J-S49007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    MICHAEL A. THORPE,

                             Appellant                 No. 301 EDA 2019


              Appeal from the PCRA Order Entered January 2, 2019
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0404632-1990


BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 03, 2019

        Appellant, Michael A. Thorpe, appeals pro se from the post-conviction

court’s January 2, 2019 order denying, as untimely, his petition filed under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The facts underlying Appellant’s convictions are not germane to this

appeal. Instead, we need only note that a jury convicted Appellant of first-

degree murder, conspiracy, and possession of an instrument of crime on

January 17, 1991. On May 19, 1992, the trial court sentenced Appellant to

an aggregate term of life imprisonment, without the possibility of parole

(“LWOP”). This Court affirmed his judgment of sentence on December 17,

1992.      Commonwealth v. Thorpe, 625 A.2d 94 (Pa. Super. 1992)


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*   Former Justice specially assigned to the Superior Court.
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(unpublished memorandum).        Our Supreme Court subsequently denied his

petition for allowance of appeal on February 4, 1994. Commonwealth v.

Thorpe, 639 A.2d 27 (Pa. 1994).

      On August 27, 2012, Appellant filed his fifth, pro se PCRA petition, which

forms the basis of this appeal. After years of inactivity on the docket, he filed

a supplemental petition on March 25, 2016. On September 6, 2018, the PCRA

court filed a Pa.R.Crim.P. 907 notice of its intent to dismiss his petition without

a hearing. Appellant did not file a response to it. On January 2, 2019, the

PCRA court dismissed his petition as untimely.           On January 15, 2019,

Appellant filed a timely, pro se notice of appeal.

      Presently, Appellant appears to raise a single issue for our review:
      Did the court below err as a matter of law when it dismissed the
      subsequent PCRA petition?

Appellant’s Brief at 3 (unnecessary capitalization omitted).

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.        Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the



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judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

       (b) Time for filing petition.--

          (1) Any petition under this subchapter, including a second
          or subsequent petition, shall be filed within one year of the
          date the judgment becomes final, unless the petition alleges
          and the petitioner proves that:

              (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. § 9545(b)(1)(i)-(iii). Additionally, at the time Appellant’s petition

was filed, section 9545(b)(2) required that any petition attempting to invoke

one of these exceptions “be filed within sixty days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).1

       In the case sub judice, Appellant’s judgment of sentence became final

in 1994 and, consequently, his present petition, filed in 2012, is patently


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1 A recent amendment to section 9545(b)(2), which became effective on
December 24, 2018, changed the language to require that a petition “be filed
within one year of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).

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untimely.   For this Court to have jurisdiction to review the merits thereof,

Appellant must prove that he meets one of the exceptions to the timeliness

requirements set forth in 42 Pa.C.S. § 9545(b).

      Appellant contends that he satisfies the timeliness exception under

section 9545(b)(1)(iii), pursuant to Miller v. Alabama, 567 U.S. 460 (2012)

(holding that imposing a sentence of LWOP upon those under the age of 18

years old at the time of their crimes violates the Eighth Amendment’s

prohibition on cruel and unusual punishment), and Montgomery v.

Louisiana, 136 S.Ct. 718 (2016) (holding that Miller announced a new

substantive rule that applies retroactively on state collateral review).   See

Appellant’s Brief at 4-6.    Specifically, he asserts that “under the equal

protection doctrine, adults are no less entitled to special considerations than

a juvenile[,]” and argues that “[e]qual protection requires that a sentencing

court … consider all mitigating factors at sentencing before a court can

constitutionally impose a mandatory life sentence pursuant to the law

announced in Miller and Montgomery.” Id. at 7. Consequently, he says

that his sentence “is unconstitutional and therefore illegal under [the] new

rule of law applied retroactively.” Id. at 8 (unnumbered).

      Nowhere in his brief does Appellant mention the age at which he

committed his offense. However, our review of the record demonstrates that

Appellant was born on October 5, 1970, and the offense underlying his

sentence occurred on March 19, 1990, making Appellant 19 years old at the

time of the crime.   Consequently, he cannot rely on Miller to satisfy the

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timeliness    exception     set   forth    in   section   9545(b)(1)(iii).   As   the

Commonwealth aptly discerns:
       This Court has repeatedly held, by both en banc and three-judge
       panels, that defendants, who were eighteen years or older at the
       time of their crimes, cannot invoke Miller as the basis for an
       exception to the PCRA time-bar. See Commonwealth v. Lee,
       206 A.3d 1, 7-11 (Pa. Super. 2019) (en banc) (Miller applies only
       to those who were under the age of eighteen at the time [they]
       committed the offense; “age is the sole factor in determining
       whether Miller applies to overcome the PCRA time-bar”);
       Commonwealth v. Montgomery,[2] 181 A.3d 359, 366 (Pa.
       Super. 2018) (en banc) (Miller extension claims do not satisfy the
       new constitutional right exception for adult offenders because the
       United States Supreme Court never extended Miller’s holding to
       those offenders); Commonwealth v. Furgess, 149 A.3d 90, 93
       (Pa. Super. 2016) (petitioners who were older than eighteen at
       the time they committed murder are not within [the] ambit of the
       Miller decision and may not rely on that decision to bring
       themselves within a time-bar exception). Accordingly, [Appellant]
       [cannot] rely on Miller to invoke a time-bar exception because
       Miller does not apply to him. Lee[,] 206 A.3d at 7-11.

       Moreover, in Commonwealth v. Montgomery, this Court,
       sitting en banc, rejected, as time-barred, the same equal
       protection claim for an extension of the Miller holding that
       [Appellant] raises. [Commonwealth v. Montgomery,] 181
       A.3d at 366-67 (denying new constitutional right time-bar
       exception for [a] Miller-extension claim based on equal protection
       grounds and noting, “Neither the Supreme Court of the United
       States nor our Supreme Court has held that Miller announced a
       new rule under the Equal Protection Clause. Instead, Miller only
       announced a new rule with respect to the Eighth Amendment.
       Thus … his Equal Protection Clause argument is also an attempt
       to extend Miller’s holding.”); see also Lee, supra, 149 A.3d at
       5 n.6 (noting that in light of Commonwealth v. Montgomery,
       the appellant affirmatively waived her Miller-extension claim
       relating to the Equal Protection Clause of the Fourteenth
       Amendment).
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2 We continue to refer to this case by its full name as to not confuse it with
the United Supreme Court’s Montgomery v. Louisiana decision.

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Commonwealth’s Brief at 10-11. Accordingly, because Appellant was 19 years

old at the time of his offense, he cannot rely on Miller to meet a timeliness

exception. Thus, the PCRA court properly dismissed Appellant’s petition as

untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/3/19




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