J-S59003-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

RICKY LEE OLDS,

                           Appellant                 No. 1319 WDA 2014


                   Appeal from the PCRA Order July 15, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0006857-1979
                            CP-02-CR-0007090-1979


BEFORE: BOWES, DONOHUE, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 27, 2015

         Ricky Lee Olds appeals from the July 15, 2014 PCRA order denying

him relief. We affirm.

         On April 2, 1980, Appellant was found guilty of second-degree murder,

robbery, and conspiracy based on a crime that he committed when he was

fourteen years old.        On October 9, 1979, Appellant was riding around

Pittsburgh with Claude Bonner and Tommy Allen, who was armed.            Allen

decided to rob Fort Wayne Cigar Store located on Western Avenue,

Pittsburgh. Appellant agreed with this plan.

         It was approximately 3:45 a.m. when the three cohorts arrived at the

store.    Allen and Appellant entered in time to see Thomas Bietler make a

cash purchase, and he appeared to possess a significant amount of money.

*
    Former Justice specially assigned to the Superior Court.
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Allen and Appellant followed Bietler from the store. The store clerk heard a

shot and went outside.         The clerk saw Allen shoot Mr. Bietler twice more

while the victim was holding out his wallet and telling Allen to take it. The

three co-conspirators fled the scene.

          On April 28, 1981, Appellant was sentenced to a mandatory term of

life imprisonment without parole (“LWOP”) based upon his second-degree

murder conviction.       On November 25, 1983, we affirmed the judgment of

sentence. Commonwealth v. Olds, 469 A.2d 1072 (Pa.Super. 1983).

          Appellant litigated his first request for post-conviction relief, which was

counseled, through the trial and appellate courts from 1984 through 1992.

During that proceeding, the court denied relief, we reversed, and our

Supreme Court reversed this Court, reinstating the denial of post-conviction

relief.

          Appellant filed his second petition collaterally attacking his judgment of

sentence on July 13, 2010.         Therein, he contended that his sentence was

unconstitutional under Graham v. Florida, 130 S.Ct. 3011 (2010), which

held that a sentence of LWOP for non-homicide juvenile offenders was

unconstitutional under the Eighth Amendment.               Relief was denied, we

affirmed,       and   our   Supreme      Court   denied    allowance    of   appeal.

Commonwealth v. Olds, 32 A.3d 845 (Pa.Super. 2011) (unpublished

memorandum).




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       Appellant filed a third PCRA petition on August 20, 2012, seeking relief

from his sentence under Miller v. Alabama, 132 S.Ct. 2455 (2012), which

held that a mandatory sentence of LWOP could not be imposed upon juvenile

homicide offenders.      Counsel was appointed.        The PCRA court stayed the

PCRA proceeding until the Pennsylvania Supreme Court ruled on whether

Miller would be given full retroactive effect to PCRA petitioners.                    Our

Supreme     Court     decided   that    Miller   would   not   be    so     applied    in

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). The PCRA court

dismissed the PCRA petition, and this appeal followed.

       We summarize the positions presented by Appellant on appeal: 1) he

should have been granted leave to amend his PCRA petition; 2) his sentence

is unconstitutional under the Eighth Amendment, which prohibits imposition

of a mandatory term of LWOP on juvenile homicide offenders; 3) Appellant is

entitled to relief in the interest of justice; 4) Miller should be applied

retroactively under the Pennsylvania Constitution; and 5) Appellant should

be able to pursue habeas corpus relief.

       When reviewing “an order denying collateral relief under the PCRA,”

we must “determine whether evidence of record supports the findings of the

PCRA    court   and    whether    its   legal    conclusions   are   free    of   error.

Commonwealth v. Burton, 2015 WL 50762842015, at *2 (Pa.Super. 2015)

(en banc) (citation omitted). PCRA petitions must be filed within the time

parameters outlined in 42 Pa.C.S. § 9545.           Specifically, any PCRA petition

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must be filed within one year of when the PCRA petitioner’s judgment of

sentence became final.          42 Pa.C.S. § 9545(b)(1).     The PCRA's time

restrictions are jurisdictional in nature. Commonwealth v. Chester, 895

A.2d 520 (Pa. 2006). We therefore first must determine if a PCRA petition

was   timely   filed   before    we   address   a   substantive   claim.   See

Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008).

      A judgment of sentence becomes final at the conclusion of direct

review or the time for seeking direct review.        42 Pa.C.S. § 9545(b)(3).

Appellant’s ability to pursue direct review was concluded in 1984, and the

present, 2012 petition is obviously untimely. There are three exceptions to

this one-year time bar, and the one invoked by Appellant was the third one:

“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)(iii).    Miller recognized an

Eighth Amendment constitutional right in juveniles that prevented them from

being automatically sentenced to a mandatory term of LWOP. Thus, Miller

created a new constitutional right.      However, the second aspect of this

exception cannot be invoked by Appellant because that right has not been

held by either the United States Supreme Court or the Pennsylvania

Supreme Court to apply retroactively.        Indeed, Cunningham ruled to the

contrary.

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      Appellant’s first position is that he should have been permitted to

amend his PCRA petition. The flaw in this request is that Appellant fails to

delineate precisely what exception to the one-year time bar that he would

invoke in any amended PCRA petition. This omission is fatal to our ability to

grant relief in that the PCRA specifically requires a PCRA petitioner to plead

and prove an applicable exception to the one year time bar in order to

invoke the court’s jurisdiction.     The PCRA court’s failure to allow the

amendment of a PCRA petition does “not warrant reversal where the claim is

record-based and our review indicates that the issue does not fall within a

timeliness exception.” Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super.

2013). As that is the case herein, the PCRA court correctly denied

Appellant’s request to amend his untimely 2012 PCRA petition.

      Appellant’s   second    position    is   that   Miller   should   be   applied

retroactively under principles applied under the Pennsylvania constitution.

As we articulated in Commonwealth v. Seskey, 86 A.3d 237 (Pa.Super.

2014), only a decision by the United States Supreme Court or the

Pennsylvania Supreme Court to render a new constitutional right retroactive

is sufficient to invoke the third exception contained in § 9545((b)(1)(iii) to

the one-year filing deadline for a PCRA petition. This Court cannot afford a

PCRA petitioner relief from § 9545(b) by finding that Miller is retroactive

under the Pennsylvania Constitution. Hence, this averment does not afford

Appellant relief in this Court.

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      Appellant’s third assertion is that relief should be granted in the

interest of justice.    We do not have jurisdiction in this matter unless

Appellant is able to successfully invoke an exception to the one-time

limitation on his ability to seek PCRA relief. Additionally, the PCRA does not

permit the courts “to fashion ad hoc equitable exceptions to the PCRA time-

bar in addition to those exceptions expressly delineated in the Act.”

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011); accord

Commonwealth v. Harris, 972 A.2d 1196, 1199 (Pa.Super. 2009) (it is

settled that “there is no generalized equitable exception to the jurisdictional

one-year time bar pertaining to post-conviction petitions”) (citation omitted).

Since we lack jurisdiction over this PCRA petition, we cannot grant

Appellant’s request for relief in the interests of justice.

      Appellant also claims that he should be permitted to file a habeas

corpus petition.   It is beyond cavil that the PCRA is the sole avenue for

seeking post-conviction relief unless that statute could not provide a

potential remedy for the wrong for which the defendant seeks redress.

Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013).             A defendant

cannot avoid the PCRA’s time bar by framing his relief as one sounding in

habeas corpus.

      In this case, Appellant is asking for relief from a sentence, LWOP, that

he asserts is unconstitutional. The PCRA provides relief for illegal sentences,

42 Pa.C.S. § 9542 (the PCRA creates an avenue by which “persons serving

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illegal sentences may obtain collateral relief”), and Appellant’s claim is

cognizable under the PCRA. Commonwealth v. Fahy, 737 A.2d 214 (Pa.

1999); Taylor, supra. Hence, it must be raised in a timely PCRA petition.

Fahy, supra.     Since Miller has not been held to be retroactive by the

United States Supreme Court or the Pennsylvania Supreme Court, this

petition does not fall within an exception to the one-year time bar, and the

PCRA court correctly dismissed it.   Appellant cannot file a habeas corpus

petition because his claim for relief is cognizable under the PCRA, and he

cannot presently invoke an exception to the one-year time bar. Hence, we

reject his fourth position.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2015




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