J. S 51 0 40 /1 8

2018 PA Super 257

COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA
v. : : ERNEST NEDAB , : No. 2350 E DA 20 17
: Appellant :

Appeal from the PCRA Order, June 28, 2017, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP

- 51

- CR

- 0617391

- 1982

BEFORE: DUBOW , J., NICHOLS , J., AND FORD ELLIOTT, P.J.E.

OP INION BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 1 8 , 2018
Ernest Nedab appeals pro se from the order filed in the Court of
Common Pleas of Philadelphia County that dismissed his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541

-
9546. Because we agree with the PCRA court that appellant’s facially
untimely petition failed to establish a statutory exception to the one

- year jurisdictional time limit for filing a petition under the PCRA, we affirm.

The record reflects that due to offenses committ ed on April 25, 1982,
appellant was charged with burglary, rape, involuntary deviate sexual
intercourse, criminal conspiracy , and three counts of robbery. 1 Appellant
was 17 years old at the time he committed the crimes.

1 18 Pa.C.S.A. §§ 3502, 3121, 3123, 903, and 3701, respectively.J. S 51 0 40 /1 8

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On October 26, 1982, appellant ent ered an open guilty plea to the
charges. On December 14, 1982, the trial court sentenced appellant to an
aggregate term of 45 to 90 years of imprisonment. Appellant appealed to

this court, which affirmed on November 25, 1983. Commonwealth v.

Nedab , 468 A.2d 851 (Pa.Super. 1983) (unpublished memorandum)

. Appellant did not file a petition for allowance of appeal to the Supreme Court
of Pennsylvania.
Between 1984 and 2012, appellant filed four petitions for
post

- conviction relief. The trial court denie d all four. This court affirmed in
all four cases. Our supreme court denied appellant’s petition for allowance
of appeal when appellant petitioned for it.
On March 21, 2016, appellant filed another PCRA petition and
challenged what he considered the d e facto life without parole sentence

that he received. On February 22, 2017, the PCRA court issued a notice to
dismiss pursuant to Pa.R.Crim.P. 907. On June 28 2017, the PCRA court
dismissed the petition:

This second or subsequent petition was untimely f iled and does not plead or prove any exception to the PCRA’s time

- bar. In an attempt to establish the “newly

- recognized constitutional right” exception, 42 Pa.[C.S.A.] § 9545(b)(1)(iii), [appellant] invoked the new right announced in Graham v. Florida , 55 6 U.S. 1220 (2009) , and Miller v. Alabama , [567 U.S. 460] (2012). Although the United States Supreme Court in Montgomery v. Louisiana , 136 S.Ct. 718 (2016), as revised (Jan. 27, 2016) ruled that Miller has retroactive effect in cases on state collateral r eview, [appellant] was neither convictedJ. S 51 0 40 /1 8

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- of a homicide nor sentenced to life without parole, placing his sentence outside the reach of the Supreme Court’s Miller decision. Miller , 132 S.Ct. at 2460

. [Appellant] failed , therefore, to invoke this exception, and his petition must be dismissed as untimely.

PCRA court opinion, 6/28/17 , at 1 (footnote omitted)

. Appellant filed a notice of appeal on July 18, 2017 . The PCRA court
did not order appellant to file a concise sta tement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and did not file an opinion.
Appellant raises the following issue for this court’s review:
Whether [a]ppellant is entitled to PCRA relief as warranted by Graham v. Florida , 560 U.S. 48 (2010), as interpreted and extended by the Superior Court of Pennsylvania in Commonwealth v. [] Foust , [180 A.3d 416 (Pa.Super. 2018)]. In the instant case where [a]ppellant was a juvenile, and sentenced to a de facto life sentence, and at present is wor se off than most offenders sentenced to life in prison without parole who have the benefits of the evolving standards of law and current scientific research, which establish that children are different from adults based upon their cognitive functions and o ther factors, should this court consider the decisions and reasoning from United States Court jurisprudence and apply it to [a]ppellant’s case under Pennsylvania and United States Constitutions?
Appellant’s brief at 2.
Subsequent PCRA petitions beyond a petitioner’s first petition are
subject to the following standard:

A second or subsequent petition for post

- conviction relief will not be entertained unless a strong prima facie showing is offered to demonstrate thatJ. S 51 0 40 /1 8

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- a miscarriage of justice may have occur red. Commonwealth v. Allen , 732 A.2d 582, 586 (Pa. 1999). A prima facie showing of entitlement to relief is made only by demonstrating either that the proceedings which resulted in conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or the defendant’s innocence of the crimes for which he was charged. Id. at 586. Our standard of review for an order denying post

- conviction relief is limited to whether the trial court’s determination is supported by
e vidence of record and whether it is free of legal
error. Commonwealth v. Jermyn , 709 A.2d 849, 856 (Pa. 1998).
A PCRA petition, including a second or subsequent petition, must be filed within one year of the date that judgment of sentence becomes final. 42 Pa.C.S. [A.] § 9545(b)(1). A judgment becomes final for purposes of the PCRA “at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or the expiration of time for seeking the review.” 42 Pa.C.S. [A.] § 9543(b)(3). PCRA time limits are jurisdictional in nature, implicating a court’s very power to adjudicate a controversy. Commonwealth v. Fahy , 737 A.2d 214 (Pa. 1999). Accordingly, the “period for filing a PCRA petition can be extended only if the PCRA permits it to be extended, i.e. , by operation of one of the statutorily enumerated exceptions to the PCRA time

- bar. Id. at 222.

Commonwealth v. Ali , 86 A.3d 173, 176

- 177 (Pa. 2014), cert. denied , 135 S.Ct. 707 (2014). Before addressing appellant’s issues on the merits,
we must first determine if we have jurisdiction to do so.
As noted above, a PCRA petitioner has one year from the date his or
her judgment of sentence becomes final in which to file a PCRA petit ion.
This court has held the following regarding when a judgment becomes final:J. S 51 0 40 /1 8

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- The plain language of the PCRA provides that a judgment of sentence becomes final at the conclusion of direct review or when the time seeking direct review expires. See 42 Pa.C.S.A. § 9545(b)(3). In fixing the date upon which a judgment of sentence becomes final, the PCRA does not refer to the conclusion of collateral review or the time for appealing a collateral review determination. Thus, the plain language of the PC RA statute shows that a judgment of sentence becomes final immediately upon expiration of the time for seeking direct review, even if other collateral proceedings are still ongoing. As this result is not absurd or unreasonable, we may not look for further manifestations of legislative intent. See Commonwealth v. Hall , 80 A.3d 1204, 1211 (Pa. 2013) (internal quotation marks omitted) (We may “look beyond the plain language of the statute only when words are unclear or ambiguous, or the plain meaning would l ead to a result that is absurd, impossible of execution, or unreasonable.”).

Commonwealth v. Callahan , 101 A.3d 118, 122 (Pa.Super. 2014).
In the instant case, the trial court sentenced appellant on

December 14, 1982. Appellant filed a direct appeal to this court . This court
affirmed the judgment of sentence on November 25, 1983. Appellant did
not petition for allowance of appeal with the Supreme Court of Pennsylvania

. His judgment of sentence became final on December 2 7 , 1983. 2 See

2 Because December 25, 1983 , was a Sunday and December 26, 1983 , was a court holiday, appellant had until December 2 7 , 1983 , to file a petition for allowance of appeal. See 1 Pa.C.S.A. § 1908.J. S 51 0 40 /1 8

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Pa.R.A.P. 1113. Appellant filed the current PCRA petition on March 21,
2016, more than 32 years after judgment became final and more than

31 years after a PCRA petition could be considered timely. See 42 Pa.C.S.A.
§ 9545(b)(1).
As noted above, the PCRA does enumerate e xceptions to the one

- year time limit. A petitioner must plead and prove that he meets one of the
following exceptions to the time requirement:

(i) the failure to raise the claim previously was the result of interference by government officials with the pr esentation 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 th at court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)

- (iii). Section 9545 also mandates that any
petition filed under these exceptions must be filed within 60 days of the date
the claim could have been presented. Id. at § 9545(b)(2).
Here, appe llant asserts that he comes under the newly recognized
constitutional right exception contained in 42 Pa.C.S.A. § 9545(b)(1)(iii). In
his petition, appellant challenged what he considered to be a de facto lifeJ. S 51 0 40 /1 8

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sentence without parole. For support of his position, appellant cited

Graham v. Florida , 560 U.S. 48 (2010), Miller v. Alabama , 567 U.S. 460
(2012), and Montgomery v. Louisiana , 136 S.Ct. 718 (2016). In

Graham , the Supreme Court of the United States held that life sentences
without the possibility of parole for juvenile non

- homicide offenders violated
the prohibition against cruel and unusual punishment contained in the Eighth

Amendment to the United States Constitution. Graham , 5 60 U.S. at 74. In

Mille r , the Supreme Court of the United States held statutory schemes,
which imposed a mandatory life sentence without possibility of parole for
certain homicide convictions, constituted cruel and unusual punishment in
the case of juvenile homicide offenders. The Supreme Court held that a
juvenile homicide defendant could only be sentenced to life without
possibility of parole if he or she is determined to be permanently incorrigible,
irreparably corrupt, or irretrievably depraved. Miller , 567 U.S. at 471, 473 , 479

- 480. In Montgomery , the Supreme Court of the United States held

that Miller applied retroactively to cases on collateral review. Montgomery

136 S.Ct. at 732

- 737.

None of these cases directly applies to appellant’s situation. He did

not receive a life sentence or commit a homicide. A ppellant in his brief cites

the recent case of Commonwealth v. Foust , 180 A.3d 416 (Pa.Super.
2018). In Foust , the defendant was sentenced to two consecutive terms of
30 years to life for two first

- degree murder convictions for an aggregateJ. S 51 0 40 /1 8

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sentence of 60 years to life. Id. at 421. The defendant appealed. One of

the issues he raised was whether it was unconstitutional to impose a
sentence of 60 years of imprisonment to life, which he considered a

d e fac to life sentence without possibility of parole on a juvenile without a
finding that the juvenile is permanently incorrigible, irreparably corrupt, or
irretrievably depraved. Id. This court held that a trial court may not impose

a term

- of

- years sentence o n a juvenile convicted of homicide if that
sentence is equivalent to a de facto life without possibility of parole
sentence, unless the trial court finds, beyond a reasonable doubt, that the
juvenile is incapable of rehabilitation. Id. at 433. This court also held that

de facto life sentences are cruel and unusual punishment when imposed on
juveniles convicted of non

- homicide offenses or juvenile homicide offenders
capable of rehabilitation. Furthermore, when determining whether a

sentence is a de facto life sentence, this court held that the individual
sentences must be examined rather than the aggregate sentence. Id. at

434.
Appellant argues that because Miller and Graham have been held to
be applicable to cases on collateral review, then F o ust should be as well.
However, under 42 Pa.C.S.A. § 9545(b)(1)(iii), in order for a new
constitutional right to apply retroactively for purposes of the PCRA, this right
must be recognized by either the United States Supreme Court or our Supreme Court and has been held by that court to apply retroactively.J. S 51 0 40 /1 8

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Appellant does not cite any United States or Pennsylvania Supreme Court

case s that have held that the holding of F o ust applies retroactively. 3
Appellant has not successfully pled or proved that he meets t he
exception to the timeliness requirements of the PCRA.

Order affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/18/18

3 Furthermore, the longest individual sentence that appellant received was for 10 to 20 years. Since the aggregate sentence m ust be broken down into the individual sentences under F o ust , there is no way that a 10 to 20

- year sentence would constitute a de facto sentence of life without the possibility of parole.