Com. v. Veltre, J. ( 2015 )

J-A29025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN J. VELTRE, JR.,
Appellant No. 1989 WDA 2014
Appeal from the Order October 29, 2014
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-MD-0000002-1973
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.
JUDGMENT ORDER BY BOWES, J.: FILED OCTOBER 14, 2015
John J. Veltre, Jr., appeals from the order denying him PCRA relief.
We affirm.
On February 14, 1973, when he was sixteen years old, Appellant raped
Alys Morgan, stomped on her head, and threw her against a wall. Appellant
proceeded to kill Ms. Morgan’s two-month old daughter and two-year old
daughter. Ms. Morgan, who had known Appellant for two months prior to
the murders, survived and identified him as the perpetrator of the crimes,
and he confessed. A jury convicted Appellant of two counts of first degree
murder and one count of rape and assault with intent to kill. Appellant
received a sentence of life imprisonment without parole (“LWOP”), which our
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Supreme Court affirmed on December 3, 1980. Commonwealth v. Veltre,
424 A.2d 486 (Pa. 1980).
Appellant litigated an unsuccessful PCRA petition in 2010. Appellant
filed the present PCRA petition in 2012 averring that his LWOP sentence was
unconstitutional. See Miller v. Alabama, 132 S.Ct. 2455 (2012)
(mandatory sentence of LWOP cannot be imposed upon juvenile homicide
offenders under Eighth Amendment). Counsel was appointed. The PCRA
court stayed the PCRA proceeding until the Pennsylvania Supreme Court
ruled on whether Miller would be given full retroactive effect to PCRA
petitioners. Our Supreme Court decided that Miller would not be so applied
in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013).
Accordingly, the PCRA court dismissed the present PCRA petition as
untimely. This appeal followed. Any PCRA petition must be filed within one
year of when the PCRA petitioner’s judgment of sentence became final. 42
Pa.C.S. § 9545(b)(1). A judgment of sentence becomes final at the
conclusion of direct review or the time for seeking direct review. 42 Pa.C.S.
§ 9545(b)(3). Appellant’s ability to pursue direct review expired in 1981,
and the present, 2012 petition is obviously untimely. There are three
exceptions to this one-year time bar, and the one invoked by Appellant was
the third one: “the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the Supreme Court
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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)(iii).
Miller recognized a new Eighth Amendment constitutional right for
juveniles. However, the second aspect of this exception cannot be satisfied
by Appellant because that right has not been held by either the United
States Supreme Court or the Pennsylvania Supreme Court to apply
retroactively. Indeed, Cunningham ruled to the contrary. As we
articulated in Commonwealth v. Seskey, 86 A.3d 237 (Pa.Super. 2014),
only a decision by the United States Supreme Court or the Pennsylvania
Supreme Court to render a new constitutional right retroactive is sufficient to
invoke the third exception contained in § 9545((b)(1)(iii) to the one-year
filing deadline for a PCRA petition. The PCRA court correctly dismissed the
present PCRA petition as untimely because Miller has not yet received full
retroactive effect by the appropriate court. Sesky, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
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