J-S40015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    GEORGE YACOB                               :
                                               :
                      Appellant                :   No. 3531 EDA 2016

               Appeal from the PCRA Order September 13, 2016
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0002832-1981


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

MEMORANDUM BY STEVENS, P.J.E.:                             FILED JUNE 28, 2017

        Appellant, George Yacob, appeals pro se from the September 13,

2016, order entered in the Court of Common Pleas of Bucks County

dismissing his serial petition filed under the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, on the basis it was untimely filed.

We affirm.

        The relevant facts and procedural history underlying this appeal have

been aptly set forth by the PCRA court as follows:

              On July 1, 1981, James Redman was robbed, assaulted,
        and killed in Bensalem Township, Bucks County. On July 10,
        1981, Bensalem Township Police arrested Appellant and co-
        defendant Dennis Flanagan for the murder. In support of the
        arrest, police relied on an affidavit of probable cause detailing
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*
    Former Justice specially assigned to the Superior Court.
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     police interviews with individuals [to] whom both Appellant and
     Flanagan admitted to assaulting, robbing, and killing a man while
     describing circumstances closely resembling those surrounding
     Redman’s death. According to the interviews, Appellant and
     Flanagan beat and stabbed Redman to death, buried his body,
     and stole his car and belongings after Redman made a romantic
     advance at Appellant. At the time of the killing, Appellant was
     over the age of 18 years old.
            On November 30, 1981, following an extensive guilty plea
     colloquy, Appellant knowingly and voluntarily pled guilty to
     murder in the first degree, robbery, and criminal conspiracy. On
     that same date, [the trial court] imposed a life sentence for the
     murder charge and a 10-to-20 year concurrent sentence for the
     additional charges. Following sentencing, Appellant did not file a
     motion to withdraw his guilty plea or appeal the imposition of
     sentence. [Thus,] Appellant’s judgment of sentence became
     final [thirty days later] on December 30, 1981. See 42 Pa.C.S.A.
     § 9545(b)(3).
            Subsequently, Appellant filed numerous post-conviction
     petitions.  On January 19, 1983, [Appellant] filed his first
     petition under the [predecessor to the PCRA,] the Post
     Conviction Hearing Act (“PCHA”).       Therein, he sought the
     withdrawal of his guilty plea and cited ineffective assistance of
     counsel. Counsel was appointed, and an evidentiary hearing was
     held on May 3, 1983. [The PCHA court] denied relief in an order
     dated May 25, 1983, and [this Court] affirmed that decision.
           Thereafter, Appellant filed a second PCHA petition on
     October 28, 1985, which essentially alleged the same issues.
     [The PCHA court] denied the petition without a hearing in an
     order dated April 26, 1986, and Appellant did not file an appeal.
            Later, Appellant filed a third PCHA petition on August 13,
     1986. At the hearing for the third petition, the [PCHA court]
     concluded that the basis for [the] petition was the same as the
     first and second petitions. As such, Appellant was allowed to
     appeal nunc pro tunc the order of April 26, 1986. On appeal,
     [this Court] affirmed the order.
            In 1988, the PCHA was repealed, in part, and renamed the
     [PCRA].     Afterward, Appellant filed a fourth post-conviction
     petition under the PCRA, which again alleged ineffective
     assistance of counsel. On July 24, 1990, [the PCRA court]
     denied the petition without a hearing. In his fifth petition,
     Appellant argued that his appeal from the July 24, 1990, order

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      was somehow lost or misplaced. [The PCRA court] filed an
      opinion deeming the petition meritless on July 20, 1991. On
      October 3, 1991, [this Court] quashed Appellant’s appeal.
            Most recently, Appellant filed his sixth PCRA petition on
      March 21, 2016. Appellant’s petition argued that his mandatory
      life sentence without parole was unconstitutional in light of
      decisions by the United States Supreme Court in Montgomery
      v. Louisiana, 136 S.Ct. 718 (2016), and Miller v. Alabama,
      132 S.Ct. 2455 (2012). In his petition, Appellant acknowledged
      that he was over the age of 18 years old at the time of James
      Redman’s murder. On July 7, 2016, [the PCRA court] issued
      notice of intent to dismiss Appellant’s petition pursuant to
      [Pa.R.Crim.P.] 907. The notice informed Appellant that [the
      PCRA court] intended to dismiss his petition as untimely because
      the Montgomery and Miller decisions were inapplicable to
      Appellant’s case as [he was] an offender over the age of 18
      years old.
            On September 13, 2016, [the PCRA court] dismissed
      Appellant’s petition as untimely[.] Appellant then filed a timely
      notice of appeal to [this Court] on October 7, 2016.          [All
      Pa.R.A.P. 1925 requirements have been met.]

PCRA Court Opinion, filed 12/12/16, at 1-3 (citations to record and footnote

omitted).

      Preliminarily, we must determine whether Appellant’s instant PCRA

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000).   “Our standard of review of the denial of PCRA relief is

clear; we are limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”        Commonwealth v.

Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and

quotation marks omitted).

      The most recent amendments to the PCRA, effective January 19, 1996,

provide that a PCRA petition, including a second or subsequent petition, shall

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be filed within one year of the date the underlying judgment becomes final.

42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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

the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1).       To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law 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 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)-(iii).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).

Moreover, “the PCRA limits the reach of the exceptions by providing that a

petition invoking any of the exceptions must be filed within 60 days of the



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date the claim first could have been presented.” Commonwealth v.

Walters, 135 A.3d 589, 592 (Pa.Super. 2016) (citations omitted). See 42

Pa.C.S.A. § 9545(b)(2).

       In the case before us, as the PCRA court aptly found, Appellant was

sentenced on November 30, 1981, and he filed neither post-sentence

motions nor a direct appeal. Accordingly, his judgment of sentence became

final thirty days thereafter, on December 30, 1981, when the time period for

filing a direct appeal to this Court expired. See Pa.R.A.P. 903(a) (providing

an appeal to this Court shall be filed within thirty days after entry of the

order from which the appeal is taken); 42 Pa.C.S.A. § 9545(b)(3) (setting

forth when judgment of sentence becomes final). Thus, Appellant had until

December 30, 1982, to file a timely PCRA petition; however, Appellant filed

the instant petition on March 21, 2016, and therefore, it is patently untimely

under the PCRA.1         See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.

Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780 (2000).

       Appellant attempts to invoke the timeliness exception of 42 Pa.C.S.A.

§ 9545(b)(1)(iii) relating to a new constitutional right that applies


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1
   Where a petitioner’s judgment of sentence became final on or before the
effective date of the amendment, a special grace proviso allowed first PCRA
petitions to be filed by January 16, 1997. See Commonwealth v. Alcorn,
703 A.2d 1054, 1056–57 (Pa.Super. 1997). However, this is not Appellant’s
first PCRA petition, and the instant petition was not filed by January 16,
1997. Accordingly, Appellant is not entitled to the proviso’s benefit.



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retroactively. Specifically, Appellant avers that his sentence is illegal under

Montgomery/Miller.

      Assuming, arguendo, Appellant met the initial sixty day threshold, we

conclude the dictates of Montgomery/Miller are inapplicable to Appellant.

In Montgomery, the High Court held that its ruling in Miller is to be given

retroactive effect on collateral review. In Miller, the High Court held that

sentencing a juvenile convicted of a homicide offense to mandatory life

imprisonment without parole violates the Eighth Amendment’s prohibition to

cruel and unusual punishment. Accordingly, such sentences cannot be

handed down unless a judge or jury first considers mitigating circumstances.

      The Miller decision applies to only those defendants who were “under

the age of 18 at the time of their crimes.” Miller, 132 S.Ct. at 2460. Here,

Appellant admits that he was nineteen years old when he committed the

murder, and the PCRA court so determined, as well. See Appellant’s Brief

at 9; PCRA Court Opinion, filed 12/12/16, at 1 n.1. In this regard, the PCRA

court noted that Appellant’s birth date is March 15, 1962, and he committed

the murder on July 1, 1981. Id. Therefore, we agree with the PCRA court

that the holdings in Montgomery/Miller are not applicable to Appellant.

      Appellant       argues,    nevertheless,      that     he    may    invoke

Montgomery/Miller because he was a “technical juvenile,” and he relies on

theories regarding immature brain development to support his claim that he

is   eligible   for   relief.   Thus,   Appellant    seeks    an   extension   of


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Montgomery/Miller to persons convicted of murder who were older at the

time of their crimes than the class of defendants subject to the Miller

holding.   However, this Court has previously rejected such an argument.

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

the   nineteen-year-old   appellant   was   not   entitled   to   relief   under

Miller/Montgomery on collateral review; rejecting argument that he

should be considered a “technical juvenile”).

      In light of the aforementioned, we agree with the PCRA court that

Appellant’s instant PCRA petition is untimely, and he has failed to invoke

successfully any of the timeliness exceptions. Accordingly, we affirm.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2017




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