J-S03003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

DAVID JACKSON,

                          Appellant                  No. 2954 EDA 2017


           Appeal from the PCRA Order Entered August 22, 2017
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0118091-1977

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED APRIL 03, 2019

      Appellant, David Jackson, appeals pro se from the post-conviction

court’s August 22, 2017 order denying, as untimely, his petition filed under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The facts underlying Appellant’s conviction are not relevant to his

present appeal. We need only note that on April 25, 1977, he pled guilty to

second-degree murder, robbery, and related offenses. That same day, the

court sentenced Appellant to a mandatory term of life imprisonment, without

the possibility of parole, as well as a concurrent term of 10 to 20 years’

incarceration for robbery.

      On January 15, 1997, Appellant filed his first, pro se PCRA petition. That

petition was denied by the PCRA court, and we affirmed on appeal.
J-S03003-19



Commonwealth           v.    Jackson,      No.   1895   EDA    2001,    unpublished

memorandum (Pa. Super. filed Aug. 7, 2002).

        On August 23, 2012, Appellant filed his second, pro se PCRA petition,

which underlies the present appeal. Appellant filed an amended petition on

March 25, 2016. On May 24, 2017, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss Appellant’s petition without a hearing. While

Appellant filed a response to the Rule 907 notice, the court entered an order

dismissing his petition on August 22, 2017.

        Appellant filed a timely, pro se notice of appeal. Herein, he states three

issues for our review:

        [I.] Did the PCRA court err in rejecting Appellant’s claim that
        Miller    v.    Alabama’s[1]      constitutional   requirement       of
        consideration of age[-]related factors prior to imposing life
        without parole sentences applies to [Appellant] who was
        considered a child under [Pennsylvania] law and possessed those
        characteristics of youth identified as constitutionally significant for
        sentencing purposes by the U.S. Supreme Court?

        [II.] Did the PCRA court err in rejecting Appellant’s claim that
        Pennsylvania law permitting mandatory sentences of life without
        parole for crimes committed by 18 [y]ear olds lack[s] a rational[]
        basis given Miller’s prohibition against such sentences for
        offenders aged 17 and younger and therefore violates the Equal
        Protection Clauses of the Pennsylvania and U.S. Constitutions?

        [III.] Did the court err when it did[ not] consider [Appellant’s]
        claim that: “Any life without parole sentence for a teen deemed
        ‘developing adolescence’ convicted of second[-]degree …
        murder[] is inconsistent with adolescent development and
        neuroscience research and unconstitutional pursuant to Miller
        and Graham v. Florida[, 560 U.S. 48 (2010)]?

____________________________________________


1   Miller v. Alabama, 567 U.S. 460 (2012).

                                           -2-
J-S03003-19



Appellant’s Brief at iii.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

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

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

          (1) Any petition under this subchapter, including a second
          or subsequent petition, shall be filed within one year of the
          date the judgment becomes final, unless the petition alleges
          and the petitioner proves that:

             (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



                                        -3-
J-S03003-19


              period provided in this section and has been held by
              that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, at the time Appellant’s petition

was filed, section 9545(b)(2) required that any petition attempting to invoke

one of these exceptions “be filed within sixty days of the date the claim could

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

       Here, Appellant’s judgment of sentence became final in 1997, making

his present petition, filed in 2012, patently untimely. Consequently, for this

Court to have jurisdiction to review the merits thereof, Appellant must prove

that he meets one of the exceptions to the timeliness requirements set forth

above.

       In this regard, Appellant insists that he meets the new constitutional

rule exception of section 9545(b)(1)(iii) based on the rationale of Miller, in

which the United States Supreme Court held that “mandatory life without

parole for those under the age of 18 at the time of their crimes violates the

Eighth Amendment’s prohibition on cruel and unusual punishments.” Miller,

567 U.S. at 465 (emphasis added). In Montgomery v. Louisiana, 136 S.Ct.

718 (2016), the High Court held that Miller created a new substantive right

that applies retroactively in cases on state collateral review. Montgomery,

136 S.Ct. at 736. While Appellant acknowledges that he was 18 years old at

the time he committed the murder for which his mandatory, life-without-
____________________________________________


2 A recent amendment to section 9545(b)(2), which became effective on
December 24, 2018, changed the language to require that a petition “be filed
within one year of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).

                                           -4-
J-S03003-19



parole sentence was imposed, he argues that the rationale expressed in Miller

must be applied to him under equal protection principles. More specifically,

Appellant contends “that considering the science and social science that the

Court validated and used to decide Miller, that he at the age of 18 years, one

month and 7 days old, under the Equal Protection Clause of the U.S. and

Pennsylvania[]    Constitutions,   should   receive   a   mitigated   hearing   for

resentencing just as the adolescent who [is] 17 [and] 364 days would.” Id.

at 2.

        Unfortunately for Appellant, our Court recently rejected the same equal-

protection argument that Appellant presents herein. More specifically,

              [i]n Commonwealth v. Montgomery, [181 A.3d 359 (Pa.
        Super. 2018) (en banc) (hereinafter, “Commonwealth v.
        Montgomery”), the] petitioner, who was 22 years old at the time
        he committed murder, for which he was sentenced to life
        imprisonment without the possibility of parole, argued that his
        brain was not fully developed. [The] [p]etitioner contended that
        he satisfied the new constitutional rule exception to the PCRA
        time-bar because he was entitled to relief under Miller, made
        retroactive by [the United States Supreme Court’s decision in]
        Montgomery. We disagreed, holding that [the] petitioner failed
        to show that the new constitutional rule extended to individuals
        who had committed homicides after they reached the age of 18.
        Commonwealth v. Montgomery, 181 A.3d at 366. Relying on
        [Commonwealth v.] Furgess[, 149 A.3d 90 (Pa. Super. 2016),]
        and [Commonwealth v.] Cintora, [69 A.3d 759 (Pa. Super.
        2013),] this Court held that simply contending that a newly-
        recognized constitutional right should be extended to others does
        not satisfy the new constitutional rule exception to the PCRA’s
        timeliness requirement. Commonwealth v. Montgomery, 181
        A.3d at 366 (citing Furgess, 149 A.3d at 94, and Cintora, 69
        A.3d at 764). We also found meritless [the] petitioner’s argument
        that Furgess was distinguishable. We stated:




                                      -5-
J-S03003-19


         [The petitioner] argues that Furgess is distinguishable from
         the case at bar because in Furgess the petitioner only
         raised a claim under the Eighth Amendment while he also
         raises a claim under the Fourteenth Amendment’s Equal
         Protection Clause. This argument, however, is misplaced.
         Neither the Supreme Court of the United States nor our
         Supreme Court has held that Miller announced a new rule
         under the Equal Protection Clause. Instead, Miller only
         announced a new rule with respect to the Eighth
         Amendment. Thus, contrary to [the] [petitioner’s] assertion,
         his Equal Protection Clause argument is also an attempt to
         extend Miller’s holding.

      Commonwealth v. Montgomery, 181 A.3d at 366 (emphasis
      added). Notably, we declined [the] petitioner’s invitation to
      overturn Furgess, stating that “the three-judge panel’s analysis
      is correct[.]” Id. at 367.

Commonwealth v. Lee, --- A.3d ---, 2019 PA Super 64 (Mar. 1, 2019)

(footnotes omitted, some brackets added and some added in Lee).

      Additionally, in Lee, an en banc panel of this Court again held that

numerical age is the sole factor in determining whether Miller applies, and

Miller’s rationale cannot be extended to those 18 and over at the time of their

crimes “[u]ntil the United States Supreme Court or the Pennsylvania Supreme

Court recognizes a new constitutional right in a non-juvenile offender….” Id.

at *9.   Consequently, we are bound by this precedent to conclude that

Appellant cannot rely on Miller to meet the timeliness exception of section

9545(b)(1)(iii). Thus, the PCRA court properly denied his petition.

      Order affirmed.




                                     -6-
J-S03003-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/19




                          -7-
