J-S53015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                                             :
                v.                           :
                                             :
                                             :
 ROBERT L. MADISON                           :
                                             :
                       Appellant             :      No. 220 EDA 2019

         Appeal from the PCRA Order Entered December 13, 2018
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0100662-1977


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                             FILED NOVEMBER 05, 2019

     Appellant, Robert L. Madison, appeals pro se from an order entered

December 13, 2018, which dismissed his petition for collateral relief filed

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

§§ 9541-9546. We affirm.

     We previously summarized the facts of this case as follows:

     On December 8, 1976, Appellant was in a luncheonette in
     Philadelphia[, Pennsylvania] when he and the owner had an
     altercation. Appellant left the establishment and returned with
     Tyrone Smith and a shotgun and killed the owner. On October
     25, 1977, he was found guilty of first[-]degree murder at a
     non[-]jury trial and subsequently was sentenced to life
     imprisonment. We affirmed [Appellant’s judgment of sentence]
     on October 26, 1979. Our Supreme Court denied further review
     on November 11, 1979. Appellant filed his first [collateral relief]
     petition on February 19, 1986; relief was denied, and [thereafter,]
     we dismissed the appeal [] due to counsel’s failure to file a brief.
     In 1996, Appellant filed a second [collateral relief] petition and
     again[,] was denied relief. On September 12, 2002, Appellant
     filed [his third collateral relief] petition claiming the existence of
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       [a newly-discovered fact]. [On September 20, 2004, this Court
       affirmed the PCRA court’s dismissal order, holding that Appellant’s
       petition was untimely and failed to meet the newly-discovered fact
       exception to the PCRA’s time-bar].

Commonwealth v. Madison, __A.2d__, 2267 PHL 2003 (Pa. Super. 2004)

(unpublished memorandum), at 1-4 (citation omitted).

       Appellant filed his fourth PCRA petition on August 23, 2012. Appellant’s

Fourth PCRA Petition, 8/23/12, at 1-20.          He subsequently amended his

petition on March 25, 2016. Appellant’s Amended PCRA Petition, 3/25/16, at

1-10. On September 17, 2018, the PCRA court provided Appellant with notice

that it intended to dismiss his PCRA petition in 20 days without holding a

hearing, as the petition was untimely. PCRA Court Order, 9/17/18, at 1; see

also Pa.R.Crim.P. 907(1). The PCRA court dismissed Appellant’s petition on

December 13, 2018, and Appellant filed a timely notice of appeal.1

       Appellant presents one issue for our review:

       [Whether Appellant satisfied the new rule of constitutional law
       exception to the PCRA’s timeliness requirement?]

See generally Appellant’s Brief.

       The timeliness requirement for PCRA petitions “is mandatory and

jurisdictional in nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248

(Pa. 2013) (citation omitted). “The question of whether a petition is timely

raises a question of law. Where the petitioner raises questions of law, our


____________________________________________


1The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b).

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standard of review is de novo and our scope of review plenary.”

Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017), appeal

denied, 170 A.3d 1007 (Pa. 2017) (citation omitted).

      A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] becomes final.” 42 Pa.C.S.A. §§ 9545(b)(1). “[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(b)(3). Here, Appellant’s judgment of sentence

became final on February 9, 1980, 90 days after the Pennsylvania Supreme

Court denied allocatur and the time to file a petition for writ of certiorari in the

United States Supreme Court elapsed.            See U.S.Sup.Ct. Rule 13.    Hence,

Appellant’s petition is manifestly untimely.        Therefore, unless one of the

statutory exceptions to the time-bar applies, no court may exercise

jurisdiction to consider this petition.

      Pursuant to 42 Pa.C.S.A. §9545(b), there are three statutory exceptions

to the timeliness provision that allow for very limited circumstances under

which the late filing of a PCRA petition will be excused.           To invoke an

exception, a petition must allege and prove one of the following:

      (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;




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       (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). If an exception applies, a PCRA petition

may be considered if it is filed “within 60 days of the date the claim could have

been presented.”       42 Pa.C.S.A. § 9545(b)(2).2     “The petitioner bears the

burden to plead and prove an applicable statutory exception.” Hudson, 156

A.3d at 1197.

       Herein, Appellant attempts to invoke the new constitutional right

exception by arguing that the United States Supreme Court’s decision in

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), which made the holding

in Miller v. Alabama, 567 U.S. 460 (2012) retroactive, warrants relief.

Specifically, he argues that, even though he was 20-years-old at the time he

committed the murder, per Miller, his “brain was not fully formed” and

therefore, his sentence of life-without-parole violates the Eighth and


____________________________________________


2 Effective December 24, 2018, the legislature amended Section 9545(b)(2)
to read: “Any petition invoking an exception provided in paragraph (1) shall
be filed within one year of the date the claim could have been presented.” See
42 Pa.C.S.A. §9545(b)(2) (effective December 24, 2018). However, the
amendment to Section 9545(b)(2) only applies to “claims arising on
[December] 24, 2017 or thereafter.” See id. at Comment. Appellant filed his
current petition on March 25, 2016; thus, the amended Section 9545(b)(2)
does not apply to Appellant’s claim.


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Fourteenth Amendments of the United States Constitution, as well as Article

1, § 13 of Pennsylvania’s Constitution. Appellant’s Brief at 6-17. We disagree.

      Previously, this Court explained that “Montgomery merely made Miller

retroactive for juvenile offenders whose judgments of sentence had already

became final. It did not extend Miller's holding to those individuals who

committed homicides after they reached the age of 18.” Commonwealth v.

Montgomery, 181 A.3d 359, 366 (Pa. Super. 2018) (en banc) (citation

omitted).   Thus, pursuant to this rationale, we have consistently held that

“age is the sole factor in determining whether Miller applies to overcome the

PCRA time-bar” and have “decline[d] to extend its categorical holding.”

Commonwealth v. Lee, 206 A.3d 1, 11 (Pa. Super. 2019) (en banc); see

Commonwealth v. Furgess, 149 A.3d 90, 91-94 (Pa. Super. 2016);

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

on other grounds recognized in Furgess, supra at 94. In this case, Appellant

admits that he was 20 years old at the time of the murder. Appellant’s Brief

at 10.   Hence, Appellant failed to plead and prove the applicability of a new

rule of constitutional law in this case. Because no exception to the PCRA's

one-year time-bar applies, the PCRA court properly held that it lacked

jurisdiction over the petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/19




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