J-S44038-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DELBERT WILLIAMS

                            Appellant                No. 361 WDA 2014


                Appeal from the PCRA Order February 10, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0001388-2005
                            CP-02-CR-0010774-2004
                            CP-02-CR-0012748-2004
                            CP-02-CR-0015771-2004


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                         FILED NOVEMBER 21, 2014

        Delbert Williams appeals from the order entered on February 10, 2014,

in the Court of Common Pleas of Allegheny County, dismissing his second

Post Conviction Relief Act (PCRA) petition as untimely.    See 42 Pa.C.S §§

9541–9546. Following a non-jury trial, Williams was found guilty of murder

of the first degree, four counts of robbery, one count of robbery of a motor

vehicle, and three counts of criminal conspiracy.1 The trial court imposed an

aggregate sentence of life imprisonment plus 25 to 50 years. Williams was

16 years of age at the time of the offenses.         In this appeal, Williams

contends: (1) Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013),
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1
    18 Pa.C.S. §§ 2502(a), 3701(a), 3702, and 903.
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cert. denied, 134 S. Ct. 2724 (2014), was wrongly decided, and (2) the

PCRA Court erred in not granting him an opportunity to amend the PCRA

pleading to include the argument raised by Chief Justice Castille in his

concurring opinion in Cunningham. Based upon the following we affirm.

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determinations are supported by the record and are free of legal

error.” Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2014)

(quotations and citation omitted), cert. denied, 134 S. Ct. 2695 (2014). “The

PCRA timeliness requirement, however, is mandatory and jurisdictional in

nature.” Id. (citations omitted).

       All PCRA petitions must be filed within one year of the date the

judgment of sentence becomes final, unless the petition alleges, and the

petitioner proves, that one of the three enumerated exceptions to the time

for filing requirement is met. See 42 Pa.C.S. § 9545(b)(1).2 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. §

9545(b)(3). Furthermore, a PCRA petition alleging any of the exceptions


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2
  The PCRA exceptions that allow for review of an untimely petition are as
follows: (1) governmental interference; (2) the discovery of previously
unknown facts; and (3) a newly-recognized constitutional right. See 42
Pa.C.S. § 9545 (b)(1)(i)-(iii).




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under Section 9545(b)(1) must be filed within 60 days of when the PCRA

claim could have first been brought. 42 Pa.C.S. § 9545(b)(2).

         On June 30, 2008, this Court affirmed Williams’ judgment of sentence

and the Pennsylvania Supreme Court denied his petition for allowance of

appeal on December 30, 2008.             Commonwealth v. Williams, 959 A.2d

976 (Pa. Super. 2008) (unpublished memorandum), appeal denied, 963

A.2d 470 (Pa. 2008). Williams filed a timely pro se PCRA petition on March

9, 2009, and, following the appointment of counsel, the filing of amended

petitions, and an evidentiary hearing, the PCRA court denied relief.          On

March 30, 2011, a panel of this Court affirmed the decision of the PCRA

court.     Commonwealth v. Williams, 26 A.3d 1211 (Pa. Super. 2011)

(unpublished memorandum). Williams filed a pro se PCRA petition on July

13, 2012. On August 14, 2012, counsel for Williams filed a “Second PCRA

Petition/Motion to Correct Illegal Sentence Pursuant to Miller v. Alabama.”3

         Here, Williams’ judgment of sentence became final on March 30, 2009,

90 days after the Pennsylvania Supreme Court denied Williams’ petition for

allowance of appeal and the period for filing a petition for writ of certiorari in

the United States Supreme Court expired.          See 42 Pa.C.S. § 9545(b)(3);

U.S. Supreme Court Rule 13.           Therefore, given the PCRA’s one-year time

limitation, 42 Pa.C.S. § 9545(b)(1), this second PCRA petition is patently


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3
    Miller v. Alabama, 132 S. Ct. 2455 (2012).



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untimely, unless Williams pleads and proves an exception to the PCRA’s one

year time bar.

       Williams contends that his PCRA petition satisfies the PCRA’s timeliness

exception, set forth at subsection 9545(b)(1)(iii), which requires a petitioner

to plead and prove “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)(iii)(emphasis

added). Williams cites the recent decision of Miller v. Alabama, 132 S. Ct.

2455 (2012), wherein the United States Supreme Court held that mandatory

sentences of life without parole “for those under the age of 18 at the time of

their crimes violates the Eighth Amendment’s prohibition against ‘cruel and

unusual punishment.’” Miller, 132 S. Ct. at 2460. Williams asserts that the

Miller decision should be applied retroactively to his life sentence.4

       The Pennsylvania Supreme Court has determined that the Miller

decision should not be applied retroactively. See Commonwealth v.

Cunningham, 81 A.3d 1 (Pa. 2013). On June 9, 2014, the United States
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4
  The PCRA requires that a petition invoking any statutory exception be filed
“within 60 days of the date the claim could have been presented.” 42
Pa.C.S. § 9545(b)(2). Williams satisfied Section 9545(b)(2) by filing his
petition citing Miller, on August 14, 2012, within 60 days of the June 25,
2012 Miller decision. See Commonwealth v. Brandon, 51 A.3d 231, 235
(Pa. Super. 2012) (quotations and citation omitted) (stating “the sixty-day
period [for 42 Pa.C.S. 9545(b)(2)] begins to run upon the date of the
underlying judicial decision.”).



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Supreme Court denied the petition for writ of certiorari in Cunningham.

See Cunningham v. Pennsylvania, 134 S. Ct. 2724 (2014).                Therefore,

although Williams was 16 years old at the time he committed the murder,

the Miller holding does not apply to him. As Williams cannot satisfy the

requirement   of   subsection   9545(b)(1)(iii)   that   the   newly   recognized

constitutional right “apply retroactively,” the PCRA court properly concluded

it lacked jurisdiction to consider Williams’ substantive issues.

      Here, Williams claims that Cunningham was wrongly decided.

Williams’ argument is unavailing. This Court rejected a similar argument in

in Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014), appeal

denied, ___ A.3d ___ (Pa. Sept. 30, 2014), explaining:

      Recently, in Cunningham, our Supreme Court held that the
      constitutional right announced by the United States Supreme
      Court in Miller does not apply retroactively. 81 A.3d at ___.
      Consequently, Appellant cannot rely upon Miller or subsection
      9545(b)(iii) to establish jurisdiction over his untimely PCRA
      petition in any Pennsylvania court. …

      Throughout his brief, Appellant attempts to circumvent the effect
      that Cunningham has upon our jurisdiction by arguing, inter
      alia: that he is entitled to relief under Article 1, § 13 of the
      Pennsylvania Constitution (“Excessive bail shall not be required,
      nor excessive fines imposed, nor cruel punishments inflicted.”),
      independently of the Eighth Amendment, Brief for Appellant 10-
      13; that Miller should be applied retroactively based upon
      Pennsylvania’s broader retroactivity principles, Brief for Appellant
      at 19-26; and that the inequitable result that Miller created
      violates Pennsylvania’s due process and equal protection
      principles. Brief for Appellant at 27-30. While these arguments
      someday may require consideration by our courts, today cannot
      be that day. Before a court may address Appellant’s
      arguments, or similar contentions, that court must have
      jurisdiction. We cannot manufacture jurisdiction based

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        upon the substantive claims raised by the parties.
        Presently, we are confined by the express terms of subsection
        9545(b)(1)(iii)  and    our  Supreme   Court’s   decision   in
        Cunningham. Combined, those two elements require us to
        conclude that we lack jurisdiction. No substantive claim can
        overcome this conclusion.

Seskey, supra, 86 A.3d at 243 (emphasis added).

        Accordingly, guided by Seskey, we conclude Williams’ substantive

argument that Cunningham was wrongly decided cannot be reviewed as

this Court, like the PCRA court, lacks jurisdiction. Therefore, Williams’ first

claim fails.

        Williams further claims that the PCRA court should have allowed him to

amend his PCRA petition to include a claim for state habeas corpus relief.

See Pa.R.Crim.P. 905(A).5 In support of his claim, Williams refers to Chief

Justice Castille’s concurring opinion in Cunningham.          Specifically, Chief

Justice Castille wrote:

        As noted earlier, I realize that it is not apparent that [a state
        proportionality] constitutional claim, arising from the effect of a
        federal decision, is cognizable under the PCRA. To the extent
        that it is so, there is at least some basis in law for an argument
        that the claim is cognizable via a petition under Pennsylvania’s
        habeas corpus statute, found at 42 Pa.C.S. § 6501 et seq. See,
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5
    Rule 905 provides, in pertinent part:

            The judge may grant leave to amend or withdraw a
            petition for post-conviction collateral relief at any time.
            Amendment shall be freely allowed to achieve substantial
            justice.

Pa.R.Crim.P. 905(A).



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        e.g., Commonwealth v. Judge, 591 Pa. 126, 916 A.2d 511,
        518-21 (2007) (since PCRA did not provide remedy for
        appellant’s claim regarding deportation from Canada, which
        essentially challenged “the continued vitality of his sentence,”
        claim could be raised in a petition for writ of habeas corpus).
        See also Coady v. Vaughn, 564 Pa. 604, 770 A.2d 287, 290-
        94 (2001) (Castille, J., concurring, joined by Newman, J.)
        explaining interrelationship of PCRA and traditional habeas
        corpus).

Cunningham, 81 A.3d at 18 (Castille, C.J., concurring) (footnote omitted).

        We note that this concurring opinion has no precedential value.

Moreover, Chief Justice Castille’s suggestion that juvenile offenders in

Williams’ position may have recourse under Pennsylvania’s habeas corpus

statute references a potential avenue for relief outside the parameters of

the PCRA. Accordingly, we find no error in the PCRA court’s decision to deny

Williams’ motion to amend his PCRA petition.6

        Based on the foregoing, we conclude Williams’ PCRA petition is

untimely, and he has failed to meet his burden of proof with regard to any



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6
    As the Commonwealth notes, Williams

        has not [been] foreclosed [] from presenting a separate state
        habeas corpus petition and attempting to gain resolution of the
        issue suggested by Mr. Chief Justice Castille’s concurring opinion
        in Cunningham, supra, and left open in Seskey, supra; that
        is, “whether the habeas corpus statute provides a viable
        mechanism to establish jurisdiction in this situation.” Seskey,
        supra, 86 A.3d at 244.

Commonwealth Brief at 18.



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exception to the timeliness requirements of the PCRA. We therefore affirm

the PCRA court’s denial of Williams’ second petition for post-conviction relief.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2014




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