J-S40002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    CLEATUS T. MILTON                          :
                                               :
                      Appellant                :   No. 531 EDA 2017

                  Appeal from the PCRA Order January 4, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0311451-2006


BEFORE:      OTT, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                             FILED JUNE 22, 2017

        Appellant Cleatus T. Milton appeals the Order entered in the Court of

Common Pleas of Philadelphia County on January 4, 2017, dismissing as

untimely his second petition filed pursuant to the Post Conviction Relief Act

(PCRA).1 Because this petition is untimely without an applicable exception,

we affirm.

        On July 31, 2007, following a jury trial, Appellant was convicted of

rape of a child under the age of thirteen, involuntary deviate sexual

intercourse (IDSI) of a child under the age of thirteen, incest, indecent

assault, and corrupting the morals of a minor. Appellant’s convictions arose

from his anal, oral and vaginal rape of his then ten-year-old, mentally
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*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
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disabled daughter.        On December 18, 2007, the trial court sentenced

Appellant to an aggregate term of forty-seven and one-half (47½) years to

ninety-five (95) years’ imprisonment.2 Appellant filed a timely appeal with

this Court claiming the trial court abused its discretion by sentencing him to

a manifestly excessive period of incarceration which amounted to a life

sentence and in failing to take into account his prior record score. Finding

that the trial court had considered appropriate sentencing factors and

adequately set forth its reasons for fashioning its sentence, which included

an upward departure from the Sentencing Guidelines, this Court found no

abuse of discretion and affirmed Appellant’s judgment of sentence.       See

Commonwealth v. Milton, 976 A.2d 1211 (Pa.Super. 2009) (unpublished

memorandum).

       On June 15, 2009, Appellant filed a timely PCRA petition, pro se.

Counsel was appointed and filed an amended petition which ultimately was

denied without a hearing on October 28, 2010.3            Therein, Appellant

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2
  The trial court imposed sentences in the standard range of the Sentencing
Guidelines for the rape, IDSI and incest convictions, and it sentenced
Appellant outside of the guidelines for the indecent assault and corruption
convictions. Specifically, Appellant received twenty (20) to forty (40) years
in prison for the rape conviction and the same prison term for the IDSI
conviction. Additionally, he received two and one half (2 ½) years to five
(5) years in prison each for the incest, indecent assault, and corrupting the
morals of a minor convictions. Each sentence was to run consecutively.
3
  The PCRA court properly provided Appellant with Pa.R.Crim.P. 907 notice
before it dismissed the petition without a hearing.         See Order filed
10/28/10.



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maintained that the PCRA court erred in denying him an evidentiary hearing

and in preventing him from establishing his claim that trial counsel had been

ineffective for failing to file a Pa.R.Crim.P. 600 petition. Finding no merit to

Appellant’s arguments, this Court affirmed the PCRA court’s Order on

October 26, 2011.       See Commonwealth v. Milton, 37 A.3d 1245

(Pa.Super. 2011) (unpublished memorandum). Our Supreme Court denied

Appellant’s petition for allowance of appeal on February 28, 2012.         See

Commonwealth v. Milton, 615 Pa. 755, 32 A.3d 1245 (2012) (table).

      Appellant filed the instant PCRA petition, his second, pro se, on March

29, 2016, and an amended petition on April 11, 2016. In both documents,

Appellant avers his sentence is illegal in light of the United States Supreme

Court’s decisions in Alleyne v. United States, ___U.S. ____, 133 S.Ct.

2151, 186 L.Ed.2d 314 (2013) and Montgomery v. Louisiana, ___ U.S.

____, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) and their progeny. Appellant

maintains that he “was sentenced to a Mandatory Minimum under statute 42

Pa.C.S. § 9718, which was effected by the Alleyne Case as containing

unconstitutional aspects.” Appellant goes on to aver that “[i]n Montgomery

v. Louisiana, the United States Supreme Court recognized that when a new

Substantive Rule of Constitutional Law controls the outcome of a case, the

Constitution requires state collateral review courts to give retroactive effect

to that rule.” See Motion for Post Conviction Collateral Relief, filed 3/26/16,

at 4. After properly notifying Appellant of its intent to do so under Rule 907,




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the PCRA court dismissed Appellant’s second PCRA petition without a hearing

on January 4, 2017.

         In his brief, Appellant presents the following questions for our review:


         A.     Did the lower court err when it failed to acknowledge and
                address the unconstitutional sentence it imposed upon
                appellant in light of a new substantive ruling[?]

         B.     Did the lower court err when it failed to acknowledge and
                address Appellant’s Brady/Dennis[4] Claims that deprived
                Appellant of a fair trial[?]

Brief for Appellant at 2 (unnecessary capitalization omitted).

         When reviewing the propriety of an order denying PCRA relief, this

Court is limited to a determination of whether the evidence of record

supports the PCRA court’s conclusions and whether its ruling is free of legal

error.        Commonwealth v. Robinson, ___ Pa. ____, ____, 139 A.3d 178,

185 (2016).        This Court will not disturb the PCRA court’s findings unless

there is no support for them in the certified record.        Commonwealth v.

Lippert, 85 A.3d 1095, 1100 (Pa.Super. 2014).

         At the outset, we consider whether this appeal is properly before us.

The question of whether a petition is timely raises a question of law, and

where a petitioner raises questions of law, our standard of review is de novo

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4
 Appellant apparently is referring to Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Commonwealth v. Dennis, 609 Pa.
442, 17 A.3d 297 (2011).



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and our scope of review is plenary. Commonwealth v. Callahan, 101 A.3d

118, 121 (Pa.Super. 2014).

      All PCRA petitions must be filed within one year of the date upon which

the judgment of sentence became final, unless one of the statutory

exceptions set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The

petitioner bears the burden to plead and prove an applicable statutory

exception.   If the petition is untimely and the petitioner has not pled and

proven an exception, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits

of the petition.   Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super.

2013).

      42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:

      (b) Time for filing petition.--

      (1)    Any petition under this subchapter, including a second or
             subsequent petition, shall be filed within one year of the
             date the judgment of sentence becomes final, unless the
             petition alleges and the petitioner proves that:

            (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.


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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).   In addition, any petition attempting to

invoke one of these exceptions “shall be filed within 60 days of the date the

claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

      As noted previously, Appellant was sentenced on December 18, 2007,

and this Court affirmed the judgment of sentence on May 28, 2009.

Appellant did not file a petition for allowance of appeal with our Supreme

Court; therefore his judgment of sentence became final thirty days

thereafter, on June 28, 2009. See 42 Pa.C.S.A. § 9545(b)(3) (stating, “a

judgment 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, or at the expiration of time for seeking the

review[ ]”).   Since Appellant filed the instant petition almost seven years

thereafter, it is patently untimely and the burden fell upon Appellant to plead

and prove that one of the enumerated exceptions to the one-year time-bar.

See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284,

1286 (Pa.Super. 2008) (to invoke a statutory exception to the PCRA time-

bar, a petitioner must properly plead and prove all required elements of the

exception).

      Though his arguments are at times vague and disjointed, Appellant

initially attempts to invoke 42 Pa.C.S.A. § 9545(b)(1)(iii), the “newly

recognized constitutional right” exception to the PCRA time-bar. Appellant

contends that Alleyne, supra and its progeny rendered unconstitutional all


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statutes that require mandatory minimum sentences. In Alleyne, the

Supreme Court of the United States held that “facts that increase mandatory

minimum sentences must be submitted to the jury” and must be found

beyond a reasonable doubt. Alleyne, supra at 2163. “The Alleyne decision,

therefore, renders those Pennsylvania mandatory minimum sentencing

statutes that do not pertain to prior convictions constitutionally infirm insofar

as they permit a judge to automatically increase a defendant's sentence

based on a preponderance of the evidence standard.” Commonwealth v.

Watley, 81 A.3d 108, 117 (Pa.Super. 2013) (en banc ), appeal denied, 95

A.3d 277 (Pa. 2014) (footnotes omitted).

      However, in considering whether Alleyne provides an exception to the

PCRA time-bar, the Pennsylvania Supreme Court in Commonwealth v.

Washington, ___ Pa. ____, 142 A.3d 810 (2016) addressed a situation in

which the defendant raised an Alleyne claim in a timely PCRA petition, but

his judgment of sentence had become final prior to the Alleyne decision.

The Washington Court held that “Alleyne does not apply retroactively to

cases pending on collateral review, and that [a]ppellant’s judgment of

sentence, therefore, is not illegal on account of Alleyne.” Id. at ___, 142

A.3d at 815.    Therefore, even if he were serving a mandatory sentence,

Appellant’s reliance upon Alleyne would be fatal to his claim. Id. at ___,

142 A.3d at 820.




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      In addition, Alleyne was decided in 2013, and Appellant did not file

the instant PCRA petition until March 29, 2016. Accordingly, Appellant failed

to comply with 42 Pa.C.S.A. § 9545(b)(2) (stating “Any petition invoking an

exception provided in paragraph (1) shall be filed within 60 days of the date

the claim could have been presented”). Appellant’s arguments in support of

this claim otherwise reiterate the challenges to his sentence that he

presented in his initial PCRA petition which this Court previously deemed to

be meritless.   See Commonwealth v. Milton, 37 A.3d 1245 (Pa.Super.

2011) (unpublished memorandum).        Hence, Appellant is not eligible for

PCRA relief on these issues. 42 Pa.C.S.A. §§ 9543(a)(3) (“To be eligible for

relief under this subchapter, the petitioner must plead and prove by a

preponderance of the evidence ... [t]hat the allegation of error has not been

previously litigated or waived.”).

      Appellant also attempts to evoke the newly-recognized constitutional

right exception when averring his sentence of life imprisonment is illegal

under Montgomery, supra. In Montgomery, the United States Supreme

Court declared its prior holding in Miller, supra, constitutes a substantive

rule of constitutional law to which state collateral review courts were

required as a constitutional matter to give retroactive effect. Montgomery

v. Louisiana, ___ U.S. at ____, 136 S.Ct. at 736, 193 L.Ed.2d at ___.    The




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High Court held therein that the new rule of law announced in Miller applies

retroactively to cases on collateral review.5

       The United States Supreme Court decided Montgomery on January

25, 2016, and Appellant filed the current PCRA petition on March 29, 2016.

In Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa.Super. 2016), this

Court held that the date upon which Montgomery had been decided is to be

used when calculating whether a petition is timely filed under the sixty-day

rule of 42 Pa.C.S.A. § 9545(b)(2). Because Appellant’s PCRA petition was

filed after March 25, 2016, he has failed to satisfy the PCRA time-bar. See

42 Pa.C.S.A. § 9545(b)(2). In any event, as previously stated, even had
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5
  In Miller, the Supreme Court had held that “mandatory life without parole
for those under the age of 18 at the time of their crimes violated the Eighth
Amendment’s prohibition on ‘cruel and unusual punishments.’” Miller v.
Alabama, ___ U.S. at ____, 132 S.Ct. at 2460, 183 L.Ed.2d at ____.
Notwithstanding, while the Supreme Court’s holding in Miller set forth a
bright-line rule that mandatory sentences of life imprisonment without the
possibility of parole are unconstitutional for juvenile offenders, it did not
prevent a trial court from imposing a life sentence upon an individual such
as Appellant who was over the age of eighteen at the time he committed the
offense and did not receive a mandatory sentence of life imprisonment.
Therefore, the right recognized by Miller and held to be retroactive in
Montgomery does not provide Appellant a basis for relief from the PCRA
time-bar. See Miller, ___ U.S. at ____, 132 S. Ct. at 2469, ___ L.Ed.2d at
____ (holding “the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders.”)
See also Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super. 2013)
(holding Miller is not an exception under Section 9545(b)(1)(iii) to those
over the age of eighteen at the time crimes were committed);
Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super. 2016) (holding
the Miller decision applies only to defendants “under the age of 18 at the
time of their crimes”).




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Appellant timely filed the instant petition, since he was over eighteen years

old when he committed the crimes of which he was convicted, Miller does

not apply to his case.

       Appellant also contends the trial court erred in failing to consider his

claims of governmental interference and Brady violations in that he was

prohibited from confronting his daughter’s physicians at trial.             While

Appellant’s arguments essentially characterize this claim as one arising

under the governmental interference and newly-discovered fact exceptions

to the PCRA time-bar, Appellant clearly would have been aware of his

perceived inability to confront his daughter’s treating physicians or obtain

relevant records pertaining thereto at the time of trial, and he makes no

argument to the contrary. As such, Appellant has waived this claim for his

failure to raise it properly on direct appeal or in terms of trial counsel’s

ineffectiveness in his first PCRA petition.6 Hence, Appellant is not eligible for

PCRA relief on these issues. See 42 Pa.C.S.A. § 9544(b) (“For purposes of

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6
   This claim additionally is waived for Appellant’s failure to raise it in either
his initial PCRA petition filed on March 29, 2016, or in the amendment
thereto filed on April 11, 2016. It is well-settled that issues not raised in a
PCRA petition or amended PCRA petition are waived on appeal. See
Commonwealth v. Lauro, 819 A.2d 100, 103 (Pa.Super. 2003), appeal
denied, 830 A.2d 975 (Pa. 2003) (finding five issues not in original or
amended PCRA petition waived). An appellant cannot raise a subject for the
first time on appeal. See Commonwealth v. Hanford, 937 A.2d 1094,
1098 n.3 (Pa.Super. 2007), appeal denied, 956 A.2d 432 (Pa. 2008) (new
legal theories cannot be raised for first time on appeal); Pa.R.A.P. 302(a).




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this subchapter, an issue is waived if the petitioner could have raised it but

failed to do so before trial, at trial, during unitary review, on appeal or in a

prior state postconviction proceeding.”) Commonwealth v. Chmiel, 612

Pa. 333, 365, 30 A.3d 1111, 1129-30 (2011) (where defendant provided no

indication as to the time or manner in which he became aware of alleged

Brady materials apparently available at time of trial or direct appeal, such

claim is waived for failure to raise it in earlier proceeding); Commonwealth

v. Roney, 622 Pa. 1, 25, 79 A.3d 595, 609 (2013) (Brady claims deemed

waived on appeal of PCRA where appellant failed to raise them at trial or on

direct appeal).

      For the foregoing reasons, Appellant's second PCRA petition is

untimely, and he has failed to plead and prove an exception to the statutory

time-bar. The PCRA court correctly determined it lacked jurisdiction to

review the merits of Appellant's petition and properly dismissed it, and we

discern no other basis on which to disturb the PCRA court's dismissal of

Appellant's petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2017

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