J-S28038-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                  Appellee                 :
          v.                               :
                                           :
ROBERT MICKENS,                            :
                                           :
                  Appellant                :   No. 1662 WDA 2016

                 Appeal from the PCRA Order September 22, 2016,
                in the Court of Common Pleas of Allegheny County,
               Criminal Division, at No(s): CP-02-CR-0002554-1995
                                            CP-02-CR-0015959-1994

BEFORE:        OLSON, MOULTON, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                        FILED JUNE 23, 2017

      Robert Mickens (Appellant) appeals from the September 22, 2016

order which denied his petition for relief filed pursuant to the Post Conviction

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

      In May 1995, Appellant was found guilty of, inter alia, first-degree

murder in connection with the shooting death of John Williams.        Appellant

was 24 years old at the time of the shooting. On May 15, 1995, Appellant

was sentenced to life imprisonment. On direct appeal, this Court affirmed

Appellant’s judgment of sentence on July 22, 1998.        Commonwealth v.

Mickens, 724 A.2d 958 (Pa. Super. 1998) (unpublished memorandum).

Appellant’s first PCRA petition was dismissed in 2000, and Appellant’s appeal

resulted in no relief.    Commonwealth v. Mickens, 792 A.2d 616 (Pa.

Super. 2001) (unpublished memorandum), appeal denied, 796 A.2d 980


*Retired Senior Judge assigned to the Superior Court.
J-S28038-17


(Pa. 2002). Appellant filed his second PCRA petition in 2006, the PCRA court

dismissed it without a hearing, and the subsequent appeal was unsuccessful.

Commonwealth v. Mickens, 945 A.2d 765 (Pa. Super. 2007) (unpublished

memorandum), appeal denied, 952 A.2d 676 (Pa. 2008).

      On March 29, 2016, Appellant filed his third PCRA petition, which is the

subject of this appeal. The PCRA court appointed counsel, who subsequently

was permitted to withdraw under Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) (en banc).     After giving notice of its intent to dismiss the petition

without a hearing pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed

the petition by order of September 22, 2016.

      Appellant timely filed a notice of appeal, and both Appellant and the

PCRA court complied with Pa.R.A.P. 1925. On appeal, Appellant raises two

substantive claims for relief. Appellant’s Brief at i.

      Before we may consider the merits of Appellant’s claims, we must

determine whether his PCRA petition was timely filed, as the timeliness of a

post-conviction petition is jurisdictional.   Commonwealth v. Robinson, 12

A.3d 477, 479 (Pa. Super. 2011).       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 of sentence is final unless the petition alleges,

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

is met. 42 Pa.C.S. § 9545.


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      It is clear that Appellant’s petition is facially untimely: his judgment of

sentence became final in 1998. However, Appellant alleges that his petition

is based upon a change in the law, referencing Miller v. Alabama, 567 U.S.

460, 132 S. Ct. 2455 (2012); Montgomery v. Louisiana, 136 S.Ct. 718

(2016); and People v. House, 72 N.E.3d 357 (Ill. App. 2015). Appellant’s

Brief at 6.   Thus, it appears that Appellant is alleging that the following

timeliness exception applies: “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).

      In Miller, the Court held that the application of mandatory sentences

of life imprisonment without possibility of parole to individuals who were

juveniles at the time they committed homicides was unconstitutional.

Miller, 567 U.S. at __, 132 S. Ct. at 2464.       In Montgomery, the Court

determined that Miller announced a new substantive rule of law that applies

retroactively. Montgomery, 136 S. Ct. at 736.

      Appellant was not a juvenile at the time of Williams’s murder; rather,

he was 24 years old.        Accordingly, Miller and Montgomery are not

applicable to Appellant’s petition.   See Commonwealth v. Furgess, 149

A.3d 90, 94 (Pa. Super. 2016) (“[P]etitioners who were older than 18 at the

time they committed murder are not within the ambit of the Miller decision




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and therefore may not rely on that decision to bring themselves within the

time-bar exception in Section 9545(b)(1)(iii).”).

        In House, the Illinois appellate court held that application of a

sentence of life without parole imposed upon House, who was 19 years old

and only served as a lookout for the perpetrators of the murders, constituted

a violation of the proportionate penalties clause of the Illinois constitution.

House, 72 N.E.3d at 389.

        As stated above, the timeliness exception codified in subsection

9545(b)(1)(iii) applies to new rights recognized by either the United States

Supreme Court or the Pennsylvania Supreme Court. It does not apply to the

grant    of   an   Illinois-state-constitution-based   challenge    by   the   Illinois

intermediate appellate court.       Hence, Appellant cannot utilize the House

decision to meet a timeliness exception.

        Because Appellant did not plead facts that would establish an

exception to the PCRA’s timeliness requirements, the PCRA court properly

dismissed     Appellant’s    petition   without   holding    a     hearing.       See

Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming

dismissal of PCRA petition without a hearing because the appellant failed to

meet burden of establishing timeliness exception).

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 6/23/2017




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