J-S48021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER MENDOZA                        :
                                               :
                       Appellant               :   No. 292 EDA 2019

             Appeal from the PCRA Order Entered January 2, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-1000351-2004


BEFORE:      BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                             FILED OCTOBER 09, 2019

        Appellant, Christopher Mendoza,1 appeals pro se from the order denying

his second petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The record reveals that on November 7, 2005, Appellant pleaded guilty

to second-degree murder and arson resulting from the strangulation death of

Diane Torres and fire at Torres’s home. N.T., 11/7/05, at 118-119, 130-131.


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*   Retired Senior Judge assigned to the Superior Court.

1 Throughout the certified record, Appellant’s given name is listed as
Christophe or Christopher. We utilize the latter spelling. The majority of the
court filings, specifically the documents executed and signed by Appellant,
reveal consistently that Appellant’s name is Christopher Mendoza. See, e.g.,
Investigation Interview, 8/19/04; Consent to Videotape Interview, 8/19/04;
PCRA petition, 3/1/16; Notice of Appeal, 1/17/19; and Appellant’s Brief,
2/25/19. We have corrected the caption accordingly.
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On January 11, 2006, the trial court sentenced Appellant to a term of life

imprisonment without the possibility of parole for second-degree murder and

a concurrent term of ten to twenty years of incarceration for arson.

Sentencing Order, 1/11/06. Appellant did not file a direct appeal.

       On January 16, 2007, Appellant filed his first PCRA petition, and the

PCRA court appointed counsel.                  Counsel filed a motion to withdraw

representation on October 15, 2008, and a Turner/Finley2 letter on October

17, 2008. On November 17, 2008, the PCRA court informed Appellant of its

intent to dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P.

907. The PCRA court granted counsel’s motion to withdraw and dismissed

Appellant’s PCRA petition on December 19, 2008.             Appellant did not file a

direct appeal.

       More than seven years later, on March 1, 2016, Appellant filed a

document entitled, “Supplemental Amended Petition for Habeas Corpus Relief

Pursuant to Article I, § 14 of the Pennsylvania Constitution.” Inexplicably, two

days later, on March 3, 2016, Appellant filed a copy of that same document.

In these identical filings, Appellant averred that his sentence was illegal under

Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana,

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2  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(setting forth the requirements for counsel to withdraw representation on
collateral review).




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___ U.S. ___, 136 S.Ct. 718 (2016).3 The PCRA court explained correctly that

the relief requested in Appellant’s petitions for habeas corpus relief was

cognizable under the PCRA, and it treated the identical filings as a single PCRA

petition. PCRA Court Opinion, 1/31/19.4 On September 17, 2018, the PCRA

court informed Appellant of its intent to dismiss the PCRA petition without a

hearing pursuant to Pa.R.Crim.P. 907. On January 2, 2019, the PCRA court

dismissed Appellant’s PCRA petition. This timely appeal followed.

       On appeal, Appellant raises the following issue for this Court’s

consideration:

       A. Whether science and social science related to adolescent
          development must be taken into consideration in construing
          the right established by the United States Supreme Court in
          Miller v. Alabama, 132 S.Ct. 2455 (2012) and support the
          conclusion that 18 to 24 year olds can possess the
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3 In Miller, the Supreme Court of the United States ruled that a mandatory
sentence of life imprisonment without the possibility of parole for a juvenile
offender is unconstitutional. Miller, 567 U.S. at 465. In Montgomery, the
Supreme Court of the United States concluded that Miller announced a
substantive rule of constitutional law, and as such, the holding in Miller
applied retroactively to juvenile convictions and sentences that were final
when Miller was decided.

4 The PCRA is the sole means for obtaining collateral relief, and it encompasses
all other common law and statutory remedies including habeas corpus. 42
Pa.C.S. § 9542. In Appellant’s habeas corpus petitions, he alleged his
sentence was illegal pursuant to Miller and Montgomery. Challenges to the
legality of one’s sentence are cognizable under the PCRA.                   See
Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004) (“Issues
concerning the legality of sentence are cognizable under the PCRA.”).
Therefore, the PCRA court treated Appellant’s habeas corpus petitions as
petitions for relief under the PCRA. See Commonwealth v. Eller, 807 A.2d
838, 842-843 (Pa. 2002) (any claim cognizable under the PCRA must be
brought under the PCRA and not through habeas corpus).

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         characterizations of youth that render life without parole
         disproportionate[.]

Appellant’s Brief at 3.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA court’s

determination is free of legal error. Commonwealth v. Staton, 184 A.3d

949 (Pa. 2018). We consider the record in the light most favorable to the

prevailing party in the PCRA court. Commonwealth v. Mason, 130 A.3d

601, 617 (Pa. 2015). This Court grants deference to the PCRA court’s findings

that are supported in the record, and we will not disturb those findings unless

they have no support in the certified record. Commonwealth v. Rigg, 84

A.3d 1080, 1084 (Pa. Super. 2014).

      A PCRA petition must be filed within one year of the date that the

petitioner’s judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1).

This time requirement is mandatory and jurisdictional in nature, and the court

may not ignore it in order to reach the merits of the petition. Commonwealth

v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). A judgment of sentence

“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.

§ 9545(b)(3).

      However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

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the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and

(iii), is met.5 Until recently, a petition invoking one of these exceptions must

have been filed within sixty days of the date the claim could first have been

presented.6 42 Pa.C.S. § 9545(b)(2).

        As discussed above, the trial court imposed sentence on January 11,

2006.     Appellant did not pursue a direct appeal.      Accordingly, Appellant’s

judgment of sentence became final thirty days later on Monday, February 13,



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5   The exceptions to the timeliness requirement are:

        (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. § 9545(b)(1)(i), (ii), and (iii).
6Act 146 of 2018 amended 42 Pa.C.S. § 9545(b)(2) and provides that a PCRA
petition invoking a timeliness exception must be filed within one year of the
date the claim could have been presented. 2018 Pa.Legis.Serv.Act 2018-146
(S.B. 915), effective December 24, 2018, § 2 and § 3 (“[T]he amendment ...
shall apply to claims arising on Dec. 24, 2017 or thereafter.”).          The
amendment is inapplicable here because the claim relating to the decision in
Miller presented in Appellant’s underlying PCRA petition arose prior to
December 24, 2017, and Appellant’s PCRA petition was filed on March 1, 2016.



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2006,7 when the time for filing a direct appeal expired. See Pa.R.A.P. 903(a)

(directing that a notice of appeal must be filed within thirty days after the

entry of the order from which the appeal is taken); see also 42 Pa.C.S.

§ 9545(b)(3) (“[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.”). Therefore, in order to be timely, Appellant had to file a first or

subsequent PCRA petition on or before February 13, 2007. See 42 Pa.C.S.

§ 9545(b)(1) (any PCRA petition, including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final).

Appellant did not file the instant PCRA petition until March 1, 2016. Thus,

Appellant’s PCRA petition is patently untimely.

       As previously stated, if a petitioner does not file a timely PCRA petition,

his petition may be received under any of the three limited exceptions to the

timeliness requirements of the PCRA. 42 Pa.C.S. § 9545(b)(1). As noted, in

order for Appellant to assert one of these exceptions, he was required to file

his petition within sixty days of the date that the exception could be asserted.

42 Pa.C.S. § 9545(b)(2). It is the petitioner’s burden to plead and prove that



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7The thirtieth day fell on Saturday, February 11, 2006. Accordingly, Appellant
had until Monday, February 13, 2006, to file a direct appeal. See 1 Pa.C.S.
§ 1908 (stating, inter alia, that when the last day to file an appeal falls on a
Saturday or Sunday, such day is omitted from the computation).


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one of the exceptions applies. Commonwealth v. Whitehawk, 146 A.3d

266, 269-270 (Pa. Super. 2016).

       Although Appellant crafted his argument inartfully, he avers that he

satisfied the exception enumerated in 42 Pa.C.S. § 9545(b)(1)(iii), raising a

newly recognized constitutional right held to apply retroactively and that he

presented his claim within sixty days from the date Montgomery was filed.

Appellant’s Brief at 12;8 PCRA Petition, 3/1/16, at ¶8. This Court has held

that “[t]he date of the Montgomery decision (January 25, 2016, as revised

on January 27, 2016) will control for purposes of the 60-day rule in Section

9545(b)(2).” Commonwealth v. Secreti, 134 A.3d 77, 82-83 (Pa. Super.

2016). Thus, if Appellant can establish a viable claim pursuant to Miller, his

March 1, 2016 PCRA petition would satisfy the exception set forth in 42 Pa.C.S.

§ 9545(b)(1)(iii).

       After review, we conclude that Appellant has no viable Miller argument,

and his PCRA petition was properly dismissed as untimely.       Appellant was

twenty-one years old at the time he murdered Diane Torres and set her home




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8  We are constrained to point out that Appellant never specifically discusses
the application of 42 Pa.C.S. § 9545(b)(1)(iii) in his brief. However, the
entirety of Appellant’s argument is that the decision in Miller, a newly
recognized constitutional right held to apply retroactively, was presented to
the PCRA court within sixty days from the date Montgomery was filed, and
it should afford him relief.



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on fire.9 The holding in Miller applies to only those defendants who were

“under the age of 18 at the time of their crimes.”         Commonwealth v.

Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (quoting Miller, 567 U.S. at

465).

        Nevertheless, Appellant asserts that the decisions in Miller and

Montgomery should be applied to his sentence, regardless of the fact that

he was twenty-one years old at the time of the offense. Specifically, Appellant

asks this Court to extend the holding in Miller to individuals such as himself

who were “mentally less than 18 years of age” at the time of the criminal act.

Appellant’s Brief at 8.       This issue was addressed recently in our Court’s

decision in Commonwealth v. Lee, 206 A.3d 1 (Pa. Super. 2019) (en banc).

        In Lee, the appellant sought to expand the holding in Miller to apply to

individuals who were eighteen years old at the time of the crime, but had an

“immature brain” and “characteristics of youth” that rendered them less

culpable under Miller. Lee, 206 A.3d at 4, 7. This Court concluded that the

decision in Miller was based on chronological age alone; it did not address

sentences for individuals who were eighteen years of age or older or a

defendant’s mental age.         “Until the United States Supreme Court or the

Pennsylvania Supreme Court recognizes a new constitutional right in a non-



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9 Appellant was born on December 14, 1982. Investigation Interview,
8/19/04; see also PCRA Petition, 3/1/16 (wherein Appellant states that he
was twenty-one years old at the time of the crime).

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juvenile offender, we are bound by precedent.”     Lee, 206 A.3d at 10-11.

“[A]ge is the sole factor in determining whether Miller applies to overcome

the PCRA time-bar and we decline to extend its categorical holding.” Id. at

11.

      Appellant was twenty-one years old when he committed his crimes,

which renders Miller inapplicable.   Furgess, 149 A.3d at 94.      Appellant’s

argument concerning “brain science” and “mental age” fails to establish an

exception to the PCRA’s time-bar.     Lee, 206 A.3d at 10-11.      Therefore,

Appellant’s PCRA petition was untimely, and the PCRA court lacked jurisdiction

to address the claims presented and grant relief. See Commonwealth v.

Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding that the PCRA court

lacks jurisdiction to hear an untimely petition). Accordingly, we affirm the

PCRA court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/19




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