J-S56019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EDGAR MARTINEZ

                            Appellant                No. 2304 EDA 2016


               Appeal from the PCRA Order Entered June 24, 2016
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0201401-1998


BEFORE: BOWES, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                        FILED OCTOBER 25, 2017

        Appellant, Edgar Martinez, appeals pro se from the June 24, 2016

order entered in the Court of Common Pleas of Philadelphia County, denying

as untimely his second petition for collateral relief filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.            Appellant

contends his petition is saved from the PCRA’s time bar because he has

asserted a constitutional right recognized as applying retroactively by the

United States Supreme Court. We disagree and, therefore, affirm.

        As the PCRA court explained, on September 22, 1998, a jury convicted

Appellant of first-degree murder, firearms violations, and conspiracy. PCRA

Court Rule 1925(a) Opinion, 12/9/16, at 1. On January 21, 1999, Appellant
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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was sentenced to life in prison for murder, plus a consecutive term for the

firearms violation and a concurrent term for conspiracy.        Id. After the trial

court denied his post-sentence motions, Appellant pursued a direct appeal to

this Court.     On October 17, 2000, we affirmed his judgment of sentence.

Our Supreme Court denied Appellant’s petition for allowance of appeal on

April 16, 2001.      Id. at 1-2.       Therefore, Appellant’s judgment of sentence

became final ninety days later, on July 15, 2001, when the time for seeking

discretionary    review     in   the    United   States   Supreme   Court   expired.

U.S.Sup.Ct. Rule 13.

       Appellant filed his first PCRA petition on March 8, 2002. The petition

was ultimately dismissed by the PCRA court and this Court affirmed on June

26, 2003. PCRA Court Rule 1925(a) Opinion, 12/9/16, at 2.

       At issue in this appeal is Appellant’s second PCRA petition filed on May

21, 2012, nearly eleven years after his judgment of sentence was final. 1 Id.

Appellant claimed he was eligible for relief based upon an after-recognized

constitutional right.     Id.     After conducting “an extensive and exhaustive

review of the record and applicable case law,” the PCRA court determined

that the petition was untimely. Id. On May 4, 2016, the PCRA court served

a notice in accordance with Pa.R.Crim.P. 907, advising Appellant of the

court’s intent to dismiss the petition. The notice explained, in relevant part:
____________________________________________


1Appellant filed supplements to the petition on August 2, 2012, October 10,
2012, September 5, 2013, and March 24, 2016.



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      [Appellant]    attempts     to   invoke    the    after-recognized
      constitutional    right    exception    under     42     Pa.C.S.A.
      § 9545(b)(1)(iii), and cites to the United States Supreme Court
      decisions in Miller v. Alabama, 132 S.Ct. 2455 (2012) and
      Montgomery v. Louisiana, 136 S.C.t 718 (2016). The High
      Court in Miller established a new constitutional right by holding
      that “the Eighth Amendment forbids a sentencing scheme that
      mandates life in prison without possibility of parole for juvenile
      offenders.” Id. at 2469. In Montgomery, the High Court held
      that the constitutional right in Miller is retroactive. However,
      the Miller and Montgomery holdings are explicitly limited to
      juveniles under eighteen years of age who were sentenced to life
      without parole for committing the crime of murder.           Here,
      although [Appellant] was convicted for a murder, he fully admits
      he was over eighteen at the time of the crime. [Appellant] also
      attempts to raise [an] after-recognized constitutional right
      exception citing Lafler v. Cooper, 132 S.Ct. 1376 (2012),
      asserting ineffective assistance of counsel. This claim also fails
      to provide [Appellant] an avenue for PCRA relief. Therefore,
      [Appellant] did not successfully invoke an exception, and this
      court remains without jurisdiction to address the merits.

PCRA Court Rule 907 Notice, 5/4/16, at 1. On May 20, 2016, Appellant filed

a response to the Rule 907 notice. On June 24, 2016, the PCRA issued its

order dismissing the petition as untimely. This timely appeal followed. Both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

            In this appeal, Appellant asks us to consider two issues, which

we set forth here verbatim without capitalization:

      I.    Whether (in) reviewing the (property) [sic] of the (PCRA)
            court’s dismissal of Appellant’s PCRA filing, it was an abuse
            of discretion for the (PCRA) court to determine that it was
            untimely . . . where the petition was timely filed under
            Title 42 Pa.S.C.A. § 9545(b)(1)(iii) and § 9545(b)(2),
            because newly recognized constitutional rights were
            enacted by the United States Supreme [sic] court applying
            to Appellant retroactively?




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       II.    Whether the PCRA court erred and denied Appellant his
              federal and state constitutional rights to due process of law
              by dismissing Appellant’s second/subsequent PCRA petition
              without an evidentiary hearing and appointment of counsel
              . . . where Appellant raised substantial questions of
              disputed   facts    regarding    the    timeliness   of    his
              second/subsequent PCRA petition.

Appellant’s Brief at 4.2

       We begin by setting forth our scope and standard of review. As our

Supreme Court has explained, “In PCRA proceedings, an appellate court’s

scope of review is limited by the PCRA’s parameters; since most PCRA

appeals involve mixed questions of fact and law, the standard of review is

whether the PCRA court’s findings are supported by the record and free of

legal error.”     Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009)

(citing Commonwealth v. Strong, 761 A.2d 1167, 1170 n. 3 (Pa. 2000)).

       As our Supreme Court recently reiterated:

       “PCRA time limits are jurisdictional in nature, implicating a
       court’s  very   power    to    adjudicate   a   controversy.”
____________________________________________


2  We note that Appellant filed an untimely reply brief in violation of Pa.R.A.P.
2185, which requires that a reply brief be filed within 14 days after service
of the preceding brief. Here, the Commonwealth filed its brief on August 16,
2017. Appellant filed the reply brief on September 12, 2017. However,
even if timely, we would not consider the brief because it also violates
Pa.R.A.P. 2113, which permits an appellant to “file a brief in reply to matters
raised by appellee’s brief . . . and not previously addressed in appellant’s
brief.” Here, the “reply brief” was actually the same document Appellant
filed in objection to the PCRA court’s Rule 907 notice of intent to dismiss
with only minor modification, such as changing “Petitioner” to “Appellant.”
The arguments in the reply brief were previously addressed in Appellant’s
original brief and did not address the jurisdictional and timeliness arguments
raised in the Commonwealth’s brief.



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      Commonwealth v. Ali, 624 Pa. 309, 86 A.3d 173, 177 (2014).
      “Accordingly, the ‘period for filing a PCRA petition is not subject
      to the doctrine of equitable tolling;’ instead, the time for filing a
      PCRA petition can be extended only if the PCRA permits it to be
      extended, i.e., by operation of one of the statutorily enumerated
      exceptions    to   the    PCRA      time-bar.”       Id.   (quoting
      Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 222
      (1999)). “The court cannot ignore a petition’s untimeliness and
      reach the merits of the petition.” [Commonwealth v. Taylor,
      67 A.3d 1245, 1248 (Pa. 2013)].

Commonwealth v. Mitchell, 141 A.3d 1277, 1284 (Pa. 2016).

      Appellant contends that his otherwise-untimely second PCRA petition is

saved by 42 Pa.C.S.A. § 9545(b)(1)((iii) as a constitutional right recognized

by the United States Supreme Court and held by that court to apply

retroactively. In his March 24, 2016 supplemental petition, he asserted that

§ 9545(b)(1)(ii), relating to newly-discovered facts, also provided him a

basis for escaping the PCRA’s time bar. In essence, Appellant argues that he

is entitled to relief under Miller and Montgomery because he was eighteen

years old when he committed the murder leading to his conviction, and

studies have shown that the brain does not finish developing until an

individual’s mid-20s.    He also argues that setting eighteen as the age at

which a sentence of life in prison without parole is acceptable is arbitrary,

especially in Pennsylvania, which defines a minor in 1 Pa.C.S.A. § 1991 as

“[a]n individual under the age of 21 years of age.”

      This    Court     rejected   the    “technical   juvenile”   argument   in

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

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

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Cintora, this Court stated that “a contention that a newly-recognized

constitutional right should be extended to others does not render a petition

seeking such an expansion of the right timely pursuant to section

9545(b)(1)(iii).” Furgess, 149 A.3d at 94 (quoting Cintora, 69 A.3d at 764

(emphasis in original) (brackets omitted)). Therefore, as this Court held in

Cintora, “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).” Id.

      The PCRA court concluded that it lacked jurisdiction to consider

Appellant’s untimely PCRA petition.    The court’s findings are supported by

the record and are free of legal error.     Therefore, we affirm the June 24,

2016 order denying Appellant post-conviction relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/25/2017




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