J-S93018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EDWARD ALEXANDER BUDA

                            Appellant                No. 2160 EDA 2016


               Appeal from the PCRA Order dated June 28, 2016
                In the Court of Common Pleas of Wayne County
              Criminal Division at No(s): CP-64-CR-0000156-1997


BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                        FILED FEBRUARY 03, 2017

        Appellant, Edward Alexander Buda, appeals from the order dismissing

his second petition filed under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. We affirm.

        On January 28, 1998, Appellant pleaded guilty to and was sentenced

for murder of the first degree1 stemming from an incident on August 11,

1996, in which he and his co-defendants broke into the home of Charles

Gregg in Wayne County, subdued and duct-taped Mr. Gregg’s hands and

feet, and each fired a shot from a revolver into Mr. Gregg as he was lying on

the floor. N.T., 1/28/1998, at 3, 9, 11. It is undisputed that Appellant was
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a).
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18   years old at the         time    of the     crime.      Appellant’s Brief at 4;

Commonwealth’s Brief at 2. Appellant did not file a direct appeal.

       On November 20, 1998, Appellant filed his first PCRA petition, which

was dismissed by the lower court on August 28, 2001. On September 12,

2001, Appellant filed a notice of appeal to this Court, and we affirmed the

lower court’s order on August 26, 2002.2 On September 18, 2002, Appellant

filed a    petition   for   allowance     of   appeal to     the   Supreme        Court of

Pennsylvania, which was denied on January 13, 2003.

       Appellant filed his current pro se PCRA petition on March 21, 2016,

asserting that, although Appellant was not under the age of 18 at the time of

his offense, the reasoning of the United States Supreme Court’s decision in

Miller v. Alabama, 132 S.Ct. 2455 (2012), should be applied to his case

and his sentence should be vacated.               Miller held “that mandatory life

without parole for those under the age of 18 at the time of their crimes

violates   the   Eighth     Amendment's        prohibition   on    ‘cruel   and    unusual

punishments.’” 132 S.Ct. at 2460.

       On May 31, 2016, the PCRA court entered a notice of intent to dismiss

without a hearing if Appellant did not respond in writing to the proposed

dismissal within 20 days, pursuant to Pa. R. Crim. P. 907. In its notice of

intent to dismiss, the PCRA court stated that Appellant “was eighteen (18)
____________________________________________


2
  Commonwealth v. Buda, No. 2878 EDA 2001 (Pa. Super. Aug. 26, 2002)
(unpublished memorandum).



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years old when he was convicted and sentenced to life imprisonment without

parole for Murder of the First Degree” and “therefore is not included in the

class of offenders explained in Miller.”         Notice of Intent to Dismiss, dated

May 31, 2016, at 1.3 The trial court hence gave notice that it intended to

dismiss on the merits because Miller did not apply.

       On June 22, 2016, having received no response from Appellant, the

PCRA court dismissed Appellant’s PCRA petition. On July 8, 2016, Appellant

filed a timely notice of appeal.        Although Appellant’s appeal raises several

issues for our review,4 we do not reach those issues because Appellant’s

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3
  The trial court’s statement of Appellant’s age at the time of his conviction
in 1998 was a factual error. There is no dispute between the parties that
Appellant was born in 1978 and was 18 years old when he committed the
murder in 1996 — not when he was convicted and sentenced in 1998.
Although we ultimately hold that the PCRA court properly dismissed
Appellant’s PCRA petition, we note that the PCRA court did so on the
incorrect basis that Appellant was 18 years old “when he was convicted
and sentenced to life imprisonment,” Notice of Intent to Dismiss,
5/31/2016, at 1, instead of “at the time of [his] crimes,” Miller, 132
S.Ct. at 2460. However, “[w]e can affirm the court's decision if there is any
basis to support it, even if we rely on different grounds to affirm.” In re
Payne, 129 A.3d 546, 571 (Pa. Super. 2015), appeal denied, 145 A.3d
167 (Pa. 2016); accord Commonwealth v. Pursell, 749 A.2d 911, 917
(Pa. 2000).
4
       (1) Was the Court in Error when it dismissed Appellant's issues
       without investigation?

       (2) Did the Court deny Appellant Equal Protection as
       guaranteed by both Constitutions of Pennsylvania, and the
       United States of America and the many decisions of the United
       States Supreme Court?

(Footnote Continued Next Page)


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PCRA petition was filed beyond the time limits set forth in the PCRA, and,

therefore, the PCRA court lacked jurisdiction to consider the petition.

      The time limits in the PCRA are jurisdictional.      Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).               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. § 9545(b)(1).         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.” Id. § 9545(b)(3). Here, Appellant’s judgment of

sentence became final on February 27, 1998, upon the expiration of the time
                       _______________________
(Footnote Continued)

      (3) Was the Commonwealth premature when dismissing
      Appellant's Constitutional Protected Petition without a record of
      the argument from a[n] Evidentiary Hearing?

      (4) Is Cruel and Unusual Punishment in violation of the
      Constitutions of Pennsylvania, and the United States of America?

      (5) Does [Roper v. Simons, 543 U.S. 551 (2005), holding
      that the imposition of capital punishment for crimes committed
      when the perpetrator was under the age of 18 is
      unconstitutional], [Graham v. Florida, 560 U.S. 48 (2010),
      holding that juvenile offenders cannot be sentenced to life
      imprisonment without parole for non-homicide offenses] and
      Miller coupled with Dennis v. Secretary, PA Department of
      Corrections, [834 F.3d 263] (3d Cir. 2016) [which addresses
      the prosecution’s duty of disclosure under Brady v. Maryland,
      373 U.S. 83 (1963)] Grant Appellant entitlement under the
      Eighth Amendment to the Unites States Constitution[?]

Appellant’s Brief at 2.



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for filing a direct appeal to this Court.        See id. § 9545(b)(3); Pa.R.A.P.

903(a) (“the notice of appeal required by Rule 902 . . . shall be filed within

30 days after the entry of the order from which the appeal is taken”). Thus,

Appellant had one year from that date, or until March 1, 1999,5 to file a

timely PCRA petition. See 42 Pa.C.S. § 9545(b). Appellant did not file the

instant petition until March 21, 2016, more than 17 years after his judgment

of sentence became final. Accordingly, the PCRA court had no jurisdiction to

entertain Appellant’s petition unless he pleaded and proved one of the three

statutory exceptions to the PCRA’s time bar. See id. § 9545(b)(1).6

____________________________________________


5
 February 27, 1999, was a Saturday; Monday, March 1, 1999, was the first
business day thereafter.
6
    Those exceptions 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.

           (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.

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. § 9545(b)(2).



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      Appellant attempts to circumvent the time bar by asserting the “newly

discovered evidence” exception under subsection 9545(b)(1)(ii) and the

“new constitutional right” exception under subsection 9545(b)(1)(iii). PCRA

Pet., 3/21/16, at 1-2. Appellant does not explain how he qualifies for the

exception under subsection 9545(b)(1)(ii), and any claim under that

exception therefore was properly dismissed.     Commonwealth v. Murray,

753 A.2d 201 (Pa. 2000) (holding court properly dismissed untimely PCRA

petition, where defendant did not plead and prove applicability of time-bar

exceptions); Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super.

2007) (an untimely PCRA petition is properly dismissed absent proof of

applicability   of   time-bar   exceptions).   With   respect   to   subsection

9545(b)(1)(iii), Appellant invokes the United States Supreme Court’s holding

in Miller with respect to those under age 18 and argues:

      [M]andatory life without parole for individual[s] under the age of
      twenty-one violates state and federal equal protection clauses,
      as well as Article 7 of the Universal Declaration of Human Rights.
      . . . [Appellant] also points out that it was not until the United
      States Supreme Court in [its] most recent case Montgomery v.
      Louisiana, 577 U.S. ___[, 136 S.Ct. 718] (2016), where the
      Court held that ‘Miller’s prohibition on mandatory life without
      parole for juvenile offenders announced a new substantive rule,
      that under the Constitution, is retroactive in cases on state
      collateral review’, that [Appellant] was able to properly invoke
      this Court’s jurisdiction to review these claims.

PCRA Pet., dated 3/21/16, at 2-3.        In his brief to this Court, Appellant

justifies his assertion of rights under Miller for those under the age of 21

(rather than those under 18) on the ground that Pennsylvania law treats 21


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as the age of adulthood for some purposes and that those under 21

sometimes have the same lack of maturity as those under 18.                See

Appellant’s Brief at 6-8.

      The Supreme Court’s decision in Miller specifically applies only to

defendants who were under the age of 18 when they committed murder.

132 S.Ct. at 2460. It therefore did not create a “new constitutional right”

that may be invoked by those who were 18 or older at the time of their

crimes. Accordingly, Miller may not be used by such persons to extend the

PCRA’s time limits under Section 9545(b)(1)(iii) of the statute — even

where, as here, a defendant claims that his lack of maturity or intellectual

development should cause him to be treated as the equivalent of a juvenile.

As we explained in Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.

Super. 2016) (emphasis in original) (citation omitted):

      Appellant argues that he . . . may invoke Miller because he was
      a “technical juvenile,” and he relies on neuroscientific theories
      regarding immature brain development to support his claim that
      he is eligible for relief. But, rather than presenting an argument
      that is within the scope of the Miller decision, this argument by
      Appellant seeks an extension of Miller to persons convicted of
      murder who were older at the time of their crimes than the class
      of defendants subject to the Miller holding.

      We rejected reliance on this same argument for purposes of
      Section 9545(b)(1)(iii) in Commonwealth v. Cintora, 69 A.3d
      759 (Pa.Super. 2013). The defendants in Cintora were 19 and
      21 years old at the times of their crimes, but they argued that
      Miller should apply to them and others “whose brains were not
      fully developed at the time of their crimes.” Id. at 764. We
      stated    that   “[a]  contention   that   a   newly-recognized
      constitutional right should be extended to others does not
      render [a] petition [seeking such an expansion of the right]

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      timely pursuant to section 9545(b)(1)(iii).”         Id. (emphasis in
      original).

      . . . Cintora remains controlling on this issue, and Appellant's
      assertion of the time-bar exception at Section 9545(B)(1)(iii)
      must be rejected.

Appellant’s reliance on Pennsylvania state laws setting 21 as the age of

adulthood for some purposes merely presents another argument for a

possible extension of Miller to a broader class of persons than those covered

by the Supreme Court’s decision.          But the fact remains that the existing

constitutional   right   under   Miller    does   not   apply   to   Appellant   and,

accordingly, it may not be used as a basis for extending the PCRA’s time bar

under Section 9545(b)(1)(iii).

      Thus, under Furgess and Cintora, Miller is inapplicable to Appellant

and provides no exception to the PCRA’s time bar. The trial court therefore

was without jurisdiction, and Appellant’s PCRA petition was properly

dismissed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2017




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