Com. v. Stroll, G. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GREGORY L. STROLL
Appellant No. 1538 MDA 2016
Appeal from the PCRA Order August 22, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000684-1994
BEFORE: STABILE, J., MOULTON, J., and STRASSBURGER, J.*
MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 14, 2017
Gregory L. Stroll appeals, pro se, from the August 22, 2016 order
entered in Dauphin County Court of Common Pleas dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.
We affirm.
On November 17, 1994, a jury convicted Stroll of first-degree murder
and criminal conspiracy to commit murder.1 That same day, the trial court
sentenced Stroll to an aggregate term of life imprisonment without the
possibility of parole. Stroll filed a notice of appeal, and on October 2, 1995,
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2502(a) and 903(a), respectively.
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this Court affirmed. Stroll then filed a petition for allowance of appeal, which
the Pennsylvania Supreme Court denied on April 16, 1996.
On February 18, 1998, Stroll filed his first PCRA petition. On December
18, 1999, the PCRA court dismissed the petition. This Court affirmed the
dismissal on June 10, 1999. Stroll did not file a petition for allowance of
appeal.
On March 29, 2016, Stroll filed the instant PCRA petition. On April 13,
2016, the PCRA court issued notice of its intent to dismiss the petition
pursuant to Pennsylvania Rule of Criminal Procedure 907, and, on August 22,
2016, dismissed the petition. On September 9, 2016, Stroll filed a timely
notice of appeal.
In his statement of questions involved, Stroll presents, in effect, a single
argument: The failure to apply the United States Supreme Court’s decisions
in Miller v. Alabama, 567 U.S. 460 (2012) and Montgomery v. Louisiana,
136 S.Ct. 718 (2016), to his life without parole sentence for first-degree
murder, simply because he was over the age of 18 when he committed the
offenses, violates the Equal Protection Clause of the 14th Amendment to the
United States Constitution and Article 1, Section 26 of the Pennsylvania
Constitution.
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
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It is well settled that “the timeliness of a PCRA petition is a jurisdictional
requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa.Super.), app.
denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final.” 42 Pa.C.S. § 9545(b)(1). A judgment is final “at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).
Stroll’s judgment of sentence became final on July 15, 1996,2 when his
time to petition the United States Supreme Court for a writ of certiorari
expired. Stroll had one year from that date, or until July 15, 1997, to file a
timely PCRA petition. Therefore, his current petition, filed in March 2016, is
facially untimely.
Stroll’s petition remains untimely unless it alleges and proves a PCRA
time-bar exception. Courts may consider a PCRA petition filed more than one
year after a judgment of sentence became final only if the petitioner alleges
and proves one of the following three statutory exceptions:
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2Stroll had 90 days from his judgment of sentence to file a petition for
a writ of certiorari with the United States Supreme Court. See U.S.S.Ct.R. 13
(1995) (repealed 1997) (“A petition for a writ of certiorari seeking review of a
judgment of a lower state court that is subject to discretionary review by the
state court of last resort is timely when it is filed with the Clerk within 90 days
after entry of the order denying discretionary review.”). Because the ninetieth
day, July 14, 1996, was a Sunday, Stroll had until the next business day, July
15, 1996, to file his notice of appeal. See 1 Pa.C.S. § 1908.
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(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. § 9545(b)(1)(i)-(iii); see Brown, 111 A.3d at 175. In addition,
when invoking an exception to the PCRA time bar, the petition must “be filed
within 60 days of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).
In his PCRA petition, Stroll does not address the timeliness of his
petition, but asserts that he should be entitled to relief because the United
States Supreme Court’s decisions in Miller v. Alabama, 567 U.S. 460 (2012),
and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), apply retroactively to
his sentence. Implicitly, Stroll is also arguing that he meets the new-
constitutional-right exception to the PCRA time bar. In Miller, the Supreme
Court held that a sentence of life imprisonment without the possibility of parole
was unconstitutional when imposed upon defendants who were “under the age
of 18 at the time of their crimes.” 567 U.S. at 465. In Montgomery, the
Supreme Court held that its Miller decision applied retroactively to cases on
state collateral review. 136 S.Ct. at 732.
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Stroll was 20 years old at the time he committed the murder for which
he was convicted.3 We have held that Miller’s prohibition of life-without-
parole sentences does not apply to those who were not juveniles at the time
of the offense. See Commonwealth v. Cintora, 69 A.3d 759, 764
(Pa.Super. 2013) (concluding that for appellants, who were 19 and 21 at time
of offense, “the holding in Miller does not create a newly-recognized
constitutional right that can serve as the basis for relief”); 4 see also
Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super. 2016) (reaffirming
holding of Cintora that petitioners who were 18 or older “at the time they
committed murder are not within the ambit of the Miller decision and
therefore may not rely on that decision to bring themselves within the time-
bar exception”).
In sum, because Stroll was 20 at the time of the offenses, Miller does
not apply, and Stroll has failed to satisfy the new-constitutional-right
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3Stroll was born on December 9, 1973 and committed the offenses at
issue on January 13, 1994.
4In Cintora, this Court rejected the appellants’ argument that it would
violate the Equal Protection Clause to not grant relief pursuant to Miller. The
appellants argued that Miller should apply to those under the age of 25
“because Miller created a new Eighth Amendment right, that those whose
brains were not fully developed at the time of their crimes are free from
mandatory life without parole sentences, and because research indicates that
the human mind does not fully develop or mature until the age of 25.” 69
A.3d at 764. The Court noted that the appellants’ “contention that a newly-
recognized constitutional right should be extended to others does not render
their petition timely pursuant to section 9545(b)(1)(iii).” Id. (emphasis in
original).
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exception to the PCRA time bar.5 Therefore, the PCRA court did not err in
dismissing the petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2017
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Further, even if Miller and Montgomery applied to Stroll’s case his
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PCRA petition was still untimely because he failed to file it within 60 days of
the Montgomery decision. See 42 Pa.C.S. § 9545(b)(2) (“Any petition
invoking an exception [to the PCRA time bar] shall be filed within 60 days of
the date the claim could have been presented.”).
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