J-S78017-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BARRY MALLORY                              :
                                               :
                       Appellant               :   No. 36 EDA 2018

                Appeal from the PCRA Order November 21, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0413041-1991

BEFORE:       LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                           FILED MARCH 22, 2019

       Barry Mallory appeals from the order dismissing his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546, as untimely. We affirm.

       In March 1992, the trial court1 convicted Mallory of second-degree

murder, robbery, criminal conspiracy, possessing an instrument of crime, and

carrying a firearm on public streets, and subsequently sentenced him to life

imprisonment. Mallory was 20 years old at the time of his crimes. Mallory’s

Br. at 10. We affirmed the judgment of sentence in May 1993, and the




____________________________________________


*    Former Justice specially assigned to the Superior Court.

1 Judge Carolyn Engel Temin presided over Mallory’s bench trial. She is now a
First Assistant District Attorney in Philadelphia and has recused herself from
participating in this matter.
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Pennsylvania Supreme Court denied allowance of appeal on September 24,

1993.

        Mallory then filed a series of PCRA petitions, all of which were denied.

Mallory filed this instant pro se PCRA petition on August 14. 2012. He

contended that he that he should receive the benefit of Miller v. Alabama,

567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

The PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss on

October 11, 2017. Mallory did not respond to the Rule 907 notice and the

PCRA court dismissed Mallory’s petition as untimely. Mallory filed this appeal.

        Mallory’s Statement of Questions Presented lists four issues, which we

repeat verbatim:

        A.    Exception to timeliness.

        B.    Was there 8th Amendment violation LWOP cruel and
              unusual punishment.

        C.    Due process violation [evidentuary2 hearing].

        D.    Was there equal protection violation [scientific study]

Mallory’s Br. at 2.

        This Court’s standard of review for the denial of a PCRA petition entails

only “examining whether the PCRA court’s determination is supported by

evidence of record and whether it is free of legal error.” Commonwealth v.

Jordan, 182 A.3d 1046, 1049 (Pa.Super. 2018).



____________________________________________


2   Thus in original.

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       A petition seeking relief under the PCRA must be filed within one year

of the date the petitioner’s judgment of sentence becomes final. 42 Pa.C.S.A.

§ 9545(b)(1); Commonwealth v. Jones, 54 A.3d 14, 16 (2012). “[A]

judgment becomes final at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.” 42 Pa.C.S.A. § 9545. This timeliness requirement is jurisdictional in

nature, and a court may not address the merits of any claim raised unless the

petitioner filed for relief within the one-year period or the petitioner pleads

and proves that at least one of three time-bar exceptions applies.

Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016). Further, in order to

avail himself of the time-bar exception, Mallory had to file his PCRA petition

within 60 days of the date the claim could have been presented. 42 Pa.C.S.A.

§ 9545(b)(2).3

       Mallory’s judgment of sentence became final on December 23, 1993, 90

days after the Pennsylvania Supreme Court denied allowance of appeal .As

Mallory filed this instant PCRA more than 18 years late, the PCRA court lacked

jurisdiction to address Mallory’s claims on their merits unless he pleaded and

proved one of the following exceptions:

       (i) the failure to raise the claim previously was the result of
       interference by government officials with the presentation of the
____________________________________________


3 Subsection 9545(b)(2) was subsequently amended effective December 24,
2018, to extend the time for filing a petition pursuant to a time-bar exception
to one year. The amendment does not apply here.

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      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).

      Mallory attempted in his PCRA petition to invoke two PCRA time-bar

exceptions: the “new facts” exception and the “retroactive constitutional right”

exception. Mallory’s Br. at 16-17. Neither exception is availing.

      To the extent Mallory contends that the publication of Miller was a new

fact, “the Pennsylvania Supreme Court has held that subsequent decisional

law does not amount to a new ‘fact’ under section 9545(b)(1)(ii) of the PCRA.”

Commonwealth v. Whitehawk, 146 A.3d 266, 271 (Pa. Super 2016) (citing

Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011)).

      To the extent he argues that the studies Miller cited were new facts,

that is really a contention that we should extend the holding of Miller to

include 20-year-olds, such as Mallory at the time of his conviction. This is the

same argument Mallory makes under the “retroactive constitutional right”

exception. This argument fails because Mallory is not within the class of

persons Miller affected. The Miller Court carefully restricted its holding to

those under the age of 18 at the time of their crimes: “We therefore hold that

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


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their crimes violates the Eighth Amendment's prohibition on “cruel and

unusual punishments.” Miller, 567 U.S. at 465. Mallory’s PCRA petition did

not present a claim falling within the ambit of the Supreme Court's decision in

Miller and therefore does not fall under the “newly recognized constitutional

right” exception in Section 9545(b)(1)(iii). Commonwealth v. Furgess, 149

A.3d 90, 93-94 (Pa. Super. 2016).

      As Mallory is not within the class of persons Montgomery imbued with

a retroactive constitutional right, he is unable to employ that decision in order

to circumvent the PCRA’s time-bar. We do not reach the merits of Mallory’s

argument, as the contention that a newly-recognized constitutional right

should    be    extended   does    not    render   his   PCRA   petition   timely.

Commonwealth. v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013) (holding

argument to extend Miller did not satisfy new-right exception), abrogated on

other grounds, Furgess, 149 A.3d at 94. The PCRA court was without

jurisdiction to address it on its merits and thus rightly dismissed it.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/19




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