J-S09026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

MARCEL J. COOK,

                         Appellant                    No. 1213 WDA 2014


                 Appeal from the PCRA Order June 24, 2014
             In the Court of Common Pleas of Allegheny County
 Criminal Division at No(s): CP-02-CR-0000391-1986, CP-02-CR-530-1986


BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                        FILED FEBRUARY 10, 2015

      Marcel J. Cook appeals pro se from the June 24, 2014 order dismissing

his eleventh post-conviction relief petition as untimely. We affirm.

      On July 22, 1986, Appellant entered a negotiated guilty plea to

second-degree    murder    and   robbery   charges,   which   arose    from   the

December 30, 1985 shooting of Donald Stoker by Appellant’s accomplice.

The court imposed a mandatory term of life imprisonment for the murder

conviction and no additional penalty on the robbery count.            Thereafter,

Appellant attempted unsuccessfully to withdraw his guilty plea on several

occasions, and repeatedly sought both PCRA and habeas relief through serial

petitions. The instant pro se petition was filed on July 6, 2012. The court
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appointed attorney William Kaczynski to represent Appellant. Counsel filed a

Turner/Finley1 no-merit letter on November 12, 2013, and sought

permission to withdraw as counsel, which was granted.                Appellant

subsequently sought and received leave to amend his petition to seek

habeas corpus relief.         On February 4, 2014, Appellant filed a pro se

Amended Petition for Writ of Habeas Corpus claiming that his sentence for a

crime committed when he was nineteen years of age violated the Eighth

Amendment’s prohibition against cruel and unusual punishment.               The

Commonwealth complied with the court’s order to file an answer. On June

12, 2014, the court issued notice of its intent to dismiss the petition without

a hearing pursuant to Pa.R.Crim.P. 907. Appellant timely filed an answer,

but the court denied the petition as time barred by order dated June 25,

2014. This appeal followed.

        Appellant raises three issues on appeal.2 Preliminarily, he challenges

the trial court’s dismissal of his petition on timeliness grounds and asserts

____________________________________________


1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
2
    Appellant’s issues as presented verbatim in his brief are:

        1.    Did the PCRA Court error by dismissing all claims raised as
        [b]eing, [t]ime-barred, pursuant to Rule 907? where there is
        "NO" remedy under the Post-Conviction Relief Act, to the extent
        appellant's Federal, or State Constitutional claims are not
        cognizable under the PCRA. Appellant has a remedy under the
        Pennsylvania's Habeas Corpus Statute. 42 Pa. 42 C.S.A. §6501
(Footnote Continued Next Page)


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that it was properly filed as a habeas petition.     We note that the Post-

Conviction Relief Act is intended to “provide the sole means for obtaining

collateral review and relief, encompassing all other common law rights and

remedies, including habeas corpus.” Commonwealth v. Lantzy, 736 A.2d

564, 569 (Pa. 1999). Thus, Appellant’s habeas petition was properly treated

as a PCRA petition, and we will treat it as such. Commonwealth v. Taylor,

65 A.3d 462 (Pa.Super. 2013) (petitioner cannot escape time-bar by labeling

petition a writ of habeas corpus).

      In addition, Appellant asserts that the trial court erred in finding his

PCRA petition untimely as the timeliness exceptions for newly-recognized

constitutional rights and newly-discovered facts were applicable. Finally, he

                       _______________________
(Footnote Continued)

      et esq. When reviewing a claim              under   Pennsylvania's
      Constitution Article 1 Section 14.

      2. Did the PCRA Court error by not ruling Appellant's sentence
      under Pa.C.S. §1102, and §9711 as an illegal sentence based
      on, Alleyne V. United States, 113 S. ct. 2151 (2013), in which
      the Appellant invoked the exception to, 42 Pa. C.S.A.
      9545(b)(1)(ii)-(iii)? Because the facts that permitted application
      of that mandatory sentence were not determined, by the
      factfinder, nor proven beyond a reasonable doubt by a jury of
      the Appellant's peers?

      3. Did the PCRA Court error by accepting Commonwealth's
      District Attorney and/or Assistant D.A. Ronald M. Wably, Sr.;
      untimely response, after Appellant's objected default judgment
      against Commonwealth's untimely response to Appellant's
      Amended for want of State was of Habeas Corpus in violation of
      Appellant's Sixth & Fourteenth Amendment right to fair court
      proceedings and •right to Due Process?



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registers some objection to the trial court’s acceptance of an allegedly

untimely response from the Commonwealth, which he neither explains nor

argues in his brief.

      Our standard and scope of review for the denial of a PCRA petition is

well-settled.

      [A]n appellate court reviews the PCRA court's findings of fact to
      determine whether they are supported by the record, and
      reviews its conclusions of law to determine whether they are free
      from legal error. The scope of review is limited to the findings of
      the PCRA court and the evidence of record, viewed in the light
      most favorable to the prevailing party at the trial level.

Commonwealth v. Freeland, __A.3d. __, 2014 WL 6982658, 4 (Pa.Super.

2014).

      Appellant’s first and second arguments pertain to the timeliness of his

petition and implicate our jurisdiction. In order for a collateral petition to be

timely under the PCRA, it must be filed within one year of the date when the

petitioner’s judgment of sentence became final.      42 Pa.C.S. § 9545(b)(1).

Appellant’s petition, filed almost twenty-five years after his sentence became

final, is patently untimely. However, there are three exceptions to the time-

bar of the PCRA.       Those exceptions include interference by government

officials, newly-discovered facts that were unknown to the petitioner and

which could not have been ascertained with due diligence, or a new

constitutional right held to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(i-

iii). Any claim based on an exception to the time-bar must be filed within

sixty days of the date it could have first been presented.

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       Appellant first asserts that his petition is timely as his claim falls within

the timeliness exception for newly-recognized constitutional rights.             He

bases his right to relief upon Miller v. Alabama, 132 S.Ct. 2455 (decided

June 25, 2012), in which the United States Supreme Court held that

mandatory life sentences without parole for juveniles violated the Eighth

Amendment. Appellant claims that the instant petition, which was filed on

July 6, 2012, was filed within the requisite sixty-day statutory period.

Although he admittedly was not a juvenile 3 at the time of the offenses,

Appellant asserts that the chronic abuse he suffered throughout his

childhood delayed his physical maturity, and that it would be a violation of

the Equal Protection clause of the Fourteenth Amendment not to extend

Miller to him on the facts herein.

       The Commonwealth counters that Appellant failed to plead or prove

the applicability of any of the exceptions to the time-bar. It contends that

Miller is inapplicable because Appellant was not a juvenile, but twenty-five

years old at the time he committed the offenses. His contention that Miller

should be extended due to his delayed maturity and history of abuse was

rejected in Commonwealth v. Cintora, 81 A.3d 75 (Pa. 2013) (holding

that claim by appellants, who were nineteen and twenty-one years of age
____________________________________________


3
 Appellant claims that he was nineteen years of age when he committed the
underlying offenses; the Commonwealth maintains that he was twenty-five
years old, which is supported by the record. Regardless, Appellant was an
adult.



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respectively, that Miller should be extended to “those whose brains were

not fully developed at the time of their crimes,” does not qualify as an

exception under 42 Pa.C.S. § 9545(b)(1)(iii)).

      We find Appellant’s reliance upon Miller to circumvent the PCRA time-

bar to be misplaced. The Supreme Court held in Miller that “mandatory life

without parole for those under the age of eighteen at the time of their

crimes violates the Eighth Amendment’s prohibition on cruel and unusual

punishments.”    Miller, 132 S.Ct. at 2460 (quotations omitted).      Thus, it

clearly does not apply to Appellant who was an adult when the offenses were

committed. Furthermore, we held in Cintora, supra, that arguments such

as Appellant’s herein, seeking to extend the Miller rationale to adults, did

not constitute an exception to the PCRA’s time bar.

      Appellant’s second basis for avoiding the time-bar fares no better. He

claims in his statement of the question presented that the United States

Supreme Court decision in Alleyne v. United States, 113 S.Ct. 2151

(2013), constituted a newly-discovered fact or a new constitutional right for

purposes of the timeliness exceptions in 42 Pa.C.S. § 9545(b)(1)(ii) and (iii).

Appellant does not present or develop any argument in his brief in support of

his argument, and thus, it is technically waived. However, absent waiver,

the argument fails.   A judicial opinion is not a newly-discovered fact for

purposes of 42 Pa.C.S. § 9545(b)(1)(ii).    See Commonwealth v. Watts,

23 A.3d 980 (Pa. 2011); Commonwealth v. Robinson, 12 A.3d 477


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(Pa.Super. 2011). Moreover, even assuming that Alleyne announced a new

constitutional right, since neither the United States Supreme Court nor the

Pennsylvania Supreme Court have held that Alleyne is to be retroactively

applied to cases on collateral review, it does not meet the requirements for a

timeliness exception pursuant to 42 Pa.C.S. § 9545(b)(1)(iii).           See

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014).

     Hence, the PCRA court properly dismissed the within petition as

untimely.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2015




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