J-S61019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :      IN THE SUPERIOR COURT OF
                                                 :           PENNSYLVANIA
                                                 :
                  v.                             :
                                                 :
                                                 :
    SHAWN TURNER                                 :
                                                 :
                         Appellant               :      No. 3480 EDA 2018

            Appeal from the PCRA Order Entered November 6, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0304171-1990


BEFORE:      BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                                   FILED JANUARY 07, 2020

        Appellant, Shawn Turner, appeals pro se from an order entered

November 6, 2018, which dismissed his petition for collateral relief filed

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

§§ 9541-9546. We affirm.

        The relevant facts and procedural history of this case are as follows. On

December 14, 1989, Appellant and several other men forcibly entered Gregory

Tolliver’s house. Commonwealth v. Turner, __A.2d__, 1243 PHL 1993 (Pa.

Super. 1993) (unpublished memorandum), at 2 (citation omitted).                    Upon

entry, Appellant shot Tolliver, killing him. Id. Appellant and his cohorts then

proceeded to demand money and drugs from the other occupants until they

eventually fled. Id. at 3. The police apprehended Appellant four days later.

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*   Former Justice specially assigned to the Superior Court.
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Id. at 1-2. Thereafter, a jury convicted Appellant of second-degree murder,

as well as various other crimes, and Appellant was ultimately sentenced to a

mandatory term of life imprisonment.             Id. at 1.   This Court affirmed

Appellant’s judgment of sentence on September 10, 1993. Id. Our Supreme

Court subsequently denied allocatur on April 12, 1994. Commonwealth v.

Turner, 644 A.2d 735 (Pa. 1994).

       On December 31, 1996, Appellant filed his first PCRA petition, raising

various claims of ineffective assistance of counsel.         Commonwealth v.

Turner, __A.2d__, 4471 PHL 1997 (Pa. Super. 1999) (unpublished

memorandum), at 1-7 (citation omitted). On October 20, 1997, the PCRA

court dismissed Appellant’s petition and on May 4, 1999, this Court affirmed

the dismissal. Id. On August 27, 2012, Appellant filed the current pro se

PCRA petition, which constitutes his second petition for post-conviction

collateral relief. Appellant’s PCRA Petition, 8/27/12, at 1-9. On September 6,

2018, the PCRA court provided Appellant with notice that it intended to dismiss

his PCRA petition in 20 days without holding a hearing, as the petition was

untimely. PCRA Court Order, 9/6/18, at 1; see also Pa.R.Crim.P. 907(1).

The PCRA court dismissed Appellant’s petition on November 6, 2018. PCRA

Court Order, 11/6/18, at 1. This timely appeal followed.1

       Appellant presents one issue for our review:

____________________________________________


1 Appellant filed a notice of appeal on November 28, 2018. The PCRA court
did not order Appellant to file a concise statement of errors complained of on
appeal. See Pa.R.A.P. 1925(b).

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      [Whether Appellant satisfied the new rule of constitutional law
      exception to the PCRA’s timeliness requirement?]

See generally Appellant’s Brief.

      The timeliness requirement for PCRA petitions “is mandatory and

jurisdictional in nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248

(Pa. 2013) (citation omitted). “The question of whether a petition is timely

raises a question of law. Where the petitioner raises questions of law, our

standard of review is de novo and our scope of review plenary.”

Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017), appeal

denied, 170 A.3d 1007 (Pa. 2017) (citation omitted).

      A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] becomes final.” 42 Pa.C.S.A. §§ 9545(b)(1). “[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.” 42 Pa.C.S.A. §§ 9545(b)(3). Here, Appellant’s judgment of sentence

became final on July 11, 1994, 90 days after the Pennsylvania Supreme Court

denied allocatur and the time to file a petition for writ of certiorari in the United

States Supreme Court elapsed. See U.S.Sup.Ct. Rule 13. Hence, Appellant’s

petition is manifestly untimely.       Therefore, unless one of the statutory

exceptions to the time-bar applies, no court may exercise jurisdiction to

consider this petition.




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       Pursuant to 42 Pa.C.S.A. § 9545(b), there are three statutory exceptions

to the timeliness provision that allow for very limited circumstances under

which the untimely filing of a PCRA petition will be excused. To invoke an

exception, a petition must allege and prove one of the following:

       (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.A. § 9545(b)(1)(i)-(iii). If an exception applies, a PCRA petition

may be considered if it is filed “within 60 days of the date the claim could have

been presented.”       42 Pa.C.S.A. § 9545(b)(2).2     “The petitioner bears the

burden to plead and prove an applicable statutory exception.” Hudson, 156

A.3d at 1197.

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2 Effective December 24, 2018, the legislature amended Section 9545(b)(2)
to read: “Any petition invoking an exception provided in paragraph (1) shall
be filed within one year of the date the claim could have been presented.” See
42 Pa.C.S.A. §9545(b)(2) (effective December 24, 2018). However, the
amendment to Section 9545(b)(2) only applies to “claims arising on
[December] 24, 2017 or thereafter.” See id. at Comment. Appellant filed his
current petition on August 27, 2012; thus, the amended Section 9545(b)(2)
does not apply to Appellant’s claim.




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       Herein, Appellant attempts to invoke the new constitutional right

exception by arguing that the United States Supreme Court’s decision in

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), which made the holding

in Miller v. Alabama, 567 U.S. 460 (2012) retroactive, warrants relief.

Specifically, he argues that, although he was over 18-years-old3 at the time

of the murder, his mandatory sentence of life-without-parole violates the

Eighth and Fourteenth Amendments of the United States Constitution, as well

as Article 1, § 26 of Pennsylvania’s Constitution. Appellant’s Brief at 8-10.

We disagree.

       Previously, this Court explained that “Montgomery merely made Miller

retroactive for juvenile offenders whose judgments of sentence had already

became final. It did not extend Miller's holding to those individuals who

committed homicides after they reached the age of 18.” Commonwealth v.

Montgomery, 181 A.3d 359, 366 (Pa. Super. 2018) (en banc) (citation

omitted).    Thus, pursuant to this rationale, we have consistently held that

“age is the sole factor in determining whether Miller applies to overcome the

PCRA time-bar” and have “decline[d] to extend its categorical holding.”

Commonwealth v. Lee, 206 A.3d 1, 11 (Pa. Super. 2019) (en banc); see

Commonwealth v. Furgess, 149 A.3d 90, 91-94 (Pa. Super. 2016);

____________________________________________


3 Appellant claims in his appellate brief that he was 21-years-old at the time
of the murder. Appellant’s Brief at 9. The Commonwealth, however, asserts
that Appellant “was born on July 6, 1967 [and] was 22[-]years[-]old.”
Commonwealth’s Brief at 2. Upon review, we conclude that, contrary to
Appellant’s assertion, he was 22-years-old when he committed the murder.

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Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013) abrogated

on other grounds recognized in Furgess, supra at 94 (explaining that,

because Cintora was decided before the United States Supreme Court’s

decision in Montgomery, its failure to apply Miller retroactively did not

undermine its central holding “that petitioners who were older than 18 at the

time they committed murder [were] not in the ambit of the Miller decision”).

In this case, Appellant states that he was 21-years-old at the time of the

murder. Appellant’s Brief at 9.     Hence, Appellant failed to plead and prove

the applicability of a new rule of constitutional law in this case. Because no

exception to the PCRA's one-year time-bar applies, the PCRA court properly

held that it lacked jurisdiction over the petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/20




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