Com. v. Nedab, E.

J-S55024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

ERNEST NEDAB, :

:

Appellant : No. 3307 EDA 2013

Appeal from the PCRA Order Entered November 1, 2013,

In the Court of Common Pleas of Philadelphia County,

Criminal Division, at No. CP-51-CR-0617391-1982.

BEFORE: BOWES, SHOGAN and OTT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 22, 2014

Appellant, Ernest Nedab, appeals pro se from the order denying his

fourth petition for collateral relief filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.1

The relevant facts and procedural history of this matter were set forth

by the PCRA court as follows:

On October 26, 1982, Petitioner entered an open plea to

criminal conspiracy, rape, involuntary deviate sexual intercourse,

burglary, and three counts of robbery. The trial court sentenced

him to forty-five to ninety years imprisonment. Petitioner

appealed, and the Superior Court affirmed the judgment of

1

On April 1, 2014, Appellant filed a pro se motion with this Court to

supplement his PCRA petition. Upon review of the motion, it appears that

Appellant’s filing is in fact, a motion to supplement his appellate brief.

Insofar as it may be considered a motion to supplement his brief, we

GRANT Appellant’s motion, and we shall consider it in our disposition of this

appeal.

J-S55024-14

sentence on November 25, 1983. Petitioner did not seek review

in the Pennsylvania Supreme Court.

On November 1, 1984, Petitioner filed a timely PCRA

petition, which the court dismissed. On April 28, 2005, he filed a

second PCRA petition, which the court dismissed as untimely.

The Superior Court affirmed the dismissal on August 18, 2008.

On March 26, 2010, Petitioner filed a Petition for Writ of

Habeas Corpus. Upon review, it was treated as a PCRA petition

and dismissed as untimely on May 26, 2011. Petitioner filed an

appeal, and the Superior Court affirmed the dismissal on

November 15, 2011. Our Supreme Court denied allocatur on May

17, 2012.

Petitioner filed the instant PCRA petition, his fourth, on

August 21, 2012. After conducting an extensive and exhaustive

review of these filings, the record and applicable case law, the

Honorable Judge Woods-Skipper found that Petitioner’s petition

for post conviction collateral relief was untimely filed and thus,

this Court did not have jurisdiction to consider Petitioner’s fourth

PCRA petition.

PCRA Court Opinion, 1/6/14, at 1-2 (footnote omitted).

In this appeal, Appellant raises the following issues, which are set

forth, verbatim, as follows:

I. Whether the Court below erred when it when contrary to

clearly established Federal and State Law when it dismissed

Petitioner’s PCRA Petition as untimely filed when in fact,

Petitioner had filed his PCRA Petition tiemly based on Newly

Discovered Evidence Pursuant to Title 42 Pa. C.S. §9545(b)(i)(ii)

(newly discovered facts exception), based on Miller v. Alabama,

No. 10-9646, 123 S.Ct. 2455 (2012), Commonwealth v.

Williams, No. 2862 EDA 2013. And McQuiggin v. Perkins, U.S.,

No. 12-126, 5/28/13 Also based upon the exceptions to the Law

of the Case Doctrine and coordinated Jurisdiction Rule.

II. Whether the Court below erred in it’s abuse of discretion

when sentencing Appellant to a disparity of sentence that is

-2-

J-S55024-14

greater than co-defenant Opher’s sentence who was the principle

person in the crimes and received a lesser (suspended) sentence

to the charges in this case. And whether the sentencing Court

ignored or misapplied the law by failing to state on the record

it’s reason for sentencing Appellant outside of the sentencing

guidelines.

Appellant’s Brief at 1.

Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s decision is free of legal error. Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 A.2d

479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be disturbed

unless there is no support for them in the certified record. Id. (citing

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001)).

We must first address whether Appellant satisfied the timeliness

requirements of the PCRA. The timeliness of a PCRA petition is a

jurisdictional threshold and may not be disregarded in order to reach the

merits of the claims raised in a PCRA petition that is untimely.

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). Effective

January 16, 1996, the PCRA was amended to require a petitioner to file any

PCRA petition within one year of the date the judgment of sentence becomes

final. 42 Pa.C.S. § 9545(b)(1). A judgment of sentence “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,

-3-

J-S55024-14

or at the expiration of time for seeking the review.” 42 Pa.C.S.

§ 9545(b)(3). Where a petitioner’s judgment of sentence became final on or

before the effective date of the amendment, a special grace proviso allowed

first PCRA petitions to be filed by January 16, 1997. See Commonwealth

v. Alcorn, 703 A.2d 1054, 1056-1057 (Pa. Super. 1997) (explaining

application of PCRA timeliness grace proviso).

However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), are met.2 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented.

42 Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the

2

The exceptions to the timeliness requirement 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

(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)(i), (ii), and (iii).

-4-

J-S55024-14

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

Our review of the record reflects that Appellant’s judgment of sentence

became final on December 25, 1983, thirty days after this Court affirmed his

judgment of sentence and the time for filing a petition for allowance of

appeal with the Pennsylvania Supreme Court expired. 42 Pa.C.S.

§ 9545(b)(3); Pa.R.A.P. 1113. Accordingly, Appellant’s judgment of

sentence became final prior to the effective date of the PCRA amendments.

However, Appellant’s instant PCRA petition, filed on August 21, 2012, does

not qualify for the grace proviso as it was neither Appellant’s first PCRA

petition, nor was it filed before January 16, 1997. Thus, the instant PCRA

petition is patently untimely.

In his first issue, Appellant seeks to invoke the newly discovered facts

exception set forth in 42 Pa.C.S. § 9545(b)(1)(ii). To this end, Appellant

contends that the PCRA court erred in not applying the United States

Supreme Court’s decision in Miller v. Alabama, 132 S.Ct. 2455 (2012). In

Miller, the Court held that sentencing a juvenile convicted of a homicide

offense to a mandatory term of imprisonment for life without the possibility

of parole violates the Eighth Amendment’s prohibition on cruel and unusual

punishment. However, while Appellant was seventeen years old at the time

-5-

J-S55024-14

he committed the aforementioned crimes, the holding in Miller was limited

to defendants who were juveniles at the time they committed a homicide.

In the case at bar, Appellant was not charged with or convicted of a

homicide offense, and he did not receive a sentence of life without the

possibility of parole. Thus, Miller is clearly inapposite.3

Appellant has also cited Commonwealth v. Williams, 69 A.3d 735

(Pa. Super. 2013), McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), and in

his supplemental brief, Vosgien v. Persson, 742 F.3d 1131 (9th Cir. 2014),

as support for his assertion that the underlying PCRA petition should be

deemed timely. However, none of these cases entitles Appellant to relief.

Williams was a case in which the appellant challenged the

discretionary aspects of a sentence on direct appeal to this Court. Nothing

in Williams provides, or even mentions, a basis upon which to toll the PCRA

timing requirements. Moreover, both McQuiggin and Vosgien dealt with

federal habeas corpus procedural rules concerning the time for filing habeas

corpus petitions in federal courts. Neither case addressed substantive

constitutional issues that could be construed as satisfying an exception to

the PCRA time bar. In McQuiggin, the Supreme Court held that a claim of

actual innocence could, in some instances, overcome the time bar for federal

3

Additionally, our Supreme Court held that Miller does not apply

retroactively on collateral review. Commonwealth v. Cunningham, 81

A.3d 1, 10 (Pa. 2013).

-6-

J-S55024-14

habeas corpus relief. McQuiggin, 133 S.Ct. at 1935. In Vosgien, a case

with no precedential value to this Court,4 the Ninth Circuit Court of Appeals

similarly held that actual innocence could overcome the time bar for federal

habeas corpus relief. However, nowhere did either of these cases address

state-court collateral proceedings or substantive constitutional law.

Accordingly, neither of those cases announced a new rule of law pursuant to

42 Pa.C.S. § 9545(b)(1)(iii), nor do they constitute newly discovered

evidence under 42 Pa.C.S. § 9545(b)(1)(ii). See Commonwealth v.

Watts, 23 A.3d 980, 986 (Pa. 2011) (holding that judicial decisions do not

qualify as a previously unknown facts capable of satisfying the timeliness

exception set forth in section 9545(b)(1)(ii) of the PCRA as 9545(b)(1)(ii)

applies only if the petitioner has uncovered facts that could not have been

ascertained through due diligence, and judicial determinations are not facts).

Accordingly, Appellant has failed to establish an exception that would

permit the PCRA court to address the merits of his untimely fourth PCRA

petition.5 Because the instant PCRA petition was untimely and no exceptions

apply, the PCRA court lacked jurisdiction to address the claims presented

4

Decisions from the federal courts are not binding on Pennsylvania state

courts. Commonwealth v. Lambert, 765 A.2d 306, 315 n.4 (Pa. Super.

2000).

5

Because Appellant has failed to plead and prove any exception to the PCRA

time bar, we will not address Appellant’s second issue.

-7-

J-S55024-14

and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa.

Super. 2002) (holding that the PCRA court lacks jurisdiction to hear an

untimely petition). Likewise, we lack jurisdiction to reach the merits of the

appeal. See Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa.

Super. 2002) (holding that the Superior Court lacks jurisdiction to reach the

merits of an appeal from an untimely PCRA petition).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/2014

-8-