J-S67022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                 v.                            :
                                               :
                                               :
    KEVIN BELL                                 :
                                               :
                       Appellant               :   No. 2516 EDA 2017

                    Appeal from the PCRA Order July 17, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0637031-1992


BEFORE:      OTT, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                            FILED JANUARY 16, 2019

        Appellant Kevin Bell appeals pro se from the order dismissing his serial

petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546, which sought relief based on Miller v. Alabama, 567 U.S. 460 (2012).

Appellant asserts that because he was eighteen years old when he committed

the underlying murder, the PCRA court erred by dismissing his petition as

untimely. We affirm.

        The factual background to this matter need not be stated in detail. We

note that Appellant, when he was approximately four months past his

eighteenth birthday, killed another individual.       Appellant was convicted of

first-degree murder, and the trial court sentenced him to life imprisonment

without the possibility of parole in 1994.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       On November 14, 1995, this Court affirmed Appellant’s judgment of

sentence, and the Supreme Court of Pennsylvania denied Appellant’s petition

for allowance of appeal on May 9, 1996. Thereafter, Appellant filed several

unsuccessful PCRA petitions.

       Appellant filed the instant pro se PCRA petition on August 13, 2012,

claiming that Miller applied to his case.1 Appellant submitted an amended

PCRA petition on March 23, 2016, following the ruling in Montgomery v.

Louisiana, 136 S. Ct. 718 (2016). The PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss Appellant’s petition. Appellant filed a response

reiterating his claim that Miller extended to defendants over the age of

eighteen and that equal protection principles demanded that he be entitled to

relief. The court dismissed Appellant’s instant PCRA petition without a hearing

on July 17, 2017. Appellant filed a timely notice of appeal.

       Appellant filed a timely court-ordered concise statement of matters

complained of on appeal under Pa.R.A.P. 1925(b). The PCRA court filed an

opinion pursuant to Pa.R.A.P. 1925(a) in which it concluded that

       [Appellant] was over the age of eighteen at the time of the
       offense, placing his sentence outside the reach of the Supreme
       Court’s Miller decision. Therefore, [Appellant] has failed to
       invoke [the newly recognized constitutional right] exception, and
       his petition must be dismissed as untimely.

PCRA Ct. Op., 7/17/17, at 1 (unpaginated).


____________________________________________


1 Appellant filed his petition within sixty days of the date that Miller was
issued.

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       Appellant raises the following question for our review:

       1. Whether the unconstitutional sentencing statute under Miller,
          18 Pa.C.S. [§] 1102(a), is also unconstitutional for vagueness
          rendering [A]ppellant’s sentence unlawful?

       2. Whether [A]ppellant’s PCRA petition satisfied a statutory
          exception to the PCRA’s jurisdictional time-bar?

       3. Whether under the 14th Amendment’s ‘Equal Protection
          Clause,’ because of his youth, [A]ppellant is entitled to the
          same relief under Miller as the class of youth labeled juveniles?

Appellant’s Brief at 2 (reordered to facilitate disposition).

       As to Appellant’s first question, we note that Appellant suggests that 18

Pa.C.S. § 1102(a) is unconstitutionally vague.         However, Appellant has

abandoned that argument on appeal. See id. at 27 (abandoning Appellant’s

third claim); Pa.R.A.P. 2119(a). In any event, we note that Appellant did not

raise this claim in his PCRA petition or response to the PCRA court’s Rule 907

notice or assert that it was raised in a timely fashion. See PCRA Pet., 8/13/12;

Resp. to Rule 907 Notice of Intent to Dismiss, 4/28/17; Pa.R.A.P. 302(a).

Therefore, we decline to consider this issue.2

       As to Appellant’s final two questions presented, we summarize

Appellant’s arguments together as they are interrelated. Appellant asserts

that he established a PCRA time-bar exception under 42 Pa.C.S. §

9545(b)(1)(ii), (iii), and (b)(2), because he filed the instant PCRA petition
____________________________________________


2 Even if this claim were not waived, we are without jurisdiction to consider
it because Appellant has failed to meet a timeliness exception to the PCRA’s
time-bar as discussed in further detail below.



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within sixty days of Miller.   According to Appellant, “[t]he facts that . . .

juvenile offenders [are] in their transitory phase of adolescence and [their]

potential for reform [makes them] less culpable than adult offenders[,]

making a sentence of life without parole unconstitutional for them[,] were

unknown to [A]ppellant[.]” Appellant’s Brief at 12. Appellant asserts that

Miller adopted the proposition that “the qualities that distinguish juveniles

from adults do not disappear when an individual turns 18.” Id. at 15 (citing

Roper v. Simmons, 543 U.S. 551, 574 (2005)).          He further asserts that

denying the benefits of Miller to people over the age of eighteen would violate

equal protection principles.

      In considering an order denying a PCRA petition, our standard of review

      is limited to examining whether the evidence of record supports
      the court’s determination and whether its decision is free of legal
      error. This Court grants great deference to the findings of the
      PCRA court if the record contains any support for those
      findings. We give no such deference, however, to the court’s legal
      conclusions.

Commonwealth v. Secreti, 134 A.3d 77, 79-80 (Pa. Super. 2016) (citations

omitted).

      The PCRA provides for three statutory exceptions to its timeliness

requirements, which apply in limited circumstances as set forth in 42 Pa.C.S.

§ 9545(b)(1). Id. at 80. The exceptions include 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;



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       (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. § 9545(b)(1)(i)-(iii). A petitioner arguing a timeliness exception

must file a PCRA petition within sixty “days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).

       Here, there is no dispute that Appellant’s current PCRA petition was

untimely on its face. Contrary to Appellant’s assertion,3 neither the United

States Supreme Court nor the Pennsylvania Supreme Court has held that

____________________________________________


3 To the extent Appellant relies on a passing reference to Roper, we note
that the full passage cited by Appellant states:

       Drawing the line at 18 years of age is subject, of course, to the
       objections always raised against categorical rules. The qualities
       that distinguish juveniles from adults do not disappear when an
       individual turns 18. By the same token, some under 18 have
       already attained a level of maturity some adults will never reach.
       For the reasons we have discussed, however, a line must be
       drawn. The plurality opinion in Thompson [v. Oklahoma, 487
       U.S. 815 (1988)] drew the line at 16. In the intervening years the
       Thompson plurality’s conclusion that offenders under 16 may not
       be executed has not been challenged. The logic of Thompson
       extends to those who are under 18. The age of 18 is the point
       where society draws the line for many purposes between
       childhood and adulthood. It is, we conclude, the age at which the
       line for death eligibility ought to rest.

Roper, 543 U.S. at 574. Similarly, the United States Supreme Court, in
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 567 U.S. at 465 (emphasis
added).

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Miller establishes a newly-recognized constitutional right for petitioners who

were eighteen years or older at the time of the offense. See Commonwealth

v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (noting “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).”   (emphasis,   brackets,   and   citation   omitted)).

Furthermore, it is well-settled that a judicial decision “does not amount to a

new ‘fact’ under section 9545(b)(1)(ii) of the PCRA.”        Commonwealth v.

Watts, 23 A.3d 980, 987 (Pa. 2011).

      Accordingly, since Appellant was eighteen years old at the time he

committed first-degree murder, we agree with the PCRA court that Appellant

does not meet the timeliness exception in section 9545(b)(1)(ii) or (iii)

regarding a newly discovered fact or a newly recognized constitutional right

based on Miller and Montgomery. Therefore, we agree that the PCRA court

was without jurisdiction to address the merits of Appellant’s claims, and we

discern no error in the PCRA court dismissing Appellant’s PCRA petition as

untimely.   See Furgess, 149 A.3d at 94; Secreti, 134 A.3d at 79-80;

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

defendant must comply with the PCRA’s timeliness requirements to raise an

equal protection claim).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/19




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