J-S88027-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :    IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                        Appellee             :
                                             :
                   v.                        :
                                             :
NYAKO ODELL PIPPEN,                          :
                                             :
                        Appellant            :    No. 2013 EDA 2016

                  Appeal from the PCRA Order May 23, 2016,
            in the Court of Common Pleas of Montgomery County,
               Criminal Division at No: CP-46-CR-0003182-2007

BEFORE: OLSON, RANSOM, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                        FILED MARCH 28, 2017

      Nyako Odell Pippen (Appellant), appeals from the May 23, 2016 order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      On January 8, 2008, following a jury trial, Appellant was convicted of

second-degree murder, criminal conspiracy, and three counts of robbery. On

March 19, 2008, Appellant received a mandatory life sentence as well as an

aggregate consecutive sentence of ten to twenty years of incarceration.

      Appellant failed to file timely a direct appeal, but his appellate rights

were reinstated nunc pro tunc.         On June 18, 2009, this Court affirmed

Appellant’s judgment of sentence, and our Supreme Court denied Appellant’s

petition   for   allowance    of    appeal   on   December   2,   2009.   See

Commonwealth v. Pippen, 981 A.2d 319 (Pa. Super. 2009) (unpublished


*Retired Senior Judge assigned to the Superior Court.
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memorandum), appeal denied, 985 A.2d 219 (Pa. 2009). Appellant timely

filed a PCRA petition, which the PCRA court dismissed in March 2012.                   A

panel of this Court affirmed the dismissal of Appellant’s first PCRA petition.

See   Commonwealth            v.   Pippen,   64    A.3d     281   (Pa.   Super.    2013)

(unpublished memorandum).

      On March 30, 2016, Appellant pro se filed a second PCRA petition

alleging he was entitled to relief under the United States Supreme Court’s

decision   in   Miller   v.    Alabama,      132    S.Ct.      2455   (2012)   (holding

unconstitutional    mandatory       sentences      of   life   imprisonment       without

possibility of parole imposed upon individuals who were juveniles at the time

they committed homicides).          PCRA Petition, 3/3/2016, at 1-8. On April 7,

2016, the PCRA court filed a notice of intent to dismiss the petition without a

hearing pursuant to Pa.R.Crim.P. 907. Appellant filed no response, and on

May 23, 2016, the PCRA court dismissed his petition.                  This timely-filed

appeal followed.1

      We now consider whether the PCRA court erred in dismissing

Appellant’s petition as untimely filed.       The timeliness of a post-conviction

petition is jurisdictional.    Commonwealth v. Robinson, 12 A.3d 477, 479

1
  While Appellant’s notice of appeal was not docketed until June 28, 2016,
more than thirty days after the PCRA court dismissed Appellant’s petition,
the court found the appeal was timely filed under the prisoner mailbox rule.
See PCRA Court Opinion, 8/8/2016, at n 1.             See also Smith v.
Pennsylvania Bd. of Prob. & Parole, 683 A.2d 278, 280 (Pa. 1996) (“[A]n
appeal by a pro se prisoner [is deemed] to be filed when it was given to
prison authorities for mailing[.]”). We see no reason to disturb the PCRA
court’s finding.
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(Pa. Super. 2011).    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 of sentence is final unless the petition alleges, and the

petitioner proves, that an exception to the time for filing the petition is met.

42 Pa.C.S. § 9545.

      Here, Appellant’s judgment of sentence became final in March of 2010,

and thus, his petition filed on March 30, 2016 is facially untimely. Therefore,

the PCRA court had no jurisdiction to entertain Appellant’s petition unless he

pled and offered to prove one or more of the three statutory exceptions to

the time bar.      See 42 Pa.C.S. § 9545(b)(1).        In his petition, Appellant

contends the PCRA court had jurisdiction because the Miller decision

satisfies the following exception: “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)(iii). PCRA Petition, 3/30/2016, at 7.

      Appellant’s attempt to invoke Miller is without merit.        The Supreme

Court in Miller held that “mandatory life without parole for those under the

age of eighteen at the time of their crimes violates the Eighth Amendment's

prohibition on ‘cruel and unusual punishments.’” Miller, 132 S.Ct. at 2460.

Appellant was nineteen at the time of the offense.            The Miller decision

obviously   does    not   support   Appellant’s   alleged   timeliness   exception.


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Likewise, we find Appellant’s attempt to advocate that the holding in Miller

should be expanded to include himself unavailing. See Commonwealth v.

Cintora 69 A.3d 759, 764 (Pa. Super. 2013) (“[Petitioners] conclude that

the holding in Miller should be extended to them as they were under the

age of 25 at the time of the murder and, as such, had immature brains.

However, we need not reach the merits of [petitioners’] argument, as their

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).”) (citation omitted; emphasis in original).

      Because Appellant did not plead facts that would establish an

exception to the PCRA’s timeliness requirements, the PCRA court properly

dismissed   Appellant’s    petition   without   holding   a    hearing.   See

Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming

dismissal of PCRA petition without a hearing because the appellant failed to

meet burden of establishing timeliness exception).

      Order affirmed.

      Judge Olson joins.

      Judge Ransom concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/28/2017




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