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[U] Commonwealth v. Peifer

Superior Court of Pennsylvania

March 12, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DAVID K. PEIFER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order July 31, 2013 in the Court of Common Pleas of Somerset County Criminal Division at No.: CP-56-MD-0000223-1993

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, David K. Peifer, appeals pro se from the denial of his third petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

On January 10, 1994, a jury convicted Appellant of murder of the first degree and the trial court immediately sentenced him to life imprisonment. A panel of this Court affirmed the judgment of sentence on December 7, 1994, and the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal on May 16, 1995. (See Commonwealth v. Peifer, 657 A.2d 52 (Pa.Super. 1994) (unpublished memorandum), appeal denied, 659 A.2d 986 (Pa. 1995)).

On January 9, 1997, Appellant filed a first pro se PCRA petition. The PCRA court appointed counsel on January 28, 1997. On June 27, 1997, the court notified Appellant of its intention to deny the petition without a hearing. The court denied the petition on December 2, 1997. Appellant appealed the PCRA court's decision and this Court, observing that "appointed counsel failed to participate in any meaningful way with his indigent client's request for PCRA relief[, ]" remanded for the appointment of new counsel on February 23, 1998. (Commonwealth v. Peifer, 157 PGH 98, unpublished memorandum at 4-5 (Pa.Super. Feb. 23, 1998)). Upon remand, the PCRA court appointed new counsel and, on December 6, 2000, it issued a Rule 907 notice. See Pa.R.Crim.P. 907. On January 3, 2001, the PCRA court denied the petition, and this Court affirmed the decision on December 10, 2001. (See Commonwealth v. Peifer, 792 A.2d 1286 (Pa.Super. 2001) (unpublished memorandum)). Appellant did not seek review in the Pennsylvania Supreme Court.

On January 18, 2008, Appellant filed a pro se writ of habeas corpus that the trial court treated as a second PCRA petition. On January 29, 2008, the PCRA court notified Appellant of its intent to dismiss the petition without a hearing. See Pa.R.Crim.P. 907. Appellant responded to the notice pro se on February 14, 2008. On March 4, 2008, the PCRA court dismissed the petition. Appellant timely appealed and this Court dismissed his appeal on August 26, 2008, for his failure to file a brief. (See Order, 620 WDA 2008, at 1).

Appellant filed this instant, third pro se PCRA petition on August 21, 2012. On July 2, 2013, after a preliminary hearing to determine the existence of any material fact, the PCRA court issued a Rule 907 notice of its intent to dismiss Appellant's petition. See Pa.R.Crim.P. 907. Appellant responded pro se on July 19, 2013, and, on July 31, 2013, the PCRA court dismissed the petition as untimely. Appellant timely appealed.[1]

Appellant raises two issues for our review:

I. Whether, based upon the United States Supreme Court's reasoning in the consolidated cases of Miller v. Alabama[, 132 S.Ct. 2455 (2012)] and Jackson v. Hobbs, [132 S.Ct. 1733 (2012)], mandatory Life-Without-Parole sentences for individuals over the age of seventeen, but under the age of twenty-five violates [sic] the Eighth Amendment to the U.S. Constitution, Article 5 of the Universal Declaration of Human Rights and Article I, Section 13 of the Pennsylvania Constitution[?]
II. Whether the PCRA court erred in failing to address the merits of Appellant's claim and failing to hold an evidentiary hearing for the purpose of taking testimony from a qualified expert in the relevant fields of science[?]

(Appellant's Brief, at 3) (emphasis omitted).

Before we are able to consider the merits of Appellant's claims on appeal, we must determine whether the PCRA court properly determined that his petition was untimely, and that therefore it did not have jurisdiction to decide its merits.

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.Super. 2013), appeal denied, 64 A.3d 631 (Pa. 2013) (citations omitted).

Here, the PCRA court found that Appellant's third PCRA petition was untimely and that he failed to plead and prove any exception to the PCRA time-bar. (See Order, 7/02/13). We agree.

It is well-settled that:

A PCRA petition, including a second or subsequent one, must be filed within one year of the date the petitioner's judgment of sentence became final, unless he pleads and proves one of the three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes final at the conclusion of direct review by this Court or the United States Supreme Court, or at the expiration of the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3). The PCRA's timeliness requirements are jurisdictional; therefore, a court may not address the merits of the issues raised if the petition was not timely filed. The timeliness requirements apply to all PCRA petitions, regardless of the nature of the individual claims raised therein. The PCRA squarely places upon the petitioner the burden of proving an untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations and footnote omitted).

In the case sub judice, Appellant's judgment of sentence became final on August 14, 1995, at the expiration of the time for him to seek review of his judgment of sentence the in United States Supreme Court. See U.S. S.Ct. Rule 13, 28 U.S.C.A.; 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had one year from that date to file a petition for collateral relief unless he pleaded and proved that a timing exception applied. See 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). Hence, Appellant's current petition, filed on August 21, 2012, is untimely on its face unless he pleads and proves one of the statutory exceptions to the time-bar.

Section 9545 of the PCRA provides only three exceptions that allow for review of an untimely PCRA petition: (1) the petitioner's inability to raise a claim because of governmental interference; (2) the discovery of previously unknown facts that would have supported a claim; and (3) a newly-recognized constitutional right. See id. When a petition is filed outside the one-year time limit, petitioners must plead and prove the applicability of one of the three exceptions to the PCRA timing requirements. See Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa.Super. 2012) ("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.") (citation omitted). Also, a PCRA petition invoking one of these statutory exceptions must "be filed within 60 days of the date the claim could have been presented." 42 Pa.C.S.A. § 9545(b)(2).

Here, although Appellant fails expressly to discuss the newly-discovered constitutional right exception, he, in fact, attempts to claim its applicability. (See Appellant's Brief, at 3, 7-8); see also 42 Pa.C.S.A. § 9545(b)(1)(iii). Specifically, he alleges that the United States Supreme Court's reasoning in Miller, supra, should be applied retroactively to his case.[2] (See Appellant's Brief, at 3, 6-8). However, this claim is unavailing because Appellant has failed to plead and prove the applicability of Section 9545(b)(1)(iii).

It is well-settled that:

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 th[e Pennsylvania Supreme C]ourt 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 . . . to cases on collateral review.

Commonwealth v. Leggett, 16 A.3d 1144, 1147 (Pa.Super. 2011) (quoting Commonwealth v. Copenhefer, 941 A.2d 646, 649-50 (Pa. 2007)) (emphasis in original).

In Miller, the Supreme Court of the United States recognized a constitutional right for juveniles under the age of eighteen, holding 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. Here, Appellant admits that he was twenty-four years old at the time that he committed the subject murder. (See Appellant's Brief, at 7). Accordingly, because Appellant was not below the age of eighteen at the time he committed the relevant crime, the holding of Miller does not apply to his circumstances. See Miller, supra at 2460.

Moreover, our Supreme Court recently addressed the issue of whether Miller applies retroactively to a PCRA petitioner, and determined that "nothing in Appellant's arguments persuades us that Miller's proscription of the imposition of mandatory life-without-parole sentences upon offenders under the age of eighteen at the time their crimes were committed must be extended to those whose judgments of sentence were final as of the time of Miller's announcement." Commonwealth v. Cunningham, 81 A.3d 1, 7 (Pa. 2013) (citations omitted). Therefore, because Appellant's judgment of sentence became final on August 14, 1995, and Miller was not decided until June 25, 2012, it does not create a retroactive newly-recognized constitutional right that can serve as the basis of relief for Appellant, even if he had been a minor at the time of the murder and sentencing. See 42 Pa.C.S.A. § 9545(b)(1)(iii), (3); Cunningham, supra at 7; Miller, supra at 2460; Leggett, supra at 1147.

Accordingly, we conclude that the PCRA court's order dismissing Appellant's petition where he failed to plead and prove the applicability of one of the three exceptions to the PCRA timing requirements is supported by the record and free of legal error. See Cunningham, supra at 7; Rykard, supra at 1183; Johnston, supra at 1126. Therefore, the PCRA court properly determined it was without jurisdiction to address the petition's merits.[3] See Leggett, supra at 1147.[4]

Order affirmed.

Judgment Entered.


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