J-S04026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

DONALD WASHINGTON,

                          Appellant                  No. 1221 MDA 2014


             Appeal from the PCRA Order entered June 25, 2014,
              in the Court of Common Pleas of Dauphin County,
             Criminal Division, at No(s): CP-22-CR-0003071-1992


BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                         FILED FEBRUARY 02, 2015

      Donald Washington (“Appellant”) appeals pro se from the order

denying his sixth petition for post-conviction relief filed pursuant to the Post

Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The pertinent facts and procedural history have been summarized as

follows:

               On April 16, 1993, a jury convicted Appellant of Murder
           in the First Degree and related charges on evidence that
           he fired three shots at a group of prospective drug buyers
           who attempted to abscond with cocaine he and a cohort
           were selling, killing one man in the process. On [July 18,
           1994], this Court affirmed the judgment of sentence of life
           imprisonment without possibility of parole, and the
           Pennsylvania Supreme Court denied Appellant’s petition for
           allocatur [on April 18, 1995].




*Retired Senior Judge assigned to the Superior Court.
J-S04026-15


            Over the ensuing [] years, Appellant filed four PCRA
         petitions, all of which were denied. He filed a pro se
         petition, his fifth, on May 5, 2010, alleging that he had
         recently discovered in his file a notation presumably made
         by his attorney on the back side of a document suggesting
         that the prosecution had offered a sentence of 15 to 30
         years imprisonment in exchange for Appellant’s guilty plea.
         Appellant contends that his counsel denied him his Sixth
         Amendment right to effective counsel by never conveying
         the offer to him.

             After appointing counsel, who filed an amended PCRA
         petition in the case sub judice, the PCRA court gave notice
         on December 15, 2010 of its intention to dismiss the
         petition without a hearing in 21 days. The next docket
         entry is a petition dated January 25, 2011, in which
         counsel sought reinstatement of Appellant’s appeal rights
         nunc pro tunc. On July 5, 2011, however, the court
         deemed the petition for reinstatement moot and dismissed
         the PCRA petition without a hearing. This timely appeal
         followed.

Commonwealth v. Washington, 50              A.3d 243     (Pa. Super. 2012),

unpublished memorandum at 1-3 (footnote omitted).

      On May 16, 2012, we affirmed the PCRA court’s order dismissing

Appellant’s fifth petition. See id. Appellant filed a petition for allowance of

appeal to our Supreme Court. While this petition was pending, on August 8,

2012, Appellant filed the PCRA petition at issue, his sixth.    Our Supreme

Court denied Appellant’s petition for allowance of appeal on October 12,

2012. Commonwealth v. Washington, 55 A.3d 524 (Pa. 2012). On May

21, 2014, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to

dismiss Appellant’s sixth PCRA petition without a hearing. By order entered

June 25, 2014, the PCRA court dismissed Appellant’s latest petition.      This



                                     -2-
J-S04026-15



timely appeal followed.    The PCRA court did not require Pa.R.A.P. 1925

compliance.

      Appellant raises the following issue on appeal:

         I. Whether Appellant’s sentence is illegal for violating the
         Eighth Amendment’s prohibition against cruel and unusual
         punishment in light of the United States Supreme Court’s
         decision in Miller v. Alabama, 132 S.Ct. 2455 (2012)?

Appellant’s Brief at 4 (excess capitalization and emphasis omitted).

      The PCRA court correctly notes that it lacked jurisdiction to rule on

Appellant’s sixth PCRA petition while he appealed to our Supreme Court.

Pa.R.Crim.P. 907 Notice Memorandum and Order, 5/21/14, at 1 (citing

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)).                   However,

because the PCRA court did not dismiss the prematurely filed PCRA petition,

see generally, Commonwealth v. Leslie, 757 A.2d 984 (Pa. Super.

2000), it properly considered its merits once our Supreme Court denied

relief. Before reviewing the PCRA court’s decision, however, we must first

determine whether Appellant timely filed his latest petition.

      Our standard of review regarding an order dismissing 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. Halley,

870 A.2d 795, 799 n.2 (Pa. 2005).      The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

Moreover, a PCRA court may decline to hold a hearing on the petition if the


                                     -3-
J-S04026-15



PCRA court determines that the petitioner’s claim is patently frivolous and is

without a trace of support in either the record or from other evidence.

Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001).

       The    timeliness   of   a   post-conviction     petition    is    jurisdictional.

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

omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor

the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction,

we simply do not have the legal authority to address the substantive claims”

raised in an untimely petition. Id.

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;    or    (3)   a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to


                                          -4-
J-S04026-15


the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.   Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

     Appellant’s judgment of sentence became final on July 17, 1995, when

the ninety-day period for filing a writ of certiorari with the United States

Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13.

See Commonwealth v. Washington, 867 A.2d 651 (Pa. Super. 2004),

unpublished memorandum at 2 n.1. Appellant filed the instant PCRA petition

over seventeen years later.     As a result, his PCRA petition is patently

untimely unless he has satisfied his burden of pleading and proving that one

of the enumerated exceptions applies.     See Commonwealth v. Beasley,

741 A.2d 1258, 1261 (Pa. 1999).

     Appellant has failed to prove the applicability of any of the exceptions

to the PCRA’s time restrictions. Appellant contends that his PCRA falls under

the exception of subsection 9545(b)(1)(iii) because the United States

Supreme Court recognized a new constitutional right in Miller v. Alabama,

132 S.Ct. 2455 (2012).     In Miller, the high court held that mandatory

sentences of life without parole “for those under the age of 18 at the time of

their crimes violates the Eighth Amendment’s prohibition against ‘cruel and

unusual punishment.’” Miller, 132 S.Ct. at 2460. Appellant asserts that the


                                    -5-
J-S04026-15


Miller decision should be applied retroactively to his life sentence.

Appellant’s claim fails for two reasons.

      First, the Miller holding is inapposite because Appellant was not a

juvenile when he robbed and killed the victim. The PCRA court reasoned:

             [Appellant] argues, to no avail, that he is entitled to relief
      based on the U.S. Supreme Court’s ruling in Miller v. Alabama,
      132 S.Ct. 2455 (2012), which bars automatic life sentences for
      juvenile offenders. The Miller decision, however, does not apply
      to [Appellant], who was twenty years old at the time he
      committed the murder. [Appellant] was born on March[] 10,
      1972, and the murder took place on September 6, 1992. The
      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 v. Alabama, 132 S.Ct. 2455, 2460
      (2012). The United States Supreme Court acknowledged in
      Roper v. Simmons, 543 U.S. 551, 574, 125 S.Ct. 1183 (2005),
      that “[t]he qualities that distinguish juveniles from adults does
      not disappear when an individual turns 18”, but Miller’s holding
      is limited to sentences for those who were “under the age of 18
      at the time of their crimes.”       Miller at 2460. Accordingly,
      [Appellant’s] case does not fall within Miller’s scope.

Pa.R.Crim.P. 907 Memorandum and Order, 5/21/14, at 2.

       Second, even had Appellant been a juvenile at the time of the victim’s

murder, our Supreme Court has determined that the Miller decision should

not   be   applied   retroactively.   See   generally,    Commonwealth        v.

Cunningham, 81 A.3d 1 (Pa. 2013).           Thus, Appellant cannot avoid the

PCRA’s time bar pursuant to Section 9545(b)(iii).

      In sum, Appellant’s PCRA petition is facially untimely, and he has failed

to meet his burden of proof with regard to any exception to the timeliness




                                      -6-
J-S04026-15



requirements of the PCRA. We therefore affirm the PCRA court’s denial of

Appellant’s sixth petition for post-conviction relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2015




                                       -7-
