J-S83026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
                v.                        :
                                          :
                                          :
JOHNELL HAINES                            :
                                          :
                     Appellant            :   No. 3495 EDA 2016

               Appeal from the PCRA Order October 11, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0108841-1997


BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY OLSON, J.:                             FILED MARCH 05, 2018

         Appellant, Johnell Haines, appeals pro se from an order entered on

October 11, 2016 that dismissed his petition under the Post-Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

         On October 4, 1995, Appellant, along with another individual, robbed

and fatally shot Benjamin Milla during a home invasion.         Appellant was 18

years old at the time of the offense. After a jury found him guilty, the trial

court,     on   November   25,   1997,   sentenced   him   to    mandatory   life

imprisonment for first-degree murder, together with consecutive terms of

incarceration for the related burglary and criminal conspiracy charges. This

Court affirmed Appellant’s judgment of sentence on February 27, 2001 and

our Supreme Court denied allocator on August 30, 2001. Commonwealth

v. Haines, 776 A.2d 1006 (Pa. Super. 2001), allocator denied, 784 A.2d 115

(Pa. 2001).
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        Appellant filed a timely pro se PCRA petition on June 19, 2002. The

court appointed counsel, who subsequently filed a no-merit letter and

request to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988) and Commonwealth v. Finley, 50 A.2d 213 (Pa. Super. 1988)

(en banc). On April 29, 2003, the PCRA court issued an order that dismissed

the petition and permitted counsel to withdraw.           This Court affirmed the

order    dismissing   Appellant’s   first   PCRA   petition   on   April   15,   2004.

Commonwealth v. Haines, 852 A.2d 1247 (Pa. Super. 2004) (unpublished

memorandum).        In June 2004, Appellant initiated a federal habeas corpus

petition, which was ultimately dismissed without a hearing. Thereafter, the

PCRA court dismissed Appellant’s second petition as untimely on July 16,

2008.     This Court affirmed that dismissal order on February 22, 2010.

Commonwealth v. Haines, 996 A.2d 7 (Pa. Super. 2010) (unpublished

memorandum).

        Appellant filed the instant pro se petition, his third, on August 8, 2012.

An amended petition was filed on March 10, 2016. On May 18, 2016, the

PCRA court issued notice of its intent to dismiss the petition pursuant to

Pa.R.Crim.P. 907.     Appellant responded to the Rule 907 notice on June 7,




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2016.     The PCRA court dismissed the petition as untimely on October 11,

2016. Appellant filed a timely notice of appeal on November 3, 2016.1

        Appellant raises the following claims in his brief:

        Whether the PCRA [c]ourt erred by determining that the
        imposition of an illegal mandatory life-without-parole sentence –
        for a homicide offense committed by Appellant, who has been
        identified by [the United States Supreme Court in Miller v.
        Alabama, 132 S.Ct. 2455 (2012)] as a defined class of
        developing    adolescen[ts],   did    not   violate  the   Eighth
        Amendment’s [p]rohibition [against] cruel and unusual
        punishment[?]

        Whether [Miller’s] constitutional requirement to consider
        age-related factors prior to imposing life-without-parole sentence
        applies to Appellant[?]

Appellant’s Brief at 3.

        We initially address Appellant’s second issue since that question

relates directly to whether the PCRA court possessed jurisdiction to entertain

the instant petition.

        The timeliness of a post-conviction petition is jurisdictional.
        Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.
        2013). Generally, a petition for relief under the PCRA, including
        a second or subsequent petition, must be filed within one year of
        the date the judgment is final unless the petition alleges and the
        petitioner proves one of the three exceptions to the time
        limitations for filing the petition set forth in Section 9545(b)(1)
        of the statute. See 42 Pa.C.S.[A.] § 9545(b). A PCRA petition
        invoking one of these statutory exceptions must “be filed within
        60 days of the date the claims could have been presented.” See
____________________________________________


1 It does not appear that the PCRA court ordered Appellant to file a concise
statement of matters complained of on appeal under Pa.R.A.P. 1925(b).
Nonetheless, the court issued an opinion on January 26, 2017.



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J-S83026-17


      Hernandez, 79 A.3d at 651–52; see also 42 Pa.C.S.[A.]
      § 9545(b)(2). Asserted exceptions to the time restrictions for
      the PCRA must be included in the petition, and may not be
      raised for the first time on appeal. Commonwealth v. Burton,
      936 A.2d 521, 525 (Pa. Super. 2007). This Court's standard of
      review regarding an order dismissing a petition under the PCRA
      is “to determine whether the determination of the PCRA court is
      supported by the evidence of record and is free of legal error.”
      Commonwealth v. Barndt, 74 A.3d 185, 191–92 (Pa. Super.
      2013) (citations omitted).

Commonwealth v. Furgess, 149 A.3d 90, 92-93 (Pa. Super. 2016)

(footnotes omitted).

      Appellant does not contest the PCRA court’s conclusion that his third

petition was patently untimely. Here, the court determined that Appellant’s

judgment of sentence became final in late 2001, 90 days after the

Pennsylvania Supreme Court denied allocator and the time for filing a

petition for a writ of certiorari in the United States Supreme Court expired.

See 42 Pa.C.S.A. § 9545(b)(3).      Accordingly, Appellant filed his present

petition approximately ten years outside the statutory time limit.

      Appellant, however, asserts an exception to the time bar under 42

Pa.C.S.A § 9545(b)(1)(iii), which provides that a petitioner may seek relief

when there is “a constitutional right that was recognized by the U.S.

Supreme Court or the Supreme Court of Pennsylvania after the time period

provided in this section and has been held by that court to apply




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retroactively.”    Id.    Citing Miller2 and Montgomery v. Louisiana, 136

S.Ct. 718 (2016), which held that Miller applies retroactively to cases on

state collateral review, Appellant argues that he is entitled to relief because,

based upon neurologic studies regarding brain development and his own

mental infirmities, he is in the same position as a juvenile homicide

defendant. See Appellant’s Brief at 12-18. Appellant also argues that the

Equal Protection clause of the Fourteenth Amendment compels application of

Miller since individuals who commit a killing between 18 and 25 years of

age are entitled to the same treatment under the law as juveniles.                   See

Appellant’s Brief at 18-22.

       This Court has twice rejected nearly identical arguments for purposes

of   invoking     the    timeliness     exception       at   § 9545(b)(1)(iii).      See

Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), appeal denied,

81 A.3d 75 (Pa. 2013) (“petitioners who were older than 18 at the time they

committed murder are not within the ambit of the Miller decision and

therefore may not rely on that decision to bring themselves within the

time-bar     exception     in   Section        9545(b)(1)(iii)”;   “contention    that   a

newly-recognized constitutional right should be extended to others does not

____________________________________________


2Miller held that a sentence of life imprisonment without the possibility of
parole constitutes cruel and unusual punishment under the Eighth
Amendment when imposed upon defendants convicted of murder who were
under the age of 18 at the time of their crimes. Miller, 132 S.Ct. at 2460.




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render [a] petition [seeking such an expansion of the right] timely pursuant

to section 9545(b)(1)(iii)[]”) (emphasis in original); Furgess, 149 A.3d at

94 (same).3

       Because Appellant was not a juvenile at the time he committed the

underlying offenses, he cannot invoke Miller and Montgomery and avail

himself of the timeliness exception set forth at § 9545(b)(1)(iii).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/18




____________________________________________


3 In Furgess, this Court acknowledged that Cintora's additional holding,
that Miller had not been applied retroactively, was “no longer good law”
after Montgomery. Furgess, 149 A.3d at 94.



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