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[U] Commonwealth v. Howard

Superior Court of Pennsylvania

March 7, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ANTONIO HOWARD Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of June 6, 2013 In the Court of Common Pleas of Erie County Criminal Division at No.: 311 of 1992

BEFORE: PANELLA, J., OLSON, J., and WECHT, J.

MEMORANDUM

WECHT, J.

Antonio Howard appeals the June 6, 2013 order dismissing his fifth petition for relief pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46, as untimely. We affirm.

A detailed recitation of the factual and procedural history of this case is unnecessary in light of our disposition. It suffices to note only the following. On June 5, 1992, Howard was convicted by a jury of second-degree murder, robbery, and criminal conspiracy.[1] The convictions arose from the killing of a cab driver who "was lured as though for a fare, directed to a secluded area, and ultimately shot in the right side of the head from close range, apparently as one of the conspirators alighted from the back seat. It was unresolved whether Howard or one of his two accomplices was the shooter." Commonwealth v. Howard, No. 1253 Pitts. 1997, slip op. at 1-2 (Pa.Super. March 30, 1999). Howard was fifteen years old at the time of the murder. On October 14, 1992, Howard was sentenced to life imprisonment on the murder conviction, and a concurrent four to ten year term of imprisonment on the conspiracy conviction. No penalty was imposed on the robbery conviction. On December 3, 1993, we affirmed the judgment of sentence. On November 30, 1994, the Pennsylvania Supreme Court denied Howard's petition for allowance of appeal.

In the subsequent years, Howard filed four PCRA petitions, each of which was unsuccessful at the PCRA court level and on appeal.[2] On July 5, 2012, Howard filed his fifth PCRA petition. In the petition, Howard alleged that his mandatory life sentence was unconstitutional pursuant to the United States Supreme Court's recent decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), wherein the Supreme Court held that "[m]andatory 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.'" Id. at 2460. The PCRA court appointed counsel, who subsequently filed a motion to withdraw as counsel and an application for a Grazier[3] hearing, at Howard's specific request. On November 8, 2012, the PCRA court held a Grazier hearing and, by order dated the same day, found that Howard knowingly and voluntary waived his right to be represented by counsel and granted Howard's request to proceed pro se.

On May 10, 2013, the PCRA court issued an opinion and notice of its intent to dismiss Howard's fifth PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907(1). In the opinion, the PCRA court concluded that Miller does not apply retroactively. As such, the court determined that Howard could not satisfy the newly recognized, and retroactively held, constitutional right exception to the PCRA's jurisdictional time limitation, see 42 Pa.C.S. § 9545(b)(1)(iii), and that Howard's petition was untimely. On May 23, 2013, Howard filed a response to the PCRA court's Rule 907 notice. On June 6, 2013, the PCRA court entered a final order dismissing Howard's petition as untimely.

On June 24, 2013, Howard filed a notice of appeal. The PCRA court did not direct Howard to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b), and Howard did not file one. Nonetheless, the PCRA court issued a memorandum opinion pursuant to Pa.R.A.P. 1925(a), wherein the court adopted its May 10, 2013 opinion in support of its Rule 907 notice.

Howard raises three questions for our review:

A. In light of Miller v. Alabama, 132 S.Ct. 2455 (2012), did the trial court err in imposing a life sentence without parole upon a juvenile offender convicted of second-degree murder?
B. Does the holding in Miller v. Alabama, 132 S.Ct. 2455 (2012), that a juvenile convicted of a homicide offense cannot be sentenced to life imprisonment without [parole, ] unless there is consideration of mitigating circumstances by a judge or jury, apply retroactively to an inmate serving such a sentence when the inmate has exhausted his direct appeal rights and is proceeding under the [PCRA]?
C. As Miller v. Alabama, 132 S.Ct. 2455 (2012) must be given retroactive effect, is a new sentencing hearing, where the sentencer can impose a sentence for any lesser included offenses as well as all non-merged offenses the appropriate remedy under the [PCRA] for a defendant who was sentenced to a mandatory term of life imprisonment without the possibility of parole for a second-degree murder committed when the defendant was under the age of eighteen?

Brief for Howard at 4.

Before we can decide whether Miller provides Howard with substantive relief in the form of a new sentencing hearing, we first must determine whether Howard has satisfied either the PCRA's time limit or one of the statutory exceptions to that limit.

"The PCRA's time restrictions are jurisdictional in nature. Thus, [i]f a PCRA petition is untimely, neither this Court nor the trial court has jurisdiction over the petition. Without jurisdiction, we simply do not have the legal authority to address the substantive claims." Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)). Statutory time limitations "are mandatory and interpreted literally; thus, a court has no authority to extend filing periods except as the statute permits." Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999).

In Commonwealth v. Jackson, we articulated the timeliness standards under the PCRA as follows:

The PCRA "provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief." 42 Pa.C.S.A. § 9542. When an action is cognizable under the PCRA, the PCRA is the "sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose[.]" 42 Pa.C.S.A. § 9542.
In order for a court to entertain a PCRA petition, a petitioner must comply with the PCRA filing deadline. See Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003). The time for filing a petition is set forth in 42 Pa.C.S.A. § 9545(b), which provides in relevant part:
(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.

42 Pa.C.S.A. § 9545(b).

"[T]he time limitations pursuant to . . . the PCRA are jurisdictional." [Fahy, 737 A.2d at 222]. "[Jurisdictional time] limitations are mandatory and interpreted literally; thus, a court has no authority to extend filing periods except as the statute permits." Id. "If the petition is determined to be untimely, and no exception has been pled and proven, the petition must be dismissed without a hearing because Pennsylvania courts are without jurisdiction to consider the merits of the petition." Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa.Super. 2008).

Commonwealth v. Jackson, 30 A.3d 516, 518-19 (Pa.Super. 2011).

A judgment of sentence 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." 42 Pa.C.S. § 9545(b)(3). Howard's judgment of sentence was imposed on October 14, 1992. On December 3, 1993, we affirmed the judgment of sentence, and the Pennsylvania Supreme Court denied Howard's petition for allowance of appeal on November 1994. Thus, Howard's judgment of sentence became final on approximately March 1, 1995, at the expiration of the ninety-day period during which Howard could have sought discretionary review with the United States Supreme Court. See U.S.Sup.Ct. Rule 13. To be timely, any PCRA petition must have been filed on or before March 1, 1996, one year after the judgment became final. See 42 Pa.C.S. § 9545(b)(1). Howard's fifth petition was filed on July 5, 2012, approximately sixteen years after the judgment of sentence became final. Therefore, the petition facially is untimely.

The clear untimeliness of Howard's petition renders this Court (indeed, any court) without jurisdiction to review the substantive claims that Howard raises unless one of the three exceptions to the PCRA's time-bar applies. The only potentially applicable exception is subsection 9545(b)(1)(iii), the newly-recognized, and retroactively-applied, constitutional right exception.

Subsection (iii) of Section 9545[(b)(1)] has two requirements. First, it provides that 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 provided in this section. Second, it provides that the right "has been held" by "that court" to apply retroactively. Thus, a petitioner must prove that there is a "new" constitutional right and that the right "has been held" by that court to apply retroactively. The language "has been held" is in the past tense. These words mean that the action has already occurred, i.e., "that court" has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed.

Commonwealth v. Copenhefer, 941 A.2d 646, 649–50 (Pa. 2007) (quoting Commonwealth v. Abdul–Salaam, 812 A.2d 497, 501 (Pa. 2002)).

Howard argues that the Supreme Court's Miller decision created a new constitutional right that applies to him because he was a juvenile at the time that he committed his crimes. Further, Howard asserts that the right should be retroactively applied to his case on collateral review. However, our Supreme Court addressed the retroactivity of Miller recently in Commonwealth Cunningham, 81 A.3d 1 (Pa. 2013). In Cunningham, our Supreme Court held that the constitutional right announced by the United States Supreme Court in Miller does not apply retroactively. 81 A.3d at 11. Consequently, neither Miller nor subsection 9545(b)(iii) provide Howard with a basis to establish jurisdiction over his untimely PCRA petition in any Pennsylvania court. Hence, Howard's fifth petition was untimely, and we lack jurisdiction to review Howard's claims.

Order affirmed.[4]

Judgment Entered.


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