J. S51040/18

2018 PA Super 257

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ERNEST NEDAB, : No. 2350 EDA 2017

:

 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. 

OPINION BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 18, 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 committed 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. 
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On October 26, 1982, appellant entered 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Nedab, 468 A.2d 851 (Pa.Super. 1983) (unpublished memorandum).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 denied 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 de 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 

filed 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, 556 

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 review, [appellant] was neither convicted 
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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 statement 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 worse 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 other 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 that 
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a miscarriage of justice may have occurred. 

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 

evidence 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 petition. 

This court has held the following regarding when a judgment becomes final:
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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 PCRA 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 lead 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 27, 1983.2 See 

 

2 Because December 25, 1983, was a Sunday and December 26, 1983, was 

a court holiday, appellant had until December 27, 1983, to file a petition for 

allowance of appeal. See 1 Pa.C.S.A. § 1908.
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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 exceptions 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 presentation 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 that 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, appellant 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 life 
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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, 560 U.S. at 74. In 

Miller, 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. Appellant 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 aggregate 
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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 

de facto 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 on 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 Foust 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. 
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Appellant does not cite any United States or Pennsylvania Supreme Court 

cases that have held that the holding of Foust applies retroactively.3

Appellant has not successfully pled or proved that he meets the 

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 must be broken down into 

the individual sentences under Foust, there is no way that a 10 to 20-year 

sentence would constitute a de facto sentence of life without the possibility 

of parole.