J-S10027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    HASSAN TUCKER

                             Appellant                No. 1227 EDA 2018


              Appeal from the PCRA Order Entered March 16, 2018
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0406051-2005


BEFORE: GANTMAN, P.J.E., STABILE, and COLINS,* JJ.

JUDGMENT ORDER BY STABILE, J.:                           FILED MAY 09, 2019

        Appellant, Hassan Tucker, appeals from the order dismissing his petition

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.

We affirm.

        On April 6, 2006, the trial court sentenced Appellant to life in prison

without parole for a conviction of first-degree murder (18 Pa.C.S.A.

§ 2502(a)).     This Court affirmed the judgment of sentence on February 8,

2008, and our Supreme Court denied allowance of appeal on July 17, 2008.

        The PCRA court dismissed Appellant’s timely first PCRA petition on March

12, 2010. A second petition was dismissed on May 13, 2011. On March 25,

2016, Appellant filed the instant petition, his third.      He alleges that he is


____________________________________________


*    Retired Senior Judge assigned to the Superior Court.
J-S10027-19


entitled to relief under Miller v. Alabama, 567 U.S. 460 (2012) (mandatory

sentence of life in prison without parole is unconstitutional as applied to an

offender under eighteen years old), and Montgomery v. Louisiana, 136 S.

Ct. 718 (2016) (Miller applies retroactively to cases pending on direct

appeal).

         Appellant acknowledges that his petition is facially untimely because he

filed it more than one year after his judgment of sentence became final. See

42 Pa.C.S.A. § 9545(b)(1). He alleges, however, that his petition is timely

because it asserts a newly recognized constitutional right recognized by the

United States Supreme Court, and because he filed his petition within 60 days

of the Supreme Court’s decision in Montgomery.

         We disagree. Appellant was twenty years old at the time of his offense,

and therefore he cannot assert the right recognized in Miller. The substance

of his argument—that the Supreme Court’s rationale in Miller should extend

to persons who were twenty years old at the time of the offense—does not

assert a newly recognized constitutional right. In fact, in Commonwealth v.

Lee, ___ A.3d ___, 2019 WL 986978 (Pa. Super. March 1, 2019) (en banc),

this Court held that persons who are eighteen years old or older at the time

of their offense cannot invoke Miller to avoid the PCRA’s jurisdictional time

limit.    Based on the foregoing, we affirm the order dismissing Appellant’s

petition as untimely.

         Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/19




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