J-S21038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID MOUA,

                            Appellant                No. 2844 EDA 2014


                Appeal from the PCRA Order September 5, 2014
               in the Court of Common Pleas of Delaware County
               Criminal Division at No.: CP-23-CR-0000565-2000


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 09, 2015

        Appellant, David Moua, appeals pro se from the denial of his petition

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546.

He argues that Miller v. Alabama1 should apply retroactively to his

mandatory life sentence for murder of the first degree. However, Appellant

has failed to plead and prove a statutory exception to the PCRA time bar.

Accordingly, we affirm.

        Appellant’s conviction arose out of his participation, with his brother

and another co-conspirator, Loi Nghiem, in the robbery and murder of his
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*
    Retired Senior Judge assigned to the Superior Court.
1
  See Miller v. Alabama, and Jackson v. Hobbs, 132 S. Ct. 2455 (2012).
The Miller Court concluded that mandatory life-without-parole sentences for
juveniles violate the Eighth Amendment. See id. at 2464.
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Upper Darby next door neighbor, Constantine Polites, a college student. 2

(See Trial Court Opinion, filed 1/21/03, at 1). The robbery and murder took

place on April 4, 2000. Appellant, born on July 19, 1983, was sixteen at the

time of the crime.

       Appellant’s father accompanied him to the police station and remained

with him during the questioning.               The police gave Appellant Miranda

warnings.3     He gave an inculpatory statement implicating himself in the

robbery. On May 23, 2002, a jury convicted Appellant of murder of the first

degree, robbery, burglary, unlawful restraint, and theft by unlawful taking.

On July 15, 2002, the trial court sentenced him, inter alia, to life

imprisonment without parole. (See id. at 5).

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2
  Notably, Mr. Polites was bound at the wrists and ankles with electrical
cords, duct tape, and a black plastic wire tie. When found by his mother, he
had been stabbed over forty times, and shot three times point blank in the
head. The record before us tends to show that the actual perpetrator of the
stabbings and shootings was the third co-conspirator, Loi Nghiem.
Appellant’s argument minimizes his involvement in the murder, but he does
not dispute his involvement in the conspiracy to rob, nor his involvement in
tying up the victim. In any event, Appellant bases his appeal on the
retroactive application of Miller, not a claim of innocence of the crimes for
which he was convicted.
      Appellant had told substantially different versions of his story to the
police, including an alibi which placed him in Philadelphia all day, playing
hooky from school. When brought in for further questioning, he attempted
to get rid of a black plastic wire tie in his jacket by passing it off to his
father. The police noticed, and retrieved the tie.
3
    See Miranda v. Arizona, 384 U.S. 436 (1966).




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        On July 30, 2004, this Court affirmed the judgment of sentence. (See

Commonwealth v. Moua, 859 A.2d 833 (Pa. Super. 2004)). Our Supreme

Court    denied    allowance     of   appeal,     on   February   24,   2005.      (See

Commonwealth v. Moua, 868 A.2d 1199 (Pa. 2005)).

        Appellant’s   first   PCRA    petition,   filed   February   21,   2006,   after

amendment, was eventually denied, on August 17, 2007.                       This Court

affirmed the denial on September 3, 2008. (See Commonwealth v. Moua,

963 A.2d 569 (Pa. Super. 2008)). Our Supreme Court denied allowance of

appeal, on January 12, 2009.4 (See Commonwealth v. Moua, 963 A.2d

469 (Pa. 2009)).

        Appellant filed a second pro se PCRA petition on March 3, 2009. He

filed another pro se PCRA petition on July 2, 2010.5 The PCRA court, which

had dismissed the subsequent petition without prejudice because the

previous petition was still on appeal, reconsidered the subsequent petition

after the previous decision was affirmed, and filed notice of its intention to

dismiss. (See Orders, 11/18/11). Appellant responded.




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4
  For clarity, we note that the order denying allowance of appeal, dated
January 12, 2009, was filed on February 5, 2009.
5
  Independently, Appellant’s petition for a federal writ of habeas corpus was
denied in an unpublished decision. See Moua v. Britten, 2010 WL 962923
(E.D. Pa. 2010).



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       On January 18, 2013, the PCRA court appointed counsel for Appellant

and directed him to file an amended petition or a “no merit” letter. 6 On July

11, 2013, the PCRA court, at the request of appointed counsel, stayed

proceedings in this case until further order, pending our Supreme Court’s

decision in Commonwealth v. Cunningham. Our Supreme Court decided

Cunningham         on    October      30,      2013.      See   Commonwealth     v.

Cunningham, 81 A.3d 1 (Pa. 2013).

       After our Supreme Court’s decision in Cunningham, the PCRA court

granted counsel’s petition to withdraw.                (See Order, 7/08/14).   In a

separate order on the same day, the court filed notice of its intent to

dismiss, and Appellant responded.               The PCRA court denied Appellant’s

petition on September 5, 2014. Appellant timely appealed, pro se.7 (See

Notice of Appeal, 10/01/14). The PCRA court filed an opinion on November

14, 2014.

       Appellant presents one question for our review.

              1. Did the [PCRA] [c]ourt err in denying [A]ppellant’s
       P.C.R.A. petition since pursuant to the 6/25/12 United States
       Supreme Court decision in Miller V. Alabama, [A]ppellant, who
       was a juvenile at the time of the commission of the instant
       crime, received a[n] unconstitutional mandatory sentence of
       [l]ife [imprisonment] without the possibility of parole for [f]irst-
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6
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
7
 The PCRA court did not order Appellant to file a statement of errors. See
Pa.R.A.P. 1925(b).



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      [d]egree [m]urder and therefore his sentence must be vacated
      and he be re-sentence[d] due to violation of the U.S.
      Constitutional Amendment and Pennsylvania Constitution[?]

(Appellant’s Brief, at 2).

      Appellant argues that he is entitled to an evidentiary hearing, and re-

sentencing, pursuant to Miller and its companion case, Jackson v. Hobbs,

supra. (See Appellant’s Brief, at 6-20). We disagree.

      Our standard and scope of review for the denial of PCRA relief are

well-settled.

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error. This Court may affirm a PCRA court's decision on any
      grounds if the record supports it. We grant great deference to
      the factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Further, where
      the petitioner raises questions of law, our standard of review is
      de novo and our scope of review is plenary.

Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (citation

omitted). The PCRA provides, in pertinent part, that:

            (1) Any petition under this [PCRA] 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;



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            (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.

            (2) Any petition invoking an exception provided in
      paragraph (1) shall be filed within 60 days of the date the claim
      could have been presented.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii), (2).     “The PCRA’s time restrictions are

jurisdictional in nature.   Thus, if a PCRA petition is untimely, neither this

Court nor the [PCRA] court has jurisdiction over the petition.            Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims.”    Commonwealth v. Lewis,          63 A.3d 1274, 1280-

81 (Pa. Super. 2013) (citation omitted).

             Petitioners must plead and prove the applicability of one of
      the three exceptions to the PCRA timing requirements. If the
      petition is determined to be untimely, and no exception has been
      pled and proven, the petition must be dismissed without a
      hearing because Pennsylvania courts are without jurisdiction to
      consider the merits of the petition.

                                   *    *    *

      The elements necessary to establish a § 9545(b)(1)(iii)
      exception are now well established in the courts of this
      Commonwealth:

         Subsection (iii) of Section 9545 [(b)(1)] has two
         requirements. First, it provides that the right asserted is a
         constitutional right that was recognized by the Supreme
         Court of the United States or this court after the time
         provided in this section. Second, it provides that the right

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          “has been held” by “that court” to apply retroactively.
          Thus, a petitioner must prove that there is a “new”
          constitutional right and that the right “has been held” by
          that court to apply retroactively. The language “has been
          held” is in the past tense. These words mean that the
          action has already occurred, i.e., “that court” has already
          held the new constitutional right to be retroactive to cases
          on collateral review. By employing the past tense in
          writing this provision, the legislature clearly intended that
          the right was already recognized at the time the petition
          was filed.

Commonwealth v. Gandy, 38 A.3d 899, 903 (Pa. Super. 2012), appeal

denied, 49 A.3d 442 (Pa. 2012) (case citations omitted).

       “It is the appellant’s burden to allege and prove that one of the

timeliness exceptions applies.”         Commonwealth v. Albrecht, 994 A.2d

1091, 1094 (Pa. 2010) (citations and other punctuation omitted). Similarly,

“[t]he PCRA squarely places upon the petitioner the burden of proving an

untimely petition fits within one of the three exceptions.” Lewis, supra at

1279 (citing Albrecht).

       Here, as noted by the PCRA court, Appellant’s PCRA petition is patently

untimely.8     (See PCRA Court Opinion, 11/14/14, at 2).           Importantly,

Appellant does not satisfy the burden to allege and prove a statutory

exception by mere citation to United States Supreme Court cases in support


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8
  Appellant’s judgment of sentence became final on May 25, 2005.
Therefore, he had until May 25, 2006 to file a timely PCRA petition. (See
PCRA Court Opinion, 11/13/14, at 2 n.5).




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of his substantive argument on appeal.           See Lewis, supra at 1279.   He

must first establish an exception to the statutory time bar.

       Appellant’s PCRA petition does not plead or prove an exception to the

statutory time-bar.       Therefore, he failed to establish that any exceptions

apply. Accordingly, neither the PCRA court nor this Court has jurisdiction to

address the substantive claims raised and we have no basis to overturn the

PCRA court’s decision in this matter. See id.

       Our reasoning differs from that of the PCRA court.9 However, we may

affirm the PCRA court’s order on any basis. See Reed, supra at 140.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/2015

____________________________________________


9
  Nevertheless, the PCRA court’s legal reasoning, that under Cunningham
Miller does not apply retroactively, remains sound. (See PCRA Ct. Op., at
2); Cunningham, supra at 11. See also Reed, supra at 144 (concluding
there is no reasonable doubt about our Supreme Court’s conclusion in
Cunningham that Miller is not retroactive); Commonwealth v. Seskey,
86 A.3d 237, 243 (Pa. Super. 2014), appeal denied, 101 A.3d 103 (Pa.
2014) (“[I]n Cunningham, our Supreme Court held that the constitutional
right announced by the United States Supreme Court in Miller does not
apply retroactively.”). Even if we had jurisdiction to review the substance of
Appellant’s claim, his issue would not merit relief.



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