J-S90014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ALEXIS MALDONADO                           :
                                               :
                      Appellant                :   No. 1756 EDA 2016

                   Appeal from the PCRA Order May 2, 2016
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0001757-2003,
              CP-09-CR-0001758-2003, CP-09-CR-0001759-2003



BEFORE: OTT, SOLANO, and JENKINS, JJ.

MEMORANDUM BY OTT, J.:                                 FILED January 13, 2017

        Alexis Maldonado appeals, pro se, from the order entered May 2,

2016, in the Bucks County Court of Common Pleas, dismissing, as untimely

filed, his third petition for collateral relief filed pursuant to the Post

Conviction Relief Act (“PCRA”).1 Maldonado seeks relief from the aggregate

term of life imprisonment imposed on September 20, 2004, following his

non-jury conviction of, inter alia, second-degree murder, robbery, and

conspiracy,2 for a December 2002, home invasion.           On appeal, Maldonado

asserts the PCRA court erred in dismissing his petition as untimely filed

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1
    42 Pa.C.S. §§ 9543-9546.
2
    See 18 Pa.C.S. §§ 2502, 3702, and 903, respectively.
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because he was subject to an unconstitutional sentence of life imprisonment

without the possibility of parole. For the reasons below, we affirm.

       The facts underlying Maldonado’s conviction are well known to the

parties, and were summarized by this Court in the memorandum decision

affirming Maldonado’s sentence on direct appeal.3 Therefore, we need not

reiterate them herein. In summary, Maldonado and a co-conspirator robbed

five men in their home at gunpoint, and during a struggle, one of the men

was shot and killed.         Maldonado was later arrested and charged with

numerous       offenses     including    second-degree       murder,     robbery    and

conspiracy.      Following a non-jury trial, both Maldonado and his co-

conspirator were convicted of all charges. On September 20, 2004, the trial

court sentenced Maldonado to a term of life imprisonment without parole for

the conviction of second-degree murder, and three consecutive terms of five

to ten years’ imprisonment for the robbery offenses. No further punishment

was imposed on the remaining counts.

       Maldonado’s judgment of sentence was affirmed on direct appeal, and

the Pennsylvania Supreme Court denied his petition for review.                      See

Commonwealth           v.   Maldonado,         897   A.2d   519   (Pa.   Super.    2006)

(unpublished memorandum), appeal denied, 902 A.2d 1240 (Pa. 2006). On

July 9, 2007, he filed a timely PCRA petition, which the court denied.                A

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3
 See Commonwealth v. Maldonado, 897 A.2d 519 [773 EDA 2005] (Pa.
Super. 2006) (unpublished memorandum at 1-7).



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panel of this Court affirmed the order on appeal. See Commonwealth v.

Maldonado, 965 A.2d 298 (Pa. Super. 2008).

       Thereafter, on July 29, 2015, Maldonado filed a second PCRA petition,

which the court promptly denied as untimely filed. Undaunted, on March 28,

2016, Maldonado filed the present petition, his third, in which he argued his

sentence of life imprisonment without the possibility of parole was illegal

pursuant to the United States Supreme Court’s decision in Montgomery v.

Louisiana, 136 S.Ct. 718 (U.S. 2016). On April 11, 2016, the PCRA court

issued notice of its intent to dismiss the petition without conducting an

evidentiary hearing pursuant to Pa.R.Crim.P. 907. When Maldonado failed to

respond to the Rule 907 notice, the court entered an order dismissing the

petition on May 2, 2016. This timely appeal follows.4

       When reviewing an order dismissing a PCRA petition, we must

determine whether the ruling of the PCRA court is supported by record

evidence and is free of legal error.           Commonwealth v. Burkett, 5 A.3d

1260, 1267 (Pa. Super. 2010). “Great deference is granted to the findings

of the PCRA court, and these findings will not be disturbed unless they have




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4
  On June 7, 2016, the PCRA court ordered Maldonado to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Maldonado complied with the court’s directive, and filed a concise statement
on June 27, 2016.




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no support in the certified record.”           Commonwealth v. Carter, 21 A.3d

680, 682 (Pa. Super. 2011) (citation omitted).

       Here, the PCRA court concluded Maldonado’s petition was untimely

filed. See PCRA Court Opinion, 7/22/2016, at 4-7.

       The PCRA’s timeliness requirements are jurisdictional; therefore,
       a court may not address the merits of the issues raised if the
       petition was not timely filed. The timeliness requirements apply
       to all PCRA petitions, regardless of the nature of the individual
       claims raised therein.

Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012) (citations omitted).

       A PCRA petition must be filed within one year of the date the judgment

of sentence becomes final.          See 42 Pa.C.S. § 9545(b)(1).    Maldonado’s

judgment of sentence was final on October 10, 2006, 90 days after the

Pennsylvania Supreme Court denied his petition for allowance of appeal from

his direct appeal,5 and he failed to petition for a writ of certiorari in the

United States Supreme Court.             See id. at § 9545(b)(3); United States

Supreme Court Rule 13. Therefore, Maldonado had until October 10, 2007,

to file a timely petition, and the one before us, filed more than eight years

later, is patently untimely.

       However, the PCRA provides that an otherwise untimely petition is not

time-barred if a petitioner pleads and proves the applicability of one of three
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5
  The 90th day, Monday, October 9, 2006, was Columbus Day, a federal
holiday. Therefore, Maldonado had until Tuesday, October 10, 2006, to file
a petition for certiorari in the Supreme Court. See 1 Pa.C.S. § 1908.




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time-for-filing exceptions:    (1) interference by government officials, (2)

newly discovered evidence, or (3) a newly-recognized constitutional right

which had been applied retroactively. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

Any petition invoking one of these exceptions must be filed “within 60 days

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

      Here, Maldonado claims that his petition meets the newly-recognized

constitutional right exception.   Specifically, he contends his life sentence

without the possibility of parole is unconstitutional under Miller v.

Alabama, 132 S.Ct. 2455 (U.S. 2012), and Montgomery, supra.

      In Miller, the United States Supreme Court held “mandatory life

without parole for those under the age of 18 at the time of their crimes

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

punishments.’”    Miller, 132 S.Ct. at 2460 (emphasis supplied).            Although

the Court made clear that it was not foreclosing a trial court’s ability to

impose a life sentence upon a juvenile convicted of murder, it imposed a

requirement upon the trial court to “take into account how children are

different, and how those differences counsel against irrevocably sentencing

them to a lifetime in prison.” Id. at 2469. Therefore, it was the mandatory

sentencing scheme that the Supreme Court deemed unconstitutional when

applied to juveniles, holding that “a judge or jury must have the opportunity

to consider mitigating circumstances before imposing the harshest possible

penalty for juveniles.”    Id. at 2475.   Thereafter, in Montgomery, supra,

the Supreme Court held that its decision in Miller “announced a substantive

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rule of constitutional law” which should be given retroactive effect to cases

on state collateral review.           Montgomery, supra, 136 S.Ct. at 736.

Maldonado maintains he filed his present petition within 60 days of the

Montgomery decision, and, consequently, his illegal sentence should be

vacated. See Maldonado’s Brief at 9.

       Although we agree Maldonado filed his petition within 60 days of the

Montgomery decision,6 neither the holding of Montgomery nor Miller

provides him with relief because Maldonado was 19 years old on the date he

committed the crime. Our review of the record reveals Maldonado was born

on February 21, 1983; therefore, in December of 2002, at the time he

committed the offenses at issue, he was 19 years and 10 months old. The

Miller Court specifically limited its holding to defendants who were “under

the age of 18 at the time of their crimes.” Miller, supra, 132 S.Ct. at 2460.

       Maldonado contends, however, this Court should extend the holding of

Miller to those who are under 20 years old at the time they commit the

offenses in question. See Maldonado’s Brief at 7-9. He claims the United
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6
  The Montgomery decision was filed on January 27, 2016. Therefore,
Maldonado had to file his petition by March 23, 2016, in order to meet the
60-day requirement of Section 9545(b)(2). Although the PCRA petition
herein is time-stamped March 28, 2016, we note that attached to the
petition is the mailing envelope which bears a date stamp of March 21,
2016. Accordingly, because the record demonstrates Maldonado placed the
petition in the prison mail within the requisite 60-day period, pursuant to the
prisoner mailbox rule, we conclude the petition was timely filed. See
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997).




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States Supreme Court in Miller and Montgomery, “made it clear that a

person’s brain does not finish developing until a person is in their mid-20’s.”

Id. at 7.

       This argument was recently considered and rejected by a panel of this

Court in Commonwealth v. Furgess, 149 A.3d 90, ___, 2016 PA Super

219, *2 (Pa. Super. September 28, 2016). The Furgess panel, relying on

this Court’s prior holding in Commonwealth v. Cintora, 69 A.3d 759 (Pa.

Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013), explicitly held “that

petitioners who were older than 18 at the time they committed murder are

not within the ambit of the Miller decision and therefore may not rely on

that decision to bring themselves within the time-bar exception in Section

9545(b)(1)(iii).” Furgess, supra, 149 A.3d at ___, 2016 PA Super 219, at

*3.     Moreover, the Furgess Court found “nothing in Montgomery

undermines” this holding in Cintora.7            Id.   Accordingly, Maldonado, who

was 19 years old at the time he committed second-degree murder, is

entitled to no relief.

       Because we agree with the determination of the PCRA court that

Maldonado’s petition was untimely filed, and Maldonado failed to establish



____________________________________________


7
  The Furgess Court acknowledged, however, that Cintora’s additional
holding, that Miller had not been applied retroactively, was “no longer good
law” after Montgomery. Furgess, supra,149 A.3d at ___, 2016 PA Super
219, at *3.



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the applicability of one of the time for filing exceptions to the PCRA, we

affirm the order dismissing his third PCRA petition.

      Order affirmed.

      Judge Jenkins did not participate in the consideration or decision of

this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2017




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