Opinion
J-S52026-19 No. 27 EDA 2019
10-29-2019
COMMONWEALTH OF PENNSYLVANIA v. ELIAS PAGAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered December 7, 2018, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0408562-1998. BEFORE: OTT, J., KUNSELMAN, J., and MCLAUGHLIN, J. MEMORANDUM BY KUNSELMAN, J.:
Elias Pagan appeals pro se from the order that denied as untimely his first petition filed pursuant to the Post Conviction Relief Act (PCRA). 42 Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent facts and procedural history are as follows: On August 6, 1999, Pagan entered a negotiated guilty plea to first-degree murder and criminal conspiracy arising from the shooting death of the victim on September 10, 1997. That same day, the trial court sentenced Pagan to life without the possibility of parole for the murder conviction, and a five to ten-year concurrent sentence for the criminal conspiracy conviction. Pagan did not file a direct appeal.
The subsequent procedural history in this appeal is somewhat complicated by the fact that Pagan had three other murder charges pending at the same time he pled guilty in the instant matter. As the PCRA court explained:
Upon review of the docket, it appears that [Pagan] was tried by a jury and convicted of a double murder under CP-51-CR-0311151-1998. [Pagan] also had two open murder cases under CP-51-CR-0408551-1998, and CP-51-CR-0408562-1998 (the instant matter). Before proceeding to a penalty phase hearing on CR-0311151-1998, [Pagan, in order to avoid the death penalty, agreed to waive his appellate rights in exchange for concurrent life sentences without the possibility of parole for the murders and concurrent sentences on the remaining offenses.] On that same date, [Pagan] pleaded guilty to first-degree murder on CR-408551-1998, and the instant matter. [Pagan] filed an appeal and three [PCRA] petitions on CR-0311151-1998, but filed nothing on the instant matter until November 22, 2010.PCRA Court Opinion, 2/7/19, at 1-2 (footnotes omitted).
On November 22, 2010, [Pagan] filed a pro se "Motion for Leave to File a Direct Appeal Nunc Pro Tunc" on CR-03111551-1998, and the instant matter. [This filing was treated as a PCRA petition]. Thereafter, [Pagan] filed a pro se supplemental PCRA petition solely as to CR-0311115-1998. He was appointed counsel, and the petition was dismissed on April 25, 2016. The Superior Court affirmed the dismissal.
On March 23, 2017, the PCRA Unit of Criminal Listings noted that the [2010 PCRA petition as to] the instant matter was never disposed of, and set the matter for May 19, 2017 before this Court. On May 19, 2017, after finding [Pagan's petition] untimely, this Court issued a 907 notice of intent to dismiss. On June 8, 2017, [Pagan] filed a 907 response wherein he stated he was unaware of the current PCRA petition. In an abundance of caution, this Court appointed PCRA counsel on April 27, 2018. On September 24, 2018, PCRA counsel filed a Finley letter of no merit. On November 5, 2018, this Court, finding [Pagan's] claims without merit, filed a Rule 907 dismissal notice. On December 7, 2018, the PCRA petition was dismissed.
In its November 5, 2018 Rule 907 notice, the PCRA court also concluded that Pagan's petition was untimely. In its December 7, 2018 order, the PCRA court also granted PCRA counsel's motion to withdraw.
This pro se appeal followed. Both Pagan and the PCRA court have complied with Pa.R.A.P. 1925.
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 the evidence of record and is free of legal error. Commonwealth v. Halley , 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr , 768 A.2d 1164, 1166 (Pa. Super. 2001).
Before addressing the merits of Pagan's substantive claims on appeal, we must first address whether the PCRA court correctly concluded that Pagan's serial PCRA petition was untimely filed.
Within his pro se brief Pagan asks us to re-visit his prior request to stay his appeal pending our en banc decision in Commonwealth v. Avis Lee. See Pagan's Brief at 10. We need not do so, however, because, as explained infra , Lee has been decided and does not aid Pagan in his quest for post-conviction relief.
The timeliness of a post-conviction petition is jurisdictional. Commonwealth v. Hernandez , 79 A.3d 649, 651 (Pa. Super. 2013). Generally, a petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections 9545(b)(1)(i), (ii), and (iii), is met. 42 Pa.C.S.A. § 9545. A PCRA petition invoking one of these statutory exceptions must "be filed within 60 days of the date the claims could have been presented." See Hernandez , 79 A.3d 651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2). Finally, exceptions to the PCRA's time bar must be pled in the petition, and may not be raised for the first time on appeal. Commonwealth v. Burton , 936 A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are waived and cannot be raised for the first time on appeal). Pennsylvania law makes clear that no court has jurisdiction to hear an untimely PCRA petition. See Commonwealth v. Robinson , 837 A.2d 1157, 1161 (Pa. 2003).
The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of interference of 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.42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).
(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.
Our legislature recently amended this section of the PCRA to provide petitioner's one year to file a petition invoking a time-bar exception. See Act of 2018, October 24, P.L. 894, No. 146. This amendment does not apply to Pagan's PCRA petition.
Here, because Pagan did not file a direct appeal to this Court, his judgment of sentence became final thirty days thereafter, or on September 6, 1999. See 42 Pa.C.S.A. § 9545(b)(3). Thus, for purposes of the PCRA's time bar, Pagan had until September 6, 2000, to file a timely petition. As he filed the petition at issue in 2010, it is untimely unless Pagan has satisfied his burden of pleading and proving that one of the enumerated exceptions applies. See Hernandez , supra.
The thirtieth day fell on a Sunday. See 1 Pa.C.S.A. § 1908.
Pagan has failed to establish any exception to the PCRA's time bar. He argues that he has established the "newly-recognized constitutional right" exception set forth in Section 9545(b)(1)(iii), given the scientific evidence discussed in Miller v. Alabama , 567 U.S. 460 (2012), and the cases cited therein. In Miller , the high court held that mandatory life without parole sentences for juveniles was unconstitutional. See also Montgomery v. Louisiana , ___ U.S. ___, 136 S.Ct. 718 (2016) (applying the Miller decision retroactively). Unfortunately, for Pagan, because he was over the age of eighteen (twenty-four) when he committed murder, he is not entitled to the application of Miller/Montgomery. We further note that, although Pagan argues that the science discussed in Miller and its progeny applies equally to him, this Court, in a recent en banc decision has considered and rejected this argument. See Commonwealth v. Lee , 206 A.3d 1, 11 (Pa. Super. 2019) (rejecting the eighteen-year-old petitioner's argument that she was a "virtual minor" at the time of the crime based on the scientific research found significant by the United States Supreme Court in Miller ; "age is the sole factor in determining whether Miller applies to overcome the PCRA time-bar and we decline to extend its categorical holding").
Arguably, Pagan waived this claim because he did not include the docket number for the instant matter in the supplemental petition he filed at CR-0311151-1998. See PCRA Court Opinion, supra ; Finley Letter, 9/24/18, at 4 (explaining that Pagan raised the Miller claim only at CR-0311151-1998). Given the confusion regarding the various docket numbers, we decline to find waiver on this basis.
Thus, because the PCRA court lacked jurisdiction to consider the merits of Pagan's PCRA petition, we affirm its order denying post-conviction relief.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/29/19