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[U] Commonwealth v. Morales

Superior Court of Pennsylvania

February 28, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
RICARDO MORALES Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order May 31, 2013 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0004025-2002

BEFORE: MUNDY, J., OLSON, J., and STABILE, J.

MEMORANDUM

MUNDY, J.

Appellant, Ricardo Morales-Vasquez, appeals pro se from the May 31, 2013 order dismissing his third petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The relevant facts and procedural history, as gleaned from the certified record, follow. On April 11, 2003, following an eight-day jury trial, Appellant was convicted of second-degree murder, robbery, conspiracy, and two counts of aggravated assault.[1] On May 16, 2003, Appellant was sentenced to life imprisonment on the murder conviction and a consecutive 10 to 20 years' imprisonment for aggravated assault. On May 11, 2004, this Court affirmed Appellant's judgment of sentence. Commonwealth v. Morales-Vasquez, 855 A.2d 135 (Pa. Super. 2004) (unpublished memorandum), appeal denied, 860 A.2d 123 (Pa. 2004). Subsequently, on October 5, 2004, our Supreme Court denied Appellant's petition for allowance of appeal. Id.

On October 6, 2005, Appellant filed his first pro se PCRA petition. Counsel was appointed and an amended PCRA petition was filed. A hearing was held, and on June 29, 2007, Appellant's PCRA petition was denied. Appellant did not file an appeal.

On February 9, 2009, Appellant filed a second pro se PCRA petition. Counsel was again appointed, an amended PCRA petition was filed, and on March 9, 2010, Appellant's second PCRA petition was dismissed as untimely. On March 22, 2010, Appellant filed a timely notice of appeal. On October 28, 2010, this Court affirmed the PCRA court's dismissal of Appellant's second PCRA petition as untimely. Commonwealth v. Morales-Vasquez, 15 A.3d 544 (Pa. Super. 2010) (unpublished memorandum).

On August 29, 2012, Appellant filed his third pro se PCRA petition asserting a newly recognized constitutional right pursuant to 42 Pa.C.S.A. § 9545(b)(1)(iii). Appellant's Pro Se PCRA Petition, 8/29/12, at ¶¶ 1-3. On December 7, 2012, the PCRA court filed a notice of its intent to dismiss Appellant's appeal without a hearing pursuant to Pa.R.A.P. 907. Appellant did not file a reply. Accordingly on May 31, 2013, the PCRA court dismissed

Appellant's petition as untimely.[2] The same day, Appellant filed a timely pro se notice of appeal.[3]

On appeal, Appellant raises the following issues for our review.
A. Did the [PCRA] court err in denying Appellant's petition claiming that motion was filed beyond the time period set by statute, and that the [PCRA c]ourt lack[ed] jurisdiction to consider any of the claims raised. Even though evidence shows that the petition was submitted under 42 Pa.C.S.A. Section 9545(b)(1)(iii) and met the 60 days requirements of 42 Pa.C.S.A. Section 9545(b)(2)?
B. Did the [PCRA] court commit an error of law and deny Appellant his due process rights in dismissing the petition as untimely?
C. Did the [PCRA] court commit a manifest injustice under the PCRA in denying relief?

Appellant's Brief at 4.

We begin by noting our well-settled standard of review. "On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error." Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania, 134 S.Ct. 639 (2013). "[Our] scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level." Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation omitted). "The PCRA court's credibility determinations, when supported by the record, are binding on this Court." Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted). "However, this Court applies a de novo standard of review to the PCRA court's legal conclusions." Id.

Before we may address the merits of Appellant's claims, we must first consider the timeliness of his PCRA petition because it implicates the jurisdiction of this Court and the PCRA court. Commonwealth v. Williams, 35 A.3d 44, 52 (Pa. Super. 2011) (citation omitted), appeal denied, 50 A.3d 121 (Pa. 2012). "Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition." Id. The PCRA "confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]" Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted). This is to "accord finality to the collateral review process." Id. "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, that an exception to the time for filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met." Commonwealth v. Harris, 972 A.2d 1196, 1199-1200 (Pa. Super. 2009), appeal denied, 982 A.2d 1227 (Pa. 2009). The Act provides, in relevant part, as follows.

§ 9545. Jurisdiction and proceedings
… (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.C.S.A. § 9545(b).

In the case sub judice, Appellant was sentenced on May 16, 2003, this Court affirmed the judgment of sentence on May 11, 2004, and our Supreme Court denied Appellant's allocator petition on October 5, 2004. As Appellant did not seek further review in the United States Supreme Court, his judgment of sentence became final when the time to file a petition for a writ of certiorari expired, on January 3, 2005. See 42 Pa.C.S.A. § 9545(b)(3) (stating, "a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review[]"); U.S. Sup. Ct. R. 13(1) (stating "a petition for a writ of certiorari to review a judgment in any case … is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment[]"). As Appellant did not file the instant petition until August 29, 2013, it was patently untimely.

Appellant, however, alleges that the new constitutional right exception to the time-bar applies because the United States Supreme Court's decision in Miller v. Alabama, 132 S.Ct. 2455 (2012) should apply.[4] Appellant's Brief at 8-9; see also 42 Pa.C.S.A. § 9545(b)(1)(iii). In his pro se PCRA petition, Appellant argues that the fact that Appellant "had just turned 24 years old at the time of his arrest, [] is of no moment." Appellant's Pro Se PCRA Petition, 8/29/12, at ¶ 7. Appellant asserts that Miller should apply because "the circumstances shared between [Appellant] and his[] juvenile counterpart require that he[] be treated similarly." Id. For the following reasons, we disagree.

The Miller Court held "that mandatory life 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.'" Miller, supra at 2460 (emphasis added). Therefore, Miller applies only to those under 18 years of age who received mandatory life sentences without the possibility of parole. Id. Instantly, Appellant acknowledges that he was 24 years old at the time of his crimes. Appellant's Pro Se PCRA Petition, 8/29/12, at ¶ 7. As a result, Miller does not apply to Appellant, and Appellant cannot satisfy the time-bar exception. See Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013) (holding there is no exception under section 9545(b)(1)(iii) extending Miller to those over 18 at the time of their crimes), appeal denied, 81 A.3d 75 (Pa. 2013).

Based on the foregoing, we conclude the PCRA court properly dismissed Appellant's third PCRA petition as untimely. Accordingly, the PCRA court's May 31, 2013 order is affirmed.

Order affirmed.

Judgment Entered.


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