J-S38023-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KAQUWAN MALIK MILLIGAN,

                            Appellant                  No. 3473 EDA 2016


                  Appeal from the PCRA Order October 7, 2016
                In the Court of Common Pleas of Carbon County
              Criminal Division at No(s): CP-13-CR-0000046-1998


BEFORE: GANTMAN, P.J., SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED OCTOBER 16, 2017

       Kaquwan Malik Milligan (“Appellant”) appeals from the order denying

his fourth petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.

       The trial court set forth the following relevant procedural history:

             On April 21, 1999, [Appellant] was convicted of second
       degree murder, robbery, criminal conspiracy, and aggravated
       assault2 for his role in the October 26, 1997 drug-related
       shooting and death of Tyrone Hill. Thereafter, [Appellant] was
       sentenced to life imprisonment on the murder charge, followed
       by a sentence of not less than five nor more than ten years for

              218 Pa.C.S. § 2502(b), § 3701(a)(1), § 903(a)(1),
              and § 2702(a)(1), respectively.


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     criminal conspiracy; the convictions for robbery and aggravated
     assault merged for sentencing purposes.             [Appellant’s]
     conviction and sentence were upheld on direct appeal and
     became final when the United States Supreme Court denied his
     petition for writ of certiorari on November 26, 2001.
     [Commonwealth v. Milligan, 769 A.2d 1207, 3038 EDA 1999
     (Pa. Super. filed December 6, 2000); 781 A.2d 142, 0012 MDA
     2001 (Pa. filed June 19, 2001) and Milligan v. Pennsylvania,
     534 U.S. 1044, 01-6349 (November 26, 2001), respectively.]

            On March 26, 2002, [Appellant] filed his first petition
     pursuant to the [PCRA]. Following the appointment of counsel
     and the filing of an amended petition on September 6, 2002, the
     petition was denied on April 21, 2003, after a hearing on
     January 24, 2003. The Pennsylvania Superior Court affirmed
     [the    PCRA    court’s]   ruling  on   September   22,    2004
     [Commonwealth v. Milligan, 863 A.2d 1227, 1718 EDA 2003
     (Pa. Super. September 22, 2004) (unpublished memorandum)].
     Subsequently, the Pennsylvania Supreme Court denied
     [Appellant’s] petition for allowance of appeal on April 5, 2005
     [Commonwealth v. Milligan, 872 A.2d 172, 988 MAL (2004)
     (Pa. April 5, 2005)].

           [Appellant] filed his second PCRA petition on August 5,
     2005. Counsel was again appointed to represent [Appellant] and
     an amended petition was filed on April 6, 2006. In this petition,
     [Appellant] raised two primary issues: (1) whether the
     Commonwealth failed to disclose exculpatory evidence in the
     nature of an alleged plea agreement with one of [Appellant’s]
     co-conspirators, Verna Russman, in exchange for her
     cooperation and favorable testimony against [Appellant]; and (2)
     whether the Commonwealth coerced perjured testimony from a
     Commonwealth        witness,  Kadias   Murdaugh,      to  refute
     [Appellant’s] alibi defense. A hearing on the amended petition
     was held on June 9, 2006. [Appellant’s] second PCRA petition
     was dismissed on November 22, 2006 because it failed to meet
     any of the exceptions to the PCRA’s timeliness requirements and
     was, therefore, time barred. The Pennsylvania Superior Court
     affirmed this dismissal on August 14, 2007. [Commonwealth
     v. Milligan, 935 A.2d 17, 3440 EDA 2006 (Pa. Super.
     August 14, 2007) (unpublished memorandum)]. Ultimately, the
     Pennsylvania Supreme Court denied [Appellant’s] petition for
     allowance of appeal on May 20, 2008 [Commonwealth v.
     Milligan, 953 A.2d 541, 744 MAL (2007) (Pa. May 20, 2008)].

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            On December 27, 2012, [Appellant] filed his third PCRA
     petition. In that petition, [Appellant] raised two (2) arguments
     as to why the United States Supreme Court decision in Miller v.
     Alabama, 132 S.Ct. 2455 (2012) should apply in his case. First
     [Appellant] claimed that he had not physically matured to the
     point of adulthood at the time he committed his crime and, as a
     result, his situation was akin to that of the juvenile appellant in
     Miller. Second, [Appellant] argued that, pursuant to the Equal
     Protection Clause of the Fourteenth Amendment of the United
     States Constitution, all persons with immature brains must be
     treated similarly and therefore, he should have been considered
     a juvenile for purposes of sentencing. Upon review of the
     Commonwealth’s answer to [Appellant’s] petition, on April 8
     2013, [the PCRA court] issued a notice of intent to dismiss that
     petition without a hearing pursuant to Pennsylvania Rule of
     Criminal Procedure 907. [Appellant] failed to file a response to
     our notice and his third PCRA petition was denied and dismissed
     on May 8, 2013.

            On March 18, 2016, [Appellant] filed his fourth PCRA
     petition arguing that, based on Miller v. Alabama, 132 S.Ct.
     2455 (2012), he was a juvenile at the time Tyrone Hill was
     murdered. On April 5, 2016, Albert V.F. Nelthropp, Esquire, was
     appointed as counsel to represent [Appellant] in connection with
     aforesaid petition.

           Attorney Nelthropp filed an amended PCRA petition on
     behalf of [Appellant] on May 27, 2016, titled, “Petition for Post-
     Conviction Relief Pursuant to 42 Pa.C.S. Section 9543.” In
     addition to the Miller-based argument previously advanced,
     [Appellant] also contends that since he lacked the intent to kill,
     he is categorically less culpable pursuant to Enmund v. Florida,
     102 S.Ct. 3368 (1982).

           After oral argument was held on the matter3, [the PCRA
     court] denied and dismissed [Appellant’s] PCRA petition on
     October 7, 2016, for the following reasons: 1. [Appellant’s]

           3By agreement of counsel, [Appellant’s] petition was
           scheduled for oral argument as opposed to an
           evidentiary hearing.




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      petition was untimely filed depriving [the PCRA court] of
      jurisdiction; 2. The issues presented were previously litigated;
      and 3. [Appellant] was nineteen (19) years old at the time of
      Tyrone Hill’s murder, rendering Montgomery v. Louisiana, 136
      S.Ct. 718 (2016) and Miller v. Alabama, 132 S.Ct. 2455,
      inapposite to the instant case.

Trial Court Opinion, 1/9/17, at 5–8.

      Appellant filed a Notice of Appeal on November 7, 2016 and on

November 8, 2016, the PCRA Court ordered Appellant to file a Pa.R.A.P.

1925(b) Statement. Appellant timely filed his 1925(b) Statement of Errors

Complained of on Appeal on November 30, 2016.

      Appellant raises the following issues on appeal:

      I.     Whether [the PCRA] court erred in finding that [Appellant]
             did not meet the jurisdictional filing requirements for a
             PCRA petition[?]

      II.    Whether [the PCRA] court erred by determining that the
             issues raised by [Appellant] have been previously
             litigated[?]

      III.   Whether [the PCRA] court erred          in determining that
             [Appellant’s] sentence did not          violate the Eighth
             Amendment of the United States           Constitution by not
             applying Miller v. Alabama, 132 S.Ct.   2455 (2012)[?]

      IV.    Whether [the PCRA] court erred in not applying Enmund v.
             Florida, 102 S.Ct. 3368 (1982) and determining that
             [Appellant’s] lack of intent to kill made him categorically
             less culpable[?]

      V.     Whether, in light of Miller, the Appellant should be re-
             sentenced under 18 Pa.C.S.A. section 1102(b)[?]

      VI.    Whether [the PCRA] court erred in not finding that the
             issues raised in the present PCRA petition meet the Lawson
             standard for a second or subsequent PCRA petition[?]


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Appellant’s Brief at 5.

      “We review an order dismissing a petition under the PCRA in the light

most favorable to the prevailing party at the PCRA level.” Commonwealth

v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).         “In reviewing an order

denying post-conviction relief, we examine whether the trial court’s

determination is supported by evidence of record and whether it is free of

legal error.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016).

We grant great deference to the trial court’s factual findings. Ford, 44 A.3d

at 1194. “A PCRA court’s finding will not be disturbed unless there is no

support for the findings in the certified record.” Commonwealth v. Garcia,

23 A.3d 1059, 1061 (Pa. Super. 2011).

      Before we reach the merits of Appellant’s PCRA claims, we must

determine whether Appellant’s petition is timely.      Pursuant to 42 Pa.C.S.

§ 9545(b)(1), any PCRA petition must be filed within one year of the date

the judgment becomes final.        “It is well settled that the PCRA’s time

restrictions are jurisdictional in nature.” Robinson, 139 A.3d at 185. “As

such, this statutory time-bar implicates the court’s very power to adjudicate

a controversy and prohibits a court from extending filing periods except as

the statute permits.” Id. The jurisdictional time limits are mandatory and

interpreted literally.    Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa.

1999). “Unlike a statute of limitations, a jurisdictional time limitation is not




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subject to equitable principles such as tolling except as provided by statute.”

Id.

      Here, Appellant’s judgment of sentence was final on November 26,

2001, the date the Supreme Court of the United States denied his petition

for writ of certiorari. To be timely, Appellant’s PCRA petition need to be filed

on or before November 26, 2002.       The instant petition, Appellant’s fourth

PCRA petition, was filed on March 18, 2016, nearly fourteen years beyond

the statutorily proscribed time, and is untimely unless one of the three

statutory exceptions applies. Pursuant to 42 Pa.C.S. § 9545(b)(1)(i)–(iii):

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

42 Pa.C.S. § 9545(b)(1)(i)–(iii).




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       Where, as in this case, the petition is untimely, the burden is on the

petitioner    to   prove    that   one    of   the   statutory   exceptions   applies.

Commonwealth v. Beasley, 741 A.2d 1258, 1260 (Pa. 1999).                          Any

petition relying upon Section 9545(b)(1)(i-iii) must be filed within sixty days

from the date the claim could have been presented.                       42 Pa.C.S.

§ 9545(b)(2).1

       In this case, Appellant argues that his petition is timely because it falls

within the exception set forth in 42 Pa.C.S. § 9545 (b)(1)(iii), relating to the

assertion of a constitutional right that applies retroactively. Appellant’s Brief

at 6. Specifically, Appellant relies on Montgomery v. Louisiana, 136 S.Ct.

718 (2016), in an attempt to convert his patently untimely petition into one

that is timely.    In Montgomery, the Supreme Court of the United States

held that its earlier decision in Miller v. Alabama, 567 U.S. 460 (2012),

which prohibited mandatory life sentences without parole for juvenile

offenders, constitutes a substantive constitutional rule that should apply

retroactively and on collateral review. Montgomery, 136 S.Ct. at 736. In

Miller, the Supreme Court of the United States specifically held that

“mandatory life punishment without parole for those under the age of 18



____________________________________________


1 As required by 42 Pa.C.S. § 9545(b)(2), Appellant’s petition was filed on
March 18, 2016, within sixty days of Montgomery v. Alabama, 136 S.Ct.
718 (2016).



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at the time of their crimes violates the Eighth Amendment’s prohibition on

‘cruel and usual punishments.’” Miller, 567 U.S. at 465 (emphasis added).

      In the instant case, the crimes for which Appellant was convicted

occurred on October 26, 1997. Appellant was born on February 11, 1978.

Notes of Testimony, 9/30/16, at 5.    Appellant was over nineteen and one

half years old at the time of the murder; thus, he is not in the class of

individuals impacted by the Miller decision. Despite the fact that he was not

a juvenile when he committed the crimes for which he was convicted,

Appellant argues that Miller and Montgomery should be expanded to

include individuals over eighteen years of age.      Appellant’s Brief 7–16.

Appellant essentially argues that because he was immature when he

committed the crimes, he is categorically less culpable and the United States

Supreme Court’s decisions in Miller and Montgomery should be expanded

to apply to him.

      We previously rejected this exact claim in Commonwealth v.

Furgess, 149 A.3d 90 (Pa. Super. 2016).        In that case, like here, the

appellant filed a time-barred PCRA petition and argued that Miller and

Montgomery brought his untimely petition within the ambit of 42 Pa.C.S.

§ 9545(b)(1)(iii).   As we held in Furgess, Miller applies “only to those

defendants who were under the age of 18 at the time of their crimes.”

Furgess, 149 A.3d at 94. (quoting Miller v. Alabama, 132 S.Ct. at 2460).

We further noted in Furgess that, “rather than presenting an argument that


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is within the scope of the Miller decision, the argument made by Appellant

seeks an extension of Miller to persons convicted of murder who were

older at the time than the class of defendants subject to the Miller holding.”

Furgess, 149 A.3d at 94 (emphasis in original).      This Court held that “a

contention that 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).” Id. (emphasis in original).

      Thus, because Appellant was not under the age of eighteen at the time

of his crimes, he may not rely on Miller and Montgomery to bring his

untimely PCRA petition within the ambit of the exception at 42 Pa.C.S.

§ 9545(b)(1)(iii).   Furgess, 149 A.3d at 94.    The trial court was correct

when it determined it lacked jurisdiction over Appellant’s fourth PCRA

petition.   We, therefore, affirm the PCRA court’s order denying Appellant

post-conviction relief and will not reach the merits of any arguments

contained therein.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2017


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