokes a valid exception to the time bar of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Appellant specifically invoked the after-recognized constitutional right exception in citing Graham. Moreover, appellant filed his petition within 60 days of the date of the decision, May 17, 2010, as he must. See 42 Pa.C.S.A. § 9545(b)(2); Commonwealth v. Baldwin, 789 A.2d 728, 730-731 (Pa.Super. 2001).

In Graham, the United States Supreme Court held that sentencing a person to life imprisonment without parole for a non-homicide offense violated the Eighth Amendment's restriction on cruel and unusual punishment where the defendant was a juvenile at the time of the crime. Appellant initially attempted to extrapolate and apply the principles of Graham to his situation involving a homicide committed while a juvenile.

On June 25, 2012, the United States Supreme Court subsequently handed down Miller v. Alabama, 132 S.Ct. 2455 (2012), which directly addressed appellant's situation and obviated the need to extrapolate from Graham. In Miller, the United States Supreme Court held that sentencing a person to a mandatory term of life imprisonment without parole for homicide violated the Eighth Amendment's restriction on cruel and unusual punishment where the defendant was a juvenile at the time of the crime. Appellant now argues that his sentence is unconstitutional pursuant to Miller.[2]

Appellant concedes that our supreme court has recently ruled that Miller does not apply retroactively. See Commonwealth v. Cunningham, ___, Pa. ___, 81 A.3d 1 (2013). Appellant offers argument as to why this decision was in error, but this court cannot overrule the holdings of our supreme court. Thus, we find that because Miller does not apply retroactively, appellant cannot invoke it to avoid the time bar of the PCRA. Appellant's third PCRA petition is untimely, and no valid exception to the time bar exists. Consequently, we will affirm the order denying relief.

Order affirmed.

Judgment Entered.


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