J-S46041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 WILLIAM MONTANEZ,                        :
                                          :
                    Appellant.            :   No. 544 EDA 2018


               Appeal from the PCRA Order, January 26, 2018,
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0327841-1994.


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                      FILED OCTOBER 17, 2018

      William Montanez appeals pro se from the order denying his fourth

petition for post-conviction relief filed pursuant to the Post Conviction Relief

Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The pertinent facts and procedural history may be summarized as

follows:   On January 25, 1995, Montanez entered a guilty plea to second-

degree murder and related charges. That same day, the trial court imposed

an aggregate sentence of life in prison. Montanez did not file an appeal. In

1998, and again in 2000, Montanez filed a PCRA petition that the PCRA court

denied as untimely. On August 13, 2012, Montanez filed a third PCRA petition

in which he averred that the discussion of scientific findings regarding brain

development in Miller v. Alabama, 567 U.S. 460 (2012), met the newly-

discovered evidence exception to the PCRA’s time-bar.         The PCRA court
J-S46041-18



disagreed, and, on September 22, 2015, we affirmed the denial of post-

conviction relief.    See Commonwealth v. Montanez, 133 A.3d 76 (Pa.

Super. 2015) (unpublished memorandum).

       On March 23, 2016, Montanez filed the petition at issue, his fourth. 1 On

December 13, 2017, the PCRA court issued Pa.R.Crim.P. 907 notice of intent

to dismiss Montanez’s petition without a hearing. Montanez filed his response

on December 27, 2017. By order entered January 26, 2018, the PCRA court

denied Montanez’s petition as untimely. This appeal follows. The PCRA court

did not require Pa.R.A.P. 1925 compliance.

       Montanez raises the following issue:

          A. Whether [Montanez] is entitled to post conviction relief
             based on newly discovered mitigating evidence regarding
             brain science and social science study?

Montanez’s Brief at 4 (excess capitalization omitted).

       This Court’s standard of review regarding an order dismissing a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.      Commonwealth v.

Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified record.
____________________________________________


1 Although Montanez identified this filing as both a petition for habeas corpus
relief and for post-conviction relief under the PCRA, the PCRA court correctly
treated it as a serial petition under the PCRA. See Commonwealth v.
Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013) (explaining that a habeas
corpus petition must be treated as a PCRA petition when the issues raised
therein are cognizable under the PCRA).


                                           -2-
J-S46041-18



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

a PCRA court may decline to hold a hearing on the petition if the PCRA court

determines that petitioner’s claim is patently frivolous and is without a trace

of support in either the record or from other evidence. Commonwealth v.

Jordan, 772 A.2d 1011, 1104 (Pa. Super. 2001).

        Before addressing the issue raised by Montanez, we must first determine

whether the PCRA court correctly concluded that Montanez’s PCRA petition is

untimely.

        The   timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

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

is final unless the petition alleges, and the petitioner proves, that an exception

to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.2 42 Pa.C.S.A. § 9545. A PCRA petition

____________________________________________


2   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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




                                           -3-
J-S46041-18



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

the date the claims could have been presented.” See Hernandez, 79 A.3d

651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).            Finally,

exceptions to the PCRA’s time-bar must be pled in the petition, and may not

be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d

521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues

not raised before the lower court are waived and cannot be raised for the first

time on appeal).

       Montanez’s judgment of sentence became final over twenty years ago.

As Montanez filed the instant petition in 2016, it is patently untimely unless

he has satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Hernandez, supra.

       Montanez has failed to establish any exception to the PCRA’s time bar.

He asserts that the PCRA court erred in denying him post-conviction relief

because he had satisfied the “newly-established constitutional right” exception

pursuant to the United States Supreme Court’s opinion in Miller v. Alabama,

supra. As acknowledged by Montanez, the high court in Miller held that a

statute requiring a mandatory life sentence without possibility of parole for a

____________________________________________


       (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.A. §§ 9545(b)(1)(i), (ii), and (iii).


                                           -4-
J-S46041-18



juvenile convicted of first or second-degree murder violates the Eighth

Amendment’s prohibition against cruel and unusual punishment. Our review

of the record in this case, however, supports the PCRA court’s conclusion that

Miller is inapplicable to Montanez because he was over the age of eighteen at

the time he committed the murder. See Pa.R.Crim.P. 907 Notice, 12/13/17,

at 2.

        Moreover, although Montanez asserts that he has recently discovered a

“Brain Science and Social Science Study” that concludes a person’s brain does

not fully develop until that person reaches his or her mid-20’s, to date

Pennsylvania precedent has rejected this argument as an unwarranted

extension of Miller. See Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.

Super. 2016) (rejecting petitioner’s claim that, based upon “neuroscientific

theories regarding immature brain development, he was a “technical

juvenile”). As this Court recognized in Furgess, “[a] contention that a newly-

recognized constitutional right should be extended to other[s] does not

render [a] petition [seeking such an expansion of the right] timely pursuant

to Section 9545(b)(1)(iii). Id. (citing Commonwealth v. Cintora, 69 A.3d

759, 764 (Pa. Super. 2013). Finally, to the extent Montanez argues that the

Miller decision constitutes a “newly-discovered fact” under Subsection

9545(b)(1(ii), it is now well settled that subsequent decisional law does not

amount to a “new fact” under this exception.            Commonwealth v.

Whitehawk, 146 A.3d 266, 271 (Pa. Super. 2016).




                                     -5-
J-S46041-18



      In sum, because Montanez was over the age of eighteen when he

committed the murder, the PCRA court correctly concluded that he could not

meet the “new constitutional right” exception to the PCRA’s time-bar pursuant

to Miller, supra. Thus, the court lacked jurisdiction to consider Montanez’s

claim, and we affirm the order denying post-conviction relief.

Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/18




                                    -6-
