Com. v. Cornish, W. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM CORNISH :
:
Appellant : No. 2765 EDA 2017
Appeal from the PCRA Order August 2, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1208151-1970
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 05, 2018
Appellant, William Cornish, appeals pro se from the order denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
In a previous decision, this Court reproduced the following procedural
history of this case:
On May 17, 1972, a jury found Appellant guilty of charges
of holding a hostage within a penal institution and rioting by a
prisoner. On March 21, 1978, Appellant was sentenced to life
[imprisonment] for the hostage conviction, with a ten year
probationary term for the riot charge, to be served consecutively
to the life sentence.
On March 27, 1978, Appellant filed a Notice of Appeal with
the Superior Court. On May 18, 1979, the Superior Court affirmed
the Judgment of Sentence. Then, on October 31, 1979, the
Supreme Court of Pennsylvania denied Appellant’s application for
allocator (sic). On May 8, 1980, Appellant filed a petition under
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the Post Conviction Hearing Act [(“PCHA”)].[1] The PCHA court
dismissed the petition on March 2, 1981. Appellant appealed the
dismissal and on March 25, 1987, the Superior Court reversed the
PCHA court and remanded the matter for further proceedings. On
April 5, 1995, the PCRA court dismissed the PCRA petition.
Appellant, again, filed a Post Conviction Relief Act petition on
October 22, 2008. Notice of this [c]ourt’s intention to dismiss the
petition pursuant to Pennsylvania Rule of Criminal Procedure 907,
was sent on October 19, 2010. On October 29, 2010, Appellant
filed a response to the notice letter.
Commonwealth v. Cornish, 46 A.3d 810, 1934 EDA 2011 (Pa. Super. filed
February 8, 2012) (unpublished memorandum at 1-2) (quoting PCRA Court
Opinion, 7/11/11, at 1-3). The PCRA court dismissed Appellant’s PCRA
petition on July 11, 2011. On February 8, 2012, this Court affirmed the
decision of the PCRA court, and our Supreme Court denied Appellant’s
subsequent petition for allowance of appeal. Commonwealth v. Cornish,
46 A.3d 810, 1934 EDA 2011 (Pa. Super. 2012) (unpublished memorandum),
appeal denied, 48 A.3d 1246 (Pa. 2012).
Appellant filed the instant PCRA petition on March 21, 2016. On April
20, 2017, pursuant to Pa.R.Crim.P. 907, the PCRA court issued notice of its
intent to dismiss Appellant’s petition. Appellant filed a response on May 9,
2017. The PCRA court then dismissed the petition on August 2, 2017. This
timely appeal followed. The PCRA court did not direct Appellant to file a
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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1 The PCHA was repealed and replaced by the PCRA for petitions filed on or
after April 13, 1988.
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On August 30, 2017, the PCRA court refiled its opinion dated August 2, 2017,
that had accompanied the order dismissing the PCRA petition.
Appellant presents the following issue for our review, which we
reproduce verbatim:
WHETHER APPELLANT’S STATUS AS AN ADOLESCENT FALLS
WITHIN THE STATUTORY DEFINITION OF PENNSYLVANIA LAW
GOVERNING “MINOR-CHILDREN” FOR THE PURPOSE OF THE
APPLICATION TO BE APPLIED TO POST CONVICTION RELIEF ACT
PROVISION UNDER THE RETROACTIVITY PROVISION OF SECTION
9545(B)(1)(iii) infra. OF TITLE 42 PA. C. S. GIVEN THAT THE
STATE COURTS ARE “FREE” TO CONSIDER THE POLICY FOR
THOSE SENTENCED PRISONERS SERVING A LIFE SENTENCE
WITHOUT THE POSSIBILITY OF PAROLE BY DEFINITION UNDER
DANFORTH vs. MINNESOTA, infra. OF THOSE ADOLESCENCES
UNDER THE AGE OF THE EARLY “TWENTIES (20’s).
Appellant’s Brief at 3.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.
Super. 2012). We grant great deference to the PCRA court’s findings that are
supported in the record and will not disturb them unless they have no support
in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014).
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Initially, we must address whether Appellant satisfied the timeliness
requirements of the PCRA. A PCRA petition must be filed within one year of
the date that the judgment of sentence becomes final. 42 Pa.C.S.
§ 9545(b)(1). This time requirement is mandatory and jurisdictional in
nature, and the court may not ignore it in order to reach the merits of the
petition. Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).
Effective January 16, 1996, the PCRA was amended to require a
petitioner to file any PCRA petition within one year of the date the 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, 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 application
of PCRA timeliness proviso).
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
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(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). 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).
As previously stated, this Court affirmed stated Appellant’s judgment of
sentence on May 18, 1979, and our Supreme Court denied allocatur on
October 31, 1979. Appellant did not file a petition for writ of certiorari with
the United States Supreme Court. Accordingly, Appellant’s judgment of
sentence became final on January 29, 1980, ninety days after the
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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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Pennsylvania Supreme Court affirmed Appellant’s conviction and the time for
seeking review with the United States Supreme Court expired. See 42 Pa.C.S.
§ 9545(b)(3) (providing that “a judgment 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.”); U.S.Sup.Ct.R. 22.3 Thus, Appellant’s judgment
of sentence became final prior to the effective date of the PCRA amendments.
Appellant’s instant PCRA petition, filed on March 21, 2016, does not qualify
for the grace proviso because it was not his first PCRA petition, nor was it filed
before January 16, 1997. Thus, the instant PCRA petition is patently untimely.
Again, 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).
Appellant attempts to invoke the third exception to the PCRA timeliness
requirements, that being “the right asserted is a constitutional right that was
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3 We observe that the Rules of the Supreme Court of the United States
pertaining to the time limit for filing a petition for writ of certiorari have
changed various times in relation to both length of time and rule number.
Rule 22, which became effective July 1, 1970, was applicable to this case, and
it required the filing of a petition for a writ of certiorari within ninety days after
the Pennsylvania Supreme Court denied allocatur. Rule 22 was replaced by
Rule 20, effective June 30, 1980.
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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)(iii).4 In
essence, Appellant relies upon the United States Supreme Court’s decision in
Miller v. Alabama, 132 S. Ct. 2455 (2012), for the proposition that
adolescents should not receive life sentences without the possibility of parole.
In Miller, the Court held that sentencing a juvenile convicted of a homicide
offense to a mandatory term of life imprisonment without parole violates the
Eighth Amendment’s prohibition of cruel and unusual punishment.
Accordingly, such sentences cannot be handed down unless a judge or jury
first considers mitigating circumstances. Id. at 2475.
Subsequently, the United States Supreme Court issued its decision in
Montgomery v. Louisiana, 136 S. Ct. 718 (2016), clarifying that Miller
applies retroactively. Montgomery, 136 S. Ct. at 735-736. In
Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa. Super. 2016), this Court
held that the date of the Montgomery decision is to be used when calculating
whether a petition is timely filed under the sixty-day rule of 42 Pa.C.S. §
9545(b)(2). Secreti, 134 A.3d at 82. Accordingly, under the holding of
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4 We note that, to the extent Appellant attempts to rely upon various
Pennsylvania statutes and claims that his “filing is grounded within the State
statutory law which governs the status of a ‘Minor-child,’” Appellant’s Brief
at 8 (emphasis in original), the exception applies only to constitutional rights
recognized by either the Pennsylvania or United States Supreme Court. 42
Pa.C.S. § 9545(b)(1)(iii).
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Secreti, Appellant has satisfied the sixty-day rule of section 9545(b)(2),
because the instant PCRA petition, filed on March 21, 2016, was filed within
sixty days after Montgomery was decided on January 25, 2016.
At the outset, we observe that in Miller, the Court held that sentencing
schemes that mandate life in prison without parole for defendants who
committed their crimes while under the age of eighteen violate the Eighth
Amendment’s prohibition on “cruel and unusual punishments.” Miller, 132 S.
Ct. at 2460. The Court reasoned that in light of a juvenile’s diminished
culpability and heightened capacity for change, mandatory juvenile sentencing
schemes pose too great a risk of disproportionate punishment, in
contravention of the Eighth Amendment. Id. at 2469.
Here, although Appellant was sentenced to serve a term of life
imprisonment, we note that such a sentence was not mandatory.
Specifically, the relevant statute in effect at the time provided as follows:
Holding a hostage
Whoever, being imprisoned in any penal or correctional
institution located in this Commonwealth, or having committed
the offense of prison breach or having escaped from any such
penal or correctional institution, by threats, coercion, intimidation
or physical force takes, or holds, or carries away, or decoys, or
entices away, or secretes, any person as a hostage, or for any
other reason, is guilty of a felony, and upon conviction thereof,
shall be sentenced to undergo imprisonment by separate and
solitary confinement at labor for the term of his or her natural life,
or to pay a fine not to exceed ten thousand dollars ($10,0000)
and undergo imprisonment by separate and solitary confinement
at labor for any term of years.
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18 P.S. § 4723.1 (emphases added). The above-cited language from the
statute reflects that Appellant’s sentence of life imprisonment was not
statutorily mandated. See also Commonwealth v. Hunt, 393 A.2d 686,
687-689 (Pa. Super. 1978) (setting forth the fact that the appellant, having
been convicted of holding a hostage under 18 P.S. § 4723.1, was sentenced
to a term of incarceration for a period of five to ten years and subsequently
resentenced for a term of three to six years of incarceration).
In addition, our review of the certified record reflects that a presentence
report was prepared in anticipation of Appellant’s sentencing, which is
indicative of the fact that Appellant was not facing a mandatory sentence of
life imprisonment. Indeed, the presentence report specifically states that
“[s]entenc[ing on the crime of holding a hostage] has been deferred pending
a Presentence Investigation.” Presentence Report, 2/9/78, at 2. Further, the
presentence report contains the following language in its summary:
It is evident from the criminal record that [Appellant] is a
recidivist. It appears that [Appellant] is a person who does not
try to live as a rational person, but one who lives by violence. The
two [prior] arrests [for] which he was convicted reveal that
[Appellant] has no respect for human dignity nor human life itself.
[Appellant] is not only a probation risk by a parole risk.
Id. at 4. Also, the presentence report concludes with the following
recommendation, which reflects that the trial court was not limited to imposing
a term of life imprisonment but had complete discretion in fashioning a
sentence: “Because of the seriousness of the crime [for] which [Appellant]
was convicted, it is respectfully recommended that [Appellant] receive the
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maximum period of incarceration.” Id. at 6. Contrary to Appellant’s
assertions, the language from the crimes code and the presentence report
reveal that the trial court was not mandated by statute to impose a sentence
of life imprisonment. Consequently, because Appellant was not facing a
mandatory sentence of life imprisonment, his reliance on Miller is misplaced.
Moreover, as previously state, the holding in Miller was limited to those
offenders who were juveniles at the time they committed their crimes. Miller,
132 S. Ct. at 2460. In Cintora, this Court held that Miller is not an exception
under section 9545(b)(1)(iii) to those over the age of eighteen at the time of
the commission of their crimes. Cintora, 69 A.3d at 764. In Cintora, the
co-appellants, who were nineteen and twenty-one years old at the time of
their crimes, argued that Miller applied to them because a human brain does
not fully develop until the age of twenty-five and because “it would be a
violation of equal protection for the courts to treat them[,] or anyone else with
immature brains, as adults.” Cintora, 69 A.3d at 764. This Court rejected
these claims, stressing that the co-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).
More recently, in Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super.
2016), we reaffirmed our holding in Cintora. In Furgess, the appellant, who
was nineteen years old when he committed his crimes, presented an argument
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similar to Appellant’s herein, maintaining that he “may invoke Miller because
he was a ‘technical juvenile’” based on “neuroscientific theories regarding
immature brain development….” Furgess, 149 A.2d at 94. Relying on
Cintora, the Court in Furgess reiterated 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).” Id.
The PCRA court aptly addressed Appellant’s attempt to invoke the third
exception as follows:
In an attempt to establish the “newly-recognized constitutional
right” exception, 42 Pa.Cons.Stat. § 9545(b)(1)(iii), [Appellant]
invoked the new right announced in Miller v. Alabama, 132 S. Ct.
2455 (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 over the age of
eighteen at the time of the offense and convicted of a non-
homicide offense, placing his sentence outside the reach of the
Supreme Court’s Miller decision. Miller, 132 S. Ct. at 2460.
Therefore, [Appellant] has failed to invoke this exception, and his
petition must be dismissed as untimely.
PCRA Court Opinion, 8/2/17, at 1. We agree.
Our review of the certified record reflects that Appellant’s date of birth
is July 23, 1947. PCRA Petition, 3/21/16, at 3. The crimes for which Appellant
was convicted occurred on July 4, 1970. Id. Thus, Appellant was over twenty-
two years old when he committed his crimes. Based upon our holdings in
Cintora and Furgess, it is apparent that the rule announced in Miller cannot
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apply to Appellant, who was over eighteen years old when he committed his
crimes.
In summary, the crime for which Appellant was convicted did not carry
a mandatory sentence of life imprisonment, and Appellant was over eighteen
years old when he committed the crime. Accordingly, Appellant’s argument
that Miller and its progeny should apply to his case fails, and he cannot satisfy
the timeliness exception of Section 9545(b)(1)(iii).
Therefore, because Appellant’s PCRA petition was untimely and no
exceptions apply, the PCRA court correctly determined that it 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. 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: 10/5/18
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