J-S67019-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. RICARDO ALPHONSO PEOPLES Appellant No. 424 WDA 2014

Appeal from the PCRA Order January 17, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008708-1997
BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J. * MEMORANDUM BY MUNDY, J.: FILED DECEMBER 19, 2014 Appellant, Ricardo Alphonso Peoples, appeals pro se from the January 17, 2014 order dismissing as untimely his second pe tition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm. The certified record discloses the following factu al and procedural history of this case. On February 4, 1999, a jury found Appellant guilty of one count of first degree murder and one count of s econd degree murder 1 for the May 14, 1997 killings of Orlando Price and his girlfriend, Dionda Morant. At the time of the offenses, Appellant was 17 years old but he was

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(a) and 2502(b), respectively

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tried as an adult. 2 Immediately following the verdict, the trial cour t sentenced Appellant to two consecutive life sentenc es without the possibility of parole. This Court affirmed Appellant’s judgmen t of sentence on July 28, 2000, and our Supreme Court denied his petition for allowance of appeal on January 18, 2001. Commonwealth v. Peoples , 761 A.2d 1238 (Pa. Super. 2000) (unpublished memorandum), appeal denied , 766 A.2d 1246 (Pa. 2001). His judgment of sentence became final on Ap ril 18, 2001, when the filing period for a petition for a writ of certiorari with the United States Supreme Court expired. See generally 42 Pa.C.S.A. § 9545(b)(3); U.S. S. Ct. R. 13(1). Thereafter, Appellant filed a timely PCRA petition on December 11, 2001. The PCRA court dismissed the petition on Aug ust 13, 2002, and this Court affirmed on August 11, 2003. Commonwealth v. Peoples , 833 A.2d 1148 (Pa. Super. 2003). Appellant did not file a p etition for allowance of appeal with our Supreme Court. On July 9, 2012, Appellant filed pro se a second PCRA petition that is the subject of this appeal. On November 6, 2013, t he PCRA court issued a notice of intent to dismiss the petition. Appellan t was subsequently granted permission to amend his PCRA petition. On December 12, 2013, Appellant filed an “Amended Petition for Habeas Corpus Relief Under Article I, Section

____________________________________________ 2 Appellant’s date of birth is September 13, 1979.J-S67019-14

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14 of the Pennsylvania Constitution and for Post-Co nviction Relief Under the [PCRA]” (Amended Petition). The PCRA court gave no tice of its intent to dismiss this Amended Petition. Appellant did not r espond to this notice. On January 17, 2014, the PCRA court dismissed the Amen ded Petition as untimely, and filed its Rule 1925(a) opinion. Appe llant timely filed pro se a notice of appeal on February 13, 2014. 3 On appeal, Appellant raises the following two issue s for our review.
I. Whether the [PCRA] court abused its discretion in concluding that relief under habeas corpus ad subjiciendum is unavailable?
II. Whether Article 1, Section 13 of the Pennsylvania Constitution should be construed as providing greater protections than its quasi[-]analogous provision of the [] United States Constitution? Appellant’s Brief at iix. “On appeal from the denial of PCRA relief, our stan dard and scope of review is limited to determining whether the PCRA c ourt’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

____________________________________________ 3 The PCRA court did not order Appellant to file a c oncise statement of errors complained of on appeal pursuant to Rule 1925(b). The PCRA court’s January 17, 2014 1925(a) statement states that the petition was dismissed because it was time-barred without supplying any fu rther reasoning.J-S67019-14

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is limited to the findings of the PCRA court and th e evidence of record, viewed in the light most favorable to the prevailin g party at the PCRA court level.” Commonwealth v. Koehler , 36 A.3d 121, 131 (Pa. 2012) (citation omitted). In order to be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his c onviction or sentence arose from one or more of the errors listed at 42 P a.C.S.A. § 9543(a)(2). These issues must be neither previously litigated n or waived. 42 Pa.C.S.A. § 9543(a)(3). “[T]his Court applies a de novo standard of review to the PCRA court’s legal conclusions.” Commonwealth v. Spotz , 18 A.3d 244, 259 (Pa. 2011) (citation omitted). We must first address whether the PCRA court proper ly treated Appellant’s Amended Petition as solely a PCRA petit ion even though the Amended Petition sought both a writ of habeas corpus and PCRA relief.

[I]t is well established that pursuant to Pennsylva nia law, the PCRA subsumes the writ of habeas corpus unless the claim does not fall within the ambit of the PCRA statute. Our Supreme Court has consistently held that the PCRA statute and its eligibility requirements a re to be broadly construed. Nevertheless, the Pennsylvania Supreme Court also has recognized that certain unique claims do not give rise to a cognizable claim under the PCRA statute. In those rare instances that a post-conviction claim does no t fit within the statutory scheme of the PCRA, a writ of habeas corpus may be appropriate. Commonwealth v. Burkett , 5 A.3d 1260, 1274 (Pa. Super. 2010) (citations omitted). “Only if neither the PCRA nor any other remedy isJ-S67019-14

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available for the condition alleged may the writ of habeas corpus then issue.” Commonwealth v. O’Brian , 811 A.2d 1068, 1070 (Pa. Super. 2002). The following relief is encompassed by the PCRA.

§ 9543. Eligibility for relief (a) General rule.-- To be eligible for relief under this subchapter, the petitioner must plead and prov e by a preponderance of the evidence all of the following: (1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted: (i) currently serving a sentence of imprisonment, probation or parole for the crime; (ii) awaiting execution of a sentence of death for the crime; or (iii) serving a sentence which must expire before the person may commence serving the disputed sentence. (2) That the conviction or sentence resulted from one or more of the following: (i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

...J-S67019-14

- 6 - (vii) The imposition of a sentence greater than the lawful maximum.

... (3) That the allegation of error has not been previously litigated or waived. (4) That the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.

... 42 Pa.C.S.A. § 9543(a). The issues raised in the portion of Appellant’s Am ended Petition seeking a writ of habeas corpus are that Appellant’s mandatory sentence of life without parole violates Article 1, Sections 1, 9, and 13 of the Pennsylvania Constitution as well as the Eighth and Fourteenth Amendments to the U.S. Constitution. Appellant’s pro se Amended Petition, 12/12/13, at 12-20. Appellant’s claims of constitutional violat ions concerning the legality of his sentence are encompassed within the PCRA, an d as such, the PCRA is the proper and sole avenue for obtaining relief. See 42 Pa.C.S.A. § 9543(a)(2)(i), (vii). As a result, the trial cou rt properly treated Appellant’s Amended Petition as his second PCRA petition, and w e review it as such. Burkett , supra . Before we may address the merits of a PCRA petition , we must first consider the petition’s timeliness because it impli cates the jurisdiction ofJ-S67019-14

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both 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.” Williams , supra . The PCRA “confers no authority upon this Court to fashion ad hocequitable exceptions to the PCRA timebar[.]” Commonwealth v. Watts , 23 A.3d 980, 983 (Pa. 2011) (citation omitted). This is to “accord finality to the colla teral review process.” Id. “A petition for relief under the PCRA, including a sec ond or subsequent petition, must be filed within one year of the date the judgm ent becomes final unless the petition alleges, and the petitioner proves, th at 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). Section 9545 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 ofJ-S67019-14

- 8 - 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 this case, Appellant’s second PCRA petition is p atently untimely as it was filed over 11 years after his judgment of sente nce became final. Therefore, Appellant must plead and prove one of th e three enumerated statutory exceptions to the time-bar. See Harris , supra . Appellant’s Amended Petition seeking a writ of habeas corpus asserts the newly recognized constitutional right exception to the ti me-bar. 42 Pa.C.S.A. § 9545(b)(1)(iii). Appellant’s brief does not deve lop this argument, but weJ-S67019-14

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note it cites to the United States Supreme Court’s decision in Miller v. Alabama , 132 S. Ct. 2455 (2012). 4 Appellant’s Brief at 2-5, 7-11. To the extent this could be construed as raising an except ion to the time-bar, our Supreme Court has held that Miller does not create such an exception as it does not apply retroactively to judgments of senten ce that were final at the
time Miller was decided. Commonwealth v. Cunningham , 81 A.3d 1, 11 (Pa. 2013), cert. denied , 134 S. Ct. 2724 (2014). Further, to the extent Appellant’s brief could be read as arguing for this Court to apply broader retroactivity principles under state law, we note t hat Section 9545(b)(1)(iii) requires the alleged new constitutional right to ha ve been held to be retroactive by either our Supreme Court or the Unit ed States Supreme Court only. See 42 Pa.C.S.A. § 9545(b)(1)(iii). As set forth above , our Supreme Court has determined that Miller does not apply retroactively. Cunningham , supra . As noted, Appellant’s judgment of sentence becam e final on April 18, 2001, which is over 11 years bef ore Miller was decided on

____________________________________________ 4 In Miller , the United States Supreme Court held “that mandat ory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cru el and unusual punishments.’” Miller , supra at 2460. This holding does not “categorically bar” the sentence of life without parole for juveni les, but “[i]nstead, it mandates only that a sentencer follow a certain pro cess—considering an offender’s youth and attendant characteristics—befor e imposing a particular penalty.” Id. at 2471.J-S67019-14

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June 25, 2012. Therefore, Miller is inapplicable to Appellant’s judgment of sentence and cannot form the basis of a time-bar ex ception. Based on the foregoing, we conclude the PCRA court properly dismissed Appellant’s PCRA petition as untimely. A ccordingly, the PCRA court’s January 17, 2014 order is affirmed. Order affirmed. Judge Donohue joins the memorandum. Justice Fitzgerald concurs in the result. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/19/2014