J-S78018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
WILLIE MAURICE HARRIS,                         :
                                               :
                     Appellant                 :   No. 608 WDA 2017

                  Appeal from the PCRA Order March 21, 2017
               In the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0003121-1997

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

MEMORANDUM BY DUBOW, J.:                                    FILED MAY 9, 2018

        Appellant, Willie Maurice Harris, appeals pro se from the March 21,

2017 Order entered in the Allegheny County Court of Common Pleas

dismissing as untimely his third Petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.            After careful review, we

affirm on the basis that Appellant’s PCRA Petition is untimely and this Court,

thus, lacks jurisdiction to review the Petition.

        This Court previously set forth the underlying facts, so we need not

repeat them here.        See Commonwealth v. Harris, No. 525 WDA 2015,

unpublished memorandum at 1-4 (Pa. Super. filed Nov. 16, 2015).                In

summary, on August 9, 1996, when Appellant was 18 years old,1 he shot

and killed Roderick McMahon after an argument in Pittsburgh. On August 7,
____________________________________________


1   Appellant’s date of birth is October 3, 1977.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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1997, a jury convicted Appellant of First-Degree Murder. On September 4,

1997, the trial court imposed the mandatory sentence of life imprisonment

without parole.

       On August 6, 2004, this Court affirmed Appellant’s Judgment of

Sentence, and our Supreme Court dismissed Appellant’s appeal as being

improvidently granted on February 20, 2007. Commonwealth v. Harris,

860 A.2d 1129 (Pa. Super. 2004) (unpublished memorandum), appeal

dismissed as improvidently granted, 915 A.2d 626 (Pa. 2007) (per curiam).

Appellant’s Judgment of Sentence became final on May 21, 2007, when his

time for seeking review with the United States Supreme Court expired. See

Commonwealth v. Harris, No. 525 WDA 2015, unpublished memorandum

at 7 (Pa. Super. filed Nov. 16, 2015); U.S.Sup.Ct.R. 13 (allowing 90 days to

file Petition for Writ of Certiorari).

       Over the course of the next decade, Appellant filed two other PCRA

Petitions, and the PCRA court dismissed each one because the Petitions

either lacked merit or were patently untimely under the strict terms of the

PCRA.

       On March 23, 2016, during the pendency of the appeal of Appellant’s

Second PCRA Petition,2 Appellant filed the instant pro se Petition with the


____________________________________________


2Our Supreme Court denied allowance of appeal with respect to Appellant’s
Second PCRA Petition on May 3, 2016.



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PCRA court (“Third PCRA Petition”).3 Appellant subsequently filed a lengthy

memorandum of law in support of his Third PCRA Petition.4 Appellant sought

to invoke Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v.

Louisiana, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).5

       On March 21, 2017, in response to another filing by Appellant, the

PCRA court dismissed Appellant’s Third PCRA Petition.6 Appellant timely filed


____________________________________________


3Appellant recognized that his Second PCRA Petition was pending before our
Supreme Court. See PCRA Petition, filed 3/23/16, at 1.

4 Although Appellant titled his Third PCRA Petition a “Request for Stay of
PCRA Petition,” his reason for the filing and the supporting memorandum
demonstrate that this filing was, in fact, a PCRA Petition. Normally, when a
PCRA appeal is pending before a court, a subsequent PCRA petition cannot
be filed until the resolution of the pending appeal “by the highest state court
in which review is sought.” Commonwealth v. Lark, 746 A.2d 585, 588
(Pa. 2000). Although the PCRA court should have dismissed the filing as
premature without prejudice, see Commonwealth v. Leslie, 757 A.2d 984,
985 (Pa. Super. 2000), due to administrative errors discussed infra, it did
not. Because of the administrative breakdown of the court, we decline to
dismiss this appeal on that basis and will address the jurisdictional issues.

5 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
courts to impose an automatic life sentence without possibility of parole
upon a homicide defendant for a murder committed while the defendant was
a juvenile. The United States Supreme Court held in Montgomery that its
decision in Miller applies retroactively.

6 On March 21, 2017, the PCRA court filed an “Order Denying Petitioner’s
Request to Stay PCRA Proceedings” because “there is no active PCRA
petition filed.” However, on July 20, 2017, the court filed its Pa.R.A.P.
1925(a) Opinion, in which it acknowledged and addressed Appellant’s Third
PCRA Petition as an untimely serial PCRA Petition. On July 25, 2017, the
Allegheny County Clerk of Courts amended the docket to correct
administrative errors and docket omissions, thus officially docketing
(Footnote Continued Next Page)


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a pro se Notice of Appeal. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      Appellant presents nine issues for our review:

      [1.] Whether the court/clerk erred in failing to docket and file
      [Appellant’s] PCRA petition submitted to the court March 22,
      2016.

      [2.] Whether [Appellant] is entitled to have his PCRA petition
      submitted March 22, 2016, filed and docketed with the court on
      the date in which it was originally submitted to the court and
      disposed of through the proper channels of the PCRA process.

      [3.] Whether the trial court erred in filing an order March 20,
      2017 alleging [Appellant] did not submit a petition on March 22,
      2016.

      [4.] Whether the trial court committed harm to [Appellant] by
      failing to file and docket petition submitted March 22, 2016.

      [5.] Whether the court’s imposition of illegal mandatory life
      without parole sentence for a homicide offense committed while
      [Appellant] was a juvenile over the age of 17, but below the age
      of 21, violates 1§ 13 [sic] of the Pennsylvania Constitution as
      well as the Eighth Amendment’s Prohibition on “cruel and
      unusual punishment. [sic]

      [6.] Whether [Appellant’s] mandatory life sentence violates the
      severability   clause    under   Pennsylvania’s  Constitutional
      construction of statutes and the Eighth Amendment’s prohibition
(Footnote Continued) _______________________

Appellant’s third Petition four months after Appellant filed it and noting that
Appellant filed it on March 23, 2016.

In light of the meritless basis for Appellant’s Third PCRA Petition and appeal,
the PCRA court’s subsequent characterization and ultimate review of
Appellant’s PCRA Petition, the court’s administrative and docketing errors,
and the interests of judicial economy, we consider the PCRA court’s March
21, 2017 Order as the formal dismissal of Appellant’s Third PCRA Petition
filed March 23, 2016.



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       on cruel and unusual punishment; Whether [Appellant’s]
       sentence should be vacated, and Whether [Appellant] should be
       individually resentenced on lesser-included offenses.

       [7.] Whether the court has Jurisdiction to address [Appellant’s]
       illegal sentence pursuant to 42 Pa.C.S. § 9542.

       [8.] Whether the court should vacate [Appellant’s] illegal
       sentence pursuant to 42 Pa.C.S. § 9542.

       [9.] Whether the trial court erred in sentencing [Appellant] to a
       mandatory minimum sentence by severance of the statute and
       applying the mandatory recidivist sentencing provisions under
       statute § 9715, which doesn’t apply to [Appellant] resulting in an
       illegal sentence.

Appellant’s Brief at vii-viii.7

       We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.      Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).

       Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the Third PCRA Petition.
____________________________________________


7 Appellant’s first four issues pertain to docketing errors and omissions that
the Clerk of Courts corrected on July 25, 2017. The docket now reflects that
Appellant filed the Third PCRA Petition on March 23, 2016. Since the
administrative issues themselves do not provide Appellant with relief under
the PCRA, and court administration corrected the errors, we need not
address Appellant’s first four issues raised on appeal.



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See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008) (explaining

that the timeliness of a PCRA Petition is a jurisdictional requisite).

      Under the PCRA, any 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 of Sentence becomes 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). The PCRA’s timeliness requirements are jurisdictional in nature,

and a PCRA court may not address the merits of the issues raised if the

petitioner did not timely file the PCRA petition.          Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      As noted above, Appellant’s Judgment of Sentence became final on

May 21, 2007. In order to be timely, Appellant needed to submit his PCRA

Petition by May 21, 2008. Id. Appellant filed this PCRA Petition on March

23, 2016, more than eight years after his Judgment of Sentence became

final. The PCRA court properly concluded that Appellant’s Petition is facially

untimely. PCRA Court Opinion, dated 7/20/17, at 2.

      Pennsylvania courts may consider an untimely PCRA petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S. § 9545(b).      Here, Appellant attempts to invoke the timeliness

exception under Section 9545(b)(1)(iii), which provides that a petitioner


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may seek relief when there 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)(iii).

      Citing Miller and Montgomery, Appellant essentially argues that he is

entitled to relief because, as an eighteen-year-old offender, he is “similarly

situated” as a juvenile homicide defendant.     Appellant’s Brief at 17.     This

Court has twice rejected nearly identical arguments for purposes of invoking

the timeliness exception at Section 9545(b)(1)(iii). See Commonwealth v.

Cintora, 69 A.3d 759, 764 (Pa. Super. 2013) (holding (1) petitioners who

were eighteen 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 in Section 9545(b)(1)(iii);

and (2) “contention that a newly-recognized constitutional right should be

extended to others does not render [a] petition [seeking such an expansion

of the right] timely pursuant to section 9545(b)(1)(iii).”) (emphasis in

original),   abrogated   in   part   by   Montgomery,     supra;       see   also

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

while acknowledging that Cintora’s additional holding, that Miller had not

been applied retroactively, was “no longer good law” after Montgomery).

      Appellant was 18 years old, not younger than 18 years old, when he

murdered Roderick McMahon on August 9, 1996.               Thus, Miller and


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Montgomery are inapplicable to Appellant.       Accordingly, the PCRA court

properly concluded that Appellant failed to plead and prove any of the

timeliness exceptions provided in 42 Pa.C.S. § 9545(b)(1), and properly

dismissed Appellant’s Petition as untimely. See PCRA Court Opinion at 3-4.

      The record supports the PCRA court’s findings and its Order is

otherwise free of legal error. Accordingly, we affirm.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/2018




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