from the PCRA Order November 4, 2016 In the Court of Common
Pleas of Mercer County Criminal Division at No(s): No. 523
BEFORE: LAZARUS, RANSOM, JJ., and STEVENS, P.J.E.
Herman T. Woods appeals the Order entered in the Court of
Common Pleas of Mercer County on November 4, 2016, dismissing
as untimely his serial petition filed pursuant to the Post
Conviction Relief Act (PCRA). Because this petition is untimely
without an applicable exception, we affirm.
our disposition, a detailed recitation of the facts is
unnecessary in this matter. Appellant was convicted of second
degree murder in 1981 following a jury trial. Appellant was
eighteen years, thirty-six days old when he committed the
crime on November 22, 1980, as his date of birth was October
17, 1962. On October 28, 1981, Appellant was sentenced to a
mandatory term of life imprisonment, and he filed a timely
notice of appeal the next day. On September 2, 1983, this Court
affirmed Appellant's judgment of sentence.
Commonwealth v. Woods, Jr., 466 A.2d 709
Pa.Super. 1983) (unpublished memorandum). The Pennsylvania
Supreme Court denied Appellant's petition for allowance
of appeal on January 18, 1984. The conclusion of direct
review was May 14, 1984, when the United States Supreme Court
denied his petition for writ of certiorari.
Woods v. Pennsylvania, 466 U.S. 977, 104 S.Ct. 2359,
80 L.Ed.2d 831 (1984).
Appellant's judgment of sentence became final prior to
the 1995 amendments to the PCRA, which added certain time
restrictions, Appellant was permitted to file his first PCRA
petition by January 16, 1997. See Commonwealth v.
Peterkin, 554 Pa. 547, 554-55, 722 A.2d 638, 641 (1998)
(holding where conviction became final on or before effective
date of Act, to be timely PCRA petition must be filed within
one year of effective date and must be first
petition to be eligible for one-year grace period).
Notwithstanding, Appellant did not file his first PCRA
petition until July 27, 1998, making it untimely. Counsel was
appointed and later filed a petition to withdraw wherein he
averred private counsel had entered his appearance for
Appellant in the action. In an Order entered on October 13,
1998, the trial court granted appointed counsel's
petition to withdraw; however, the official docket entries do
not indicate that privately retained counsel took any further
action regarding the PCRA petition, nor do they contain an
Order entered by the trial court on the merits thereof.
August 27, 2012, Appellant filed a second PCRA petition
pro se wherein he generally alleged ineffectiveness
of prior counsel and that "mandatory life without parole
violates the Eighth Amendment Art 5 of the Universal
Declaration of Human Rights as well as Art. I #3 of the
Pennsylvania Constitution for someone under the age of
25." See Motion for Post Conviction Collateral
Relief, filed 8/27/12, at 3. Counsel was appointed on
September 12, 2012, and in an Order entered on October 16,
2012, the trial court directed counsel to file an Amended
PCRA Petition and/or a no-merit letter on or before November
1, 2012, although an amended petition was not forthcoming.
Instead, on July 13, 2015, Appellant filed pro se
his "Motion for Leave to Amend Petition for Habeas
Corpus Relief under Article I, Sections 5, 6 & 14 of the
Pennsylvania Constitution and for Post Conviction Relief
Under the Post Conviction Relief Act et Seq." In its
Order entered on July 16, 2015, the trial court denied the
same without prejudice because Appellant was represented by
trial court also scheduled a status conference to be held on
August 17, 2015, to address Appellant's Habeas Corpus
petition and the status of his previously filed PCRA
petition. In its Order entered on that date following the
conference, the trial court directed PCRA counsel to file
either a motion to withdraw as counsel or a motion to
schedule an evidentiary hearing and/or argument on the
pending PCRA petition on or before October 15, 2015.
September 10, 2015, counsel filed a motion to withdraw along
with a "no merit letter" pursuant to
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927
(1988), and Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988). Therein, he noted Appellant was challenging
the legality of his sentence based upon the United States
Supreme Court's ruling in Miller v. Alabama, ___
U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) wherein the
Court had held that mandatory sentences of life imprisonment
without parole are unconstitutional for juvenile offenders.
In its September 11, 2015, Order, the trial court granted
counsel's petition to withdraw and dismissed
Appellant's PCRA petition without a hearing. The trial
court further indicated Appellant may proceed pro se
or with the assistance privately retained counsel.
February 17, 2016, Appellant again filed a petition of Habeas
Corpus relief pro se challenging his conviction
under the United States Supreme Court's recent decision
in Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct.
718, 193 L.Ed.2d 599 (2016) (filed on January 25, 2016, as
revised on January 27, 2016) wherein the Court held the
application of Miller is retroactive. In its Order
entered on February 22, 2016, the trial court denied
Appellant's Petition for Writ of Habeas Corpus Relief and
in doing so found, inter alia, that the retroactive
application of the Supreme Court's holding in
Miller which pertained to juvenile offenders is
inapplicable to Appellant because he was eighteen years old
at the time of the murder.
March 18, 2016, Appellant filed pro se the PCRA
petition presently before us. Therein, Appellant again
averred he was entitled to relief under Montgomery
and Miller, supra, as well as under
Alleyne v. United States, ___ U.S. ___, 133 S.Ct.
2151, 186 L.Ed.2d 314 (2013) and their progeny. The trial court
appointed counsel to represent Appellant in an Order entered
on April 19, 2016; notwithstanding, Appellant filed a pro
se supplemental PCRA petition on May 23, 2016. In its
Order entered on July 1, 2016, the trial court directed
counsel to file either an amended PCRA petition, a
"no-merit letter" or a motion requesting an
evidentiary hearing on or before August 31, 2016.
filed a "no-merit letter" on September 27, 2016,
and in its Order entered on that same date, the trial court
granted counsel leave to withdraw and Appellant leave to
proceed pro se. In the meantime, Appellant had filed
another supplemental PCRA petition. On October 31, 2016,
Appellant filed his "Response and Answer to PCRA
Court's Notice and Order to Dismiss Pro Se Petition for
Post Conviction Relief Pursuant to the Post Conviction Relief
Act, 42 Pa.C.S. § 9542." On November 7, 2016, the
trial court denied Appellant's PCRA petition and advised
him of his right to file an appeal with this Court within
thirty (30) days. Appellant filed his notice of appeal on
November 28, 2016, along with his "Statement of
brief, Appellant presents the following three questions for