J-S11043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                   Appellee                 :
                                            :
             v.                             :
                                            :
EDWARD CRUZ GOUDY,                          :
                                            :
                   Appellant                :            No. 260 MDA 2014

           Appeal from the PCRA Order entered on January 13, 2014
               in the Court of Common Pleas of Berks County,
               Criminal Division, No. CP-06-CR-0005138-2001

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED FEBRUARY 26, 2015

        Edward Cruz Goudy (“Goudy”) appeals from the Order dismissing his

first Petition for relief pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        In 2003, Goudy was convicted of murder of the second degree,

recklessly endangering another person, robbery, and criminal conspiracy.1

Goudy was 15 years old at the time of the crime. The trial court sentenced

Goudy to life in prison without the possibility of parole.

        This Court affirmed the judgment of sentence. See Commonwealth

v. Goudy, 855 A.2d 131 (Pa. Super. 2004) (unpublished memorandum).

Goudy did not seek further review.




1
    18 Pa.C.S.A. §§ 2502(b), 2705, 3701, 903.
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      Goudy filed his first PCRA Petition, pro se, following the United States

Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012).2

The PCRA court appointed Goudy counsel, who filed an Amended PCRA

Petition.   The PCRA court issued a Notice of Intent to Dismiss, and

subsequently dismissed the Petition. Goudy filed a timely Notice of Appeal

and a Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement

of Matters Complained of on Appeal.

      On appeal, Goudy raises the following questions for our review:

      I. Whether the PCRA [c]ourt erred in denying [Goudy’s]
      Amended PCRA Petition as untimely[,] and not under one of the
      recognized exceptions to an untimely filed petition[,] where
      [Goudy’s] Amended PCRA Petition met the exception provided by
      42 Pa.C.S.A. § 9545(b)(1)(iii)[,] as [Goudy’s] Petition was filed
      within 60 days of the United States Supreme Court[’s]
      companion decisions in Miller [] and Jackson v. Jobbs, 132 S.
      Ct[.] 2455 (2012)?

      II. Whether the PCRA [c]ourt erred in denying [Goudy’s]
      Amended PCRA [P]etition as untimely[,] and not under one of
      the recognized exceptions to an untimely filed petition[,] where
      [Goudy’s] Petition met the except[ion] provided by 42 Pa.C.S.A.
      § 9545(b)(1)(iii)[,] because the United States Supreme Court
      intended for the new constitutional right set forth in Miller []
      and Jackson [] to be held retroactive for petitioners on
      collateral review such as [Goudy] herein?



2
   In Miller, the Supreme Court held that sentencing schemes, which
mandate life in prison without parole for defendants who committed their
crimes while under the age of eighteen, violates the Eighth Amendment’s
prohibition on “cruel and unusual punishments.” Miller, 132 S. Ct. at 2460.
The Supreme Court reasoned that, in light of a juvenile’s diminished
culpability and heightened capacity for change, mandatory juvenile
sentencing schemes pose too great a risk of disproportionate punishment, in
contravention of the Eighth Amendment. Id. at 2469.


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      III. Whether the PCRA [c]ourt erred in denying [Goudy’s]
      Amended PCRA Petition as untimely[,] and not under one of the
      recognized exceptions to an untimely filed petition[,] in reliance
      on Commonwealth v. Cunningham, [81 A.3d 1, 11] (Pa.
      2013)[, cert. denied, Cunningham v. Pennsylvania, 134 S. Ct.
      2724 (2014),] where [Goudy] [] asserts that the decision in
      Cunningham is in violation of Article I, Section 13 of the
      Pennsylvania Constitution?

Brief for Appellant at 4.

             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.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      We will address Goudy’s claims together, as they all relate to the

retroactive application of Miller. Goudy first argues that his PCRA Petition

was timely because he filed it within 60 days of the United States Supreme

Court’s decision in Miller. Brief for Appellant at 9. Next, Goudy asserts that

Miller should be applied retroactively. Id. at 9-15. Goudy also claims that

the   Cunningham       decision   violates   the   Pennsylvania   Constitution’s

prohibition against cruel and unusual punishment. Id. at 15-18.

      Initially, under the PCRA, any PCRA petition “shall be filed within one

year of the date the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1).

A judgment of sentence becomes final “at the conclusion of direct review,

including discretionary review in the Supreme Court of Pennsylvania, or at



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the expiration of time for seeking the review.”     Id. § 9545(b)(3).     The

PCRA’s timeliness requirements are jurisdictional in nature and a court may

not address the merits of the issues raised if the PCRA petition was not

timely filed.   Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010).

        Here, Goudy’s Petition is facially untimely under the PCRA.   See 42

Pa.C.S.A. § 9545(b).

        However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” Id. § 9545(b)(2); see also Albrecht, 994 A.2d at

1094.

        Goudy invokes the newly recognized constitutional right exception

codified at 42 Pa.C.S.A. § 9545(b)(1)(iii). Goudy asserts that his sentence

was unconstitutional under Miller’s prohibition against life sentences without

the possibility of parole for juveniles, and that Miller should be applied

retroactively. Brief for Appellant at 9-15.

        Goudy filed his Amended PCRA Petition within 60 days of the Miller

decision, as required by 42 Pa.C.S.A. § 9545(b)(2).     However, in order to

invoke the exception, the deciding court must apply the right retroactively.

See 42 Pa.C.S.A. § 9545(b)(1)(iii).     Although the United States Supreme



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Court did not address the retroactive application of Miller in its holding, the

Pennsylvania Supreme Court ruled that Miller does not apply retroactively

to juveniles in Pennsylvania whose judgments of sentence were final at the

time Miller was decided. Cunningham, 81 A.3d at 11. “[W]e are confined

by the express terms of subsection 9545(b)(1)(iii) and our Supreme

Court[’s] decision in Cunningham.” Commonwealth v. Seskey, 86 A.3d

237, 243 (Pa. Super. 2014).3        Accordingly, Goudy has failed to plead and

prove the exception provided in 42 Pa.C.S.A. § 9545(b)(1)(iii) to overcome

the untimeliness of his Petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/26/2015




3
 The United States Supreme Court granted certiorari in Toca v. Louisiana,
135 S. Ct. 781 (Dec. 12, 2014), to determine the retroactivity of Miller.
However, the Supreme Court subsequently dismissed certiorari under United
States Supreme Court Rule 46.1. See Toca v. Louisiana, 2015 U.S. LEXIS
909 (Feb. 3, 2015).


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