J-S31043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DA'RON A. COX                              :
                                               :
                       Appellant               :   No. 114 WDA 2019

            Appeal from the PCRA Order Entered November 29, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0001126-1997,
                           CP-02-CR-0002029-1997


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

MEMORANDUM BY McLAUGHLIN, J.:                      FILED SEPTEMBER 13, 2019

        Da’Ron A. Cox appeals from the order dismissing his petition filed under

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

affirm.

        Cox was charged with first-degree murder and firearms not to be carried

without a licence1 under the two trial court docket numbers listed above, and

a jury found him guilty of both charges. The court sentenced Cox to life

imprisonment for the murder conviction and to a concurrent term of three and

one-half to seven years’ imprisonment for the firearms conviction. This Court

affirmed Cox’s judgments of sentence, and the Pennsylvania Supreme Court

denied Cox’s petition for allowance of appeal on June 22, 1999. He did not

seek review in the United States Supreme Court.
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1   18 Pa.C.S.A. §§ 2501 and 6106, respectively.
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       Cox filed the instant pro se PCRA petition, his fourth, on July 9, 2018.

Cox asserted that although he was 18 years old when he committed the acts

for which he was sentenced, his sentence of life without parole violated the

Eighth Amendment of the United States Constitution, pursuant to the

reasoning set forth in Miller v. Alabama, 132 S.Ct. 2455 (2012) (holding

mandatory sentence of life imprisonment without parole, for those who

committed crimes before turning 18, violates Eight Amendment). The petition

did not address its timeliness.

       The PCRA court issued a Rule 907 notice of its intent to dismiss the

petition on the basis that it was untimely and because the issue had been

litigated in one of Cox’s previous PCRA petitions. See Pa.R.Crim.P. 907. Cox

responded to the notice, but did not address the court’s reasons for dismissal.

The court thereafter dismissed the petition. Cox filed a timely notice of appeal

on December 21, 2018.2

       Prior to considering the court’s reasons for dismissal, we must address

whether Cox complied with Pa.R.A.P. 341, as his failure to do so would require

this Court to quash his appeal. See Commonwealth v. Walker, 185 A.3d

969, 977 (Pa. 2018). In Walker, the Pennsylvania Supreme Court held that,

pursuant to Rule 341, an appellant’s failure to file separate notices of appeal


____________________________________________


2The notice of appeal erroneously states that the appeal lies from the order
entered December 18, 2018. However, the court denied Cox’s petition on
November 29, 2018. We have amended the caption accordingly.



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“when a single order resolves issues arising on more than one lower court

docket” requires quashal of the appeal. Walker, 185 A.3d at 977.3

       As stated above, the trial court imposed two judgments of sentence at

two separate docket numbers—one for Cox’s murder conviction and one for

his firearms conviction. The court entered two corresponding sentencing

orders, one on each docket.

       Subsequent to the entry of those orders, the overwhelming majority, if

not all, of the filings for these cases reference both docket numbers and

appear in the docket entries for both docket numbers. However, many, if not

all, of the actual documents are only in the certified record for Cox’s murder

conviction. Such documents include those related to Cox’s direct appeal, our

order affirming Cox’s judgments of sentence, all previous PCRA proceedings,

Cox’s instant PCRA petition, the court’s Rule 907 notice, Cox’s response, and

the court’s final order denying the petition. Similary, Cox’s notice of appeal

from the order dismissing the subject PCRA Petition references both trial court

docket numbers, and appears in both lists of docket entries. However, a copy

of the notice is only to be found in the certified record for Cox’s murder

conviction.

       Given the foregoing, we conclude that quashal is inappropriate. The

state of the certified record for the two cases suggests that Cox mailed in two
____________________________________________


3 Walker specified that its holding would apply prospectively to notices filed
after the date of the decision, which was June 1, 2018. 185 A.3d at 977. Cox’s
notice of appeal was filed after the Walker decision, and therefore must
conform to Walker’s requirements.

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copies of the notice, one for each docket, and the court only included a copy

in the certified record related to Cox’s murder conviction, as the court has

done with every other document filed in this case since it first imposed

sentence in 1997. This is further indicated by the fact that the clerk recorded

a notice of appeal as filed on each docket.

       Second, Walker states that separate notices of appeal must be filed

where the order under appeal “resolves issues arising on more than one lower

court docket.” Walker, 185 A.3d at 977. Here, however, Cox’s PCRA petition

and the order dismissing it raises issues arising on only one docket—Cox’s

judgment of sentence for his murder conviction. So, Cox only needed to have

filed a single notice of appeal, on the docket related to his judgment of

sentence for murder, and the record for that case reflects that he did so.4 This

case is thus distinguishable from those cases in which quashal was appropriate

because the claims raised on appeal involved multiple dockets. See Walker,

185   A.3d    at   977    (holding    quashal    prospectively   appropriate   should

Commonwealth again file single notice of appeal challenging trial court’s order

granting suppression for four defendants across four docket numbers);

Commonwealth v. Nichols, 208 A.3d 1087, 1090 (Pa.Super. 2019)
____________________________________________


4 In differentiating the treatment of Cox’s two cases, we are mindful that even
if Cox’s attack on his judgment of sentence for murder is successful, it would
not subject his firearms conviction to resentencing, as the maximum term
imposed—seven years—has been completed. See Commonwealth v. King,
786 A.2d 993, 996-97 (Pa.Super. 2001) (resentencing moot where sentence
has expired).



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(quashing appeal where appellant filed single notice of appeal from PCRA order

denying relief on claims of ineffective assistance of counsel on three docket

numbers);      Commonwealth v. Williams, 206 A.3d 573, 575 (Pa.Super.

2019) (quashing appeal where appellant filed single notice of appeal from

PCRA order denying relief on four docket numbers);5 Matter of M.P., 204

A.3d 976, 981 (Pa.Super. 2019) (quashing appeal where the court, across

four docket numbers, changed the placement goals of mother’s two children

and involuntarily terminated mother’s parental rights to the two children, and

mother only filed two notices of appeal, one for each child, rather than four,

one for each docket number).

       We decline to quash, and turn to the merits of the appeal. Cox raises

the following issues:

       I. Was [Cox] denied his rights under the Eighth Amendment to the
       United States Constitution and Article 1, Section 26 of the
       Pennsylvania Constitution, where the brain functions relevant to
       the characteristics of youth relied upon by the United States
       Supreme Court’s decision[s] in Montgomery v. Louisiana[, 136
       S.Ct. 718 (2016) and] Miller v. Alabama, are still developing in
       adults?

       II. Whether the [c]ourt erred [in] failing to . . . use . . . scientific
       and sociological evidence when sentencing a youthful offender[.]

Cox’s Br. at 4 (Cox’s suggested answers omitted).



____________________________________________


5 Although the Williams decision did not discuss whether the PCRA claims
related to all four docket numbers, our review of the appellant’s brief in that
case indicates that appellant raised claims related to each underlying
conviction.

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      “When reviewing the denial of a PCRA petition, this Court’s standard of

review is limited ‘to whether the PCRA court’s determination is supported by

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

Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (quoting Commonwealth v. Pew,

189 A.3d 486, 488 (Pa.Super. 2018)).

      As the PCRA’s time restrictions are jurisdictional in nature, we may not

address     the   substantive   claims   presented   in   an   untimely   petition.

Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.Super. 2017). Any PCRA

petition must be filed within one year of the date the petitioner’s judgment of

sentence becomes final, unless an exception to the one-year time-bar applies.

42 Pa.C.S.A. § 9545(b)(1). The judgment of sentence becomes final at the

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

Id. at § 9545(b)(3). Here, Cox’s judgment of sentence became final in 1999,

after the Pennsylvania Supreme Court denied his petition for allowance of

appeal and the time for seeking review in the Supreme Court of the United

States expired. As Cox’s 2018 petition was filed over a year later, it is facially

untimely.

      A petition filed after the one-year deadline is nonetheless timely if the

petitioner pleads and proves one of three enumerated exceptions. Id. at §

9545(b)(1)(i-iii); Commonwealth v. Feliciano, 69 A.3d 1270, 1275

(Pa.Super. 2013). Cox’s brief, like his filings below, does not address the




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timeliness of his petition. We thus conclude, as did the PCRA court, that Cox’s

petition is untimely, and affirm its dismissal.6

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2019




____________________________________________


6 Although we are mindful that we may not address the substantive issues
raised in Cox’s petition, we note that Cox’s third PCRA petition was also
premised on Miller and Montgomery. We affirmed the PCRA court’s dismissal
of that petition because Miller and Montgomery do not apply to Cox’s case,
as he was 18 years old at the time he committed murder. See
Commonwealth v. Cox, No. 964 WDA 2016, 2017 WL 393425, at *1
(Pa.Super. filed Jan. 30, 2017) (unpublished memorandum).

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