J-S93043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

YUSEF BROWN,

                            Appellant                  No. 798 EDA 2016


                 Appeal from the PCRA Order February 16, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-1100901-2001


BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED JANUARY 31, 2017

        Appellant, Yusef Brown, appeals pro se from the order dismissing his

second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        The PCRA court aptly summarized the relevant facts and procedural

history of this case as follows.

              On February 10, 2004, [Appellant] entered a plea of guilty
        to murder generally, aggravated assault, possessing an
        instrument of crime, and two counts of recklessly endangering
        another person. After a degree of guilt hearing, the [trial] court
        found [Appellant] guilty of first-degree murder [for the May 3,
        2001 shooting death of Vincent Robey. Appellant was twenty
        years old at the time he committed the offense]. On February
        17, 2004, [Appellant] was sentenced to life imprisonment for
        murder and lesser concurrent terms of imprisonment on the
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*
    Retired Senior Judge assigned to the Superior Court.
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       remaining charges. On January 25, 2005, following a direct
       appeal, the Superior Court affirmed the judgment of sentence.
       (See Commonwealth v. Brown, 872 A.2d 1268 (Pa. Super.
       2005) (unpublished memorandum)). [Appellant] did not seek
       allocatur with the Pennsylvania Supreme Court.

             On January 26, 2006, [Appellant] filed his first timely pro
       se PCRA petition.     Appointed counsel subsequently filed an
       amended petition on June 27, 2007. On October 19, 2007, the
       PCRA court denied his petition as meritless after concluding
       defense counsel was effective. On November 7, 2008, the
       Superior Court affirmed the dismissal. (See Commonwealth v.
       Brown, 964 A.2d 935 (Pa. Super. 2008) (unpublished
       memorandum)).       The Pennsylvania Supreme Court denied
       allocatur on June 3, 2009. (See Commonwealth v. Brown,
       972 A.2d 519 (Pa. 2009)).

              On May 6, 2011, [Appellant] filed the instant pro se PCRA
       petition, his second.[1] [Appellant filed an amended petition
       without seeking leave of court to do so on August 9, 2012.]
       Pursuant to Pennsylvania Rule of Criminal Procedure 907,
       [Appellant] was served notice of the court’s intent to dismiss his
       petition on January 20, 2016. [On January 29, 2016, Appellant
       filed a response].     On February 16, 2016, the PCRA court
       dismissed his petition as untimely. On Mach 8, 2016, the instant
       notice of appeal was timely filed to the Superior Court.

(PCRA    Court    Opinion,     5/16/16,        at   1-2)   (record   citation   formatting

provided).2

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1
  Although Appellant styled his filing as a “petition for writ of habeas corpus
ad subjiciendum,” the PCRA court properly treated it as a PCRA petition.
See 42 Pa.C.S.A. § 9542 (“[The PCRA is] the sole means of obtaining
collateral relief and encompasses all other common law and statutory
remedies for the same purpose that exist . . . including habeas corpus and
coram nobis.”).
2
 The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. It entered an opinion on May 16, 2016. See
Pa.R.A.P. 1925.



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       Appellant raises the following issues for our review:

       A. Whether the [PCRA] court abused its discretion in dismissing
       Appellant’s [May 6], 2011, habeas petition as untimely pursuant
       to the PCRA where absent records facts his plea is vitiated [sic]
       and eliminates all questions of waiver, timeliness and due
       diligence as bars to relief?

       B. Whether the [PCRA] court abused its discretion in dismissing
       Appellant’s August [9], 2012, Supplement alleging his detention
       illegal pursuant to the United States Supreme Court’s decision in
       Miller v. Alabama, 132 S.Ct. 2455 (2012)?[3]

(Appellant’s Brief, at 3).4

            Our standard of review of an order denying PCRA relief is
       whether the record supports the PCRA court’s determination, and
       whether the PCRA court’s determination is free of legal error.
       The PCRA court’s findings will not be disturbed unless there is no
       support for the findings in the certified record.

Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations

omitted).

       We begin by addressing the timeliness of Appellant’s petition.

             The PCRA provides eligibility for relief in conjunction with
       cognizable claims, . . . and requires petitioners to comply with
       the timeliness restrictions. . . . [A] PCRA petition, including a
       second or subsequent petition, must be filed within one year of
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3
  In Miller, the United States Supreme Court held that it is unconstitutional
for states to sentence juvenile homicide defendants to mandatory sentences
of life imprisonment without the possibility of parole. See Miller, supra at
2460. In Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the Court
determined that its Miller holding constituted a new substantive rule of
constitutional law that must be applied retroactively to cases on collateral
review. See Montgomery, supra at 736.
4
  The Commonwealth did not file a brief, despite this Court’s grant of an
extension of time to do so.



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      the date that judgment becomes final. A judgment becomes
      final for purposes of the PCRA at the conclusion of direct review,
      including discretionary review in the Supreme Court of the
      United States and the Supreme Court of Pennsylvania, or at the
      expiration of time for seeking the review.

             It is well-settled that the PCRA’s time restrictions are
      jurisdictional in nature.      As such, this statutory time-bar
      implicates the court’s very power to adjudicate a controversy
      and prohibits a court from extending filing periods except as the
      statute permits.     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
      by operation of one of the statutorily enumerated exceptions to
      the PCRA time-bar.

             The exceptions to the PCRA time-bar are found in Section
      9545(b)(1)(i)–(iii) (relating to governmental interference, newly
      discovered facts, and newly recognized constitutional rights),
      and it is the petitioner’s burden to allege and prove that one of
      the timeliness exceptions applies. Whether a petitioner has
      carried his burden is a threshold inquiry that must be resolved
      prior to considering the merits of any claim. . . .

Commonwealth       v.   Robinson,   139    A.3d   178,   185–86   (Pa.     2016)

(quotation marks and citations omitted).

      Here, Appellant’s judgment of sentence became final on February 24,

2005, when his time to file a petition for allowance of appeal with our

Supreme Court expired. See Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3).

Therefore, Appellant had until February 24, 2006, to file a timely PCRA

petition.   See 42 Pa.C.S.A. § 9545(b)(1).        Because Appellant filed the

instant petition on May 6, 2011, it is untimely on its face, and the PCRA

court lacked jurisdiction to review it unless he pleaded and proved one of the

statutory exceptions to the time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).




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      Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

            (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.

Id.

      Any petition invoking an exception must “be filed within [sixty] days of

the date the claim could have been presented.” Id. at § 9545(b)(2). “If the

[PCRA] petition is determined to be untimely, and no exception has been

pled and proven, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition.”   Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super.

2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).

      Here, Appellant first contends that his petition is not subject to the

PCRA’s timeliness requirements because his guilty plea colloquy was

defective and invalid, rendering the plea “a nullity.” (Appellant’s Brief at 11;

see id. at 7-11). We disagree.




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       We reiterate, “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 by operation of one of the statutorily enumerated

exceptions to the PCRA time-bar.”              Robinson, supra at 185 (citation and

internal quotation marks omitted; emphasis added).              Because Appellant’s

first argument does not invoke any of the three limited exceptions to the

PCRA’s time-bar, we agree with the PCRA court that it necessarily fails. See

id.; (see also PCRA Ct. Op., at 5) (“[Appellant’s] failure to plead specifically

the applicability of any of the exceptions to the time requirements of the

PCRA was fatal to his petition.”).

       In the alternative, Appellant claims the benefit of the newly recognized

and retroactively applied constitutional right exception at 42 Pa.C.S.A. §

9545(b)(1)(iii), by arguing that his life sentence is unconstitutional pursuant

to Miller and Montgomery. (See Appellant’s Brief, at 12-16).5 Appellant

acknowledges that he “was 20 years old at the time of the May 3, 2001,

incident resulting in his arrest, conviction and sentence[,]” but “avers that

his biological process was not complete until February 20, 2006, when he




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5
  It appears that Appellant failed to properly raise and preserve this issue in
the PCRA court. (See PCRA Ct. Op., at 5 n.7). We will nevertheless address
it in the interest of judicial economy, and note that the PCRA court discussed
it as well. (See id.).




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turned 25 years old and cannot be denied Eighth Amendment protection.”

(Id. at 13). We disagree.

     This Court has expressly “[held] that 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).” Commonwealth

v. Furgess, 2016 WL 5416640, at *3 (Pa. Super. filed Sept. 28, 2016) (case

citation omitted).     Therefore, Appellant’s argument predicated on an

extension of Miller and Montgomery fails. See id.

     In sum, we conclude Appellant has not met his burden of proving that

his untimely PCRA petition fits within one of the three exceptions to the

PCRA’s time-bar. See Robinson, supra at 185-86. Accordingly, we affirm

the order of the PCRA court.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/2017




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