J-S02027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

HARRY LEO LICIAGA

                            Appellant               No. 1529 EDA 2016


              Appeal from the PCRA Order entered April 19, 2016
                In the Court of Common Pleas of Lehigh County
               Criminal Division at No: CP-39-CR-0003464-1989


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.

MEMORANDUM BY STABILE, J.:                          FILED MARCH 23, 2017

       Appellant, Harry Leo Liciaga, appeals from the April 19, 2016 order

entered in the Court of Common Pleas of Lehigh County, denying his petition

for collateral relief pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. On appeal, Appellant argues the PCRA court erred

in dismissing the instant PCRA petition as untimely.           We disagree.

Accordingly, we affirm the order.

       The underlying facts of this matter are not in dispute.1 The PCRA court

adequately summarized the same in its opinion dated May 4, 2016. Thus,

we need not repeat them here again.            Procedurally, we note this is

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1
  Relevant to this matter, it is also undisputed that Appellant was 18 years
old at the time he committed the underlying crimes. See Appellant’s Brief at
5.
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Appellant’s third PCRA petition, which Appellant filed on April 1, 2016,

approximately twenty years after his judgment became final.2

       On appeal, Appellant argues he is entitled to PCRA relief under

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), and Miller v. Alabama,

132 S.Ct. 2455 (2012). We disagree.

       “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).                    All PCRA

petitions, “including a second or subsequent petition, shall be filed within

one year of the date the judgment becomes final” unless an exception to

timeliness applies.        42 Pa.C.S.A. § 9545(b)(1).        “The PCRA’s time

restrictions are jurisdictional in nature.       Thus, [i]f a PCRA petition is

untimely, neither this Court nor the [PCRA] court has jurisdiction over the

petition. Without jurisdiction, we simply do not have the legal authority to

address the substantive claims.”          Commonwealth v. Chester, 895 A.2d

520, 522 (Pa. 2006) (first alteration in original) (internal citations and

quotation marks omitted).         As timeliness is separate and distinct from the
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2
  The trial court sentenced Appellant on November 1, 1990. We affirmed
Appellant’s judgment of sentence on August 15, 1996. Appellant did not
petition our Supreme Court for allowance of appeal. Accordingly, Appellant’s
judgment, for purposes of the PCRA, became final on September 14, 1996,
upon expiration of the 30-day period he had to file a petition for allowance of
appeal with our Supreme Court.



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merits of Appellant’s underlying claims, we first determine whether this

PCRA petition is timely filed.        See Commonwealth v. Stokes, 959 A.2d

306, 310      (Pa.   2008)     (consideration    of   Brady   claim   separate   from

consideration of its timeliness).        The timeliness requirements of the PCRA

petition must be met, even if the underlying claim is a challenge to the

legality of the sentence. See Commonwealth v. Holmes, 933 A.2d 57, 60

(Pa. 2007) (“Although legality of sentence is always subject to review within

the PCRA, claims must still first satisfy the PCRA’s time limits or one of the

exceptions thereto”) (citing Commonwealth v. Fahy, 737 A.2d 214, 223

(1999)).

       Preliminarily, we must determine the nature of the action brought by

Appellant, habeas corpus or PCRA.3 As noted, Appellant is challenging the

legality of his sentence. Thus, despite Appellant’s argument to the contrary,

the claim raised here is cognizable under the PCRA, and the instant filing

must be treated as a PCRA petition. See, e.g., Commonwealth v. Taylor,

65 A.3d 462, 465-66 (Pa. Super. 2013).                Accordingly, the PCRA court

properly treated Appellant’s filing as a PCRA petition.

       Next, we must determine whether the instant petition is timely.            As

noted above, this is Appellant’s third PCRA petition, filed in 2016, over 20

years after his judgment of sentence became final.             As such, the instant

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3
  Appellant’s brief and reply brief describes the underlying action as a
petition for habeas corpus. The PCRA court treated it as a PCRA petition.



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petition is facially untimely. To overcome the untimeliness of the petition,

Appellant argues that he is entitled to review based on Miller4 as interpreted

in Montgomery.5        We disagree.

       Even if Montgomery would make his petition timely, he is not entitled

to relief under Miller. We have repeatedly held that Miller does not apply

to defendants who were eighteen or older when they committed murders.

See, e.g., Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super.

2016).    As noted above, Appellant was 18 years old at the time of the

underlying crimes.        Accordingly, Appellant has no claim under Miller.

Because Appellant has no claim under Miller, Montgomery does not affect

the outcome of this matter.

       Appellant also argues that despite the fact he was an adult at the time

of the crimes, Miller should be applied to him because his brain, as is the

case in juveniles, was not fully developed. We rejected a similar contention

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

Cintora, two appellants, who were nineteen and twenty-one years of age at
____________________________________________


4
 Miller held that “mandatory life without parole for those under the age of
18 at the time of their crimes violates the Eighth Amendment’s prohibition
on ‘cruel and unusual’ punishments.” Miller, 132 S.Ct. at 2460 (emphasis
added).
5
  In Montgomery the Unites States Supreme Court held that Miller was a
new substantive rule that, under the United States Constitution, must be
retroactive in cases on state collateral review. Montgomery, 136 S.Ct. at
736.




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the time of their underlying crimes, and sentenced to life imprisonment,

claimed:

     [T]hat because Miller created a new Eighth Amendment right,
     that those whose brains were not fully developed at the time of
     their crimes are free from mandatory life without parole
     sentences, and because research indicates that the human mind
     does not fully develop or mature until the age of 25, it would be
     a violation of equal protection for the courts to treat them or
     anyone else with an immature brain, as adults. Thus, they
     conclude that the holding in Miller should be extended to them
     as they were under the age of 25 at the time of the murder and,
     as such, had immature brains.

Cintora, 69 A.3d at 764. In rejecting the argument, we concluded that “[a]

contention that a newly-recognized constitutional right should be extended

to others does not render their petition timely pursuant to [S]ection

9545(b)(1)(iii).” Id. (emphasis added).     Thus, as in Cintora, Appellant’s

claim that Miller applied to the case sub judice based on his mental

development is without merit.

     In light of the foregoing, we conclude that Appellant’s PCRA petition is

untimely and that Appellant failed to plead and prove any exception to save

it from the PCRA time bar.      Accordingly, we will not review the merits of

Appellant’s contentions because we have no jurisdiction to entertain an

untimely PCRA petition. See Chester, supra.

     Order affirmed.




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J-S02027-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2017




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