J-S37025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT ALLEN BITTINGER

                            Appellant                 No. 1630 MDA 2016


                 Appeal from the PCRA Order September 6, 2016
                In the Court of Common Pleas of Dauphin County
               Criminal Division at No(s): CP-22-MD-0000520-1985


BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                      FILED SEPTEMBER 26, 2017

       Robert Allen Bittinger appeals, pro se, from the September 6, 2016

order entered in the Dauphin County Court of Common Pleas dismissing as

untimely his second petition filed under the Post Conviction Relief Act

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

       On March 13, 1985, Bittinger pled guilty to first-degree murder and

criminal conspiracy1 in connection with the contract killing of his co-worker’s

wife. By the terms of the plea agreement, the trial court sentenced Bittinger

to mandatory life imprisonment for murder and a consecutive 10 to 20

years’ incarceration for criminal conspiracy. In 1986, this Court affirmed the

judgment of sentence as to first-degree murder but vacated and remanded
____________________________________________


       1
           18 Pa.C.S. §§ 2502(a) and 903, respectively.
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for resentencing on the conspiracy sentence.      On May 14, 1986, the trial

court resentenced Bittinger to 5 to 10 years’ incarceration on the criminal

conspiracy charge, to run consecutive to the first-degree murder term.

Bittinger appealed and, on October 31, 1986, we affirmed his judgment of

sentence.

      On November 20, 1987, Bittinger filed a pro se petition under the Post

Conviction Hearing Act (“PCHA”), now known as PCRA.           The trial court

appointed counsel, who filed an amended PCHA petition. On June 14, 1988,

the trial court held a hearing on Bittinger’s PCHA petition. The PCHA court

dismissed the petition on August 1, 1988, and on March 9, 1989, this Court

affirmed.

      On March 28, 2016, Bittinger filed his second PCRA petition, which he

later amended.     On July 6, 2016, the PCRA court notified Bittinger of its

intention to dismiss the petition pursuant to Pennsylvania Rule of Criminal

Procedure 907. On September 6, 2016, the PCRA court dismissed Bittinger’s

petition without a hearing. Bittinger timely appealed.

      Bittinger raises the following issue on appeal:

            Whether a legal minor in Pennsylvania pursuant to
         Pa.C.S. Title 1 § 1991 may utilize 42 Pa.C.S. §
         9545(b)(iii)’s    new    retroactive   Constitutional ruling
         exception when he received a mandatory life without the
         possibility for parole sentence for a crime committed when
         he was 19 years of age under the rule announced in
         Montgomery [v.] Louisiana, 136 S.Ct. 718 (2016)[.]

Bittinger’s Br. at 4.



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        Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

        It is well settled that “the timeliness of a PCRA petition is a

jurisdictional requisite.”   Commonwealth v. Brown, 111 A.3d 171, 175

(Pa.Super. 2015), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition

“including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final.”          42 Pa.C.S. § 9545(b)(1).       A

judgment is 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.”          42

Pa.C.S. § 9545(b)(3).

        This Court affirmed Bittinger’s judgment of sentence on October 31,

1986.      He did not file a petition for allowance of appeal with the

Pennsylvania Supreme Court. Bittinger’s current petition, filed on March 28,

2016, is therefore facially untimely.

        To overcome the time bar, Bittinger was required to plead and prove

one of the following exceptions: (i) unconstitutional interference by

government officials; (ii) newly discovered facts that could not have been

previously ascertained with due diligence; or (iii) a newly recognized

constitutional right that has been held to apply retroactively.         See 42



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Pa.C.S. § 9545(b)(1)(i)-(iii).       To invoke one of these exceptions, Bittinger

must have filed his petition within 60 days of the date the claim could have

been presented. See 42 Pa.C.S. § 9545(b)(2).

       In his PCRA petition, Bittinger argued his petition was timely because

he asserted a constitutional right that was held to apply retroactively.

Bittinger relied on the United States Supreme Court’s decisions in Miller v.

Alabama, 132 S.Ct. 2455 (2012), and Montgomery v. Louisiana, 136

S.Ct. 718 (2016). In Miller, the Supreme Court held that a sentence of life

imprisonment without the possibility of parole was unconstitutional when

imposed upon defendants who were “under the age of 18 at the time of their

crimes.” 132 S.Ct. at 2460. In Montgomery, the Supreme Court held that

the Miller decision applied retroactively to cases on state collateral review.

Montgomery, 136 S.Ct. at 736.

       Here, Bittinger was 19 years old at the time he committed the murder

for which he was convicted.2 We have held that Miller’s prohibition of life-

without-parole sentences does not apply to those who were not juveniles at

the time of the offense. See Commonwealth v. Cintora, 69 A.3d 759, 764

(Pa.Super. 2013) (concluding that, for appellants, who were 19 and 21 at

time of offense, “the holding in Miller does not create a newly-recognized


____________________________________________


       2
        Bittinger was born on April 21, 1964, and committed the offenses at
issue on April 19, 1984.



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constitutional right that can serve as the basis for relief”); 3 see also

Commonwealth           v.   Furgess,      149    A.3d   90,   94   (Pa.Super.   2016)

(reaffirming Cintora’s holding that petitioners who were 18 or older “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”).

       Because Bittinger was 19 years old at the time of the offenses, Miller

does not apply, and Bittinger has failed to satisfy the new constitutional right

exception to the PCRA time bar. Therefore, the PCRA court did not err in

dismissing the petition.

       Order affirmed.




____________________________________________


       3
        In Cintora, this Court rejected the appellants’ argument that it
would violate the equal protection clause to not grant relief pursuant to
Miller. The appellants argued that Miller should apply to those under the
age of 25 “because Miller created a new Eighth Amendment right, that
those whose brains were not fully developed at the time of their crimes are
free from mandatory life without parole sentences, and because research
indicates that the human mind does not fully develop or mature until the age
of 25.” 69 A.3d at 764. We noted that the appellants’ “contention that a
newly-recognized constitutional right should be extended to others does not
render their petition timely pursuant to section 9545(b)(1)(iii).”       Id.
(emphasis in original).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2017




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