J-S64019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOSEPH METTS,

                            Appellant                  No. 1242 WDA 2014


               Appeal from the PCRA Order Entered July 29, 2014
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000769-1992


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

MEMORANDUM BY BENDER, P.J.E.:                       FILED OCTOBER 10, 2014

       Appellant, Joseph Metts, appeals from the trial court’s July 29, 2014

order denying his petition for relief filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

       A detailed recitation of the facts of this case is unnecessary to our

disposition. Instead, we simply note that Appellant was convicted on May 4,

2000, of second degree murder, robbery, theft by unlawful taking, and

receiving stolen property.1         Appellant was 17 years’ old at the time he

committed these crimes.             For his murder conviction, Appellant was

sentenced to a mandatory term of life imprisonment.         This Court affirmed
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1
  A full recitation of the facts and procedural history leading up to Appellant’s
May 4, 2000 conviction can be found in Commonwealth v. Metts, 787
A.2d 996 (Pa. Super. 2001), the opinion of this Court affirming Appellant’s
judgment of sentence.
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Appellant’s judgment of sentence on November 19, 2001. Metts, 787 A.2d

996.       On August 14, 2002, our Supreme Court denied his subsequent

petition for allowance of appeal. Commonwealth v. Metts, 806 A.2d 859

(Pa. 2002).

       More than eight years later, on July 26, 2012, Appellant filed [a]
       pro se PCRA petition, his first, in which he sought relief under
       Miller v. Alabama, 132 S. Ct. 2455 (2012).4 Appellant was
       appointed counsel on September 10, 2012. The PCRA court
       directed counsel to file a supplemental brief on the applicability
       of Miller after the Pennsylvania Supreme Court issued its
       decision in Commonwealth v. Cunningham[, 81 A.3d 1 (Pa.
       2013)].5 Although the Pennsylvania Supreme Court issued its
       decision on October 30, 2013, it does not appear that any such
       supplemental brief was filed. On November 5, 2013, the PCRA
       court filed a Pa.R.Crim.P. 907(1) notice of intention to dismiss
       the petition without a hearing based on untimeliness. Appellant
       filed a pro se response on December 2, 2013, in which he
       requested the court hold his petition in abeyance pending the
       consideration of Cunningham by the United States Supreme
       Court. On December 4, 2013, the PCRA court denied Appellant’s
       request and dismissed the petition for untimeliness. Appellant
       timely appealed on December 12, 2013.

       ________________________
       4
          In Miller, the United States Supreme Court 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.’” Miller, 132 S.
       Ct. at 2460 (emphasis added).
       5
         In [] Cunningham, … the Pennsylvania Supreme Court held
       that the decision in Miller is not retroactive to persons whose
       judgments of sentence were final at the time Miller was
       decided. [Cunningham, 81 A.3d at 11].

Commonwealth v. Metts, No. 1983 WDA 2013, unpublished memorandum

at 2-3 (Pa. Super. filed May 13, 2014) (some footnotes omitted).



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     While Appellant’s appeal from the denial of his first petition was

pending, he filed a pro se “Amended Petition for Habeas Corpus Relief Under

Article I, Section 14 of the Pennsylvania Constitution And For Post-

Conviction Relief Under the Post Conviction Relief Act” (Pro Se Amended

Petition). Therein, Appellant sought to amend his July 26, 2012 PCRA

petition to argue that Miller “can be retroactively applied under broader

principles of retroactivity based in Pennsylvania law, as suggested by both

the majority and the concurrence in Cunningham.”           Pro Se Amended

Petition, 12/20/13, at 4.   On January 23, 2014, the PCRA court denied

Appellant’s request to amend his petition because an appeal from the denial

of Appellant’s July 26, 2012 petition was then pending before this Court.

     On May 13, 2014, this Court issued an unpublished memorandum

decision concluding that Appellant’s PCRA counsel had effectively abandoned

Appellant.   Accordingly, we vacated the PCRA court’s December 4, 2013

order denying Appellant’s petition and remanded for an amended petition to

be filed on Appellant’s behalf. See Metts, No. 1983 WDA 2013, unpublished

memorandum at 3-4.

     On remand, the PCRA court appointed new counsel (the Public

Defenders Office of Fayette County) to represent Appellant.      On May 30,

2014, counsel filed an amended petition on Appellant’s behalf.     Curiously,

counsel did not raise any of the arguments asserted by Appellant in his

December 20, 2013 Pro Se Amended Petition.           Instead, PCRA counsel

presented a generalized argument that Appellant was entitled to a PCRA

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hearing “based on the ruling of Miller[,]” which “should apply retroactively

to [Appellant’s] conviction.” Counseled Amended Petition, 5/30/14, at 4.

       On July 29, 2014, the PCRA court issued an order and opinion denying

Appellant’s amended petition.             The court concluded that in light of

Cunningham, “[a]n evidentiary hearing in this matter would serve

absolutely no purpose since there is no evidence that needs to be presented

and considered.”2 PCRA Court Opinion and Order, 7/29/14, at 2. Appellant

filed a timely notice of appeal, as well as a timely concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, he

raises three questions for our review:

       [1.] Did the [PCRA court] err in denying [Appellant’s] PCRA
       petition without [a] hearing?

       [2.] Should the court have reviewed [Appellant’s] PCRA petition?

       [3.] Should the court have conducted a hearing on [Appellant’s]
       PCRA [petition] based on the Miller decision?

Appellant’s Brief at 7.3

       This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported
____________________________________________


2
  It does not appear that the court filed a Rule 907 notice of its intent to
dismiss Appellant’s petition without a hearing. However, Appellant does not
object to that omission on appeal; accordingly, this issue is waived. See
Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa. Super. 2007).
3
  Despite raising three separate issues, Appellant presents one continuous,
undivided argument. Accordingly, we will address Appellant’s three claims
together.



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by the evidence of record and is free of legal error.      Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). 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).

        We must begin by addressing the timeliness of Appellant’s petition,

because the PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the merits of a petition.

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded to address the merits of the petition); Commonwealth v.

Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding the Superior

Court lacks jurisdiction to reach merits of an appeal from an untimely PCRA

petition). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the exceptions set forth

in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant

part:

        (b) Time for filing petition.--

          (1) Any petition under this 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



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            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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).    Any petition attempting to invoke one of

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

have been presented.” 42 Pa.C.S. § 9545(b)(2).

       Here, Appellant’s judgment of sentence became final on November

12, 2002, and thus, he had until November 12, 2003, to file a timely

petition. While we consider Appellant’s current petition as an amendment of

his first petition filed on July 26, 2012, that initial petition was still facially

untimely.   Thus, for this Court to have jurisdiction to review the instant

appeal, Appellant must prove that he meets one of the exceptions to the

timeliness requirements set forth in 42 Pa.C.S. § 9545(b).

      In his brief, Appellant argues that he was entitled to an evidentiary

hearing because he satisfied “one of the enumerated exceptions” to the

PCRA timeliness requirement.      Appellant’s Brief at 10-11.     While Appellant

does not specify exactly which exception applies to this case, it is apparent

from his argument that he is attempting to invoke the exception set forth in

section 9545(b)(1)(iii). Specifically, Appellant argues that Miller creates a




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new constitutional rule that “should apply retroactively to [Appellant’s]

conviction….” Appellant’s Brief at 11. He elaborates:

      When the United States Supreme Court issued the Miller
      decision in June 2012, and rendered Pennsylvania’s mandatory
      scheme of life imprisonment for first and second degree murder
      unconstitutional, it should have applied to any and all offenders
      under the age of eighteen at the time of their crimes. It is clear
      that evidentiary hearings should have been conducted on all
      cases, including [] [A]ppellant’s case. The [Miller] majority
      remarked that its decision requires that a sentencing authority
      “follow a certain process” before imposing the harshest possible
      penalty on a juvenile offender. Therefore, simply denying []
      [Appellant’s] Post Conviction Petition without a hearing denies all
      process.

      It is [Appellant’s] position that the Miller [decision] applies
      retroactively to him, even though he may have exhausted all his
      appeal rights and [is] proceeding under the [PCRA] since Miller
      had not been determined. Therefore, by simply denying the Post
      Conviction [petition] without a [sic] evidentiary hearing denies
      due process.

Id. at 4-5.

      Appellant’s arguments do not circumvent our Supreme Court’s decision

in Cunningham.     We acknowledge that the Cunningham Court left open

the possibility that Miller applies retroactively as a “watershed rule[] of

criminal procedure implicating the fundamental fairness and accuracy of the

criminal proceeding….” Cunningham, 81 A.3d at 4-5, 10. Justice Castille

also suggested in his concurring opinion that Miller could possibly be held to

apply retroactively under Pennsylvania constitutional law.         Id. at 14




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(Castille, J. concurring). However, Appellant does not present arguments in

either of these regards.4

       Consequently,      we    are    compelled   to   conclude    that    Appellant’s

generalized     claim   that    Miller   applies   retroactively   is   insufficient   to

distinguish his assertions from those already disposed of in Cunningham.

Accordingly, Appellant has not proven the applicability of the timeliness

exception set forth in section 9545(b)(1)(iii).

       Order affirmed.

       Judge Lazarus joins in the memorandum.

       President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2014




____________________________________________


4
  It is unfortunate for Appellant that PCRA counsel did not assert any of the
claims raised in Appellant’s pro se petition filed on December 20, 2013,
wherein Appellant attempted to assert that Miller applies retroactively under
Pennsylvania constitutional law.



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