J. S51040/18


                              2018 PA Super 257

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
ERNEST NEDAB,                             :          No. 2350 EDA 2017
                                          :
                         Appellant        :


                   Appeal from the PCRA Order, June 28, 2017,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0617391-1982


BEFORE: DUBOW, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


OPINION BY FORD ELLIOTT, P.J.E.:                 FILED SEPTEMBER 18, 2018

        Ernest Nedab appeals pro se from the order filed in the Court of

Common Pleas of Philadelphia County that dismissed his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546.     Because we agree with the PCRA court that appellant’s facially

untimely petition failed to establish a statutory exception to the one-year

jurisdictional time limit for filing a petition under the PCRA, we affirm.

        The record reflects that due to offenses committed on April 25, 1982,

appellant was charged with burglary, rape, involuntary deviate sexual

intercourse, criminal conspiracy, and three counts of robbery.1         Appellant

was 17 years old at the time he committed the crimes.




1   18 Pa.C.S.A. §§ 3502, 3121, 3123, 903, and 3701, respectively.
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      On October 26, 1982, appellant entered an open guilty plea to the

charges. On December 14, 1982, the trial court sentenced appellant to an

aggregate term of 45 to 90 years of imprisonment. Appellant appealed to

this court, which affirmed on November 25, 1983.             Commonwealth v.

Nedab, 468 A.2d 851 (Pa.Super. 1983) (unpublished memorandum).

Appellant did not file a petition for allowance of appeal to the Supreme Court

of Pennsylvania.

      Between      1984   and   2012,    appellant   filed   four   petitions   for

post-conviction relief. The trial court denied all four. This court affirmed in

all four cases. Our supreme court denied appellant’s petition for allowance

of appeal when appellant petitioned for it.

      On March 21, 2016, appellant filed another PCRA petition and

challenged what he considered the de facto life without parole sentence

that he received. On February 22, 2017, the PCRA court issued a notice to

dismiss pursuant to Pa.R.Crim.P. 907.         On June 28 2017, the PCRA court

dismissed the petition:

            This second or subsequent petition was untimely
            filed and does not plead or prove any exception to
            the PCRA’s time-bar. In an attempt to establish the
            “newly-recognized constitutional right” exception,
            42 Pa.[C.S.A.] § 9545(b)(1)(iii), [appellant] invoked
            the new right announced in Graham v. Florida, 556
            U.S. 1220 (2009), and Miller v. Alabama, [567
            U.S. 460] (2012).      Although the United States
            Supreme Court in Montgomery v. Louisiana, 136
            S.Ct. 718 (2016), as revised (Jan. 27, 2016) ruled
            that Miller has retroactive effect in cases on state
            collateral review, [appellant] was neither convicted


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            of a homicide nor sentenced to life without parole,
            placing his sentence outside the reach of the
            Supreme Court’s Miller decision. Miller, 132 S.Ct.
            at 2460. [Appellant] failed, therefore, to invoke this
            exception, and his petition must be dismissed as
            untimely.

PCRA court opinion, 6/28/17, at 1 (footnote omitted).

      Appellant filed a notice of appeal on July 18, 2017. The PCRA court

did not order appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b) and did not file an opinion.

      Appellant raises the following issue for this court’s review:

            Whether [a]ppellant is entitled to PCRA relief as
            warranted by Graham v. Florida, 560 U.S. 48
            (2010), as interpreted and extended by the Superior
            Court of Pennsylvania in Commonwealth v. []
            Foust, [180 A.3d 416 (Pa.Super. 2018)]. In the
            instant case where [a]ppellant was a juvenile, and
            sentenced to a de facto life sentence, and at
            present is worse off than most offenders sentenced
            to life in prison without parole who have the benefits
            of the evolving standards of law and current
            scientific research, which establish that children are
            different from adults based upon their cognitive
            functions and other factors, should this court
            consider the decisions and reasoning from United
            States Court jurisprudence and apply it to
            [a]ppellant’s case under Pennsylvania and United
            States Constitutions?

Appellant’s brief at 2.

      Subsequent PCRA petitions beyond a petitioner’s first petition are

subject to the following standard:

            A second or subsequent petition for post-conviction
            relief will not be entertained unless a strong
            prima facie showing is offered to demonstrate that


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            a miscarriage of justice may have occurred.
            Commonwealth v. Allen, 732 A.2d 582, 586 (Pa.
            1999). A prima facie showing of entitlement to
            relief is made only by demonstrating either that the
            proceedings which resulted in conviction were so
            unfair that a miscarriage of justice occurred which no
            civilized society could tolerate, or the defendant’s
            innocence of the crimes for which he was charged.
            Id. at 586. Our standard of review for an order
            denying post-conviction relief is limited to whether
            the trial court’s determination is supported by
            evidence of record and whether it is free of legal
            error. Commonwealth v. Jermyn, 709 A.2d 849,
            856 (Pa. 1998).

            A PCRA petition, including a second or subsequent
            petition, must be filed within one year of the date
            that     judgment   of    sentence   becomes     final.
            42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes
            final for purposes of the PCRA “at the conclusion of
            direct review, including discretionary review in the
            Supreme Court of the United States and the
            Supreme Court of Pennsylvania, or the expiration of
            time for seeking the review.”         42 Pa.C.S.[A.]
            § 9543(b)(3). PCRA time limits are jurisdictional in
            nature, implicating a court’s very power to
            adjudicate a controversy. Commonwealth v. Fahy,
            737 A.2d 214 (Pa. 1999). Accordingly, the “period
            for filing a PCRA petition can be extended only if the
            PCRA permits it to be extended, i.e., by operation of
            one of the statutorily enumerated exceptions to the
            PCRA time-bar. Id. at 222.

Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,

135 S.Ct. 707 (2014). Before addressing appellant’s issues on the merits,

we must first determine if we have jurisdiction to do so.

      As noted above, a PCRA petitioner has one year from the date his or

her judgment of sentence becomes final in which to file a PCRA petition.

This court has held the following regarding when a judgment becomes final:


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           The plain language of the PCRA provides that a
           judgment of sentence becomes final at the
           conclusion of direct review or when the time seeking
           direct review expires.            See 42 Pa.C.S.A.
           § 9545(b)(3).     In fixing the date upon which a
           judgment of sentence becomes final, the PCRA does
           not refer to the conclusion of collateral review or the
           time for appealing a collateral review determination.
           Thus, the plain language of the PCRA statute shows
           that a judgment of sentence becomes final
           immediately upon expiration of the time for seeking
           direct review, even if other collateral proceedings are
           still ongoing.     As this result is not absurd or
           unreasonable, we may not look for further
           manifestations     of   legislative   intent.      See
           Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa.
           2013) (internal quotation marks omitted) (We may
           “look beyond the plain language of the statute only
           when words are unclear or ambiguous, or the plain
           meaning would lead to a result that is absurd,
           impossible of execution, or unreasonable.”).

Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014).

     In   the   instant   case,   the   trial   court   sentenced   appellant    on

December 14, 1982. Appellant filed a direct appeal to this court. This court

affirmed the judgment of sentence on November 25, 1983.             Appellant did

not petition for allowance of appeal with the Supreme Court of Pennsylvania.

His judgment of sentence became final on December 27, 1983.2                    See




2 Because December 25, 1983, was a Sunday and December 26, 1983, was
a court holiday, appellant had until December 27, 1983, to file a petition for
allowance of appeal. See 1 Pa.C.S.A. § 1908.


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Pa.R.A.P. 1113.       Appellant filed the current PCRA petition on March 21,

2016, more than 32 years after judgment became final and more than

31 years after a PCRA petition could be considered timely. See 42 Pa.C.S.A.

§ 9545(b)(1).

      As noted above, the PCRA does enumerate exceptions to the one-year

time limit.    A petitioner must plead and prove that he meets one of the

following exceptions to the time requirement:

              (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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).       Section 9545 also mandates that any

petition filed under these exceptions must be filed within 60 days of the date

the claim could have been presented. Id. at § 9545(b)(2).

      Here, appellant asserts that he comes under the newly recognized

constitutional right exception contained in 42 Pa.C.S.A. § 9545(b)(1)(iii). In

his petition, appellant challenged what he considered to be a de facto life


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sentence without parole.      For support of his position, appellant cited

Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460

(2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016).                   In

Graham, the Supreme Court of the United States held that life sentences

without the possibility of parole for juvenile non-homicide offenders violated

the prohibition against cruel and unusual punishment contained in the Eighth

Amendment to the United States Constitution. Graham, 560 U.S. at 74. In

Miller, the Supreme Court of the United States held statutory schemes,

which imposed a mandatory life sentence without possibility of parole for

certain homicide convictions, constituted cruel and unusual punishment in

the case of juvenile homicide offenders.     The Supreme Court held that a

juvenile homicide defendant could only be sentenced to life without

possibility of parole if he or she is determined to be permanently incorrigible,

irreparably corrupt, or irretrievably depraved. Miller, 567 U.S. at 471, 473,

479-480.   In Montgomery, the Supreme Court of the United States held

that Miller applied retroactively to cases on collateral review. Montgomery

136 S.Ct. at 732-737.

      None of these cases directly applies to appellant’s situation.     He did

not receive a life sentence or commit a homicide. Appellant in his brief cites

the recent case of Commonwealth v. Foust, 180 A.3d 416 (Pa.Super.

2018). In Foust, the defendant was sentenced to two consecutive terms of

30 years to life for two first-degree murder convictions for an aggregate



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sentence of 60 years to life. Id. at 421. The defendant appealed. One of

the issues he raised was whether it was unconstitutional to impose a

sentence of 60 years of imprisonment to life, which he considered a

de facto life sentence without possibility of parole on a juvenile without a

finding that the juvenile is permanently incorrigible, irreparably corrupt, or

irretrievably depraved. Id. This court held that a trial court may not impose

a term-of-years sentence on a juvenile convicted of homicide if that

sentence is equivalent to a de facto life without possibility of parole

sentence, unless the trial court finds, beyond a reasonable doubt, that the

juvenile is incapable of rehabilitation. Id. at 433. This court also held that

de facto life sentences are cruel and unusual punishment when imposed on

juveniles convicted of non-homicide offenses or juvenile homicide offenders

capable of rehabilitation.     Furthermore, when determining whether a

sentence is a de facto life sentence, this court held that the individual

sentences must be examined rather than the aggregate sentence.           Id. at

434.

       Appellant argues that because Miller and Graham have been held to

be applicable to cases on collateral review, then Foust should be as well.

However, under 42 Pa.C.S.A. § 9545(b)(1)(iii), in order for a new

constitutional right to apply retroactively for purposes of the PCRA, this right

must be recognized by either the United States Supreme Court or our

Supreme Court and has been held by that court to apply retroactively.



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Appellant does not cite any United States or Pennsylvania Supreme Court

cases that have held that the holding of Foust applies retroactively.3

      Appellant has not successfully pled or proved that he meets the

exception to the timeliness requirements of the PCRA.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 9/18/18




3 Furthermore, the longest individual sentence that appellant received was
for 10 to 20 years. Since the aggregate sentence must be broken down into
the individual sentences under Foust, there is no way that a 10 to 20-year
sentence would constitute a de facto sentence of life without the possibility
of parole.


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