J-S21021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RODNEY WILLIAMS                            :
                                               :
                       Appellant               :   No. 3951 EDA 2017

                 Appeal from the PCRA Order October 23, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0131281-1992


BEFORE: STABILE, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                                 FILED MAY 06, 2019

        Rodney Williams (Appellant) appeals from the order dismissing as

untimely his fourth petition filed under the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. Following careful review, we affirm.

        A prior panel of this Court discussed the history of this case as follows:

        On August 3, 1991, Appellant robbed nineteen-year-old Derrick
        Thomas and then shot him in the head, killing him. Appellant fled
        but eventually was arrested. Following his arrest, Appellant
        confessed to the crime, claiming that he shot Thomas accidentally.
        On December 16, 1994, he was convicted by a jury of first degree
        murder, robbery, and possession of an instrument of crime.[1]
        After a penalty phase hearing, Appellant was sentenced to life
        imprisonment. We affirmed the judgment of sentence on May 19,
        1997. Commonwealth v. Williams, 698 A.2d 1350 (Pa. Super.
        1997) (unpublished memorandum).

        Following the filing of our memorandum, no docket entries are
        posted until August 9, 2002, when Appellant filed a counseled
____________________________________________


1   18 Pa.C.S.A. §§ 2502(a), 3701, and 907, respectively.
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      PCRA petition, which he [erroneously] labeled as his third petition.
      In the petition, Appellant averred that on February 6, 2002, after
      learning of our disposition of his direct appeal, he petitioned the
      Pennsylvania Supreme Court for permission to file a petition for
      allowance of appeal nunc pro tunc, which was denied on April 16,
      2002. After sending a Pa.R.Crim.P. 907 notice, the trial court
      denied the petition without a hearing on the basis that it was
      untimely.

See Commonwealth v. Williams, 867 A.2d 652 (Pa. Super. 2004)

(unpublished memorandum). The dismissal of Appellant’s first petition was

affirmed on appeal. Id. Appellant’s petition for allocator to the Pennsylvania

Supreme Court was denied.      Commonwealth v. Williams, 871 A.2d 191

(Pa. 2005) (unpublished memorandum).

      Appellant filed his second PCRA petition on October 22, 2007, and this

petition was dismissed on July 11, 2011. This Court affirmed the dismissal on

March 2, 2012. See Commonwealth v. Williams, 47 A.3d 1234 (Pa. Super.

2012) (unpublished memorandum). Appellant’s petition for allocator to the

Pennsylvania Supreme Court was denied. See Commonwealth v. Williams,

74 A.3d 126 (Pa. 2013) (unpublished memorandum).

      Appellant filed a third PCRA petition on March 26, 2012. Although the

PCRA court sent notice pursuant to Pa.R.Crim.P. 907 that the petition would

be dismissed without a hearing, the petition was never formally dismissed and

no appeal was taken.




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       Appellant filed the instant pro se PCRA petition, his fourth, on March 21,

2016.2 In the petition, Appellant asserted that Montgomery v. Louisiana,

136 S. Ct. 718 (2016) (extending the relief offered by Miller v. Alabama,

132 S. Ct. 2455 (2012), which held that sentences of mandatory life without

parole for those under eighteen at the time of their crimes violated the Eighth

Amendment’s prohibition on cruel and unusual punishments, retroactively to

juvenile offenders on collateral review), had created a new constitutional right

that entitled him to PCRA relief. See PCRA Petition, 3/21/16, at 1-5.

       PCRA counsel filed an amended petition on Appellant’s behalf, arguing

that because Appellant was only eighteen at the time of the murder, his

mandatory sentence of life without parole was unconstitutional pursuant to

the Fifth, Eighth, and Fourteenth Amendments of the United States and

Pennsylvania Constitutions. See Amended PCRA Petition, 4/21/17, at 1-4.

       On May 9, 2017, the PCRA court sent Appellant notice pursuant to

Pa.R.Crim.P. 907 that his petition would be dismissed without a hearing.

Appellant filed a response in opposition to the dismissal notice. On October

23, 2017, the PCRA court formally dismissed Appellant’s petition. On October

25, 2017, the PCRA court issued an additional order noting that Appellant’s


____________________________________________


2 Appellant, an incarcerated prisoner, certified in his PCRA petition that he
placed the petition in the hands of prison authorities for mailing on March 21,
2016. See, e.g., Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa.
Super. 2006) (noting that pursuant to the prisoner mailbox rule, a document
is deemed filed when placed in the hands of prison authorities for mailing).
Appellant’s petition was received by the PCRA court on March 30, 2016.

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petition was being dismissed based on a lack of merit pursuant to

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

       Appellant timely filed the instant appeal.    While the matter was on

appeal but prior to this Court’s decision, on December 20, 2017, the PCRA

court issued an “amended order to correct clerical error” that purported to

amend the court’s previous order dismissing Appellant’s PCRA petition. 3 See

Order, 12/20/17, at 1. Appellant filed an appeal to the December 20, 2017

order; that appeal was docketed at 357 EDA 2018, but because the December

20, 2017 was a legal nullity, we quash the appeal by separate order.

       Instantly, Appellant raises the following issues for review:

       1. Where Miller and Montgomery instruct that sentencing a
       youth to a mandatory sentence of life without possibility of parole,
       without considering the factor of age and its attendant effects,
       constitutes a denial of the Eighth Amendment cruel and unusual
       punishment charge, did the [PCRA court] err in not granting
       Appellant the right to be resentenced as the documentary
____________________________________________


3 The December 20, 2017, order does not specify which prior order it is
amending. The PCRA court entered two orders dismissing Appellant’s petition,
one docketed October 23, 2017 and one docketed October 25, 2017.
Regardless, the amended order was entered either 60 or 58 days after the
prior orders were docketed, and subsequent to Appellant’s first appeal.

Generally, a court may modify an order within 30 days if no appeal has been
taken, but may also modify any order within 30 days after entry to correct a
mistake. See 42 Pa.C.S.A. § 5505; Commonwealth v. Baio, 898 A.2d 1095
(Pa. Super. 2006). However, where a court does not explicitly vacate a prior
order within the 30-day period, orders post-dating the order are a legal nullity
and may not form the basis for an appeal.                Commonwealth v.
Liebensperger, 904 A.2d 40 (Pa. Super. 2006). Accordingly, because the
court did not explicitly vacate its prior orders within the appropriate time
period, the December 20, 2017 order was a legal nullity. Id. Thus, by
separate order, we quash Appellant’s second appeal.

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      evidence reflects that he was like those who were less than a year
      younger than he was when Appellant’s crime was committed?

      2. Where it is clear that Appellant, who [was eighteen years of
      age] when his crime was committed, is similarly situated to those
      who were less than a year younger than he was, did the [PCRA
      court’s] failure to extend the Miller/Montgomery holding to him
      violate the equal protection clause?

      3. Where the Appellant is similarly situated to those under
      [eighteen years of age], did the [PCRA court’s] failure to permit
      resentencing deny substantive and procedural due process, and
      access to the [c]ourts?

      4. Where the [PCRA court] did not grant resentencing because it
      found that Miller v. Alabama did not apply to those over 18 years
      old when their crime was committed under the PCRA or any other
      statute, were the PCRA statute, habeas corpus statute and 18
      Pa.C.S. § 1102 unconstitutional as applied to Appellant?

Appellant’s Brief at 3.

      This Court’s standard of review regarding an order denying 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. See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). On appeal, we examine the issues

raised in light of the record “to determine whether the PCRA court erred in

concluding that there were no genuine issues of material fact and denying

relief without an evidentiary hearing.” See Commonwealth v. Springer,

961 A.2d 1262, 1264 (Pa. Super. 2008).

      We begin by addressing the timeliness of Appellant’s petition, as the

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded   in   order   to   address   the   merits   of   his   claims.   See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the


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PCRA, any petition for relief, including second and subsequent petitions, must

be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three exceptions:

       (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.A. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke these

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000).4

       Appellant’s petition is untimely.         Appellant’s judgment of sentence

became final on June 18, 1997, thirty days after this Court affirmed his

judgment of sentence, and he failed to petition the Pennsylvania Supreme

____________________________________________


4 Act 146 of 2018 amended 42 Pa.C.S.A. §9545(b)(2), effective December
2017, and now provides that a PCRA petition invoking a timeliness exception
must be filed within one year of the date the claim could have been
presented. Previously, a petitioner had 60 days from when the claim could
have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, §2 and §3.
However, as Appellant’s petition was filed in March 2016, the change does not
affect our analysis.


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Court for review. See Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super.

2014); 42 Pa.C.S.A. § 9545(b)(3) (a judgment of sentence becomes final at

the conclusion of direct review or the expiration of the time for seeking the

review). Accordingly, Appellant had until June 18, 1998, to timely file a PCRA

petition.   Appellant filed the instant petition on March 21, 2016, almost

nineteen years too late. Therefore, we are without jurisdiction to consider

Appellant’s appeal unless he has plead and proved one of the three timeliness

exceptions. See Bennett, 930 A.2d at 1267.

      Appellant attempts to invoke the constitutional right exception under

Section 9545(b)(1)(iii), on the basis that the relief provided by Miller and

made retroactive by Montgomery should extend to offenders eighteen years

old at the time of their crimes; in support of this contention, Appellant raises

a number of constitutional challenges.       See Appellant’s Brief at 9-44.

Additionally, because Appellant filed his petition within 60 days of the

Montgomery ruling, he has ostensibly satisfied the requirements of Sections

9545(b)(1)(iii) and (2).

      This Court recently re-examined this issue en banc in Commonwealth

v. Lee, --- A.3d ---, 2019 Pa. Super. 64 (Pa. Super. 2019) (en banc). In Lee,

the defendant was eighteen years and nine months old when she was involved

in a robbery that resulted in the death of the intended victim.      Id. at *1.

Following the publication of Montgomery, Lee filed a PCRA petition arguing

that she was a “virtual minor” at the time of the commission of her crime, and


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that “the rationale underlying the Miller holding, including consideration of

characteristics of youth and age-related facts identified as constitutionally

significant by the Miller Court, provides support for extending the benefit of

Miller to her case.” Id. at *2. Ultimately, this Court concluded that Lee had

not satisfied a time bar exception, and stated:

      It is not this Court’s role to override the gatekeeping function of
      the PCRA time-bar and create jurisdiction where it does not exist.
      The PCRA’s time limitations “are mandatory and interpreted
      literally; thus, a court has no authority to extend filing periods
      except as the statute permits.” Commonwealth v. Fahy, [737
      A.2d 214, 222 (Pa. Super.] 1999). The period for filing a PCRA
      petition “is not subject to the doctrine of equitable tolling.” Id.

      We recognize the vast expert research on this issue. If this matter
      were one of first impression and on direct appeal, we might
      expound differently. However, we are an error-correcting court.
      Until the United States Supreme Court or the Pennsylvania
      Supreme Court recognizes a new constitutional right in a non-
      juvenile offender, we are bound by precedent. We conclude, as
      we did in Commonwealth v. Montgomery [181 A.3d 359 (Pa.
      Super. 2018)], [Commonwealth v. Furgess, 149 A.3d 90 (Pa.
      Super. 2016)], and [Commonwealth v. Cintora, 69 A.3d 759
      (Pa. Super. 2013) abrogation on other grounds recognized in
      Furgess, supra, at 94], that age is the sole factor in determining
      whether Miller applies to overcome the PCRA time-bar and we
      decline to extend its categorical holding.

Lee, at *8-9 (footnote omitted).

      Accordingly, Appellant has failed to successfully plead or prove that he

meets the new constitutional right exception to the timeliness requirements

of the PCRA, 42 Pa.C.S.A. § 9545(b)(2)(iii), and the PCRA court did not err in

dismissing his petition.   See 42 Pa.C.S. § 9545(b); Bennett, 930 A.2d at

1267; Ragan, 923 A.2d at 1170; Lee, --- A.3d --- at * 8-9.


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/19




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