J-S49016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1953 MDA 2017


            Appeal from the PCRA Order entered November 3, 2017
               In the Court of Common Pleas of Dauphin County
               Criminal Division at No: CP-22-CR-0003071-1992


BEFORE: SHOGAN, J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                      FILED NOVEMBER 30, 2018

       Appellant, Donald Washington, pro se appeals from the November 3,

2017 order of the Court of Common Pleas of Dauphin County dismissing his

petition for collateral relief under the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

       The factual background and the procedural history of the case are not

at issue here. See generally Commonwealth v. Washington, No. 1221

MDA 2014, unpublished memorandum at 1-3 (Pa. Super. filed February 2,

2015) (relating to Appellant’s sixth PCRA petition). Briefly, on April 16, 1993,

a jury convicted Appellant of murder in the first degree and related charges in

connection with a shooting involving illegal drugs.    On July 18, 1995, this


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* Former Justice specially assigned to the Superior Court.
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Court affirmed the judgment of sentence of life imprisonment without parole,

and our Supreme Court denied Appellant’s petition for allocatur on April 18,

1995. Appellant filed the petition at issue here on October 20, 2017. The trial

court dismissed it on November 3, 2017. This appeal followed.

       Appellant argues the trial court erred or abused its discretion in

characterizing the underlying petition as a PCRA petition as opposed to a

petition for writ for habeas corpus. We disagree.

       The thrust of his challenge, that his sentence was illegal under Miller v.

Alabama, 132 S.Ct. 2455 (2012),1 squarely falls within the scope of the

PCRA. See Commonwealth v. Melvin, 172 A.3d 14, 19 (Pa. Super. 2017)

(challenges under Miller involve the legality of sentence); Commonwealth

v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (“[i]ssues concerning the

legality of sentence are cognizable under the PCRA)).

       Appellant also relies on Atkins v. Virginia, 536 U.S. 304 (2002), for

the proposition that Atkins made illegal mandatory sentencing schemes that

mandate life without possibility of parole for defendant who suffers from

mental disorders or similarly situated.          It is well-established that Atkins

claims fall within the purview of the PCRA. See Commonwealth v. Bracey,
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1 In Miller, the U.S. 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, 132
S.Ct. at 2460. In Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the U.S.
Supreme Court held that Miller was a new substantive rule that, under the
United States Constitution, must be retroactive in cases on state collateral
review. Montgomery, 136 S.Ct. at 736.


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986 A.2d 128 (Pa. 2009) (“This Court has previously held that we have

jurisdiction over an Atkins claim pursuant to 42 Pa.C.S. § 9545(b)(1)(iii) so

long as the petition raising the claim was filed within sixty days of the Atkins

decision, as required by 42 Pa.C.S. § 9545(b)(2)”) (citation omitted).

       Accordingly, the trial court did not err or abuse its discretion in treating

his   petition   for   habeas     corpus       as   a   PCRA   petition.2   See,   e.g.,

Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998) (PCRA

subsumes remedy of habeas corpus with respect to remedies offered under

PCRA).    Having determined that the trial court properly characterized the

underlying petition as a PCRA petition, we must now determine whether the

petition is timely under the PCRA. We conclude it is not.

       All PCRA petitions, “including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final.” 42 Pa.C.S.A.

§ 9545(b)(1). The one-year time limitation, however, can be overcome if a

petitioner (1) alleges and proves one of the three exceptions set forth in

Section 9545(b)(1)(i)-(iii) of the PCRA, and (2) files a petition raising this

exception within sixty days of the date the claim could have been presented.

42 Pa.C.S.A. § 9545(b)(2).

       “The PCRA’s time restrictions are jurisdictional in nature. Thus, [i]f a

PCRA petition is untimely, neither this Court nor the [PCRA] court has
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2 It should be noted that Appellant unsuccessfully challenged the legality of
his sentence under Miller and Montgomery in connection with his sixth PCRA
petition. Commonwealth v. Washington, No. 1221 MDA 2014, unpublished
memorandum at 1-3 (Pa. Super. filed February 2, 2015).

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jurisdiction over the petition. Without jurisdiction, we simply do not have the

legal authority to address the substantive claims.”        Commonwealth v.

Chester, 895 A.2d 520, 522 (Pa. 2006) (first alteration in original) (internal

citations and quotation marks omitted). As timeliness is separate and distinct

from the merits of Appellant’s underlying claims, we first determine whether

this PCRA petition is timely filed. See Commonwealth v. Stokes, 959 A.2d

306, 310    (Pa.   2008) (consideration of      Brady    claim separate     from

consideration of its timeliness).   The timeliness requirements of the PCRA

petition must be met, even if the underlying claim is a challenge to the legality

of the sentence.   See Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa.

2007) (“Although legality of sentence is always subject to review within the

PCRA, claims must still first satisfy the PCRA’s time limits or one of the

exceptions thereto”) (citing Commonwealth v. Fahy, 737 A.2d 214, 223

(1999)).

      Instantly, 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 Washington, No. 1221 MDA 2014, at 5. Appellant

filed the instant PCRA petition on October 20, 2017, approximately over 20

years after his judgment of sentence became final.        As such, the instant

petition is patently untimely, unless Appellant pleaded and proved that one of

the enumerated exceptions applies. Appellant failed to plead and prove the

applicability of the exceptions to the PCRA’s time restrictions. These omissions

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are fatal to the instant appeal. See Commonwealth v. Wilson, 824 A.2d

331, 336 (Pa. Super. 2003) (“Appellant’s failure to timely file his PCRA

petition, and his failure to invoke any of the exceptions to the timeliness

requirements of the PCRA, results in an untimely PCRA petition under any

analysis.”).3

       Accordingly, we conclude, the PCRA court properly denied the instant

petition.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2018




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3 Finally, Appellant seems to argue that Atkins, similarly to Miller, is an Equal
Protection Clause case. Neither Atkins nor Miller are Equal Protection cases.
Those two cases announced a new rule with respect to the Eight Amendment.
At any rate, even if the claim raised is of constitutional dimension, these claims
are subject to the same time limitation requirements.                         See,
e.g., Commonwealth v. Turner, 80 A.3d 754, 767 (Pa. 2013)
(the constitutional dimension of the allegations does not shield from the PCRA
jurisdictional time bar).


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