Com. v. Lopez, R. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RICARDO LOPEZ,
Appellant No. 686 EDA 2019
Appeal from the PCRA Order Entered February 15, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-0406881-1998
CP-51-CR-0413751-2002
BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 07, 2019
Appellant, Ricardo Lopez, appeals pro se from the post-conviction
court’s February 15, 2019 order dismissing, as untimely, his petition for relief
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After
review, we affirm.
Briefly, on December 29, 2003, Appellant pled guilty to second-degree
murder, robbery, and related offenses in a case docketed at CP-51-CR-
0413571-2002 (hereinafter “3571-2002”). That same day, he was sentenced
to an aggregate term of life imprisonment, without the possibility of parole.
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* Retired Senior Judge assigned to the Superior Court.
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According to the PCRA court, that term of incarceration was imposed to run
concurrently to a life sentence that Appellant was serving in an unrelated case
docketed at number CP-51-CR-0406881-1998 (hereinafter “6881-1998”).1
Appellant did not file a direct appeal. However, he filed a timely, pro se
PCRA petition on April 12, 2004, seeking the reinstatement of his direct appeal
rights. The PCRA court granted that request, and Appellant filed a nunc pro
tunc direct appeal. We affirmed his judgment of sentence on July 20, 2006.
Commonwealth v. Lopez, 907 A.2d 1135 (Pa. Super. 2006) (unpublished
memorandum). Appellant did not file a petition for allowance of appeal with
our Supreme Court.
On August 23, 2012, Appellant filed the pro se PCRA petition underlying
the present appeal. Therein, he claimed he was serving an illegal sentence
under Miller v. Alabama, 567 U.S. 460, 479 (2012) (holding that “the Eighth
Amendment forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders”). Counsel was appointed, but for
some reason, no action was taken on Appellant’s petition. Years later, a
different attorney entered his appearance on Appellant’s behalf, and on
January 14, 2019, that attorney filed a petition to withdraw and ‘no-merit’
letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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1 In case 6881-1998, Appellant pled guilty on June 21, 1999, to murder,
robbery, and related offenses for crimes he committed on February 13, 1998,
just six days before he committed the murder in the present case.
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Counsel concluded that Appellant’s Miller claim was frivolous, as he admitted
in his petition that he was 18 years old at the time of his underlying crimes.
On January 18, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice
of its intent to dismiss Appellant’s petition, but Appellant did not respond. On
February 15, 2019, the court issued an order dismissing his petition and
granting counsel’s petition to withdraw.
Appellant filed a timely, pro se notice of appeal on March 1, 2019, listing
both the docket number for the present case, 3571-2002, as well as the docket
number in his other, unrelated case at number 6881-1998.2 On April 29,
2019, the court filed a Rule 1925(a) opinion.
Herein, Appellant states one issue for our review, which we reproduce
verbatim:
1. Whether failure for the court to under take in the ruling to
address that Miller applies to him, as Miller drew a line at 18 year
old violated his rights under the Fourteenth Amendment to the
U.S. Constitution and Art. 1 sec.13 of the Pennsylvania
Constitution pursuant to Miller v. Alabama 567 U.S. 460 (2012)
and Montgomery v. Louisiana 136 S.Ct. 718 (20160.
Appellant’s Brief at 2.
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2 Appellant had also filed, on August 23, 2012, a PCRA petition in case 6881-
1998. The court ultimately entered an order dismissing the petition filed in
that case on August 13, 2018. Appellant filed a notice of appeal listing both
docket numbers 6881-1998 and 3571-2002. That appeal was docketed at
688 EDA 2019, but it was ultimately dismissed based on Appellant’s failure to
file a brief. We note that the electronically-filed certified record for the case
before us now, 3571-2002, was erroneously uploaded at docket number 688
EDA 2019 and is not contained in the electronic file for the present appeal at
686 EDA 2019.
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Before we may address the merits of Appellant’s issue, we must consider
the impact of his filing a single notice of appeal listing two docket numbers.
In Commonwealth v. Williams, 206 A.3d 573 (Pa. Super. 2019), we
explained:
Pennsylvania Rule of Appellate Procedure 341(a) directs
that “an appeal may be taken as of right from any final order of a
government unit or trial court.” Pa.R.A.P. 341(a). “The Official
Note to Rule 341 was amended in 2013 to provide clarification
regarding proper compliance with Rule 341(a)....”
Commonwealth v. Walker, 185 A.3d 969, 976 (Pa. 2018). The
Official Note now reads:
Where ... one or more orders resolves issues arising on
more than one docket or relating to more than one
judgment, separate notices of appeals must be filed.
Commonwealth v. C.M.K., 932 A.2d 111, 113 & n.3 (Pa.
Super. 2007) (quashing appeal taken by single notice of
appeal from order on remand for consideration under
Pa.R.Crim.P. 607 of two persons’ judgments of sentence).
Pa.R.A.P. 341, Official Note.
In Walker, our Supreme Court construed the above-
language as constituting “a bright-line mandatory instruction to
practitioners to file separate notices of appeal.” Walker, 185 A.3d
at 976-77. Therefore, the Walker Court held that “the proper
practice under Rule 341(a) is to file separate appeals from an
order that resolves issues arising on more than one docket. The
failure to do so requires the appellate court to quash the appeal.”
Id. at 977. However, the Court tempered its holding by making
it prospective only, recognizing that “[t]he amendment to the
Official Note to Rule 341 was contrary to decades of case law from
this Court and the intermediate appellate courts that, while
disapproving of the practice of failing to file multiple appeals,
seldom quashed appeals as a result.” Id. Accordingly, the
Walker Court directed that “in future cases Rule 341 will, in
accordance with its Official Note, require that when a single order
resolves issues arising on more than one lower court docket,
separate notices of appeal must be filed. The failure to do so will
result in quashal of the appeal.” Id. (emphasis added).
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Id. at 575-76.
The Walker opinion was filed on June 1, 2018. Appellant’s notice of
appeal listing two docket numbers was filed on March 1, 2019. Nevertheless,
we conclude that Walker and Rule 341 do not apply in this case, as the PCRA
court handled Appellant’s PCRA petitions filed in cases 6881-1998 and 3571-
2002 separately. Notably, the court issued orders dismissing those petitions
on different dates, and each order listed only one docket number. Therefore,
Appellant’s present appeal does not stem from “an order that resolves issues
arising on more than one docket.” Walker, 185 A.3d at 977. Instead, it
arises from a single order resolving issues at only one docket number, case
3571-2002. Accordingly, the bright-line mandate of Rule 341 and Walker is
not applicable, and we will disregard Appellant’s error in adding the docket
number for case 6881-1998 to his pro se notice of appeal.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations implicate
our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.
2007) (stating PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded to address the merits of the petition). Under the PCRA,
any petition for post-conviction relief, including a second or subsequent one,
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must be filed within one year of the date the judgment of sentence becomes
final, unless one of the following exceptions set forth in 42 Pa.C.S. §
9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(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). Additionally, at the time Appellant’s PCRA
claim arose, section 9545(b)(2) required that any petition attempting to
invoke one of these exceptions “be filed within sixty days of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2).3
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3 A recent amendment to section 9545(b)(2), which became effective on
December 24, 2018, changed the language to require that a petition “be filed
within one year of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).
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Appellant’s judgment of sentence became final in 2006 and, thus, his
present petition, filed in 2012, is patently untimely. For this Court to have
jurisdiction to review the merits thereof, Appellant must prove that he meets
one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S. §
9545(b).
Appellant fails to meet this burden. He contends that his mandatory
sentence of life incarceration without the possibility of parole is illegal under
Miller. Although Appellant concedes he was 18 at the time of his crimes, he
essentially avers that Miller’s holding was not “a bright line” rule that only
applies to individuals under 18 years of age. See Appellant’s Brief at 6. While
Appellant does not specify which exception he is attempting to prove with this
claim, we presume he seeks to satisfy the ‘new constitutional right’ exception
of section 9545(b)(1)(iii).
As stated supra, Miller held that a mandatory sentence of life
incarceration, without the possibility of parole, violates the Eighth Amendment
when imposed upon a juvenile offender. Miller, 567 U.S. at 479. In
Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the Supreme Court held
that Miller’s holding constitutes a new “substantive rule that is retroactive in
cases on collateral review.” Id. at 732. Accordingly, Miller created a new
constitutional right that has been held to apply retroactively.
However, in Commonwealth v. Lee, 206 A.3d 1 (Pa. Super. 2019) (en
banc), this Court found “it untenable to extend Miller to one who is over the
age of 18 at the time of his or her offense for purposes of satisfying the newly-
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recognized constitutional right exception in section 9545(b)(1)(iii).” Id. at
10. We stressed “that age is the sole factor in determining whether Miller
applies to overcome the PCRA time-bar and we decline[d] to extend its
categorical holding.” Id. at 11 (emphasis added).
Presently, Appellant admits that he was over the age of 18 at the time
of his crimes. See Appellant’s Brief at 6. Therefore, based on Lee, we
conclude that Appellant cannot rely on Miller to meet the timeliness exception
of section 9545(b)(1)(iii).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/19
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