J-S03021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DEMETRIUS BAILEY

                            Appellant                 No. 764 WDA 2016


                Appeal from the PCRA Order dated April 20, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0006409-1994
                                         CP-02-CR-0008102-1994

BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.:                              FILED APRIL 7, 2017

        Appellant, Demetrius Bailey, appeals pro se from the order dismissing

as untimely his sixth petition filed pursuant to the Post Conviction Relief Act.

42 Pa.C.S. §§ 9541-46. We affirm.

        On December 20, 1994, a jury convicted Appellant of second-degree

murder in the shooting death of Michael Sayles.      That same day, the trial

court sentenced Appellant to mandatory life imprisonment. Appellant filed a

direct appeal.     This Court affirmed Appellant’s judgment of sentence on

November 20, 1995. Commonwealth v. Bailey, 673 A.2d 398 (Pa. Super.

1995) (unpublished memorandum). Appellant filed a petition for allowance



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*
    Retired Senior Judge assigned to the Superior Court.
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of   appeal,   which   the   Supreme    Court   denied   on   April   23,   1996.

Commonwealth v. Bailey, 675 A.2d 1241 (Pa. 1996).

      Thereafter, Appellant filed several petitions in which he sought post-

conviction relief.   Most recently, on November 5, 2014, Appellant filed the

pro se PCRA petition presently before us. The PCRA court issued notice of its

intention to dismiss this petition pursuant to Pa.R.Crim.P. 907, and

dismissed the petition on April 20, 2016. This timely appeal followed.

      Appellant presents three issues for review:

      1. Whether the abandonment of petition by state appellate
         counsel in the first PCRA violated petitioner’s constitutional
         right to effective assistance of counsel on PCRA, thus,
         warranting a reinstatement of his appellate rights?

      2. Did the imposition of petitioner’s life without parole sentence
         for a homicide offense violate the Eighth and Fourteenth
         Amendments      prohibition   against     cruel  and    unusual
         punishments under the United States Constitution and Article
         1 § 13 of the Pennsylvania Constitution?

      3. Whether the lower court is in violation of petitioner’s due
         process and equal protection rights for failure to send a copy
         of notice of intent to dismiss so petitioner can respond and
         failure to address supplemental amended PCRA and failure to
         furnish the Superior Court with complete record making
         petitioner’s appeal process ineffective.

Appellant’s Brief at 3.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determinations are supported by the record and are free of legal

error.” Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013) (quoting

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)). The PCRA court’s

findings will not be disturbed unless there is no support for the findings in

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the certified record.        Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.

Super. 2001). Moreover, a PCRA court may decline to hold a hearing on the

petition if the PCRA court determines that petitioner’s claim is frivolous and

without     support     in    either   the     record   or   from   other   evidence.

Commonwealth v. Jordan, 772 A.2d 1011, 1104 (Pa. Super. 2001).

        To be eligible for post-conviction relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from one or more of the enumerated errors or defects in 42 Pa.C.S.

§ 9543(a)(2).      Commonwealth v. Carpenter, 725 A.2d 154, 160 (Pa.

1999). In addition, the petition must be timely, as the timeliness of a post-

conviction petition is jurisdictional.         Commonwealth v. Hernandez, 79

A.3d 649, 651 (Pa. Super. 2013). Generally, a petition for relief under the

PCRA, including a second or subsequent petition, must be filed within one

year of the date the judgment is final unless the petition alleges, and the

petitioner proves, that an exception to the time for filing the petition, set

forth at 42 Pa.C.S. Sections 9545(b)(1)(i), (ii), and (iii), is met. 42 Pa.C.S.

§ 9545.1 A PCRA petition invoking one of these statutory exceptions must

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1
    The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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.

(Footnote Continued Next Page)


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“be filed within 60 days of the date the claims could have been presented.”

See Hernandez, 79 A.3d 651-652 (citations omitted); see also 42 Pa.C.S.

§ 9545(b)(2). The petitioner seeking to file an untimely PCRA petition bears

the burden to allege and prove that one of the timeliness exceptions applies.

Commonwealth v. Whitehawk, 146 A.3d 266 (Pa. Super. 2016).

      Relative to the underlying appeal, this Court, in a prior decision,

determined that Appellant’s judgment of sentence became final on July 22,

1996, and Appellant “had one year from this date to file any petition for

collateral relief unless he pleaded and proved a timing exception applied.”

Commonwealth v. Bailey, 984 A.2d 1006 (Pa. Super. 2009) (unpublished

judgment order).        Because Appellant did not file the petition at issue until

December 4, 2014, it is untimely unless he has satisfied his burden of

pleading and proving that one of the enumerated exceptions applies.           See

Hernandez, 79 A.3d at 651.




                       _______________________
(Footnote Continued)

      (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).



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       In his petition, Appellant fails to explain why his untimely PCRA

petition should be exempted from the one-year filing period.            Within his

brief, Appellant summarizes his argument as follows:

       Appella[nt] is challenging that the abandonment of appellate
       counsel violated his constitutional rights to counsel in his first
       PCRA denying him ineffective assistance of counsel in which he is
       entitled to reinstatement of his appellate rights. The court
       sentence[d] petitioner to an illegal sentence base[d] on
       unconstitutional statutes and laws and that the Juvenile Act
       applies to his LWOP [that is, his sentence of life without parole]
       in violation of the Eighth Amendment that a child under (21)
       years is a delinquent and entitled to a hearing in juvenile court
       before adult court under a new substantial rule of constitutional
       law made retroactive.

Appellant’s Brief at 6.

       In the body of his argument, Appellant generally claims that he is

invoking the exceptions to the time bar of the PCRA at Section 9545(b)(ii)

(newly discovered evidence), and (iii) (newly recognized constitutional

right).   Appellant’s Brief at 7.        He also states that his “Nunc Pro Tunc

[petition] was filed within the statutory time restraints of (60) days set forth

in   §9545(b)(2).”        Id.     Appellant    then   references   Montgomery   v.

Louisiana, 136 S. Ct. 718 (2016),2 and claims that his life-without-parole

sentence is unconstitutionally invalid.          Appellant’s Brief at 8.   Finally,

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2
  Miller v. Alabama, 132 S. Ct. 2455 (2012), held that sentences of
mandatory life imprisonment without parole imposed upon juveniles who
were under the age of 18 at the time they committed murder were
unconstitutional; Montgomery v. Louisiana held that the application of
Miller v. Alabama is retroactive.



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Appellant contends that the PCRA court erred by failing to send him a copy

of the Rule 907 notice of intent to dismiss Appellant’s petition and failure to

file a Rule of Appellate Procedure 1925(a) opinion. Id. at 16.

       Appellant’s argument is undeveloped and meritless. First, he fails to

articulate or specify how and when, within the statutorily prescribed 60

days, he learned that he was entitled to relief which fell within an exception

to the PCRA’s time bar. We note that allegations of ineffective assistance of

counsel will not overcome the jurisdictional timeliness requirements of the

PCRA.    Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).

With regard to Appellant’s reference to Montgomery v. Louisiana and his

life without parole sentence, Appellant was 20 years old when he committed

murder.3 The right of juveniles not to be sentenced to lifetime incarceration

that was at issue in Montgomery does not apply to individuals who were 18

or older at the time they committed murder.         See Commonwealth v.

Furgess, 149 A.3d 90 (Pa. Super. 2016). Further, any deficiencies in the

PCRA court’s service of a Rule 907 notice or failure to file a Pa.R.A.P.

1925(a) opinion are not reversible error when the record is clear that the

petition is untimely. See, e.g., Commonwealth v. Ziegler, 148 A.3d 849

(Pa. Super. 2016).



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3
 Appellant was born on July 9, 1973, and fatally shot Michael Sayles on
May 5, 1994. Criminal Complaint, 5/5/94.



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      Because Appellant’s most recent petition is untimely and fails

sufficiently to plead and prove an exception to the PCRA time bar, Appellant

is not entitled to relief. We therefore affirm the order dismissing Appellant’s

PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2017




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