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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CARL S. GARNETT

                            Appellant                No. 2267 EDA 2016


                Appeal from the PCRA Order Dated June 1, 2016
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0000226-1971


BEFORE: OTT, J., SOLANO, J., and JENKINS, J.

MEMORANDUM BY SOLANO, J.:                       FILED DECEMBER 16, 2016

        Pro se Appellant, Carl S. Garnett, appeals from the order dismissing

his fifth Post Conviction Relief Act (“PCRA”)1 petition. Appellant argues he is

entitled to resentencing based on the United States Supreme Court’s holding

in Miller v. Alabama, 132 S. Ct. 2455 (2012), which held that mandatory

life-without-parole sentences for juveniles are unconstitutional. See 132 S.

Ct. at 2469. We affirm.

        The facts and lengthy procedural history of the case are not necessary

for our disposition. In short, a prior panel of this Court, when deciding an

appeal from dismissal of Appellant’s fourth PCRA petition, affirmed the PCRA

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1
    42 Pa.C.S. §§ 9541-9546.
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court’s finding that Appellant was born on January 21, 1953, and was over

the age of eighteen (and therefore not a juvenile) when he committed

murder in March of 1971. Commonwealth v. Garnett, 2660 EDA 2012, at

2-3 (Pa. Super., June 28, 2013) (unpublished memorandum), appeal

denied, 629 MAL 2013 (Pa., Dec. 17, 2013).2

       The PCRA court docketed Appellant’s petition on April 14, 2016. The

PCRA court issued a Pa.R.Crim.P. 907 notice on April 22, 2016, and the court

docketed Appellant’s response on May 12, 2016.            The court formally

dismissed Appellant’s petition on June 1, 2016. Appellant timely appealed.

       “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”       Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super.) (en banc) (citation omitted),

appeal denied, 839 A.2d 352 (Pa., Dec. 01, 2003).

       On appeal, Appellant contends the PCRA court erred by dismissing his

fifth petition as untimely. He contends, just as he did in his fourth petition,

that he was under the age of eighteen when he murdered the victim. We

hold Appellant is due no relief.

       As our Supreme Court has explained:
____________________________________________


2
  The medical examiner autopsied the victim’s body on April 5, 1971, and
testified that death occurred between two to four weeks prior to April 5,
1971, based on the rate of decomposition. Ex. F to Appellant’s Brief
(referencing N.T. Trial, 381, 386).



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        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions. We have also held
        that even where the PCRA court does not address the
        applicability of the PCRA timing mandate, th[e] Court will
        consider the issue sua sponte, as it is a threshold question
        implicating our subject matter jurisdiction and ability to
        grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations

omitted).

     A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.”    Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (some citations and footnote omitted).         The three

exceptions to the general one-year time limitation are:

        (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).




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       As noted, Appellant bases his petition on the U.S. Supreme Court’s

decision in Miller v. Alabama.           On January 25, 2016, the United States

Supreme Court held in Montgomery v. Louisiana, 136 S. Ct. 718 (2016),

that Miller applies retroactively to cases on collateral review:        “Miller

announced a substantive rule of constitutional law. Like other substantive

rules, Miller is retroactive[.]” Montgomery, 136 S. Ct. at 734.3        Shortly

thereafter, this Court held in Commonwealth v. Secreti, 134 A.3d 77 (Pa.

Super. 2016), that Montgomery rendered Miller retroactive “effective as of

the date of the Miller decision,” and permitted a PCRA petition raising an

issue under Miller to be filed within 60 days of the January 25, 2016 holding

in Montgomery that Miller applies retroactively. Secreti, 134 A.3d at 82.

However, Appellant’s April 14, 2016 PCRA petition was not filed within sixty

days of January 25, 2016 (instead, the elapsed time was 80 days).

Accordingly, the petition was untimely, and the PCRA court lacked

jurisdiction to hear it. See 42 Pa.C.S. § 9545(b)(1); Copenhefer, 941 A.2d

at 648.

       In addition, even if the petition met the 60-day deadline, it still would

be untimely.     The only exception to the time-bar in Section 9545(b) that

could be applicable here is Section 9545(b)(iii), relating to assertion of a

newly-recognized constitutional right — namely, the right of a juvenile under
____________________________________________


3
 The decision was revised on January 27, 2016. The revision is not relevant
here.



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Miller not to be sentenced to life without parole. Appellant does not qualify

for application of that right because he was not a juvenile when he

committed the murder; rather, he was eighteen-years old. See Miller, 132

S. Ct. at 2460 (holding only that mandatory life without parole sentences for

individuals   under     eighteen   at   the   time   of   their   crimes   are

unconstitutional); Commonwealth v. Furgess, 2016 WL 5416640, *3 (Pa.

Super., Sept. 28, 2016) (non-juvenile petitioners “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)”).

      Appellant has alleged that his actual birthdate is June 28, 1953, which

would make him seventeen-years old when he committed the murder. But

Appellant is precluded from making that argument because it was definitely

rejected in proceedings on Appellant’s fourth PCRA petition in 2012. As the

PCRA court explained:

      In 2012, in his fourth PCRA petition, defendant also claimed that
      he was only seventeen years old on the date of the murder.
      However, a review of the record revealed that defendant was
      actually eighteen years old on the date of the crime. For that
      reason, we denied his PCRA on September 4, 2012. The Superior
      Court affirmed that order on June 28, 2013, and the
      Pennsylvania Supreme Court denied his petition for allowance of
      appeal on December 17, 2013. Instantly, neither defendant's
      date of birth, January 21, 1953, nor the date of the murder,
      which occurred after defendant’s eighteen birthday, has
      changed. Thus Miller and Montgomery do not apply to his case
      and his untimely fifth PCRA petition is properly dismissed.




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PCRA Ct. Order, June 1, 2016, at 1 n.1. A PCRA petitioner may not re-raise

a   claim   that   was    previously   litigated   in   a   prior   PCRA   petition.

Commonwealth v. Lambert, 884 A.2d 848, 858 (Pa. 2005); see also 42

Pa.C.S. § 9544 (stating, “an issue has been previously litigated if . . . it has

been raised and decided” in a prior PCRA proceeding).               Accordingly, we

affirm the PCRA court’s order dismissing Appellant’s petition. See Wilson,

824 A.2d at 833.

      Order affirmed.

Judge Ott joins the memorandum.

Judge Jenkins concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2016




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