J-S50014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

WILLIAM MONTANEZ

                        Appellant                   No. 1851 EDA 2014


                 Appeal from the PCRA Order June 2, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0327841-1994


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                     FILED SEPTEMBER 22, 2015

      Appellant, William Montanez, appeals pro se from the order dismissing

as untimely his third petition pursuant to the Post Conviction Relief Act

(“PCRA”). As Montanez has failed to establish his claim of after discovered

evidence as an exception to the PCRA’s time-bar, we affirm.

      Montanez pled guilty to second-degree murder and associated crimes

and received a sentence of life in prison. He did not file a direct appeal. In

1999 and 2000, Montanez filed his first and second PCRA petitions,

respectively, which were both dismissed as untimely.

      On August 3, 2012, Montanez filed the instant petition pro se, which

he labeled as a habeas corpus petition.    In this petition, Montanez raised

several claims, all of which save one he has abandoned on appeal. The trial

court reviewed the petition, determined that it was properly classified as a
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PCRA petition, concluded that it was untimely, and dismissed it without a

hearing. This timely appeal followed.

      On appeal, Montanez contends that the PCRA court erred in concluding

that he had not established his entitlement to the after discovered evidence

exception to the PCRA’s time-bar. Specifically, Montanez asserts that “brain

science” discussed in Miller v. Alabama, 132 S.Ct. 2455 (2012), is newly

discovered evidence that impacts the legality of his sentence. Importantly,

Montanez concedes that Miller, as a legal precedent, is not relevant as

Montanez was over 18 years old at the time he committed the crimes

underlying his sentence. See Appellant’s Brief, at 9.

      “The PCRA timeliness requirements are jurisdictional in nature and,

accordingly, a court cannot hear untimely PCRA petitions.” Commonwealth

v. Flanagan, 854 A.2d 489, 509 (Pa. 2004) (citation omitted). To succeed

on an after-discovered evidence claim, a petitioner must establish that: (1)

the evidence was discovered after trial and could not have been obtained at

or prior to trial through reasonable diligence; (2) the evidence is not

cumulative; (3) it is not being used solely to impeach credibility; and (4) it

would likely compel a different verdict. See Commonwealth v. D’Amato,

856 A.2d 806, 823 (Pa. 2004). If exceptions to the PCRA time-bar apply, a

petitioner must assert them within sixty days of discovering the facts

comprising the exception. See 42 Pa.C.S.A. § 9545(b)(2).




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        Here, the “brain science” identified by Montanez was published in

2003.     See Miller, at 2464.    As noted, Montanez did not file the instant

petition until 2012, undeniably more than 60 days. Montanez contends that,

as a non-scientist, he should not be expected to have discovered this “brain

science” immediately.     Even upon taking this argument at face value, we

note that the science at issue was discussed in Roper v. Simmons, 125

S.Ct. 1183, 1195 (2005). Essentially, Montanez argues that he satisfied the

60 day rule by filing his petition within 60 days of the publication of Miller.

However, we see no reason to use Miller as the start point, as Roper

revealed the same study in 2005. Montanez clearly did not file his petition

within 60 days of the publication of Roper.          Thus, even after assuming,

without so holding, that the bulk of Montanez’s premise is correct, we cannot

conclude that the PCRA court erred in determining that he had failed to

sufficiently plead the after-discovered evidence exception to the time-bar.

Montanez’s sole issue on appeal therefore merits no relief.

        Order affirmed. Jurisdiction relinquished.

        Judge Jenkins joins the memorandum.

        Judge Mundy concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2015




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