J-S72008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

NICOLE NEWELL,

                            Appellant                  No. 823 EDA 2017


             Appeal from the PCRA Order Entered February 15, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1003692-1995


BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED JANUARY 09, 2018

        Appellant, Nicole Newell, appeals pro se from the post-conviction

court’s February 15, 2017 order denying, as untimely, her petition filed

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We

affirm.

        On June 18, 1997, Appellant was convicted, following a jury trial, of

first-degree murder and related offenses.        On June 19, 1997, she was

sentenced to a mandatory term of life imprisonment, without the possibility

of parole.    This Court affirmed Appellant’s judgment of sentence on direct

appeal, and our Supreme Court denied her subsequent petition for allowance




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*   Former Justice specially assigned to the Superior Court.
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of appeal.   Commonwealth v. Newell, 731 A.2d 196 (Pa. Super. 1998)

(unpublished memorandum), appeal denied, 740 A.2d 1145 (Pa. 1999).

      On March 14, 2000, Appellant filed her first, pro se PCRA petition, and

counsel was appointed. On September 29, 2000, the PCRA court issued an

order denying her petition, and she did not file an appeal from that order.

On May 9, 2005, Appellant filed a second, pro se PCRA petition, which was

denied on November 21, 2005. Again, Appellant did not appeal.

      On June 17, 2010, Appellant filed the pro se PCRA petition that

underlies the present appeal.    In the years thereafter, she filed multiple

amendments to that petition. For some reason, it was not until August 3,

2016, that the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to

dismiss Appellant’s petition. Although Appellant filed a pro se response to

the court’s Rule 907 notice, the court issued an order, and accompanying

opinion, denying her petition on February 15, 2017, reasoning that it was

untimely filed.

      Appellant filed a timely, pro se notice of appeal. It does not appear

that the PCRA court ordered her to file a Pa.R.A.P. 1925(b) statement.

Herein, Appellant raises three questions for our review:

      A. Did Appellant timely file a PCRA and thus it should not have
         been dismissed as [u]ntimely without an evidentiary hearing
         on the merits?

      B. Was [c]ounsel [i]neffective in his representation of Appellant?

      C. Does Graham v. Florida[, 560 U.S. 48 (2010),] and People
         v. House [(no citation provided)] apply to Appellant’s [sic]
         whose culpability is questionable when age, history of abuse,


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         extreme duress, and diminished capacity are considered
         according to recent neuroscience in above mentioned cases
         and additional cases under review?

Appellant’s Brief at 5.

      This Court’s standard of review regarding an order denying a PCRA

petition is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error.    Commonwealth v. Ragan,

923 A.2d 1169, 1170 (Pa. 2007). However, we must begin by addressing

the timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.    Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007).     Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of

the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (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




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            (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).   Any petition attempting to invoke one of

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

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      The trial court imposed Appellant’s judgment of sentence in 1997.

Therefore, her current PCRA petition filed in 2010 is patently untimely. See

42 Pa.C.S. § 9545(b)(1).     Accordingly, we cannot address the merits of

Appellant’s issues unless she meets one of the above-stated exceptions to

the PCRA’s time-bar.

      Appellant argues that she has satisfied the retroactive-constitutional-

right exception set forth in section 9545(b)(1)(iii), relying on Miller v.

Alabama, 567 U.S. 460 (2012) (holding that a mandatory sentence of life

imprisonment, without the possibility of parole, for those under the age of

eighteen at the time of their crimes violates the Eighth Amendment’s ban on

cruel and unusual punishments), and Montgomery v. Louisiana, 136 S.Ct.

718 (2016) (holding that Miller applies retroactively). Initially, we note that

Appellant filed amendments to her current petition within 60 days of both




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Miller and Montgomery, asserting that those decisions entitle her to

sentencing relief. Accordingly, she has satisfied section 9545(b)(2).1

       Nevertheless, we are compelled to conclude that Miller’s holding does

not apply to Appellant, who was 18 years old at the time of her crimes.

Miller is expressly applicable only to minors who were under the age of 18

when they committed their offenses. See Miller, 567 U.S. at 465 (“We …

hold that mandatory [LWOP] for those under the age of 18 at the time

of their crimes violates the Eighth Amendment’s prohibition on cruel and

unusual punishments.) (quotation marks omitted, emphasis added).           In

reaching this decision, the Miller Court reasoned, inter alia, that “children

have a ‘lack of maturity and an underdeveloped sense of responsibility,’

leading to recklessness, impulsivity, and heedless risk-taking.”   Id. at 471

(quoting Roper v. Simmons, 543 U.S. 551, 569 (2005)).

       Here, while recognizing the holding of Miller, Appellant contends that

the rationale underlying that holding should also apply to her, as she was

only 18 years of age when she committed her crimes. Appellant maintains

that “adolescents from the age of 11 to 25 years of age[] have a less

culpable mind set [sic], due to psycho-social immaturity development issues,

and [they do not] fully develop until the age of 25….” Appellant’s Brief at

____________________________________________


1 Specifically, Appellant filed an amended PCRA petition asserting the
applicability of Miller on August 13, 2012, and another amended petition on
March 4, 2016, asserting that Miller applies to her retroactively under
Montgomery.



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21. Appellant argues that, just as with individuals under the age of 18, it

constitutes cruel and unusual punishment to subject her to a mandatory

sentence of life imprisonment, without the possibility of parole, when there

was no consideration of her “mental and emotional development” in

assessing her culpability. Id. at 29.

      Unfortunately for Appellant, this Court has issued two precedential

decisions resolving her claims - Commonwealth v. Cintora, 69 A.3d 759

(Pa. Super. 2013), and Commonwealth v. Furgess, 149 A.3d 90 (Pa.

Super. 2016).    In Cintora, which was decided after Miller but before

Montgomery, the petitioners, who were both over the age of 18 at the time

they committed their crimes (19 and 22), sought relief in an untimely PCRA

petition, arguing that they satisfied the timeliness exception set forth in

section 9545(b)(1)(iii) based on Miller.       Consistent with the current

scientific consensus that a human brain does not fully mature until a person

reaches their mid-twenties, the petitioners in Cintora argued that they

should be entitled to relief under Miller because they were similarly situated

to minors who benefited from the Miller decision. We rejected their virtual-

minor theory as a basis to invoke section 9545(b)(1)(iii), citing Miller’s

express age restriction. Cintora, 69 A.3d at 764.

      In Furgess, the appellant raised a similar argument as that presented

in Cintora, but he did so after Montgomery’s ruling rendered retroactive




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the right established in Miller.2 Reconsidering Cintora post-Montgomery,

the Furgess Court determined that:

       [N]othing in Montgomery undermines Cintora’s holding that
       petitioners who were older than 18 at the time they committed
       murder are not within the ambit of the Miller decision and
       therefore may not rely on that decision to bring themselves
       within the time-bar exception in [s]ection 9545(b)(1)(iii).
       Accordingly, Cintora remains controlling on this issue, and
       Appellant’s assertion of the time-bar exception at Section
       9545(b)(1)(iii) must be rejected.

Furgess, 149 A.3d at 94. Cintora and Furgess clearly preclude relief for

Appellant.

       We also must reject Appellant’s argument that it violates the Equal

Protection Clause “to make it unconstitutional to give some adolescents

(adolescents under 18)[] life without the possibility of parole, due to a less

culpable mind set [sic], … but not apply [that rule] to all adolescents.”

Appellant’s Brief at 25.         The timeliness exception set forth in section

9545(b)(1)(iii) explicitly requires an existing decision holding that a specific

right applies retroactively. While the Montgomery decision constitutes such

a ruling with respect Miller’s Eighth-Amendment based holding, Appellant

has not pointed to any decision by the United States or Pennsylvania

Supreme Courts that has recognized the retroactivity of a similar right

grounded in equal protection. Therefore, Appellant has failed to satisfy the
____________________________________________


2 The Cintora Court had alternatively rejected the petitioners’ claim on the
basis that the Miller decision did not apply retroactively. Cintora, 69 A.3d
at 764 n.4.



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timeliness exception of section 9545(b)(1)(iii), thus divesting this Court of

jurisdiction to grant her sentencing relief, or to assess the merits of her

ineffective assistance of counsel claims.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2018




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