J-S06044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

LONDON LINTON,

                             Appellant                No. 1747 EDA 2016


                   Appeal from the PCRA Order May 13, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0807241-1991

BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 15, 2017

        Appellant, London Linton, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas dismissing his serial Post

Conviction Relief Act1 (“PCRA”) petition.     Appellant argues his sentence of

life without parole is illegal because it violates the Equal Protection Clause of

the United States Constitution. We affirm.

        We adopt the facts and procedural history set forth by the PCRA

court’s opinion.2 See PCRA Ct. Op., 5/13/16, at 1-2. Appellant raises the

following issues in his pro se brief:


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
 We note the PCRA court’s opinion states that Appellant’s first petition for
post-conviction relief was dismissed on February 15, 2007. See PCRA Ct.
Op. at 2. However, a review of the docket reveals Appellant’s first petition
was dismissed on February 15, 2001.
J-S06044-17


           I. Whether the PCRA court erred in denying without a
           hearing [Appellant’s] claim that [his] sentence is illegal
           because it violates the Equal Protection provisions of the
           United States Constitution[.]

           II. Whether the PCRA court erred in denying [Appellant’s]
           petition without a hearing based upon findings of fact,
           deliberately misstated, and an error on the order and
           opinion not supported by the record[.]

Appellant’s Brief at 3 (capitalization removed).

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

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

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

      As our Supreme Court has explained:

           the PCRA timeliness requirements are jurisdictional in
           nature and, accordingly, a PCRA court is precluded from
           considering untimely PCRA petitions. We have also held
           that even where the PCRA court does not address the
           applicability of the PCRA timing mandate, th[e] Court will
           consider the issue sua sponte, as it is a threshold question
           implicating our subject matter jurisdiction and ability to
           grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations

omitted).

      After careful consideration of Appellant’s pro se brief, the record, and

the decision of the PCRA court, we affirm on the basis of the PCRA court’s

opinion.    See PCRA Ct. Op. at 2-4 (holding: Appellant’s current PCRA

petition, filed August 20, 2015, was patently untimely because his judgment

of sentence became final in 1994; Appellant has not proven any of the


                                      -2-
J-S06044-17


timeliness exceptions because Obergefell v. Hodges, 135 S. Ct. 2584

(2015)3 does not establish either a newly recognized constitutional right

applicable to Appellant or qualify as “after-discovered information;” the

PCRA court lacks jurisdiction to address the merits of Appellant’s claims).4

Accordingly, we affirm the PCRA court’s dismissal of Appellant’s petition.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/15/2017




3
  In Obergefell, the United States Supreme Court held that same-sex
couples are entitled to the same right to marry as heterosexual couples
under the Due Process and Equal Protection Clauses of the United States
Constitution. Obergefell, 135 S. Ct. at 2588.
4
  In its discussion, the PCRA court cites to 42 Pa.C.S. § 9543(b)(3) for the
statement that an appellant has one year from the time his judgment of
sentence becomes final to file a PCRA petition. See PCRA Ct. Op. at 2.
However, the citation for this principle is 42 Pa.C.S. § 9545(b)(1), (3).



                                   -3-
                                                                                            Circulated 01/19/2017          05:22 PM




                               IN THE COURT OF COMMON PLEAS
                          FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                              TRIAL DMSION-CRIMINAL SECTION

     COMMONWEAL TH OF PENNSYLVANIA



                             v.


    LONDON LINTON
                                                                            CP-51-CR-0807241-1991


                                           MEMORANDUM OPINION                CP-51-CR-0807241-1991   Comm. v. Linton, Loodon
                                                                                          Memo111ndum Opinion




    TUCKER~J.
                                                                                  1111111111111111 Ill II I Ill
                                                                                           7446535201

            On    -m   ff~        1   ·3 ++, , 2016, the Post-Conviction Relief Act Petition filed on
    August 20, 2015 was dismissed for the reasons set forth below.1

       I.        PROCEDURAL HISTORY

            On February 3, 1992, London Linton (hereinafter referred to as "Petitioner") entered into a

    negotiated guilty plea to First Degree Murder and Possession of an Instrument of Crime before

    the Honorable Paul Rihner, Jr. On that same day, Petitioner was sentenced to life imprisonment

    for murder, and 2 Yi to 5 years imprisonment for PIC, to run concurrently. The Superior Court of

Pennsylvania affirmed Petitioner's conviction on June 7, 1994, and Petitioner did not seek

allocatur. Petitioner filed his first prose petition for post-conviction relief? on August 27, 1999,




1
 This dismissal Order was issued more than twenty days after Petitioner was served with notice
of the forthcoming dismissal of his Post-Conviction Relief Act petition. Pa.R.Crim.P. 907.
2
 Petitioner's first petition for post-conviction relief was governed by the former Post Conviction
Hearing Act ("PCHA") statute> which is now the Post Conviction Relief Act ("PCRA").


                                                                                                                               ,\
     and counsel was appointed. Counsel for Petitioner filed an amended petition on May 9, 2000. On

     February 15, 2007, the trial court dismissed the petition, and appeal was not sought. Petitioner

     filed a second petition under the PCRA on August 24, 2012, which was subsequently dismissed

     by the PCRA court on March 30, 2015. The following memorandum addresses Petitioner's third,

     and most recent, filing3.

                                            I.      DISCUSSION

             After a conviction becomes final, a petitioner has one year to file a post-conviction

    petition. 42 Pa. Cons. Stat. § 9543(b )(3) (2016). A conviction or judgment of sentence is deemed

    final at the close of direct review or when the time to seek review expires. Id When a PCRA

    petition is untimely without exception, the court does not have jurisdiction to address the

    substantive merits of the petition. See e.g. Commonwealth. v. Robinson, 837 A.2d 1157, 1163

    (Pa. 2003). Therefore, Petitioner's August 20, 2015 petition was patently untimely as his

    conviction became final in 1994 and this court is without jurisdiction to rule on the substantive

    merits of the claim. Petitioner may only overcome his untimeliness if he properly invoked one of

    the exceptions to the one-year limitation. The three exceptions as enumerated in 42 Pa. Cons.

    Stat. §9545 (b)(1 )(i)-(iii) are:

            (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



3
  Petitioner filed a response to this Court's notice of its intent to dismiss his petition pursuant to
Pa.R. Crim.P. 907 (sent March l 0, 2016) on March 25, 2016. In his response, Petitioner merely
reiterates that the PCRA governs his claim, and emphasizes that his claim is timely given that it
was submitted less than 60 days after the Obergefell decision. Obergefell v. Hodges, 135 S.Ct.
2584 (2015). Petitioner fails to further demonstrate how the Obergefell decision bears upon his
own case.

                                                      2
         (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.

         In his latest filing, Petitioner attempts to subvert the United States Supreme Court's

  historic holding in Obergefell v. Hodges, 135 S.Ct. 2584 (2015), by claiming the Court has so

 liberally construed the 14th Amendment as to make his sentence of life without parole

 unconstitutional. In Obergefell, the Supreme Court held that same-sex couples are entitled to the

 same rights, benefits, and treatment as heterosexual couples, particularly due to the equal

 protection clause of the 14•h Amendment. Petitioner conjectures that Obergefell stands for the

 principle that the 14th Amendment must be read broadly enough to include issues of sentencing.

 Specifically, Petitioner argues because he was convicted of murder in Pennsylvania, and was thus

 subject to Pennsylvania's mandatory sentence of life without parole, his constitutional rights were

 violated since states such as Rhode Island and North Carolina do not have mandatory life

 sentences for murder.

        Petitioner's claim is remarkably meritless. First, he does not meet any of the timeliness

provisions. Though he attempts to fit his claims into both Section 9545(b)(l)(iii) and Section

9545(b)(2) of the PCRA, his Obergefell claim neither establishes the creation of an after-

recognized Constitutional right applicable to Petitioner, nor qualifies as after-discovered

information. Therefore, his untimely petition is without exception. Second, even if this court had

jurisdiction to address the merits, there is nothing to suggest that Obergefell would in any way be

applicable to Petitioner's claim. Obergefell's historic holding is premised on the Court's finding

that same-sex couples have the right as opposite-sex couples to enjoy intimate association such as,

marriage. Petitioner's argument that Obergefell applies to his sentence of life imprisonment

without parole for a conviction of first degree murder is incongrnous.



                                                 3
        In sum, Petitioner's latest attempt at PCRA relief is untimely, and no exception to

timeliness applies. This Court is therefore unable to reach the merits of the claims, and the

petition is dismissed.




                                                             BY THE COURT:




Date:   6 · \ ':\ ,26 \ LQ




                                                4
