J-S53039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KENON SAYLES,

                            Appellant                 No. 616 WDA 2014


                 Appeal from the PCRA Order February 19, 2014
               in the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0007659-1993


BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 25, 2014

        Appellant, Kenon Sayles, appeals pro se from the order dismissing his

fourth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546.1 We affirm.

        A previous panel of this Court set forth the procedural and factual

history of this case as follows:

              On August 18, 1993, Appellant was charged with one
        count of homicide, two counts of conspiracy, and one count of
        possessing an instrument of a crime. [The charges stem from
        Appellant’s participation in the beating death of Michael Martin
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The order appealed from was dated February 12, 2014, but was not
entered on the docket until February 19, 2014. We have amended the
caption accordingly.
J-S53039-14


     with baseball bats during a fight between two rival gangs, when
     Appellant was seventeen years old.] On November 3, 1994,
     after a three-day bench trial, the court found Appellant guilty of
     first degree murder and the remaining charges and sentenced
     him to life imprisonment.

            Appellant filed a notice of appeal on April 13, 1995, and on
     May 10, 1996, this Court affirmed his judgment of sentence.
     [(See Commonwealth v. Sayles, 679 A.2d 850 (Pa. Super.
     1996) (unpublished memorandum))]. Nearly three years later,
     on February 2, 1999, Appellant attempted to file a pro se
     petition for allowance of appeal nunc pro tunc in the
     Pennsylvania Supreme Court. The Court returned the filing to
     Appellant the following day. The Court also returned a second
     pro se petition for allowance of appeal nunc pro tunc filed by
     Appellant May 3, 1999. The trial court eventually appointed
     counsel to represent Appellant, who filed a petition for leave to
     file a petition for allowance of appeal nunc pro tunc with the
     Supreme Court on June 7, 2000. The Court denied the petition
     on August 25, 2000.

            On August 31, 2001, Appellant filed a counseled PCRA
     petition. On September 29, 2003, the PCRA court dismissed the
     petitioned as time-barred.       A pro se appeal to this Court
     followed. On July 20, 2004, this Court remanded the instant
     case to the trial court for appointment of counsel and the filing of
     a counseled appellate brief. The trial court appointed Appellant
     [counsel] on August 9, 2004. On September 8, 2004, Appellant
     simultaneously filed with this Court an appellate brief and a
     [motion to withdraw as counsel]. Commonwealth v. Sayles,
     No. 1924 EDA 2003, unpublished memorandum at 1-3 (Pa.
     Super. filed November 9, 2004). On November 9, 2004, this
     Court affirmed the PCRA court’s order dismissing Appellant’s
     petition as untimely and granted counsel’s petition for leave to
     withdraw. On May 4, 2005, Appellant filed a second PCRA
     petition, which was dismissed as untimely by the PCRA court on
     February 3, 2006. On March 2, 2006, Appellant filed a pro se
     notice of appeal. Subsequently, we dismissed Appellant’s appeal
     for failure to file a brief.

            On August 23, 2006, Appellant filed a pro se “Petition for
     Writ of Habeas Corpus Ad Subjiciendum.” The court treated
     Appellant’s petition for writ of habeas corpus as a third PCRA
     petition and, pursuant to Pa.R.Crim.P. 907, advised Appellant of

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J-S53039-14


       its intent to dismiss the petition without a hearing on the basis
       that it was untimely filed and without merit.             Following
       Appellant’s response to the notice, the PCRA court dismissed
       Appellant’s petition as untimely on January 8, 2007. . . .

(Commonwealth           v.    Sayles,      No.    807     WDA    2007,   unpublished

memorandum at 1-2 (Pa. Super. filed January 4, 2008)).                     Appellant

appealed from the PCRA court’s order, and this Court affirmed on January 4,

2008. (See id.).

       On July 13, 2012, Appellant, acting pro se, filed the instant PCRA

petition claiming that his life sentence is unconstitutional based on the

United States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct.

2455 (2012).2 The Commonwealth filed an answer on November 1, 2013,

requesting that the court dismiss the PCRA petition pursuant to the

Pennsylvania       Supreme       Court’s       decision   in    Commonwealth      v.

Cunningham, 81 A.3d 1 (Pa. 2013), cert. denied, 134 S.Ct. 2724 (2014).3

On November 20, 2013, Appellant filed a pro se response, requesting that

the court stay the proceedings pending the United States Supreme Court’s

review of the Cunningham decision. On December 9, 2013, the PCRA court
____________________________________________


2
  The Miller Court recognized a constitutional right for juveniles under the
age of eighteen, and 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,
supra at 2460.
3
  In Cunningham, the Pennsylvania Supreme Court held that the Miller
holding will not be applied retroactively to cases on collateral review. See
Cunningham, supra at 11.




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issued notice of its intent to dismiss the petition without a hearing.      See

Pa.R.Crim.P. 907(1). Appellant filed a response on January 3, 2014, and the

court entered another Rule 907 notice on January 23, 2014. On February

19, 2014, the court entered its order dismissing the petition. Appellant filed

a timely notice of appeal.4        On March 20, 2014, the PCRA court ordered

Appellant to file a Rule 1925(b) statement of errors, and he timely complied.

See Pa.R.A.P. 1925(b).5 The court filed a Rule 1925(a) opinion on May 6,

2014. See Pa.R.A.P. 1925(a).

       Appellant raises the following issues for our review:

       1.    Whether the [PCRA] court erred in dismissing [Appellant’s]
       Post Conviction Relief Act Petition without reason in the interest
       of justice, judicial economy[?]

       2.   Whether the [PCRA] court erred in not adopting the
       reasoning of the United States Supreme Court’s ruling[?]

(Appellant’s Brief, at 4).

       Our standard of review of a trial court order granting or denying
       relief under the PCRA calls upon us to determine whether the
____________________________________________


4
  Appellant’s notice of appeal was time-stamped and docketed on March 26,
2014. However, pursuant to the prisoner mailbox rule, we consider his pro
se notice filed on the date he handed it to prison officials for mailing, on
March 11, 2014. See Commonwealth v. Robinson, 12 A.3d 477, 479 n.2
(Pa. Super. 2011); (see also Appellant’s pro se Notice of Appeal,
postmarked March 11, 2014).
5
  Appellant’s Rule 1925(b) statement was time-stamped and docketed on
April 23, 2014. However, pursuant to the prisoner mailbox rule, we consider
his pro se statement filed on the date he handed it to prison officials for
mailing, on April 8, 2014. See Robinson, supra at 479 n.2; (see also
Appellant’s pro se Rule 1925(b) Statement, postmarked April 8, 2014).



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       determination of the PCRA court is supported by the evidence of
       record and is free of legal error. The PCRA court’s findings will
       not be disturbed unless there is no support for the findings in the
       certified record.

Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)

(citations and quotation marks omitted).

       Before we may consider the merits of Appellant’s claims, we must

consider whether this appeal is properly before us.

       A PCRA petition, including a second or subsequent one, must be
       filed within one year of the date the petitioner’s judgment of
       sentence became final, unless he pleads and proves one of the
       three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
       judgment becomes final at the conclusion of direct review by this
       Court or the United States Supreme Court, or at the expiration
       of the time for seeking such review.             42 Pa.C.S.[A.] §
       9545(b)(3).      The   PCRA’s     timeliness    requirements   are
       jurisdictional; therefore, a court may not address the merits of
       the issues raised if the petition was not timely filed. The
       timeliness requirements apply to all PCRA petitions, regardless of
       the nature of the individual claims raised therein. The PCRA
       squarely places upon the petitioner the burden of proving an
       untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

       In this case, Appellant’s judgment of sentence became final on June

10, 1996, when his time to file a petition for allowance of appeal with our

Supreme      Court    expired.       See       Pa.R.A.P.   1113(a);   42   Pa.C.S.A.   §

9545(b)(3).6 Therefore, he had one year from that date to file a petition for
____________________________________________


6
  The last day of the appeal period, June 9, 1996, fell on a Sunday.
Therefore, Appellant had until that Monday to file the petition. See 1
Pa.C.S.A. § 1908.



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J-S53039-14



collateral relief, specifically, until June 10, 1997. See id. at § 9545(b)(1).

Because Appellant filed the instant petition on July 13, 2012, it is untimely

on its face, and the PCRA court lacked jurisdiction to review it unless he

pleaded and proved one of the statutory exceptions to the time-bar. See 42

Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

      (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;

      (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.

Id. at § 9545(b)(1)(i)-(iii).      “If the [PCRA] 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.”     Commonwealth v.

Jackson, 30 A.3d 516, 519 (Pa. Super. 2011), appeal denied, 47 A.3d 845

(Pa. 2012) (citation omitted). In addition, a PCRA petition invoking one of

these statutory exceptions must “be filed within 60 days of the date the

claim could have been presented.” 42 Pa.C.S.A. at § 9545(b)(2).


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       Here, Appellant claims the benefit of the exception at 42 Pa.C.S.A. §

9545(b)(1)(iii),      alleging     a     newly-recognized,   retroactively-applied

constitutional right to relief predicated on the United States Supreme Court’s

decision in Miller, supra.         (See Appellant’s Brief, at 7-8; PCRA Petition,

7/13/12, at 1-3).      Appellant asserts that his petition is timely because he

filed it within sixty days of publication of the Miller decision.7 (See PCRA

Petition, 7/13/12, at 2).        Appellant acknowledges that, in Cunningham,

supra, the Pennsylvania Supreme Court held that the constitutional right

announced in Miller does not apply retroactively.               (See Appellant’s

Response to Notice of Intention to Dismiss, 11/20/13, at 1). He nonetheless

contends that the PCRA court erred by dismissing his PCRA petition before

the Cunningham decision was fully resolved. (See Appellant’s Brief, at 8;

Rule 1925(b) Statement, 4/08/14, at 1-2). We disagree.

       First, the United States Supreme Court recently denied the petition for

writ of certiorari filed in the Cunningham case. See Cunningham, supra.

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

panel of this Court considered the Miller decision in light of Cunningham in

the context of a facially untimely PCRA petition and explained:


____________________________________________


7
  The Supreme Court decided Miller on June 25, 2012, and Appellant filed
the instant petition eighteen days later, on July 13, 2012. See 42 Pa.C.S.A.
§ 9545(b)(2).




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             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 [the
             Supreme Court of Pennsylvania] after the time
             provided in this section. Second, it provides that the
             right “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.

              . . . [I]n Cunningham, our Supreme Court held that the
        constitutional right announced by the United States Supreme
        Court in Miller does not apply retroactively. Consequently,
        [a]ppellant cannot rely upon Miller or subsection 9545(b)(iii) to
        establish jurisdiction over his untimely PCRA petition in any
        Pennsylvania court.

Seskey, supra at 242-43 (some case citations omitted).

        Here, Appellant attempts to circumvent the effect of Cunningham on

this Court’s jurisdiction by asserting that the United States Supreme Court

has not had the opportunity to review Cunningham. (See Appellant’s Brief,

at 8; Rule 1925(b) Statement, 4/08/14, at 1-2).          This argument is now

moot.      Moreover, Appellant “cannot rely upon Miller or subsection

9545(b)(iii) to establish jurisdiction over his untimely PCRA petition in any

Pennsylvania court.” Seskey, supra at 243.

        Accordingly, Appellant failed to meet his burden of proving his

untimely petition fits within one of the three exceptions to the PCRA’s time-

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bar, and the PCRA court properly dismissed his petition.   See Seskey,

supra at 243; Cunningham, supra at 11; Jones, supra at 17.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2014




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