J-S14018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

SEAN DARRINGTON,

                            Appellant               No. 1193 MDA 2016


                   Appeal from the PCRA Order May 27, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002322-1993


BEFORE: GANTMAN, P.J., SHOGAN and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED APRIL 12, 2017

       Appellant, Sean Darrington, appeals from the order denying his serial

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

§§ 9541-9546. We affirm.

       We summarize the procedural history of this matter as follows.      On

October 9, 1994, a jury convicted Appellant of first-degree murder and

robbery.1 On October 18, 1994, the trial court sentenced Appellant to serve

a term of life imprisonment for the conviction of first-degree murder and a

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*
    Retired Senior Judge assigned to the Superior Court.
1
  The crimes involved the murder of Dale Bloom, who was found dead in his
home, and the robbery of the victim’s car. An autopsy revealed that Mr.
Bloom suffered five gunshot wounds, five puncture wounds, and had been
cut with a hand saw about his neck.
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consecutive term of incarceration of ten to twenty years for the robbery

conviction.      On direct appeal, a panel of this Court affirmed Appellant’s

judgment       of   sentence   on   July   10,   1995,   and   our   Supreme   Court

subsequently denied Appellant’s petition            for allowance of appeal on

December 14, 1995.         Commonwealth v. Darrington, 667 A.2d 417 (Pa.

Super. filed July 10, 1995) (unpublished memorandum), appeal denied, 668

A.2d 1122 (Pa. 1995).

          Subsequently, Appellant filed multiple petitions seeking collateral

relief.    Appellant’s most recent PCRA petition, which is the subject of this

appeal, was filed on March 25, 2016.               On May 6, 2016, pursuant to

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

Appellant’s petition. The PCRA court then dismissed the instant petition on

May 27, 2016. This timely appeal followed. Both Appellant and the PCRA

court have complied with Pa.R.A.P. 1925.

          Appellant presents the following issues for our review:

          I. The lower court abused its discretion in entering an order that
          Montgomery v. Louisiana, 136 S.Ct. 718 (2016) is not
          retroactive to Appellant’s lack of statutory authorization
          sentencing claim that fulfills the statutory requirements of 42
          Pa.C.S. § 9545(b)(1)(iii) as an exception to 42 Pa.C.S. §
          9545(b) where this claim was presented within 60 days per 42
          Pa.C.S. § 9545(b)(1) and further in light of Welch v. United
          States, No. 15-6418, 2016 U.S. LEXIS 2541 (U.S. April 18,
          2016) that supports and demonstrates Appellant’s right to
          resentencing due to the lower courts lack of statutory
          authorization for the sentence imposed?

          II. Did the Court of Common Pleas “abuse its discretion” where
          the court adjudicated this matter under a manifest conflict of

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      interest due to the supported fact(s) the instant PCRA court was
      the District Attorney during the relevant times of Appellant’s
      criminal proceedings as demonstrated in the records?

Appellant’s Brief at 4.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”    Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      We    first   address   whether   Appellant   satisfied   the   timeliness

requirements of the PCRA.       Effective January 16, 1996, the PCRA was

amended to require a petitioner to file any PCRA petition within one year of

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

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). This time requirement is mandatory


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and jurisdictional in nature, and the court may not ignore it in order to reach

the merits of the petition. Commonwealth v. Cintora, 69 A.3d 759, 762

(Pa. Super. 2013).

       However, an untimely petition may be received when the petition

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

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

and (iii), is met.2 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).         In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time


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2
    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).




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frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,

1167 (Pa. Super. 2001).

     As previously noted, our review of the record reflects that Appellant’s

judgment of sentence was affirmed by this Court on July 10, 1995, and our

Supreme Court denied Appellant’s petition for allowance of appeal on

December 14, 1995. Darrington, 667 A.2d 417 (Pa. Super. filed July 10,

1995) (unpublished memorandum), appeal denied, 668 A.2d 1122 (Pa.

1995). However, Appellant did not file a petition for writ of certiorari with

the United States Supreme Court.          Accordingly, Appellant’s judgment of

sentence   became   final   on    March   13,   1996,   ninety   days   after   the

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal and the time for filing a petition for review with the United States

Supreme Court expired.      See 42 Pa.C.S. § 9545(b)(3) (providing that “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.”); U.S.Sup.Ct.R. 13. Thus, the instant PCRA petition, filed on March

25, 2016, is patently untimely.

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

petition may nevertheless be received under any of the three limited

exceptions to the timeliness requirements of the PCRA.             42 Pa.C.S. §

9545(b)(1). If a petitioner asserts one of these exceptions, he must file his


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

42 Pa.C.S. § 9545(b)(2).

        Appellant attempts to invoke the third exception to the PCRA

timeliness requirements with reliance upon the United States Supreme

Court’s decision in Miller v. Alabama, 132 S.Ct. 2455 (2012). In Miller,

the Court held that sentencing a juvenile convicted of a homicide offense to

mandatory      life   imprisonment   without    parole   violates    the     Eighth

Amendment’s prohibition to cruel and unusual punishment.             Accordingly,

such sentences cannot be handed down unless a judge or jury first considers

mitigating circumstances. Id. at 2475.

        Subsequently, the United States Supreme Court issued its decision in

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), clarifying that Miller

applies    retroactively.    Montgomery,       136   S.Ct.   at   735-736.       In

Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa. Super. 2016), this Court

held that the date of the Montgomery decision is to be used when

calculating whether a petition is timely filed under the sixty-day rule of 42

Pa.C.S. § 9545(b)(2).       Secreti, 134 A.3d at 82.     Accordingly, under the

holding of Secreti, Appellant has satisfied the sixty-day rule of section

9545(b)(2), because the instant PCRA petition, filed on March 25, 2016, was

filed on the sixtieth day after Montgomery was decided on January 25,

2016.




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      However, the holding in Miller was limited to those offenders who

were juveniles at the time they committed their crimes. Miller, 132 S.Ct. at

2460. In Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), this

Court held that Miller is not an exception under section 9545(b)(1)(iii) to

those over the age of eighteen at the time of the commission of their crimes.

Cintora, 69 A.3d at 764. In Cintora, the co-appellants, who were nineteen

and twenty-one years old at the time of their crimes, argued that Miller

applied to them because a human brain does not fully develop until the age

of twenty-five, and because “it would be a violation of equal protection for

the courts to treat them[,] or anyone else with immature brains, as adults.”

Cintora, 69 A.3d at 764. This Court rejected these claims, stressing that

the co-appellants’ “contention that a newly-recognized constitutional right

should be extended to others does not render their petition timely pursuant

to section 9545(b)(1)(iii).” Id. (emphasis in original).

      Recently, in Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super.

2016), we reaffirmed our holding in Cintora.       In Furgess, the appellant,

who was nineteen years old when he committed his crimes, presented an

argument similar to Appellant’s herein, maintaining that he “may invoke

Miller because he was a ‘technical juvenile’” based on “neuroscientific

theories regarding immature brain development….”           Furgess, 149 A.2d at

94. Relying on Cintora, we reiterated that “petitioners who were older than

18 at the time they committed murder are not within the ambit of the Miller


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decision and therefore may not rely on that decision to bring themselves

within the timebar exception in Section 9545(b)(1)(iii).” Id.

      Our review of the certified record reflects that Appellant’s date of birth

is November 1, 1971.       The crimes for which Appellant was convicted

occurred in June of 1993. Thus, Appellant was twenty-one years old when

he committed his crimes. Based on our holdings in Cintora and Furgess, it

is apparent that the rule announced in Miller cannot apply to Appellant, who

was over eighteen years old when he committed murder.              Accordingly,

Appellant’s arguments that Miller should apply to his case cannot satisfy the

timeliness exception of section 9545(b)(1)(iii).

      In conclusion, because Appellant’s PCRA petition was untimely and no

exceptions apply, the PCRA court correctly determined that it lacked

jurisdiction to address the claims presented and grant relief.             See

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding

that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we

lack the authority to address the merits of any substantive claims raised in

the PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007) (“[J]urisdictional time limits go to a court’s right or competency

to adjudicate a controversy.”).




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2017




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