J-A09036-20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                 Appellee              :
                                       :
         v.                            :
                                       :
DEAN SASANKO,                          :
                                       :
                 Appellant             :     No. 819 WDA 2019

              Appeal from the PCRA Order Entered May 17, 2019
               in the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0000654-1984

BEFORE: SHOGAN, J., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                      FILED JUNE 23, 2020

     Dean Sasanko (Appellant) appeals pro se from the May 17, 2019 order

dismissing without a hearing his petition filed pursuant to the Post

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

     On June 27, 1984, following a jury trial, Appellant was convicted of

two counts of first-degree murder for the January 9, 1984 shooting deaths of

his stepfather and grandmother. At the time of the murders, Appellant was

18 years and 3 months old. On February 27, 1985, Appellant was sentenced

to two terms of life imprisonment without the possibility of parole (LWOP) to

be served consecutively. Appellant timely filed an appeal, and this Court

affirmed his judgment of sentence on January 17, 1986. Commonwealth v.

Sasanko, 508 A.2d 343 (Pa. Super. 1986) (unpublished memorandum). On

February 13, 1986, our Supreme Court denied Appellant’s petition for


___________________
* Retired Senior Judge assigned to the Superior Court.
J-A09036-20

allowance of appeal. Appellant did not file a petition for a writ of certiorari

with the Supreme Court of the United States.

      Appellant has filed five PCRA petitions, none of which has resulted in

relief. On August 23, 2012, Appellant filed his third PCRA petition invoking

Miller v. Alabama1 to meet the PCRA’s time-bar exception for newly

recognized constitutional rights pursuant to 42 Pa.C.S. § 9545(b)(1)(iii).

This Court affirmed the PCRA court’s dismissal of this petition because Miller

does not apply to defendants who, like Appellant, were 18 years of age or

older at the time they committed their crimes. Commonwealth v.

Sasanko, 97 A.3d 794 (Pa. Super. 2014) (unpublished memorandum at 6).

In Appellant’s next petition, he attempted to raise his Miller claim by

invoking Montgomery v. Louisiana. 136 S.Ct. 718 (2016) (holding that

Miller applies retroactively). Again, this Court affirmed the PCRA court’s

dismissal because Miller is not applicable to Appellant. Commonwealth v.

Sasanko, 169 A.3d 1148 (Pa. Super. 2017) (unpublished memorandum at

3).

      Appellant pro se filed the instant PCRA petition on August 25, 2016,

repeating his claim that he is        entitled to relief under Miller and

Montgomery. PCRA Petition, 8/25/2016, at 4. On November 3, 2016, the

PCRA court stayed Appellant’s petition because his prior PCRA appeal was

1
 Miller v. Alabama, 567 U.S. 460 (2012) held that a mandatory sentence
of LWOP is unconstitutional when imposed on a defendant convicted of
murder who was under the age of 18 at the time of the crime.

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J-A09036-20

still pending before this Court. Order Staying 8/25/2016 PCRA Petition,

3/11/2016. After this Court affirmed the dismissal of Appellant’s fourth PCRA

petition, the PCRA Court filed notice of its intent to dismiss Appellant’s PCRA

petition without a hearing pursuant to Pa.R.Crim.P. 907 because Appellant’s

petition was untimely, without merit, and previously litigated. Notice of

Intention to Dismiss, 4/5/2019. Appellant filed a response objecting to the

PCRA court’s notice of intent to dismiss, and raised for the first time a

request for post-conviction DNA testing. On May 17, 2019, the PCRA court

dismissed Appellant’s PCRA petition. PCRA Order, 5/17/2019. This appeal

followed.2

      For a PCRA petition, including a subsequent petition, to be timely, it

must be filed within one year of the date the judgment of sentence is final,

or the petition must allege and the petitioner must prove that an exception

to the PCRA’s time bar applies. 42 Pa.C.S. § 9545(b)(1). At the time

Appellant filed his petition, exceptions to the PCRA’s time bar were required

to be filed within 60 days of the date the claim could have been presented.

42 Pa.C.S. § 9545(b)(2).3 The PCRA’s time restrictions are jurisdictional in



2 The PCRA court did not order Appellant to file a concise statement pursuant
to Pa.R.A.P. 1925(b), and none was filed. In lieu of filing a Pa.R.A.P. 1925(a)
opinion, the PCRA court directed this court to the reasons set forth in its
notice of intention to dismiss. See PCRA Court Order, 6/13/2019.

3Although inapplicable to this appeal, we note that subsection 9545(b)(2)
was amended on October 24, 2018, effective in 60 days (December 24,
2018), extending the time for filing from 60 days of the date the claim could
(Footnote Continued Next Page)

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nature. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). As

such, neither this Court nor the PCRA court has the power to address the

merits of untimely-filed petitions that do not meet a time-bar exception. Id.

      Appellant’s petition is facially untimely because it was filed nearly 30

years after his judgment of sentence became final. As detailed supra,

Appellant attempts to invoke Miller to argue that the newly-recognized and

retroactively-applicable constitutional right exception to the PCRA’s time bar

applies to him. However, an en banc panel of this Court has resolved already

Appellant’s arguments. In Commonwealth v. Lee, 206 A.3d 1 (Pa. Super.

2019) (en banc), this Court held that Miller applies only to defendants who

were under the age of 18 at the time of their crimes.      As such, based on

current law, Miller cannot be relied upon to establish the PCRA time-bar

exception at subsection 9545(b)(1)(iii) for those defendants who were 18 or

older at the time of their crimes. Because Appellant was 18 years old when

he committed his crimes, Miller does not apply and cannot be used to

render his petition timely filed pursuant to subsection 9545(b)(1)(iii).

Accordingly, the PCRA court did not err in dismissing Appellant’s petition.

      Appellant’s attempt to request post-conviction DNA testing for the first

time in his response to the PCRA court’s notice of intent to dismiss was not

properly pleaded, and it does not render his PCRA petition timely. See


(Footnote Continued)   _______________________

have been presented, to one year. See Act 2018, Oct. 24, P.L. 894,
No. 146, § 3

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J-A09036-20

Appellant’s Objection to Notice of Intention to Dismiss, 4/29/2019, at 3. We

note initially that a petitioner cannot raise new PCRA claims in response to a

notice of intent to dismiss. Moreover, even if Appellant had sought leave of

court to raise a new PCRA claim, because his petition was untimely filed and

he did not plead and prove a timeliness exception, the PCRA court was

without   jurisdiction   to   review   the   merits   of   any   claims.   See

Commonwealth v. Rykard, 55 A.3d 1177, 1189 (Pa. Super. 2012);

Commonwealth v. Weeks, 831 A.2d 1194, 1196 (Pa. Super. 2003) (“Post

conviction DNA testing does not directly create an exception to § 9545's

one-year time bar. Rather it allows for a convicted individual to obtain DNA

testing which could then be used within a PCRA petition to establish new

facts in order to satisfy the requirements of an exception under 42 Pa.C.S. §

9545(b)(2).” (citations omitted)).

      To the extent that Appellant was attempting to file a petition for post-

conviction DNA testing pursuant to 42 Pa.C.S. § 9543.1, this was not the

proper avenue to do so. “Motions for post-conviction DNA tests, while

considered post-conviction petitions under the PCRA, are clearly separate

and distinct from claims pursuant to other sections of the PCRA.”

Commonwealth v. Perry, 959 A.2d 932, 938 (Pa. Super. 2008) (citations

omitted). Accordingly, “[a]n application for DNA testing should be made in a

motion, not in a PCRA petition.” Commonwealth v. Williams, 35 A.3d 44,

50 (Pa. Super. 2011) (emphasis in original) (citing Weeks, 831 A.2d 1194,


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1196); 42 Pa.C.S. § 9543.1(a)(1) (“An individual convicted of a criminal

offense in a court of this Commonwealth may apply by making a written

motion to the sentencing court.”). Because Appellant did not make a written

motion to the sentencing court for post-conviction DNA testing pursuant to

42 Pa.C.S. § 9543.1, the PCRA court did not and could not have rendered a

decision on it, and the matter is not before us on appeal.

      Based on the foregoing, Appellant has not satisfied an exception to the

PCRA’s time bar. Accordingly, we affirm the PCRA court’s dismissal of

Appellant’s petition without a hearing. See Commonwealth v. Albrecht,

994 A.2d 1091, 1095 (Pa. 2010) (affirming dismissal of PCRA petition

without a hearing because the appellant failed to establish a timeliness

exception).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2020




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