J-S27045-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NATHANIEL BUTLER                           :
                                               :
                       Appellant               :   No. 314 EDA 2020

            Appeal from the PCRA Order Entered December 2, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0722891-1990


BEFORE:      SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JUNE 22, 2020

        Appellant Nathaniel Butler appeals pro se from the Order entered in the

Court of Common Pleas of Philadelphia County on December 2, 2019,

dismissing as untimely his third petition filed pursuant to the Post Conviction

Relief Act (“PCRA”).1 We affirm.

        On September 20, 1991, a jury convicted Appellant of First Degree

Murder, Criminal Conspiracy and related crimes. On March 26, 1992, the trial

court imposed a sentence of life imprisonment for First-Degree Murder

followed by an aggregate term of five (5) to twenty (20) years’ incarceration




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*   Former Justice specially assigned to the Superior Court.
1   42 Pa.C.S.A. §§ 9541-9546.
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for the other convictions. Appellant was nineteen (19) years old at the time

he committed the crimes.2

       Appellant filed a direct appeal, and this Court denied the same on

November 23, 1993.         The Pennsylvania Supreme Court denied Appellant’s

petition for allowance of appeal on April 6, 1994.     Appellant did not seek

certiorari with the United States Supreme Court; therefore, Appellant’s

judgment of sentence became final on or about July 6, 1994, ninety days after

the expiration of the time for seeking discretionary review with the Supreme

Court of the United States. U.S. Sup. Ct. R. 13(1) (stating, “[a] petition for a

writ of certiorari seeking review of a judgment of a lower state court that is

subject to discretionary review by the state court of last resort is timely when

it is filed with the Clerk within 90 days after entry of the order denying

discretionary review”); see also 42 Pa.C.S.A. § 9545(b)(3).

       On January 6, 1998, Appellant filed his first PCRA petition which was

dismissed as untimely on June 25, 1998. On August 21, 2012, Appellant filed

his second PCRA petition wherein he claimed that the imposition of a sentence

of life in prison without parole violated his Eighth and Fourteenth Amendment

rights against cruel and unusual punishment. On December 21, 2015, the

PCRA court dismissed this petition.




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2The  record reveals Appellant was arrested on June 6, 1990, and his date of
birth is October 18, 1970. Appellant acknowledges he was nineteen years old
at the time of the crimes. Brief for Appellant at 8.

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       On March 28, 2016, Appellant filed the instant PCRA petition pro se

wherein he raised a claim that his sentence is illegal as applied to defendants

who were under the age of twenty–five at the time their crimes were

committed under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183

L.Ed.2d 407 (2012),3 Montgomery v. Louisiana, ––– U.S. ––––, 136 S.Ct.

718, 193 L.Ed.2d 599 (2016)4 and Alleyne v. United States, 570 U.S. 99,

133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).5 On September 20, 2019, the PCRA

court issued a Pa.R.Crim.P. 907 Notice advising Appellant of its intent to

dismiss his Petition without a hearing. Appellant filed a timely pro se Response

on October 2, 2019.         On December 2, 2019, after considering Appellant's

Response, the PCRA court dismissed Appellant's Petition as untimely. This pro

se appeal followed.




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3 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
courts to impose an automatic life sentence without possibility of parole upon
a homicide defendant for a murder committed while the defendant was under
eighteen years old. Miller, 567 U.S. at 470, 132 S.Ct. 2455.

4In Montgomery, the U.S. Supreme Court held that its decision in Miller
applies retroactively. Montgomery, 136 S.Ct. at 732.

5In Alleyne, the U.S. Supreme Court held that, other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory minimum must be submitted to a jury and proved beyond
a reasonable doubt. Alleyne, 570 U.S. at 112-13, 133 S.Ct. 2151.




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       Although Appellant does not include a statement of questions involved

section in his appellate brief,6 he divides his argument into two parts each of

which is preceded by the following headings:

             Petitioner asserts that his sentence of mandatory life-
       without-parole is a disproportionate punishment for youth
       homicide offenders under the age of 25 as it is violative of the
       Eighth Amendments prohibition on cruel and unusual punishment

                                   Argument #2

             Permission to present newly recognized right by the United
       States Supreme Court concerning retroactivity being applicable to
       new substantive rules of constitutional law asserted within
       Montgomery v. Louisiana by way of presenting Alleyne claim.

Appellant’s Brief at 1-2 (unnecessary capitalization omitted).

       This Court reviews the denial of a PCRA Petition to determine whether

the record supports the PCRA court's findings and whether its Order is

otherwise free of legal error. Commonwealth v. Fears, 624 Pa. 446, 86 A.3d

795, 803 (Pa. 2014). We grant great deference to the findings of the PCRA

court if they are supported by the record. Commonwealth v. Boyd, 923 A.2d

513, 515 (Pa. Super. 2007). We give no such deference, however, to the


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6 We note this failure in violation of Pa.R.A.P. 2116 which mandates that “the
statement of questions involved must state concisely the issues to be
resolved. . . [n]o question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby” and of
Pa.R.A.P. 2119(a), which provides that “[t]he argument shall be divided into
as many parts as there are questions to be argued.” However, because our
appellate review is not hampered by Appellant’s failure to strictly comply with
the Rules of Appellate Procedure, we will address his claims raised in his brief.



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court's legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.

Super. 2012).

      In order to obtain relief under the PCRA, a petition must be timely filed.

See 42 Pa.C.S.A. § 9545 (providing jurisdictional requirements for the timely

filing of a petition for post-conviction relief). A petition must be filed within

one year from the date the judgment of sentence became final. 42 Pa.C.S.A.

§ 9545(b)(1). Appellant's instant Petition, filed more than twenty-five years

after his judgment of sentence became final, is patently untimely.

      Pennsylvania courts may consider an untimely PCRA petition, however,

if an appellant pleads and proves one of the three exceptions set forth in

Section 9545(b)(1). Any petition invoking a timeliness exception must be filed

within 60 days of the date the claim could have been presented. 42 Pa.C.S.A.

§ 9545(b)(2).5

      In the matter sub judice, Appellant attempts to invoke the timeliness

exception under Section 9545(b)(1)(iii), alleging that his sentence is illegal

based on newly recognized constitutional rights under both Alleyne and

Miller, which, he argues, are both retroactive in their application pursuant to

Montgomery. See Appellant's Brief at 2-3; 42 Pa.C.S.A. § 9545(b)(1)(iii).

      As long as this Court has jurisdiction over a matter, a legality of sentence

issue is reviewable and cannot be waived. Commonwealth v. Jones, 932

A.2d 179, 182 (Pa.Super. 2007). However, a legality of sentencing issue must

be raised in a timely filed PCRA Petition over which we have jurisdiction. See


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42 Pa.C.S.A. § 9545(b); Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d

214, 223 (1999) (“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.”). Appellant filed the instant PCRA Petition on March

25, 2016, which was within 60 days of the issuance of the Montgomery

decision (decided January 25, 2016).7

       To support his Alleyne challenge, Appellant erroneously argues that

Alleyne     announced       a   new     substantive   rule   made   retroactive   by

Montgomery. However, the Pennsylvania Supreme Court has concluded that

the constitutional rule announced in Alleyne is procedural, not substantive,

and unequivocally held that “Alleyne does not apply retroactively to cases

pending on collateral review[.]” Commonwealth v. Washington, 636 Pa.

301, 142 A.3d 810, 818-20 (2016).              Accordingly, Appellant's reliance on

Montgomery is misplaced and his Alleyne claim does not fall under the

Section § 9545(b)(1)(iii) timeliness exceptions.

       Appellant's Miller claim also fails. Appellant correctly asserts that the

holding in Montgomery is that the rule announced in Miller, supra, holding

juveniles cannot automatically be sentenced to life in prison without parole, is

substantive for purposes of retroactivity. However, because Appellant was


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7 Effective December 24, 2018, Section 9545(b)(2) now provides that “[a]ny
petition invoking an exception ... shall be filed within one year of the date the
claim could have been presented.”


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nineteen years old at the time he committed the instant, Miller is inapplicable.

See Commonwealth v. Lee, 206 A.3d 1, 9 (Pa.Super. 2019) (en banc)

(holding that appellant, who was over the age of eighteen at the time of

offense, could not invoke Miller to overcome the PCRA time-bar);

Commonwealth v. Lawson, 90 A.3d 1, 6 (Pa.Super. 2014) (stating that the

holding in Miller is limited to those offenders who were juveniles at the time

they committed their crimes).

      Further, this Court previously has refused to render relief on the brain

science   argument   that   Appellant   raises   in   his   PCRA   Petition.   See

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

the nineteen year old appellant's argument based on neuroscientific theories

of brain development that he is entitled to PCRA relief because he was a

“technical juvenile” at the time he committed his crimes). In Lee, this Court

recognized that the principles and science underlying the Miller holding are

not limited to juveniles, but also extend to young adults. See Lee, supra at

10. Nonetheless, we indicated that questions of who qualifies as a juvenile

and whether Miller should apply to immature people who were over eighteen

when they committed their murders “are better characterized as questions on

the merits, not as preliminary jurisdictional questions under section

9545(b)(1)(iii).” Id. While acknowledging the compelling nature of the

argument that the rationale behind the Miller decision may apply to people

beyond the age of majority, this Court found it “untenable to extend Miller to


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one who is over the age of 18 at the time of his or her offense for purposes of

satisfying the newly-recognized constitutional right exception in section

9545(b)(1)(iii).” Id.

      In light of the foregoing, Appellant failed to plead and prove any of the

timeliness exceptions provided in 42 Pa.C.S.A. § 9545(b)(1), and the PCRA

court properly dismissed Appellant's Petition as untimely. The record supports

the PCRA court's findings, and its Order is free of legal error. We, thus, affirm

the denial of PCRA relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/20




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