J-S55029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA


                        v.

    ANDRE SCOTT BALDWIN

                             Appellant                No. 396 MDA 2017


                 Appeal from the PCRA Order February 7, 2017
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0001056-2001


BEFORE: DUBOW, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY RANSOM, J.:                         FILED OCTOBER 18, 2017

        Appellant, Andre Scott Baldwin, appeals from the order entered

February 7, 2017, denying as untimely his petition for collateral relief filed

under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. We affirm.

        On December 19, 2001, following a bench trial, Appellant was convicted

of second degree murder, two counts of aggravated assault, four counts of

robbery, and one count each of firearms not to be carried without a license,

possession of a firearm with the manufacturer’s number altered, and

recklessly endangering another person.1 He received a mandatory sentence

of life imprisonment and did not appeal his sentence.        Accordingly, his
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*   Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 2502(b), 2702(a)(1), 2702(a)(4), 3701(a)(1),
6106(a)(1), 6110.2(a), and 2705, respectively.
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sentence became final on January 18, 2002, thirty days after the entry of the

sentencing order.        See Pa.R.A.P. 903; see also Commonwealth v.

Concordia, 97 A.3d 366 (Pa. Super. 2014) (citing Commonwealth v.

Pollard, 911 A.2d 1005 (Pa. Super. 2006).

       On May 27, 2016, Appellant pro se filed an untimely petition seeking

PCRA relief, his first.     Counsel was appointed and filed a Turner/Finley

letter.2   The PCRA court granted counsel’s petition to withdraw and gave

Appellant notice pursuant to Pa.R.Crim.P. 907 that his petition would be

dismissed within twenty days. Appellant filed a response to the court’s notice,

requesting that the PCRA court extend the relief provided by Miller v.

Alabama, 132 S. Ct. 2455 (2012), to apply to adult individuals who might

otherwise mentally be considered a juvenile.      The PCRA court dismissed

Appellant’s petition.

       Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.        The trial court issued a

responsive opinion, finding 1) that Appellant’s claims were waived for failure

to sufficiently articulate them in his statement, and 2) all matters previously

raised by Appellant were time-barred.3
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2 See Commonwealth v. Turner, 544 A.2d 927                       (Pa.   1998);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998).

3 We agree with the PCRA court that Appellant’s Pa.R.A.P. 1925(b) statement
is deficient in its vagueness. See, e.g., Pa.R.A.P. 1925(b); see also
Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa. Super. 2001)



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       On appeal, Appellant raises the following issue for our review:

       1. Whether the court erred in denying the PCRA petition due to
       the change in law as announced by Montgomery v. Louisiana4
       as newly stated constitutional law to have all factors which would
       increase his sentence proven beyond a reasonable doubt.

       2. Whether the federal court’s action in similar cases have created
       a precedent that the state courts should follow, allow retroactive,
       or whether retroactive application was necessary when the
       defendant filed a timely post conviction petition.

Appellant’s Brief at 3.

       Although his brief is unnumbered and appears to be missing a page,

essentially, Appellant argues that due to his life circumstances and cognitive

abilities, he is a technical juvenile who should be allowed the relief offered by

Miller, made retroactive by Montgomery.

       We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record. Commonwealth v. Brown, 48 A.3d

1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 995

A.2d 1184, 1189 (Pa. Super. 2010)).


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(noting that where a court has to guess the issues appellant is appealing, that
is insufficient for meaningful review). However, as it was clear that Appellant’s
challenge was based upon Miller, and jurisdictional issues bar a merits review,
we decline to find waiver for this particular reason.

4   Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

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      We begin by addressing the timeliness of Appellant’s petition, as the

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded   in   order   to   address   the   merits   of   his   claims.    See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for relief, including second and subsequent petitions, must

be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three exceptions:

      (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).    Any petition attempting to invoke these

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000).




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       Appellant’s petition is untimely.5        Accordingly, in order to reach the

merits of his issues, he must plead and prove one of the exceptions to the

time bar. See Bennett, 930 A.2d at 1267. Appellant has failed to do so. In

his brief he argues, incorrectly, that his sentence is unconstitutional because

he was a juvenile who received a mandatory life sentence.6                Although

Appellant argues that he is entitled to the retroactive application of Miller due

to his mental age at the time of the murder, this Court has previously rejected

the argument that offenders who are over eighteen may be considered

“technical juveniles” per Miller. See, e.g., Commonwealth v. Furgess, 149

A.3d 90, 94 (Pa. Super. 2016).

       Accordingly, the PCRA court’s determination that Appellant’s petition is

untimely and meets no timeliness exception is supported by the record and

free of legal error. Ragan, 923 A.2d at 1170.




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5 Appellant’s judgment of sentence became final on January 18, 2002, at the
expiration of the thirty-day period to file a direct appeal to this court. See
Pa.R.A.P. 903; see also Concordia, 97 A.3d at 366; see also 42 Pa.C.S. §
9545(b)(3) (a judgment of sentence becomes final at the conclusion of direct
review or the expiration of the time for seeking the review). Accordingly,
Appellant’s petition was over a decade untimely.

6The record reflects that Appellant was over eighteen years of age at the time
he committed the murder. See PCRA Court Opinion (PCO), 3/27/17, at 5.

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     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2017




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