Com. v. Holloway, T. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TYRONE HOLLOWAY
Appellant No. 3628 EDA 2016
Appeal from the PCRA Order October 31, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1131761-1991
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 27, 2017
Tyrone Holloway appeals from the order entered in the Court of Common
Pleas of Philadelphia County, dismissing his petition filed pursuant to the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). We affirm.
On April 28, 1992, Holloway was convicted by a jury of one count each
of first-degree murder and possession of instruments of crime (“PIC”) and was
sentenced to life imprisonment for the murder conviction. On May 10, 1993,
the trial court denied Holloway’s post-sentence motions and sentenced him to
a concurrent sentence of one to five years’ imprisonment for PIC. Holloway
filed an appeal, which was dismissed by this Court on August 17, 1994, for
failure to file a brief. Pursuant to a PCRA petition, the court reinstated
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* Retired Senior Judge assigned to the Superior Court.
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Holloway’s direct appellate rights, and this Court affirmed his judgment of
sentence on February 21, 1997. On November 7, 1997, the Supreme Court
of Pennsylvania denied allocatur. Three PCRA petitions followed, all of which
were dismissed.
Holloway filed the instant pro se PCRA petition, his fourth, on July 16,
2012, followed by numerous amended pleadings. The PCRA court issued a
Pa.R.Crim.P. 907 notice of intent to dismiss on August 31, 2016, to which
Holloway filed a response. On October 31, 2016, the court dismissed
Holloway’s petition as untimely. This timely appeal follows.
We begin by noting that:
This Court’s standard of review regarding an order
dismissing a petition under the PCRA is whether the
determination of the PCRA court is supported by evidence
of record and is free of legal error. In evaluating a PCRA
court’s decision, our scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed in the
light most favorable to the prevailing party at the trial level.
Commonwealth v. Weatherill, 24 A.3d 435, 438 (Pa. Super. 2011).
We must first address whether we possess jurisdiction to consider the
merits of Holloway’s appeal. The PCRA court dismissed Holloway’s petition as
untimely filed. The PCRA's time restrictions are jurisdictional in nature; thus,
if a PCRA petition is untimely, neither this Court nor the trial court has
jurisdiction over the petition. Commonwealth v. Rizvi, 166 A.3d 344, 347
(Pa. Super. 2017).
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A PCRA petition, including a second or subsequent petition, must be filed
within one year of the date the underlying judgment of sentence becomes
final. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v. Bretz,
830 A.2d 1273, 1275 (Pa. Super. 2003). A judgment is deemed 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 review.” 42 Pa.C.S.A. § 9545(b)(3); see also
Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006). Here,
Holloway’s judgment of sentence became final on or about February 7, 1998,
ninety days after the Pennsylvania Supreme Court denied allocatur and the
time period for filing a petition for writ of certiorari in the United States
Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup. Ct. R. 13.
Thus, Holloway had one year from that date, or until February 7, 1999, to file
a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b). Holloway did not file
the instant petition, his fourth, until July 16, 2012, more than fourteen years
after his judgment of sentence became final. Accordingly, the PCRA court had
no jurisdiction to entertain Holloway’s petition unless he pleaded and proved
one of the three statutory exceptions to the time bar. See 42 Pa.C.S.A. §
9545(b)(1). A petition invoking one of the exceptions must be filed within
sixty days of the date the claim could have been presented. 42 Pa.C.S.A. §
9545(b)(2).
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Holloway attempts to circumvent the time bar by asserting the “new
constitutional right” exception under subsection 9545(b)(1)(iii).1 Specifically,
Holloway asserts that he is entitled to relief under Miller v. Alabama, 132
S. Ct. 2455 (2012) and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). In
Miller, the Court declared unconstitutional those state sentencing schemes
mandating a sentence of life without parole for murder as applied to
defendants who were minors at the time they committed their crime. In
Montgomery, the Court held Miller to be retroactively applicable to cases on
state collateral review. Although Holloway was 27 years old and no longer a
minor at the time he committed his crime, he nonetheless asserts that he is
entitled to relief because equal protection requires that adults are entitled to
the same protections as juveniles. Holloway is not entitled to relief.
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1 In its Rule 1925(a) opinion, the PCRA court addresses a claim under Brady
v. Maryland, 373 U.S. 83 (1963), allegedly made by Holloway in an
amendment to his PCRA petition purportedly filed on February 27, 2015.
However, our review of the certified record reveals that it does not contain an
amended petition filed on that date raising a Brady claim. The record does
include a letter written by Holloway to the Office of Judicial Records requesting
activity sheets detailing investigations by the Philadelphia Police. However,
the letter does not invoke the “newly discovered fact” exception to the time
bar under section 9545(b)(1)(ii), or make any attempt to argue its application.
It is the obligation of an appellant to make sure that the record forwarded to
an appellate court contains those documents necessary to allow a complete
and judicious assessment of the issues raised on appeal. Commonwealth v.
Manley, 985 A.2d 256, 263 (Pa. Super. 2009). A failure by an appellant to
insure that the original record certified for appeal contains sufficient
information to conduct a proper review constitutes waiver of the issue sought
to be examined. Id. Because the record does not contain the amended
petition in which Holloway purportedly raised his newly-discovered evidence
claim, it is waived for purposes of appellate review.
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The Supreme Court’s ruling in Miller applies solely to defendants who
had not reached the age of majority, or eighteen years of age, at the time
they committed their crime. Accordingly, on its face, Miller is inapplicable to
Holloway’s case, as he was 27 when he committed his crime. Moreover,
Holloway’s contention that a newly-recognized constitutional right should be
extended to adults does not render his petition timely pursuant to section
9545(b)(1)(iii). See Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.
Super. 2013) (rejecting argument that equal protection requires Miller
holding be applied to adult defendants).
As Holloway has failed to set forth a viable exception to the timeliness
requirements of the PCRA, the PCRA court lacked jurisdiction to address the
merits of his petition and, accordingly, properly dismissed it.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2017
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