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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID CARMICHAEL

Appellant No. 484 EDA 2016

Appeal from the PCRA Order January 13, 2016

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0004515-2005

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 05, 2016

Appellant, David Carmichael, appeals pro se from an order entered on 

January 13, 2016 that denied as untimely his petition filed pursuant to the 

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A §§ 9541-9546. We affirm.

We quote the PCRA court’s summary of the factual and procedural 

history in this case.

On July 10, 2006, Appellant pleaded guilty to two (2) [c]ounts 

each of [m]urder,1[m]urder of the [s]econd [d]egree,2

[r]obbery – [i]nfliction of [s]erious [b]odily [i]njury,3and other 

related offenses in connection with the May 12, 2005 deaths of 

Wayne and Carol Denno. On July 20, 2006, th[e trial c]ourt[]

____________________________________________

1 18 Pa.C.S.A. § 2502.

2 18 Pa.C.S.A. § 2502(b).

3 18 Pa.C.S.A. § 3701(a)(1)(i).
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sentenced Appellant to a term of life imprisonment with a 

consecutive term of not less than five (5) years, nor more than

ten (10) years, imprisonment with a consecutive term of not less 

than five (5) years, nor more than ten (10) years, imprisonment 

in a state correctional institution. Appellant filed no timely direct 

appeal.

On April 23, 2007, Appellant filed a PCRA [p]etition[.] After a 

hearing on September 5, 2007, Appellant sought and was 

granted permission to withdraw his [p]etition.

On September 2, 2015, Appellant filed the present PCRA 

[p]etition, his second, with th[e c]ourt.4 On November 16, 

2015, [the PCRA court] issued a [n]otice of [i]ntent to [d]ismiss, 

to which Appellant responded on December 10, 2015. Upon 

consideration of Appellant’s PCRA [p]etition and his response to 

[the] [n]otice of [i]ntent to [d]ismiss, th[e c]ourt denied 

Appellant’s [p]etition without a hearing on January 13, 2016. 

Appellant subsequently filed a timely [n]otice of [a]ppeal to [this 

Court] on February 3, 2016. [Both Appellant and the PCRA court 

have complied with the requirements of Pa.R.A.P. 1925.]

PCRA Court Opinion, 4/6/16, at 1-2 (footnotes in original).

Appellant raises the following issues for our consideration:

Whether the PCRA court erred in denying without a hearing the 

claim that [Appellant] is serving an illegal sentence in that it 

lacks constitutional authority and violates [Appellant’s] right to 

equal protection of the law?

____________________________________________

4 On August 14, 2015, Appellant filed a notice with [the PCRA court] 

asserting newly discovered evidence arising from the decision in [] 

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). Appellant 

subsequently filed a third PCRA [petition] on September 14, 2015 on the 

basis of the issues that he raised in his August filing[.] The issues presented 

in Appellant’s third PCRA [p]etition differ from those raised in the instant 

matter, and as such, they were not considered as an amendment to the 

current [p]etition. [The PCRA court] issued a [n]otice of [i]ntent to 

[d]ismiss Appellant’s third [p]etition on April 5, 2016, and that matter is 

being decided independently from Appellant’s instant [p]etition.
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Whether the PCRA court erred in denying without a hearing 

[Appellant’s] petition based upon findings of facts, deliberately 

misstated, and errors [in] the order of dismissal, which are not 

supported by the record?

Whether the PCRA court abused [its] discretion by denying 

[Appellant’s] petition without a hearing for reasons that are 

insufficient on their face?

Appellant’s Brief at 3.

Appellant’s judgment of sentence became final on August 18, 2006; 

thus, his September 2, 2015 petition was patently untimely. Appellant, 

however, asserts that the PCRA court had jurisdiction over the petition under 

the newly-recognized constitutional right exception set forth at 42 Pa.C.S.A. 

§ 9545(b)(1)(iii). Specifically, Appellant theorizes that the Commonwealth is 

violating his right to equal protection in denying him parole, which is 

available to similarly situated citizens in other states. Appellant relies upon 

the United States Supreme Court’s decision in Obergefell v. Hodges, 135 

S.Ct. 2584 (2015) in asserting this claim.

The PCRA court rejected Appellant’s argument for two reasons. First, 

the court found that Appellant filed his petition one day outside the 60-day 

period allowed by 42 Pa.C.S.A. § 9545(b)(2). Second, the court held that 

Obergefell did not recognize a constitutional right of inmates to parole 

eligibility, nor did the decision “require that persons incarcerated for a life 

term in [one] state[] be granted the privilege of parole simply because 

[other] states allow for such measures.” PCRA Court Opinion, 4/6/16, at 5.
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We have carefully reviewed the submissions of the parties, the opinion 

of the PCRA court, and the certified record. Based upon our review, we 

conclude that the trial court adequately and accurately addressed the claims 

raised in Appellant’s petition and correctly denied relief without a hearing. 

We therefore adopt the PCRA court’s opinion as our own. The parties are 

instructed to include the PCRA court’s opinion with all future filings 

concerning our disposition of this appeal.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/5/2016
1 

1 18 Pa.C.S. §2502. 

2 18 Pa.C.S. §2502(b). 

3 18 Pa.C.S. §370\(a)(l)(i). 

4 Appellant was sentenced by the Honorable Kenneth G. Biehn, who has since retired from the Bench . 

.. -:- .... 

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Petition. 

On April 23, 2017, Appellant filed a PCRA Petition with this Court. After a hearing 

conducted on September 5, 2007, Appellant sought and was granted permission to withdr1aw his 

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Appellant filed no timely direct appeal. 

connection with the May 12, 2005 deaths of Wayne and Carol Denno. On July 20, 2006, this 

Court" sentenced Appellant to a term of life imprisonment with a consecutive term of not! less 

than five (5) years, nor more than ten (10) years, imprisonment in a state correctional institution. 

the Second Degree2, Robbery- Infliction of Serious Bodily Injury", and other related offenses in 

On July 10, 2006, Appellant pleaded guilty to two (2) Counts each of Murder 1, Murder of 

PROCEDURAL HISTORY AND FACTUAL BACKGROUND 

Pennsylvania Rule of Appellate Procedure l 925(a). 

January 13, 2016 Order denying Post Conviction Relief. We file this Opinion pursuant to; 

Defendant David Carmichael (hereinafter "Appellant"), pro se, appeals this Court's 

OPINION 

DAVID CARMICHAEL 

v. 

COMMONWEALTH OF PENNSYLVANIA CP-09-CR-0004515-2005 

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IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLV,1\.NIA ,. CRIMINAL DIVISION 

f~fl~r 

Circulated 11/14/2016 01:27 PM
2 

' 

5 On August 14, 2015, Appellant filed a notice with this Court asserting newly discovered evidence arisingjfrom the 

decision in the Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015). Appellant subsequently filed a third fCRA on 

September 14, 2015 on the basis of the issues that he raised in his August filing with this Court. The issues.presented 

in Appellant's third PCRA Petition differ from those raised i.n the instant matter, and as such, they were not 

considered as an amendment to the current Petition. This Court issued a Notice of Intent to Dismiss Appellant's 

third Petition on April 5, 2016, and that matter is being decided independently from Appellant's instant Petition. 

. i 

111. THE PCRA COURT ABUSED IT'S [sic] DISCRETION BY DENYING! 

' PETITIONER'S PETITION WITHOUT A HEARING FOR REASONS THAT 

ARE INSUFFICIENT ON THEIR FACE. 

II. THE PCRA COURT ERRED IN DENYING WITHOUT A HEAIUNG 

PETITIONER'S PETITION BASED UPON FINDINGS OF FACTS, 

DELIBERATELY MIST ATED, AND ERRORS ON THE ORDER OF 

DISMISSAL, WHICH ARE NOT SUPPORTED BY THE RECORD. 

I. THE PCRA COURT ERRED IN DENYING WITHOUT A HEARING THE 

CLAIM THAT PETITIONER IS SERVING AN ILLEGAL SENTENCE iIN 

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THAT IT LACKS CONSTITUTIONAL AUTHORITY AND VIOLATES 

PETITIONER'S RIGHT TO EQUAL PROTECTION OF THE LAW. 

Concise Statement of Matters Complained of on Appeal within twenty-one (21) days. AJpellant 

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filed such a Statement on February 25, 2016, which raised the following issues, verbatim1: 

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On February 8, 2016, this Court issued al 925(b) Order directing Appellant to file a 

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STATEMENT OJ? MATTERS COMPLAINED OF ON APPEAL 

Court on February 3, 2016. 

hearing on January 13, 2016. Appellant subsequently filed a timely Notice of Appeal to Superior 

response to our Notice of Intent to Dismiss, this Court denied Appellant's Petition without a 

responded on December 10, 2015. Upon consideration of Appellant's PCRA Petition and his 

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Court5• On November 16, 2015, we issued a Notice oflntent to Dismiss, to which Appellant 

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On September 2, 2015, Appellant filed the present PCRA Petition, his second, ,ith this 

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could have been presented. 42 Pa.C.S. §9545(b)(2). 

Super. 2007). Any exception must further be filed within sixty (60) days from the date the claim 

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!3easley, 741 A.2d 1258, 1261 (Pa. 1999); Commonwealth v. Greer, 936 A.2d 1075, 1077: (Pa. 

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defendant has the burden to plead and prove the applicability of an exception. Commonwealth v. 

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42 Pa.C.S. §9545(b)(l )(i)- (iii). When claiming one of the Section 9545(b) exceptions, a. 

(i) the failure to raise the claim previously was the result of interference byj 

government officials with the presentation of the claim in violation of th(; 

Constitution or laws of this Commonwealth or the Constitution or laws of 

the United States; 

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(ii) the facts upon which the claim is predicated were unknown to the defendant 

and could not have been ascertained by the exercise of due diligence; or I 

(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. 

prove one of the following: 

306, 309 (Pa. 2008). In order to invoke an exception, a petition must allege and a defendant must 

a PCRA court is without jurisdiction to review a petition. Commonwealth v. Stokes, 959 A,2d 

a defendant proves that one of the enumerated timeliness exceptions to Section 9545(b) applies, 

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year of the date judgment becomes final. 42 Pa.C.S. §9545(b)(l ). Unless the petition alleges and 

The PCRA requires that any petition for post-conviction relief must be filed within one 

PCRA." Commonwealth v. Judge, 797 A.2d 250, 257 (Pa. 2002) (citations omitted). 

is also cognizant of the principle requiring "strict adherence to the statutory language of the 

Commonwealth v. Abu-Jamal, 833 A.2d 719, 723-24 (Pa. 2003) (citations omitted). This,Court 

address the merits of the issues raised if the PCRA petition was not timely filed." 

"The PCRA's timeliness requirements are jurisdictional in nature and a court may; not 

ANALYSIS 
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The right to an evidentiary hearing on a post-conviction petition is not absolute. A 

PCRA court may decline to hold a hearing if the petitioner's claim is patently' 

frivolous and is without a trace of support in either the record or from other 

evidence. A reviewing court on appeal must examine each of the issues raised in 

the PCRA petition in light of the record in order to determine whether the PCRA 

settled, as follows: 

Superior Court's standard of review for the denial of a PCRA petition without a hearing is welland failed to prove the applicability of the newly-recognized constitutional right exception. The 

to claim an exception to the timeliness requirement, Appellant's claims were patently frivolous 

Even if Superior Court finds that Appellant's Petition was filed within the time necessary 

day beyond the sixty (60) day period required by statute. 

docketed on September 2, 2015, but filed by Appellant on August 25, 2015, which falls one (1) 

August 24, 2015 in order to satisfy the timeliness requirements. The instant petition was 

with this Court. Therefore, Appellant must have pied this exception within such a petition by 

§9545(b)(2) provides that Appellant has sixty (60) days from that date to file a PCRA petition 

v. Hodges, 135 S. Ct. 2584 (2015). Obergefell was decided on June 26, 2015, and 42 Pa.C::.s. 

protection of the law," following the recent United States Supreme Court decision of Obergefell 

facially untimely PCRA Petition by claiming that his sentence of life imprisonment witho1ut the 

possibility of parole is "unconstitutional because it violates [Appellant's] right to equal i 

is applicable in this case pursuant to 42 Pa.C.S. §9545(b)(l)(iii). Appellant attempts to justify his 

Appellant has asserted that the newly-recognized constitutional right timeliness exception 

filing restriction imposed by Section 9545(b) of the PCRA. 

Appellant was sentenced on July 20, 2006 and filed no timely post-trial motions or a 

direct appeal. Therefore, his conviction became final on August 18, 2006. Appellant's instant 

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Petition under the PCRA was filed on September 2, 2015, well in excess of the one (I) ye1ar 

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the privilege of parole simply because some individual states allow for such measures. 

holding be deemed to now require that persons incarcerated for a life term in all states be granted 

implicitly recognize any constitutional right of inmates to parole eligibility, nor can the Court's 

sex marriages performed in other states. The United States Supreme Court did not explicitly or 

2605 (2015). The Obergefell Court further held that states must therefore recognize lawful same1 

sex may not be deprived of that right and that liberty." Obergefell v. Hodges, 135 S. Ct. 2584, 

Clauses of the Fourteenth Amendment [to the United States Constitution], couples of the same 

right inherent in the liberty of the person, and under the Due Process and Equal Protection 

The monumental holding of Obergefell recognized "the right to marry as a fundamental 

in any reasonable interpretation of the law, as we will discuss below. 

PCRA Petition, Paragraph 27. While Appellant offers a creative argument, it is not one grounded 

Just as the hope of same sex couples was not to be condemned to live in loneliness, 

excluded from one of civilization's oldes [sic] insritutions [sic] (marriage), so too 

is the hope of reformed Iife-terrn inmates in Pennsylvania who hope not to be 

condemned to life in the loneliness of confinement for all of their natural lives, 

excluded from one of the justice system's oldest institutions for release and 

reintegration intosociety [sic] (parole). 

PCRA Petition, Paragraph A. In comparing the liberty of homosexual couples to now mar;ry with 

the liberty associated with eligibility for parole, Appellant summarizes his argument thusly: 

citizens similarly situated in other states are granted full recognition of this right and privilege." 

now "violating his right to liberty by denying him the privilege of parole eligibility whereas 

Supreme Court's understanding of equal protection of the law, resulting in the Commonwealth 

Appellant claims that Obergefell, supra, represents an expansion of the United States 

Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001) (citations omitted). 

court erred in concluding that there were no genuine issues of material fact and 

denying relief without an evidentiary hearing. 
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For the foregoing reasons, this Court perceives that the issues of which Appellant jhas 

complained in this appeal are without merit, and that this Court's January 13, 2016 Order 

CONCLUSION 

without a hearing. 

Petition was untimely and failed to prove any exception, we submit that it was rightly denied 

his claims within the case law of this Commonwealth, Appellant has not pied any viable ht aim 

under the newly-recognized constitutional right exception. Therefore, given that Appellant's 

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Super. 2013). As a result of Appellant's tenuous reasoning and the long-standing opposition to 

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recognized right for those adult defendants. Commonwealth v. Cintora, 69 A.3d 759, 764: (Pa. 

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extended, the Superior Court found that the Court's decision did not constitute a newly· 

reviewing PCRA petitions of two adult defendants asserting that the Miller decision should be 

against 'cruel and unusual punishments.": 132 S. Ct. 2455, 2460 (2012). We note that when 

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presented with the opportunity to mandate access to parole for all life-term inmates, as Appellant 

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now declares the Court has accomplished in Obergefell, the Supreme Court declined to db so, 

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instead restricting its holding to mandatory such sentences for minor offenders. Furthermore, in 

under the age of 18 at the time of their crimes violates the Eight Amendment's prohibition 

Supreme Court held in Miller v. Alabama that "mandatory life without parole for offenders 

within this Commonwealth affirmatively establishes that a sentence of life imprisonmentlwithout 

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possibility of parole does not violate an individual's right to equal protection. The United States 

Moreover, longstanding case law of both the United States Supreme Court and courts 

parole for his role in the murder of two persons. 

Accordingly, we struggle to see how the above decision affects Appellant's life sentence.without 
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BY THE COURT: 

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( .. -./ , 

/ /' I ~,·-~./·· rl'""l,-.---.__ .• -.'..- :_ ",-----~i ·'/ 

.. -·WALLAitE H. ~-ATEMAN, JR. J. ~·· 

respectfully request the Superior Court to affirm this Court's decision. 

denying Post Conviction Relief was supported by both the law and the record in this case, We 

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