J-S76023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    MORRIS WILLIS

                             Appellant                  No. 818 EDA 2017


             Appeal from the PCRA Order entered February 8, 2017
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos: CP-51-CR-0820513-1985

BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED APRIL 16, 2018

        Appellant, Morris Willis, appeals pro se from an order entered February

8, 2017 in the Philadelphia Court of Common Pleas dismissing his petition for

relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46,

and for habeas corpus relief. We affirm.

        In 1985, when Appellant was twenty years old, he was arrested and

charged with first degree murder and criminal conspiracy in connection with

the shooting death of James Reynolds.          A jury found him guilty of these

charges, and the trial court sentenced him to life imprisonment. On direct

appeal, Appellant argued that the trial court erred when it refused to instruct



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*   Retired Senior Judge assigned to the Superior Court.
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the jury to consider whether another individual, Francine Williams, was an

accomplice in Reynolds’ murder. This Court affirmed, concluding that the trial

court correctly determined that Williams was not an accomplice and,

therefore, Appellant was not entitled to the jury instruction. Commonwealth

v. Willis, 556 A.2d 403, 409 (Pa. Super. 1989). On July 2, 1990, the Supreme

Court denied Appellant’s petition for allowance of appeal.

      Appellant filed a petition for post-conviction relief arguing that trial

counsel was ineffective for failing to raise a challenge to the accomplice

instruction. The court denied his petition, and this Court affirmed on March

7, 1996, holding that the trial court gave the correct instruction.

      On June 6, 2008, Appellant filed a second PCRA petition. The petition

was denied as untimely, and this Court affirmed on May 17, 2010. On August

23, 2011, Appellant filed a petition for writ of habeas corpus. Because his

claims were cognizable under the PCRA, it was treated as a PCRA petition and

dismissed as untimely. This Court affirmed on February 19, 2013, and the

Supreme Court denied Appellant’s petition for allowance of appeal on August

26, 2013.

      On September 25, 2013, Appellant filed the petition presently in

question, which he labeled a habeas corpus petition. Appellant alleged that

his imprisonment was unlawful because the Department of Corrections

(“DOC”) was unable to produce his sentencing order. On March 4, 2016 and

April 4, 2016, Appellant filed supplemental petitions raising claims that were


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cognizable under the PCRA. On October 19, 2016, the PCRA court entered a

notice of intent under Pa.R.Crim.P. 907 to dismiss Appellant’s petition without

a hearing. On November 1, 2016, Appellant filed a response in opposition to

the Rule 907 notice. On February 8, 2017, the PCRA court dismissed the PCRA

claims in the petition as untimely and the habeas corpus claim as meritless.

Appellant filed a timely notice of appeal. The PCRA court filed a Pa.R.A.P.

1925(a) opinion without ordering Appellant to file a statement of errors

complained of on appeal.

      Appellant raises three issues on appeal, which we have re-ordered for

the sake of convenience:

      1. Whether Appellant is entitled to Post Conviction Relief in the
      form of a new sentencing hearing as a result of after-discovered
      mitigating evidence concerning recent finding in Brain Science and
      Social Science?

      2. Whether Appellant’s sentence is a nullity as the Pennsylvania
      Penal Statute 18 Pa.C.S.[A.] §§ 1102(a) and (b) is
      unconstitutional and void under the vagueness doctrine?

      3. Whether the trial court abused its discretion in dismissing
      Appellant’s Petition for Writ of Habeas Corpus since he is confined
      absent a Sentencing Order required by 42 Pa.C.S.A. § 9764(a)(8)?

Appellant’s Brief at 3.

      In his first argument, Appellant contends that he is entitled to PCRA

relief based on his “recent” discovery of Miller v. Alabama, 567 U.S. 460

(2012), which held that the Eighth Amendment does not permit mandatory

sentences of life in prison without the possibility of parole for homicide

offenders who were under eighteen years old at the time of their crimes.

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Appellant’s Brief at 13. Appellant claims that “the Brain Science and Social

Science revealed to [him] by Miller v. Alabama . . . constitutes after-

discovered evidence.” Id.

      As a threshold matter, we must determine whether the PCRA court erred

in dismissing as untimely Appellant’s PCRA claims. The PCRA contains the

following restrictions governing the timeliness of any PCRA petition:

      (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 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.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have been
      presented.

      (3) For purposes of this subchapter, a judgment becomes 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 the
      review.

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42   Pa.C.S.A.     §    9545(b).   Section   9545's   timeliness   provisions   are

jurisdictional.    Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).

Additionally, “the PCRA confers no authority” upon courts “to fashion ad hoc

equitable exceptions to the PCRA time-bar in addition to those exceptions

expressly delineated in the Act.” Commonwealth v. Robinson, 837 A.2d

1157, 1161 (Pa. 2003) (citations omitted).

         Here, Appellant’s judgments of sentence became final on September 30,

1990, ninety days after the Supreme Court denied his petition for allowance

of appeal in his direct appeal. See 42 Pa.C.S.A. § 9545(b)(3). He filed his

habeas corpus petition on September 25, 2013 and appended the Miller claim

in a supplemental petition on April 14, 2016.         His Miller claim is facially

untimely under 42 Pa.C.S.A. § 9545(b)(1).

         The one-year time limitation, however, can be overcome if a petitioner

alleges and proves one of the three exceptions set forth in Section

9545(b)(1)(i)-(iii) of the PCRA. Here, Appellant alleges that he is entitled to

relief    under   the    newly-discovered     evidence   exception    in   Section

9545(b)(1)(ii). We disagree, because the judicial opinion in Miller is not a

new fact. Commonwealth v. Whitehawk, 146 A.3d 266, 271 (Pa. Super.

2016) (subsequent decisional law does not amount to a new “fact” under

Section 9545(b)(1)(ii)).

         Neither is Appellant’s claim timely under the retroactively applied

constitutional right exception in Section 9545(b)(1)(iii). Although the United

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States Supreme Court held in Montgomery v. Louisiana, 136 S.Ct. 718

(2016), that Miller applies retroactively to cases on state collateral review,

Miller does not apply to Appellant because he was over eighteen at the time

of Reynolds’ murder.    Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.

Super. 2016) (petitioners who were older than eighteen at the time they

committed murder are not within Miller’s ambit).

      Finally, even if Miller applied to Appellant, the sixty-day period for

raising Miller claims under Section 9545(b)(2) began to run on January 25,

2016, the date of Montgomery’s issuance.             See Commonwealth v.

Woods, 2017 PA Super 181, 2017 WL 2536525, at *5 (filed June 12, 2017).

Appellant failed to raise his Miller claim until April 14, 2016, more than sixty

days after Montgomery’s issuance.        Therefore, this claim is time-barred

under Section 9545(b)(2).

      In his second argument, Appellant claims that his sentence is

unconstitutional because 18 Pa.C.S.A. § 1102 is void for vagueness. Section

1102(a)(1) prescribes that a person convicted of first degree murder “shall be

sentenced to death or to a term of life imprisonment.” Appellant maintains

that Section 1102(a) does not give fair notice that “a term of life

imprisonment” is in reality “a term of life imprisonment without parole.”

Appellant’s argument is time-barred.

      [A] challenge to the legality of one’s sentence does not allow him
      to evade the PCRA’s timeliness requirements.          In fact, in
      Commonwealth v. Fahy, [] 737 A.2d 214 (1999), the
      Pennsylvania Supreme Court rejected this contention. The Fahy

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      Court stated, “Although legality of sentence is always subject to
      review within the PCRA, claims must still first satisfy the PCRA’s
      time limits or one of the exceptions thereto.” Id. [], 737 A.2d at
      223 (citation omitted). Thus, Appellant cannot elude the PCRA’s
      timeliness requirements based on a claim of an illegal sentence.

Woods, supra, at *5. Here, Appellant’s judgment of sentence became final

on September 30, 1990, but he did not raise this constitutional challenge until

he filed his supplemental petition on March 4, 2014. As such, it is facially

untimely. Neither does it satisfy any of the three exceptions to the one-year

time limitation in Section 9545(b)(1)(i-iii), because (1) there was no

government interference; (2) the claim does not involve a newly-discovered

fact, and (3) the claim does not involve a constitutional right that has been

held to apply retroactively by either the United States or Pennsylvania

Supreme Courts.

      In his third and final argument, a habeas corpus claim, Appellant asserts

that he is confined unlawfully because the DOC does not possess a written

sentencing order in violation of 42 Pa.C.S.A. § 9764.          See 42 Pa.C.S.A.

§ 9764(a)(8) (“Upon commitment of an inmate to the custody of the [DOC],

the sheriff or transporting official shall provide to the institution’s records

officer or duty officer . . . [a] copy of the sentencing order”).

      The court below correctly rejected this argument. In Joseph v. Glunt,

96 A.3d 365 (Pa. Super. 2014), this Court held:

      The language and structure of section 9764, viewed in context,
      make clear that the statute pertains not to the DOC’s authority to
      detain a duly-sentenced prisoner, but, rather, sets forth the
      procedures and prerogatives associated with the transfer of an

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     inmate from county to state detention. None of the provisions of
     section 9764 indicate an affirmative obligation on the part of the
     DOC to maintain and produce the documents enumerated in
     subsection 9764(a) upon the request of the incarcerated person.
     Moreover, section 9764 neither expressly vests, nor implies the
     vestiture, in a prisoner of any remedy for deviation from the
     procedures prescribed within.

Id. at 371.   Moreover, the DOC may lawfully detain a prisoner without a

written sentencing order if the record, including the criminal docket,

authorizes his imprisonment.   Id. at 372.   Appellant’s record and criminal

docket show that the trial court sentenced him to a mandatory term of life

imprisonment. Appellant himself acknowledges that he was convicted of first

degree murder and sentenced to life imprisonment.          Accordingly, this

argument fails.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/18




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