Com. v. Deatan, G. ( 2018 )

J-S80027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GERVIN DEATAN :
:
Appellant : No. 1495 EDA 2017
Appeal from the PCRA Order March 31, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0517551-1974
BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 08, 2018
Appellant, Gervin Deatan, appeals pro se from the order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the factual and procedural history of this
case as follows:
PROCEDURAL HISTORY
Appellant was convicted of second degree murder and
sentenced to life imprisonment without the possibility of parole
on May 13, 1975.
Appellant filed a pro se PCRA petition on August 24, 2012,
seeking relief under Miller [v. Alabama, 132 S.Ct. 2455 (2012)]
and filed an amended PCRA petition on [March 23,] 2016, to
include the United States Supreme Court’s holding in
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Montgomery [v. Louisiana, 136 S.Ct. 718 (2016)].[1] The
Defenders Association of Philadelphia entered its appearance as
counsel on May 25, 2016. After several status listings, counsel
filed a no merit letter on January 24, 2017. This [c]ourt served
the Appellant with a notice of intent to dismiss his petition on
February 28, 2017. The Appellant filed a response to the notice
of intent to dismiss on March 23, 2017. This [c]ourt, by Order
dated March 31, 2017, dismissed the PCRA petition as having no
merit and permitted counsel to withdraw. Appellant filed [a] pro
se Notice of Appeal on April 28, 2017.
STATEMENT OF FACTS
The Appellant was convicted of [second] degree murder
and sentenced to life without the possibility of parole for a
murder that occurred on May 3, 1974. According to his birth
certificate, obtained by Appellant’s counsel, the Appellant was
born on March 9, 1956. Therefore, at the time of the murder,
the Appellant was over the age of eighteen. The Appellant
admitted to being over the age of eighteen at the time of the
murder in both his petition and in his response to the notice [of]
intent to dismiss.
PCRA Court Opinion, 6/28/17, at 1-2.
Appellant presents the following issues for our review:
I. Does mandatory life-without-parole terms for individuals
18 to 25 years of age in homicide cases violate the United
States Constitution’s Eighth Amendment and Pennsylvania
Constitution’s Article 1 § 13?
II. Does mandatory life-without-parole terms for individuals
18 to 25 years of age in homicide cases violate the United
States Constitution[’s] Fourteenth Amendment’s Due
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1 “In Miller, the Supreme Court held that mandatory life without parole for
those under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on cruel and unusual punishments.” Miller, 132
S.Ct. at 2460. The Montgomery Court subsequently determined that
Miller retroactively applied to cases on collateral review. Montgomery,
136 S.Ct. at 734.
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Process Rights when the fact finders were not allowed to
consider age as an element of the crime for sentencing
purposes?
III. Does mandatory life-without-parole terms for individuals
18 to 25 years of age in homicide cases violate the United
States Constitution’s Fourteenth Amendment’s Equal
Protection Clause and the Pennsylvania Constitution’s
Article 1 § 25?
Appellant’s Brief at 2 (unnecessary capitalization omitted).
It is well settled that the timeliness of a PCRA petition is a
jurisdictional threshold and may not be disregarded in order to reach the
merits of the claims raised in a PCRA petition. Commonwealth v. Lawson,
90 A.3d 1, 4 (Pa. Super. 2014). Effective January 16, 1996, the PCRA was
amended to require a petitioner to file any PCRA petition within one year of
the date his judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1).
A judgment of sentence “becomes 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). Where a petitioner’s judgment of
sentence became final on or before the effective date of the amendment,
January 16, 1996, a special grace proviso allowed first PCRA petitions to be
filed by January 16, 1997. See Commonwealth v. Alcorn, 703 A.2d 1054,
1056-1057 (Pa. Super. 1997) (explaining the application of the PCRA grace
proviso).
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However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), is met.2 A petition invoking one of these exceptions must be filed
within sixty days of the date the claim could first have been presented.
42 Pa.C.S. § 9545(b)(2).
Our review of the record reflects that Appellant was sentenced on May
13, 1975. Because Appellant did not filed a direct appeal, his judgment of
sentence became final on June 12, 1975, when the time for filing a direct
appeal expired. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). Thus,
Appellant’s judgment of sentence became final prior to the effective date of
the PCRA amendments. However, Appellant’s instant PCRA petition, which
____________________________________________
2 The exceptions to the timeliness requirement are:
(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), (ii), and (iii).
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was filed on August 24, 2012, and amended on March 23, 2016, does not
qualify for the grace proviso because it was not filed before January 16,
1997. Thus, the instant PCRA petition is patently untimely.
As previously stated, if a petitioner does not file a timely PCRA
petition, his petition may nevertheless be received under any of the three
limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.
§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file
his petition within sixty days of the date that the exception could be
asserted. 42 Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions
to the PCRA’s one-year filing deadline, “the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,
1167 (Pa. Super. 2001).
Without reference or argument to the PCRA’s timeliness requirements,
Appellant contends he is entitled to review because of a new constitutional
right recognized in Miller/Montgomery, pursuant to 42 Pa.C.S.
§ 9543(b)(1)(iii) . Appellant’s Brief at 5. Appellant argues that:
although the United States Supreme Court dealt with the
diminished culpability of those under 18 it is evident the Court’s
rationales and conclusions should be equally applied to this case.
Appellant contends [that] to not consider the evidence or bar
relief where he is similarly situation is a denial of his right to
equal protection of the law and thus, cruel and unusual
punishment.
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Id. In his appellate brief, Appellant concedes that he was eighteen years of
age at the time of the crime. Id. at 5, 6, and 9. However, he maintains
that “this court should consider the developments in neuroscience when
sentencing those 18 to 25 because their characters are not well formed,
their (psychological) traits are less fixed and their actions less likely to be
evidence of irretrievable depravity. Thus, they are amenable to growth and
change too.” Id. at 9.
We have previously rejected this precise claim in our decision in
Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016):
The Miller decision applies to only those defendants who
were under the age of 18 at the time of their crimes.
***
[Furgess] argues that he nevertheless may invoke Miller
because he was a “technical juvenile,” and he relies on
neuroscientific theories regarding immature brain development
to support his claim that he is eligible for relief. But, rather than
presenting an argument that is within the scope of the Miller
decision, this argument by [Furgess] seeks an extension of
Miller to persons convicted of murder who were older at the
time of their crimes than the class of defendants subject to the
Miller holding.
We rejected reliance on this same argument for purposes
of Section 9545(b)(1)(iii) in Commonwealth v. Cintora, 69
A.3d 759 (Pa. Super. 2013). The defendants in Cintora were 19
and 21 years old at the times of their crimes, but they argued
that Miller should apply to them and others whose brains were
not fully developed at the time of their crimes. We stated that a
contention that a newly-recognized constitutional right should
be extended to others does not render a petition seeking such an
expansion of the right timely pursuant to section 9545(b)(1)(iii).
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We also pointed out in Cintora that the right recognized in
Miller had not been held to apply retroactively at the time of
that decision and that its non-retroactivity would have been an
alternative basis for denial of relief. [Cintora,] 69 A.3d at 764
n. 4. Because the U.S. Supreme Court in Montgomery has
since held that Miller does apply retroactively, this second
reason stated in the Cintora opinion is no longer good law.
However, nothing in Montgomery undermines Cintora's
holding that petitioners who were older than 18 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 Section
9545(b)(1)(iii). Accordingly, Cintora remains controlling on this
issue, and [Furgess’] assertion of the time-bar exception at
Section 9545(B)(1)(iii) must be rejected.
Furgess, 149 A.3d at 94 (some citations, original brackets, and most
quotation marks omitted; emphasis in original).
Here, it is undisputed that Appellant was eighteen years of age at the
time of the crime. Accordingly, the holdings in Miller and Montgomery do
not apply to Appellant. Furgess, 149 A.3d at 94. Appellant has failed to
establish the newly-recognized constitutional right exception to the PCRA
time-bar.
Because the instant PCRA petition was untimely and no exceptions
apply, the PCRA court lacked jurisdiction to address the claims presented
and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa.
Super. 2002) (holding that PCRA court lacks jurisdiction to hear untimely
petition). Likewise, we lack the authority to address the merits of any
substantive claims raised in the PCRA petition. See Commonwealth v.
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Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to
a court’s right or competency to adjudicate a controversy.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/18
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